A Time to Marry – Twice

A Time to Marry – Twice

by Jonathan Chaplin

I was married twice in the same day and I would like to recommend the practice. It is a perfectly normal occurrence in the Netherlands, as it is in many other countries where civil marriage ceremonies are entirely separate from the religious ceremonies taking place in a church or other religious institution. My day began with a brief but cheerful civil ceremony in the town hall of Driebergen presided over by the affable local registrar, and continued with a joyful Christian marriage service a few streets away in the Reformed Church of which my wife’s family were members. The first was obligatory, the second voluntary.

Of course I don’t literally mean that I was married twice on the same day but only that my marriage was solemnized in two successive ceremonies. Here I want to argue that the great advantage of this two-step arrangement is that it puts on clear display the quite distinct roles of church and government in the public recognition of marriage, to the benefit of both. It affirms both roles while avoiding a blurring of their complementary objectives. It also protects the proper freedom of both church and government to operate on their own understandings of marriage. It is a model I wish to commend to the Church of England – indeed to all churches. I also want to argue the more specific point that the longstanding expectation that Anglican parish churches will marry any legally eligible resident has now become a burden from which the Church of England should seek to extricate itself. These two reforms would be mutually reinforcing in working towards the goal of liberating the church to witness better to the truth it professes about marriage. (In fact, if the first were achieved, the second would follow automatically.)

The fundamental concern motivating my argument is the long-term integrity of the church’s mission in regard to marriage. But there is, of course, a pressing current issue – the likely legalisation of same-sex marriage, if not now then possibly soon – lending such reforms an immediate practical urgency. My focus here is not on same-sex marriage per se (on which see this exemplary Christian discussion) but rather what the prospect of its imminent arrival might teach the Church about its broader stance towards marriage and about its relationship to government.

The Church’s Response to the Government’s Consultation

The Church of England has produced a robust response to the government’s ‘Equal Civil Marriage Consultation’. It immediately generated a hostile reaction from Anglican supporters of same-sex marriage on the grounds that it did not represent the full range of C of E opinion on the matter. At time of writing, a Church Times online poll was recording 75% of respondents denying that the document represented their view of the matter. While it is certainly the case that the document does not express the full spectrum of views in the C of E today, it does seem to convey accurately the C of E’s present official stance on marriage, even while acknowledging that this stance might evolve in the future. In any event, the document is, in my view, exemplary in the clarity of its reaffirmation of the understanding of marriage adhered to by almost all Christian churches throughout the ages. It is also commendable in its attempt to speak respectfully about same-sex relationships, acknowledging, for example, that these ‘can embody crucial social virtues’, and reasserting the C of E’s support for civil partnerships. There would, of course, have been a great deal more to say on same-sex relationships had the document been written with that focus in mind.

The document also includes a seven-page Annex critically analysing the complex legal questions stumbled into, unwittingly it seems, by the government’s Equalities Office. While, as I shall note, legal experts may question some of the conclusions of this Annex, it succeeds in exposing a major misconception about marriage law underlying the government’s thinking. It points out that the government has confused the institution of marriage with the wedding ceremony. It is truly astonishing that a government department that must be positively teeming with clever lawyers could have made the elementary error that there are two distinct kinds of marriage in English law, ‘religious’ and ‘civil’. In fact there is and has always been only one (the voluntary lifelong union of a man and a woman), but two settings – civil and religious – in which it may be solemnized. The C of E’s response lays bare the serious confusions consequent upon that fundamental misunderstanding. It also exposes the inadequacy of the government’s understanding of the implications of the change for civil partnerships (on which see a recent article by Andrew Goddard).

On the basis of the C of E’s current official theology of marriage, the document explains why the C of E cannot support the extension of the legal relationship ‘marriage’ to same-sex couples. Its principal ground is that the effect of the change would not be, as is widely assumed, simply the tidying up a residual area of unacceptable discrimination against gay people, but rather the emptying of the legal institution of ‘marriage’ of any reference to the sexual complementarity of male and female parties – and so to any necessary link with procreation and child-rearing– and thereby the imposing of a new legal meaning of the institution on everyone. This argument was cogently made on this site by Andrew Goddard, and on the ABC Religion and Ethics site by John Milbank. The implication of legalising same-sex marriage would be that in a church wedding ceremony, churches would be party to inducting couples into a relationship – the ‘voluntary lifelong union of two persons’ – it does not recognise.

The C of E’s situation in this regard is much complicated by the fact that, as the established church, it is widely perceived to be under a common law obligation to marry any (eligible) residents of its parishes. I say ‘perceived to be’ because some lawyers have apparently questioned whether such an obligation actually exists, or, if it does, how widely it applies. Yet since the obligation is widely assumed to exist (certainly by the lawyers writing this document’s Annex) the question must at least be clarified. The C of E’s response raises the prospect that the legalisation of same-sex marriage could put the church on a collision course with the law of the land. The fear is that, contrary to the government’s assurances about so-called ‘religious marriage’, the C of E might find itself confronted with a legal duty to engage in an act directly contrary to its own doctrine of marriage, as expressed in canon law (Canon B 30). The clash would be all the more fraught because the C of E’s canon law is, by virtue of establishment, itself part of the law of the land. The document does not conjure up the alarming possibility that the C of E might find itself in a situation such as that of the Evangelical Lutheran Church of Denmark, where the Danish parliament has just imposed upon it the duty to marry same-sex couples – a hugely controversial move which may split the church. Yet even the distant prospect of a direct clash between the law of the land and canon law is very troubling.

In passing, it is worth emphasizing that such a prospect ought to worry those in favour of legalising same-sex marriage as much as it worries those against it. For if it eventually transpired, it could amount to a direct state intrusion in the internal beliefs and practices of the C of E – an authoritarian move which should alarm everyone who cares about the spiritual freedom of any religious institution vis á vis the state. We would be back to the days of the Prayer Book Crisis of the late 1920s when Parliament twice brusquely (albeit constitutionally) vetoed the C of E’s own carefully considered liturgical reforms. Those who would quietly rejoice (or, perhaps in a few cases, openly gloat) at a socially libertarian government trying to force the C of E to accept a ‘progressive’ stance on marriage might have the smiles wiped off their faces later when an economically libertarian government might, for instance, seek to compel the C of E – in order to comply with ‘anti-discrimination’ law – to put all their work contracts out to competitive commercial tender rather than offering them, say, to the unemployed or disadvantaged.

In addition to pointing out the complications arising from the C of E’s special status under English law, the document also assesses the prospects of future legal challenges to its policy of declining to marry same-sex couples under the European Convention on Human Rights. It concludes that, given the direction of recent European Court of Human Rights (ECtHR) jurisprudence on marriage, this is not at all inconceivable in the event of the government proceeding with its proposals. A key part of the argument here concerns the government’s proposal to legalise same-sex civil marriage ceremonies while also banning religious institutions from conducting same-sex marriages. Ironically, the government is proposing such a ban precisely in order to protect the churches against being forced to conduct same-sex ceremonies against their will. But the C of E’s document argues that such a ban might not survive a possible ECtHR challenge. Since some religious institutions will certainly want to marry same-sex couple, the ban could be regarded as an unjustified restriction on their religious freedom. This point seems valid, and Parliament might itself insist on removing the anomaly before approving the legislation. (It might also seek to remove the distinct anomaly that, under the government’s proposals, heterosexual couples would be denied the right to a civil partnership.)

But while Parliament or the ECtHR might require the government to grant the freedom for religious institutions to conduct same-sex ceremonies, this does not (contra the implication of the C of E’s response) yet imply that religious institutions might eventually find themselves, further down the line, compelled to perform same-sex ceremonies. Indeed on this point some lawyers may judge that the C of E’s response does not adequately take account of the full range of ECtHR (article 9) jurisprudence on institutional religious liberty. A senior legal expert put it to me that, ‘politically, the ECtHR making a church marry same-sex couples against their will is about as plausible as making the Roman Catholic church ordain women’. That debate will no doubt continue among lawyers, and, perhaps eventually, in the courts, but the argument I want to propose here does not depend on the worst-case scenario being likely.

A way forward

Understandably perhaps, given its narrow terms of reference as a contribution to a government consultation, the C of E’s document does not contemplate possible options for the church in the event of Parliament actually approving same-sex marriage. But given the serious prospect of this occurring very soon, it is important to do so. Here, then, are the two I am proposing: that the C of E should relinquish its inherited role as marriage registrar (assumed automatically by Anglican priests on their ordination); and that it should move to clarify, and as necessary terminate, the supposed common law obligation on all parish churches to marry any legally eligible residents of their parish.

To make the case for these two reforms, it is necessary to step back and reflect on what are the indispensable roles of church and government in respect of marriage. Even before that, let us recall what marriage itself actually is. Note that earlier I spoke of the public ‘recognition’ of marriage not its ‘formation’. Neither of the two modes of solemnization actually make a marriage. Theologically (and legally), the unique generative moral source of marriage is the free and exclusive pledge of lifelong commitment between a man and a woman: consensual heterosexual monogamy. This has long been the church’s understanding of marriage as a universal good available to all by creation – given not only for the good of husband and wife but as a uniquely valuable context for the nurturing of children by their father and mother. It is a Christian definition of marriage, but not a definition of ‘Christian marriage’ (which I discuss below). Thus, hypothetically, if a man and a woman stranded on an otherwise unoccupied desert island made such a pledge, the relationship would be a morally valid marriage. But the church has long acknowledged the point – one generally recognised outside the church, of course – that, in the real world of society, marriage carries with it wide-ranging personal and public consequences which bring it within the proper remit of government. Marriage is important enough to warrant recognition and regulation under public law and support from public policy.

The role of government implies both a protective and a promotional task in regard to marriage. Government must protect people against the potentially devastating consequences of marriage break-up. This is especially so for children but, wherever men are economically and socially dominant (as they often are, even in professedly egalitarian societies), it is highly important for women as well. It is also important for men, not least in their continuing role as fathers. Government must also promote marriage as a wider public good, in view of marriage’s irreplaceable contribution to the healthy emotional, moral, social and economic fabric of society. The precise content of government’s role in relation to marriage is much contested today, due, inter alia, to the eroding of a consensus as to what ‘marriage’ actually is, as well as to the deep and widespread denial in liberal societies about the profound emotional and economic costs of marriage break-up. But the fact that government has some responsibility towards marriage is, happily, still generally affirmed.

I suggest that holding a separate civil ceremony provides a highly instructive symbolic marking and affirmation of this uniquely important governmental role. My wedding party’s dutiful (though not reluctant) trooping to Driebergen town hall before heading to the church ceremony was a visible reminder that the state has legitimate responsibilities in the area of marriage. It was, we might say, a civic ritual, performing an expressive function akin to that of a citizenship ceremony. The separation of the two marriage ceremonies helps keep the spotlight on the special duty of government towards marriage. Such light is dimmed when all we see of government’s role is the routine signing of the registry by the parties to a marriage during a pause in a religious service.

The church has also long held that the formation of a marriage between two Christians is rightly recognised and embraced by the church itself. It doesn’t only have a Christian view of marriage but also a view of Christian marriage. In a Christian marriage service, the parties make their marital pledge to one another before God and in the presence of the community of faith, which in turn promises to pray for and support them in their new and demanding vocation. (This is not, of course, to say that the parties do not also make their pledge before God in a civil ceremony, or that government officials are not under God when it conducts them. But there is no provision for making such convictions explicit or official in a civil setting.)

According to the church’s longstanding doctrine of Christian marriage, a church ceremony does not create or authorise the marriage. Rather it does two things: it surrounds the parties with its intercessory blessing; and it supportively commissions them to contribute the gifts of marriage joyfully and sacrificially to the mission of the church and to wider society. (In case that sounds rather too ‘Protestant’ a description of Christian marriage, let me add that this does not at all exclude that marriage be regarded as a ‘sacrament’, or, as in the Anglican rite, a ‘holy mystery’.) The specialness of the church’s role is, I suggest, also brought to greater clarity when it is not conflated with the distinct role of government in registering and regulating marriage for public purposes.

Note, incidentally, that no church could today act as public registrar of marriage on its own authority since this function has, rightly, been reserved exclusively for government. The church’s current role as registrar is delegated by government, and is not intrinsic to its own spiritual purposes. But I submit that the current arrangement whereby the churches (not only the C of E) function as an administrative arm of government in respect to marriage risks blurring the distinctness of the complementary roles of government and church in the public mind, and thereby diminishing their respective dignities. For example, non-Christians marrying in the C of E will be tempted to see the church as a mere clerical assistant to government in respect of marriage, while Christians marrying in the C of E will miss the opportunity to be reminded of, and offer due deference to, the government’s unique role for marriage in general (and the same issues arise in other churches which are authorised to act as registrar.) For these reasons, such arrangements have, in my view, always been less than ideal. But the government’s current plan to legalise same-sex marriage now brings the issue into very sharp focus and, whatever the outcome of the consultation, invites the C of E, and indeed all churches, to think radically and imaginatively about how they might discharge their unique responsibilities towards marriage in a rapidly evolving legal and cultural context.

If the C of E were to relinquish its inherited historical entitlement to register marriages and the obligation to solemnize the marriage of any eligible parishioner it would, I suggest, be in a much stronger position to uphold whatever marriage doctrine and practice it deemed, by its own lights, to be true, irrespective of the prevailing legal status of ‘marriage’ (or civil partnerships). If it retained its current doctrine of marriage, as I hope it does, it could continue to commend marriage as the lifelong union of a man and woman, and it would be free to decline to marry same-sex couples without fear of a possible future legal challenge. It would also be much freer to teach its own doctrine of Christian marriage to all who approach it. For example, it could encourage or even require those seeking a church ceremony, whether professing Christians or not, to participate in a course on ‘Christian marriage’ beforehand, so making it more likely that the solemn public promises they were about to make before God and the community of faith were informed and sincere. Unencumbered by extraneous state obligations or distracting social expectations, the church would be liberated to witness to its own distinctive understanding of Christian marriage.

Note that the point about greater freedom would also apply also in the event that the C of E opted to revise its theology of marriage so as to include same-sex couples. The question of whether or not the church should embrace same-sex marriage would be a matter entirely for the church itself. One could, for example, imagine a scenario where the government refused to legalise same-sex marriage but where the C of E itself opted to bless same-sex partnerships as what it took to be a gesture of prophetic solidarity to gay couples. My proposed reforms should therefore appeal to defenders of same-sex marriage as much as they do to defenders of traditional marriage.

Two possible objections

Now consider two likely objections. The first is that such steps would lead to disestablishment. Here I leave aside the general merits or demerits of establishment and focus only on the supposed impact of a changed marriage law upon it. Some observers have been quick to warn that a possible conflict between canon law and the law of the land on marriage might generate momentum, perhaps from either side, behind disestablishment. But the statutory authority to register marriages and the (supposed) common law obligation to marry parishioners are only two of the many labyrinthine components of the C of E’s established status; and they are, surely, hardly the most important. If they were let go of by the C of E, or removed by the state, what has been called the ‘higher architecture’ of establishment – monarch as Supreme Governor, Protestant Succession, parliamentary approval of Measures, the Coronation Oath, etc. – would remain intact. A change to marriage law would not be a ‘make or break’ issue for establishment. My proposals would amount to only a marginal modification of the C of E’s legal ties to the state.

The second objection is that, by distancing itself from a (real or perceived) obligation to marry all parishioners, the C of E would be renouncing its role as a ‘national’ church – a church for all comers and not just for insiders. The fear is that it could encourage an inward-looking, exclusive, or ‘sectarian’ mentality. This, it should be added, is one of the familiar arguments levelled against disestablishment in general. In this vein, a correspondent recently wrote in Church Times: ‘I welcome a degree of state interference in the affairs of the Church because it reminds us that the C of E exists for the whole of society, not just a self-selected few’. But if we reflect for a moment on what this statement implies, it appears deeply problematic. For a church which needs the state to remind it that it exists for outsiders has surely lost the missiological plot entirely. Whether any church adopts an exclusive or inclusive attitude towards its parishioners or to wider society must – if it is to be spiritually authentic – be entirely a matter for that church itself. It surely must depend, not on legal compulsion by the state, but on its continuing commitment to an outward-looking missionary posture. Even without a common law duty to marry, there would be nothing at all to stop the C of E nationally, and parishes locally, from maintaining an inclusive policy on the solemnization of marriage if they so chose. Presumably, in such a situation, General Synod or diocesan synods or both would need to determine a policy on the matter. How inclusive such a policy turned out to be would then depend on the missional (and pastoral) theologies prevailing in the relevant synodical debates. But the outcome of such debates must be wholly a matter of internal persuasion, not of external obligation. As long as the C of E’s theology of mission remained broadly ‘incarnational’ in cast, there need be no narrowing of its society-wide horizons.

Conclusion

I submit, then, that the C of E should now seriously consider relinquishing these two duties. Even if no clash were to emerge between it and the state (or ECtHR) in the event that same-sex marriage were legalised now, these changes would yield three notable benefits: they would free the C of E from potential future state impositions on its doctrine and practice of marriage; they would help the C of E clarify, and perhaps even deepen, its own distinctive theological understanding of marriage and free it (if it wished) to induct its own members, as well as any other parishioners seeking a church ceremony, more fully in that understanding; and they would help keep a spotlight on the crucial role of government in protecting and promoting stable marriage for the good of the whole society.


Jonathan Chaplin is Director of the Kirby Laing Institute for Christian Ethics (www.klice.co.uk).

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