Anglican Mainstream reports that the Coalition for Marriage, (C4M), is asking its supporters to write to their MPs, requesting them to co-sign the amendment for a new clause (NC 9) to the Marriage (Same-Sex Couples) Bill that is currently passing through Parliament. As we noted in an earlier post, the Bill has been carried over to the 2013-14 session, where it is due to have its Report stage and Third Reading on 20 and 21 May.  The current Bill documents are available here and the full list of amendments here.

C4M is opposed to the Bill as a whole, and states that “MPs will soon vote on amendments to David Cameron’s same-sex marriage Bill. We oppose the Bill as a whole, and the House of Lords will have a chance to derail the Bill in due course.” In writing to their MPs to support NC 9, it suggests that the following points might be made:

• The Government’s plans will redefine the marriages of 24 million married      people without their consent.
• Marriage doesn’t belong to the Government, and voters should have their say.
• There is no mandate for redefining marriage. It wasn’t in any major party’s      manifesto.
• The consultation was a sham which binned half-a-million legitimate responses from people opposed to the policy.
• Supporters of this policy are frightened of a public referendum – and that speaks  volumes.
• Marriage should not be redefined, especially when there is no clear public consensus.

Whilst the above guidance is useful, it does not indicate what this amendment actually says [1], (i.e. what C4M supporters are asking their MPs to endorse), nor does it explore what it means by the “redefinition of marriage”. MPs David Burrowes, Tim Loughton and Jim Shannon tabled New Clause 9, a nine-point amendment, on 12 March, calling for a referendum “on the issue of same-sex marriage”. The critical part is the question that is to appear on the ballot papers, viz.

“At present, the law in England and Wales defines marriage as the union of a man and a woman. Should the law be changed to define marriage as the union of two people—whether a man and a woman, or woman and a woman, or a man and a man?”, [emphasis added].

Prior to the introduction of legislation on same-sex relationships, there was a common understanding between church and statutory provisions on the meaning of ‘marriage’.  Even after the introduction of the Civil Partnership Act in 2004, although the law was silent on the inter-relationship between “civil partnership” and “marriage”, sufficient clarity was provided in the relevant definition of “civil partnership” within s1(1) of the 2004 Act.  However, the prospect of same-sex marriage has brought into focus the different ways in which “marriage” is defined and the confusion arising between them.

The definition(s) of “marriage”

The House of Commons Library Standard Note, Same-sex marriage and civil partnerships, SN/HA/5882, last updated on 18 December 2012, repeats the muddled statement made in the government consultation paper Equal civil marriage: a consultation [at page 1] that

“there is no legal definition of religious and civil marriage but that marriage is defined according to where it can take place [2]”.

In its response to the government consultation the Church of England appears to subscribe to the commonly-held view that there is such a definition:

“legislating to change the definition of a fundamental and historic social institution for everybody in order to meet the emotional need of some members of one part of the community, where no substantive inequality of rights will be rectified, seems a doubtful use of the law”, [para. 10];

“A general redefinition of marriage would also have implications for the legislative provisions that are concerned with the Church‘s teaching on marriage”, [para. 22];

and

“Were legislation to be enacted by Parliament that changed the definition of marriage for the purposes of the law of England, the status and effect of the canonical provisions that set out the Church‘s doctrine of marriage as being between one man and one woman would be called into question”, [para. 25].

This last statement is useful in that it acknowledges that there are different approaches to the understanding of what is meant by “marriage”, and suggests that problems arise when the concept of a legal definition is raised, particularly if such a definition is introduced which encompasses both same-sex and opposite-sex relationships.

Within the law of England and Wales [3], there are three overlapping but not necessarily complimentary tranches of legislation that address marriage:

Statutory legislation:  Although there is no statutory definition identifying what “marriage is”, the 1949 Marriage Act governs inter alia how marriage can be solemnized [4], as well as certain age, kindred and affinity restrictions [5]. When marriages are solemnized in the Church of England, the Act also provides a link with the Church’s requirements through; the mandatory participation of a clergyman, (“a clerk in Holy Orders of the Church of England”), who by implication will be bound by its regulations and doctrine on marriage; and the link to the rubric in Book of Common Prayer on calling of the Banns [6].

Whilst use of the term “a marriage” in the Marriage (Same-Sex Couples Bill) is primarily concerned with issues associated with the marriage ceremony, it is also used in the context of the institutional status accorded to a couple who have undergone such a ceremony. However, a lack of clarity becomes evident in Clause 11 which considers the effect of the extension of marriage to same-sex couples.   It states:

 (1) In the law of England and Wales, marriage has the same effect in relation to same sex couples as it has in relation to opposite sex couples.

(2) The law of England and Wales (including all England and Wales legislation whenever passed or made) has effect in accordance with subsection (1).

…

(5) Subsections (1) and (2) and Schedule 3 do not have any effect in relation to—

(a) Measures and Canons of the Church of England (whenever passed or made),

(b) subordinate legislation (whenever made) made under a Measure or Canon of the Church of England, or

(c) other law relating to the Church of England (whether or not contained in England and Wales legislation) which the Secretary of State prescribes by order…

Thus, the meaning of “marriage”, however defined in E&W secular statutory legislation, would not have an effect on “marriage” as it is understood in secular and ecclesiastical legislation relating to the Church of England, (but not the disestablished Church in Wales).

According to the doctrine of marriage of the Church of England: The Church’s understanding of marriage is outlined in its response to the consultation, (at page 2).  Canon B30 Of Holy Matrimony defines marriage as

“[t]he Church of England affirms, according to our Lord’s teaching, that marriage is in its nature a union permanent and lifelong, for better for worse, till death them do part, of one man with one woman, to the exclusion of all others on either side, for the procreation and nurture of children, for the hallowing and right direction of the natural instincts and affections, and for the mutual society, help and comfort which the one ought to have of the other, both in prosperity and adversity.“

The Church’s Canon Law is part of UK public law and cannot be in conflict with statute law, hence the drafting of Clause 11.  Furthermore, CofE clergy have a general legal duty to marry people by virtue of their office, as do those of the Church in Wales through one of the remaining “vestiges of establishment”.

The CofE notes

“[t]he effect of what the Government has proposed is to leave decisions about the doctrine and practice of the Church of England with the Church of England.  Any change to the Church of England’s doctrine and practice of marriage would require legislation by the Church’s General Synod.  In addition to an Amending Canon that redefined the nature of marriage such a legislative package would also involve the General Synod passing a Measure (the General Synod’s equivalent of an Act of Parliament) that altered both the statute law concerning marriage according to the rites Church of England and the marriage service in the Book of Common Prayer”.

As determined by common law. The dictum of Sir James Wilde (later Lord Penzance) in the polygyny case Hyde v Hyde and Woodmansee  (1866) LR 1 P&D 130 is often taken to be the “legal” definition of “marriage”, where at 133 he stated:

“What, then, is the nature of this institution as understood in Christendom?…If it be of common acceptance and existence, it must needs have some pervading identity and universal basis. I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.”

This is the definition alluded to in New Clause 9, the associated C4M campaign, and C4M Petition whose signatories are asked to affirm

“I support the legal definition of marriage which is the voluntary union for life of one man and one woman to the exclusion of all others.  I oppose any attempt to redefine it.”

Lord Penzance’s statement has been applied by the courts relatively recently.  In dismissing the application for UK recognition of a Canadian same-sex relationship, in Wilkinson v Kitzinger [7], the President of the Family Division, Sir Mark Potter stated [at 11 and 12]

“11, The common law definition of marriage is that stated by Lord Penzance in Hyde v Hyde (1866) LR 1 P&D 130 at 133:

‘The voluntary union for life of one man and one woman, to the exclusion of all others.’

This definition has been applied and acted upon by the courts ever since: see for instance Corbett v Corbett (otherwise Ashley) [1971] P 83. As stated by Lord Nicholls of Birkenhead in Bellinger v Bellinger (Lord Chancellor Intervening) [2003] 2 AC 467 at 480 para 46:

‘Marriage is an institution, or a relationship, deeply embedded in the religious and social culture of this country. It is deeply embedded as a relationship between two persons of the opposite sex.’

12. So far as statute is concerned, the common law test of marriage is given statutory force by s.11 of the Matrimonial Causes Act 1973 . . . . . . ..”

Nevertheless, it is important to place Hyde v Hyde in its historical context and to question its continued application in the present situation [8].  Probert has suggested

“Lord Penzance’s description of marriage in Hyde v Hyde and Woodmansee has often been cited as the legal definition of marriage, and has been relied on to deny marital status to a number of unions, most recently in Wilkinson v Kitzinger. Yet his words were shaped by their historical context and were not immediately regarded as defining marriage. Nor have they been taken literally in all contexts: when considering the availability of divorce, the courts have not insisted that a marriage be ‘for life’, nor has recognition been denied to ‘non-Christian’ marriages.”

She argues that Lord Penzance’s description should be regarded as a defence of the traditional Christian model of marriage, rather than as a definition of marriage per se, and that modern judges should not be constrained by it, nor continue to invoke it.

Comment

It is clear that there are many facets to the “legal definition of marriage”, and even were Lord Penzance’s dictum taken as a benchmark, it would be difficult, if not impossible, to apply in parallel with statutory legislation that permits same-sex marriage.  As Probert indicates, a more accurate definition of “marriage” is required for the twenty-first century, and the introduction of same-sex legislation provides an opportunity for such a re-appraisal.  Whether this is achieved remains to be seen.