An error in the House of Bishops’ Guidance on Same Sex Marriage? – perhaps not

In an article posted yesterday on Thinking Anglicans Professor Linda Woodhead, writing in a personal capacity, suggests that it is inaccurate for the House of Bishops to state that

“There will, for the first time, be a divergence between the general understanding and definition of marriage in England as enshrined in law and the doctrine of marriage held by the Church of England and reflected in the Canons and the Book of Common Prayer” (House of Bishops, 14th Feb 2014, Appendix, para 9).

She points out that Archbishop Randall Davidson stated during the debate on the Deceased Wife’s Sister’s Marriage Bill (which became the 1907 Act) that

“For the first time in the history of the Church of England has the law of the State been brought on one specific point into direct, open, overt contrast with and contradiction of the specific and defined law laid down in the authoritative regulations of the National Church” (Lords Hansard 1907)

She then goes on to suggest that “What to contemporary generations seems an unsupportable divergence between the law of the land and the Church’s teaching on marriage (the BCP’s Table of Kindred and Affinity in this case) seems a storm in a teacup for later generations for whom it is established social fact” and argues that “the fact that the House of Bishops’ statement above is in error matters a great deal”. In response to my suggestion that the two statements were addressing different issues, she responded that what she was addressing was a “change from understanding marriage as an indissoluble bond is a change in the general understanding of marriage”.

It would be pure cheek for me, as a Quaker, to comment on the substance of an internal matter for Church of England but I am not convinced that the statement by House of Bishops “is in error”. The extract quoted by Professor Woodhead is about what it says it’s about: “the general understanding and definition of marriage in England as enshrined in law”; Archbishop Davidson, however, was commenting on “the law of the State” in relation to whom one could legally marry, not on the definition of marriage itself.

The Deceased Wife’s Sister’s Marriage Act 1907 did not change the definition of marriage: what it did do was to remove a particular bar in the Table of Kindred and Affinity. Nor did it have anything to do with the indissolubility of marriage as such because, by definition, the man whose wife had died was free to remarry someone: the issue was whether or not he could marry his wife’s sister.

An anonymous comment on Professor Woodhead’s post pointed out in her support that in Banister v Thompson [1908] Probate 362, Sir Lewis Dibdin, Dean of Arches, said that:

“The recent Act seems to recognise a distinction between the civil and ecclesiastical aspects of marriage, and to alter the law as to the one without purporting to affect the law as to the other.”

But “a distinction between the civil and ecclesiastical aspects of marriage” does not of itself amount to a change in the definition of marriage; and even if one accepts Sir Lewis’s dictum at face value, the fact that the Church of England was opposed to the Act does not alter the fact that the common law definition of marriage in Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130 at 133 as “the voluntary union for life of one man and one woman to the exclusion of all others” [per Lord Penzance] remained untouched by the 1907 Act. As recently as April 2013 the current President of the Family Division, Sir James Munby, stated in a lecture that “the actual decision in Hyde v Hyde remained good law for over a century”.

The Marriage (Same Sex Couples) Act 2013, on the other hand, certainly does change the definition: see Schedule 3 Part 1 (Interpretation of existing England and Wales legislation):

“1(1) In existing England and Wales legislation—

(a) a reference to marriage is to be read as including a reference to marriage of a same sex couple…”.

So I it is not at all clear, to me at least, that the quotation from the Statement by House of Bishops “is in error” in that respect: it is addressing a different issue from that addressed by Archbishop Davidson. (As to the Statement’s more general sentiments, as I suggested above it is emphatically not for me to comment.)