The on-going controversy following the publication of the House of Bishops Statement of Pastoral Guidance on Same Sex Marriage continued with the publication of two pieces in the Church Times: Bishops’ same-sex-marriage statement provokes anger and defiance; and Disobedient clergy risk rebuke. In addition to these, the CT posed as its “Question of the Week”: Should there be tougher sanctions against clergy who marry their same-sex partner?
One suspects that many readers will view this question in the light of the latter article which suggests that
“The maximum penalty for a first offence … is a rebuke. Since a priest is unlikely to enter a gay marriage more than once, he or she might have relatively little to fear.”
However, the article also states
“the consequences for clergy who defy the guidance on same-sex marriage are unlikely to become clear until a test case is brought”,
echoing our own thoughts. The Archbishop Cranmer blog suggests
“it is not what Canon Law prohibits in theory but how the bishops handle disobedience in practice which will determine and define the Church’s theology on same-sex marriage”.
But how will the bishops handle this? It is worthwhile reiterating the comments of the Bishop of Sheffield, the Rt Revd Dr Steven Croft when interviewed by William Crawley on Radio 4’s Sunday programme on 16th February. The interview concluded:
SC We said the House of Bishops considers it would not be appropriate conduct for somebody in holy orders to enter into a same-sex marriage given the need for clergy to model the Church’s teaching in their lives and to live by that and we would hope that clergy would respect that advice and guidance. I would strongly suggest and all the bishops would prefer to have conversations with people initially if they are contemplating going further than that and we would not want to …
WC You’re hoping not to have a standoff but Colin Coward says there are some challenges coming down the pipeline.
SC We’ll need to meet those as we meet them. And it’s really hard to predict exactly what they will be and how they will be shaped because it’s hard to predict the particular circumstances …
Since then, there have been a number of public statements by bishops and these are being followed on Peter Ould’s blog. To date they have included Norwich, Guildford, Oxford and Lincoln. It would be unusual if these had been any more specific than Steven Croft, but Changing Attitude reports that the Bishop of Blackburn has approached clergy in his Diocese who have been open about having civil partnerships. Madeleine Davies’ article in the Church Times lists some of the potential challenges to the Bishop’s Statement, both in relation to same-sex marriage within the clergy and churches which are openly offering blessings after same-sex marriage and civil partnership ceremonies.
Our views of the legal issues involved appear to be in accord with those of the Revd Will Adam, editor or the Ecclesiastical Law Journal, reported in the Church Times article, i.e. the Church appears to be on “pretty safe ground” with regard to equality legislation; although clergy are subject to canonical obedience, the term is ill-defined and would be difficult to enforce; doctrinal offences fall within the Ecclesiastical Jurisdiction Measure 1963 although recourse to the Court of Ecclesiastical Causes Reserved is seldom pursued; and, a case might be brought under the Clergy Disciplinary Measure. These last two options provide a range of possible sanctions.
Given the range of options potentially open to the CofE and the uncertainties involved in each, our answer to “Should there be tougher sanctions against clergy who marry their same-sex partner?” would be “tougher than what?”. In the meantime we will be re-reading the CDM, the Code of Practice and Other Guidance, and Adrian Iles’ article in the Ecclesiastical Law Journal,  9 Ecc LJ 10–23.
A detailed consideration of the application of the Clergy Discipline Measure to same-sex marriage within the clergy is given in Philip Jones’ post Clergy Discipline and Same Sex Marriage: Inappropriate Conduct?
 The wording of the CT article is “The maximum penalty for a first offence under this measure is a rebuke”, which from the subsequent text we assumed to refer to the Clergy Discipline Measure 2003, as amended, (CDM). However, it could apply to the Ecclesiastical Jurisdiction Measure 1963.
One occasionally gets the impression that the House of Bishop’s is similar in nature to a hippopotamus blundering around in a chinaware shop, except this time the hippo is the House and the Chinaware is the legislative nature of a “church by law established”(1). I mean no disrespect to the Bishops; they should be applauded for their work holding together such a broad church. But they are not lawyers, and as such should seek legal advice before statements are released that can be so very divisive. I make absolutely no personal comment with regards the issue of same sex marriage and civil partnerships, my only concern is the law. If the Church of England holds, as it does, that marriage is between “one man with one woman” (Canon B30) then any marriage outside of this definition must be actionable under the Clergy Discipline Measure 2003(CDM). Unless the Church cares to argue that same sex Civil marriage is not actually a marriage as defined under its canon’s.
So what will the poor bishop do who gets the first complaint that a member of the clergy in his diocese has actually married a same sex partner? I fear panic and chaos may ensue. The House of Bishops must be prepared to deal with this matter in advance, after all this is very basic risk management. The 1991 Statement by the House of Bishops(2), and this latest statement, are clear on the definition of marriage within canon law, which I would suggest means that action under the CDM would be inevitable; if not then perhaps those priest who have lost their livings due to adultery may want to appeal against a system that is selective in its application of disciplinary action.
Once again I make no comment on the issue of sexuality. My concern is that the Church is blundering into another legal minefield. Legal risk management would have all communications tried and tested with regards the law before publication.
(1) Norman Doe, The Legal Framework of the Church of England (1st edn, Clarendon Press, 1996) 7
(2) House of Bishops, Issues in Human Sexuality (1st edn, Church House Publishing, 1991) GSMisc 382
What interesting times we live in. It’s a good job that the “slow to anger” God of the Jewish and Christian Scriptures is renowned for his patience. The fish-hats have certainly been tempting providence all my lifetime. But what’s new about this? It has gone on for nearly 2,000 years now.
I wonder what (say) African Anglican clergy will make of these bizarre developments.
What is the point of the “Anglican communion” in modern times anyway? God allowed the planting of churches all over the world, by missionaries who had been converted within Anglican assemblies, during the era of European expansionism. (At least, that’s my limited understanding of how worldwide Anglicanism came to be.) But what is the present-day purpose of clinging on to tradition for tradition’s sake, and putting on a charade, drafting cunning declarations in doublespeak, to create the false impression of unity in the Holy Spirit when a child could see that there is none?
I was saddened to see the British Commonwealth marginalised after the European Communities Act 1972 was enacted. God knows His purpose in having allowed this too. God will likewise decide what to do about – or with – so-called Anglicanism, after the Church of England.
Christ’s church universal and invisible has never been disunited by schism. Even if the Church of England is disestablished, and/or bankrupted, because the homosexualist entryists succeed in their mischief … even if all its ancient buildings and wealth are sequestrated, the nominally Anglican outposts of the church visible wherever there was once pink on the map and many other countries besides, will continue to meet, and will continue either to worship the true, revealed God, in spirit and in truth, or to play religion as a weekend pastime.
The end of the the Church of England and the Church in Wales would change nothing that really mattered, any more than a territory that has broken free from an empire would sink into the sea just because its people became self-governing, or (to recall a sketch on Michael Bentine’s “It’s a Square World”) any more than the mighty River Thames would vanish, if an explorer discovered its source to be a tap that somebody had left running somewhere in the Cotswolds, and turned that tap off.
Pingback: Oxon Ad Clerum: Bishops’ Pastoral Statement | Law & Religion UK
Pingback: Clergy, same-sex marriage and (quasi-) law | Law & Religion UK