Clergy, same-sex marriage and (quasi-) law

Following our post on the publication of the Statement of Pastoral Guidance on Same Sex Marriage issued by the House of Bishops of the Church of England on 15 February, we considered the possibility of sanctions against clergy who marry same-sex partners, here and here.  With regard to the relevant legislation, we and others have noted:

– 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;

– as part of the Church’s “quasi-legislation”, House of Bishops’ Statements have persuasive authority within the ecclesiastical courts, but are nevertheless not part of the “laws ecclesiastical”;

– the Statement makes a number of references to the doctrine of marriage, and if pursued as a doctrinal offence it would fall within the ambit of the Ecclesiastical Jurisdiction Measure 1963, although in the past recourse to the Court of Ecclesiastical Causes Reserved has only rarely been pursued;

– a case for misconduct might be brought under section 8(1)(d) Clergy Disciplinary Measure 2003, as amended – “conduct unbecoming or inappropriate to the office and work of a clerk in Holy Orders”[1].

Comment

In view of the uncertainties relating to some aspects of these provisions; the range of disciplinary sanctions that may, or may not, be applied; the fact that any action taken is likely to be case-specific; and the sensitive nature of the issues concerned, ecclesiastical lawyers have been reluctant to speculate on possible courses of action. However, there have been a number of other developments [2] :

– a letter from the Rt Rev John Pritchard, Bishop of Oxford, to his clergy giving some background to the HoB’s Statement, and an outline of his approach ;

– a speech by the Rt Revd Ian Brackley, Bishop of Dorking, to the Guildford Diocesan Synod, echoing much of Bishop John’s letter on the writing of the Statement;

– involvement of the Faith Workers branch of the Unite union, whose response to the Statement indicates its concern regarding: “paragraph 27 in particular, [which] may discriminate against LGBT clergy” and “the vagueness of the guidance in paragraphs 20 and 21”;

– additional concerns of the Evangelical Group on General Synod, (EGGS), regarding the absence of guidance on lay people holding a bishop’s licence or commission; and a lack of clarity on acts of worship after a civil same-sex wedding, paragraphs 19 to 21.

criticism by some evangelicals of setting of a different sexual standards for clergy and laity; also querying access to the sacraments to same-sex couples and their children.  The latter is more relevant as an aide memoire to bishops, as no priest on their own has the authority to deny such access, and to do so would be an ecclesiastical offence under the CDM.

Kevin Bocquet’s report on this week’s Sunday programme on Radio 4 drew a number of these issues together [3] in his interviews with Rev Andrew Cain, who is planning to marry his partner in June; Bishop John Pritchard; Rev Andrew Symes of Anglican Mainstream; Rev Dean Henley of Unite; and Joshua Rozenberg.  Unite said that since the Bishops’ Statement was published, it had received 25 new applications from LGBT clergy [4], and Bishop John indicated although he would take action if one of his clergy were to marry their same-sex partner, any such talks he would have with them would be in a pastoral context rather than a disciplinary one.

It was reported that a number of gay and lesbian clergy had been summoned to meetings with their bishops, which is unsurprising in the circumstances, although the subsequent applications for Unite membership reflects concern on the implied threat of disciplinary action within the Statement that could impact on their home, livelihood and vocation.  However, the presence of union representative at a meeting with one’s “father in God” might be seen as anticipating a disciplinary rather than a pastoral discussion.

For the moment, the focus appears to have shifted from the legal issues to these discussions with the bishops, whose task is to balance the “holding nature” of the Statement against the more pressing needs of the clergy concerned.


[1] The quasi-legislative nature of the House of Bishops’ statement would preclude an action relating to “the laws ecclesiastical”.

[2] For completeness, we should also note that of the 284 responses to the Church Times’ question of the week for 21 February, “Should there be tougher sanctions against clergy who marry their same-sex partner?” 34.9% voted “Yes”; and 65.1% voted “No”.  While measures are in place to prevent multiple voting, we are not in a position to assess the significance of the result from this self-selecting group of respondees

[3] Starting about 35 minutes into the programme.

[4] As with the Church Times Question of the Week, [n2], it is not possible to assess the significance of this number.

2 thoughts on “Clergy, same-sex marriage and (quasi-) law

  1. Pingback: Religion and law round up – 16th March | Law & Religion UK

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