Religion and law round up – 20th April

A week in which the C of E acquired a new, merged, diocese and was trying to come to terms with same-sex marriage for clergy  and our site crashed…

Marriage of CofE clergy to same-sex partners

The Telegraph reported that Canon Jeremy Pemberton, Deputy Senior Chaplain with the United Lincolnshire Hospitals NHS Trust, wed his long-term partner Laurence Cunnington on Saturday 12 April. In addition to the uncertainties on the application of ecclesiastical law which we discussed earlier, here and here, added complications in the case of Mr Pemberton are that his employer is the NHS, not the diocese of Lincoln, that he also has permission to officiate in the Diocese of Southwell and Nottingham, where he is a lay clerk at the Minster and that the See of Southwell and Nottingham is currently vacant, although there is an acting diocesan bishop. Amidst this legal uncertainty it seems incongruous that some of those putting forward both pro- and anti- same-sex marriage points of view are so convinced on how this might be addressed within the existing regime.

(43+1) -3 +1 = 42

On Easter Day, the new Church of England Diocese of West Yorkshire and the Dales, formed from the former Dioceses of Bradford, Ripon & Leeds and Wakefield, begins its existence.[1]  Under section 5 Bishoprics Act 1878 the then Bishop of Ripon and Leeds and Bishop of Wakefield will cease to be members of the House of Lords; but its “Buggin’s turn provisions” will mean that the new Bishop of West Yorkshire and the Dales, the Rt Revd Nick Baines, will not immediately take their place in the Lords, although the CofE’s Parliamentary Unit indicates that this is “likely later in 2014”.

Described as a “mega diocese”, the Diocese of West Yorkshire and the Dales will be the largest in the Church of England[2] and this raises the question of the present relevance of the criteria within the 1878 Act, an issue of growing importance as officials are said to be looking for ways to fast-track women who become bishops into Lords.

How to “do God”

The Daily Mail reports the Department for Communities and Local Government is running a series of seminars entitled How should governments “do” God?. According to a flier seen by the Mail the seminars are intended to help civil servants

“… tailor your policy making to ensure it is responsive to the needs and perspectives of people of faith … The seminar is designed to boost what we are calling “religious literacy” among civil servants. Ministers have stressed the importance of government establishing productive working relationships with faith communities in policy development and implementation, in the UK and overseas”.

It is emphatically not our intention to scoff; on the contrary, the initiative is to be applauded. “Religion” is an extraordinarily complicated issue and there is no particular reason why an individual civil servant should have any detailed technical knowledge of the subject. But given that religion is so complex and given that secular legislation interacts with religion in so many ways, a little in-service training might help to avoid the unforeseen consequences of what are often perfectly well-intentioned policies, by making civil servants more aware of the possible pitfalls dotted around the religious landscape.

A recent example which, so far as we are aware, remains unresolved, relates to the Gift Aid Small Donations Scheme – a Gift Aid-style repayment of the equivalent of basic-rate tax on cash donations of £20 and below up to a maximum claim of £5,000. The Scheme’s primary intention was to allow religious organisations to reclaim some of the income tax assumed to have been paid on loose cash in the offertory at services. However, it was not until the details of the Scheme had been announced that anyone realised that it could never benefit Orthodox Jewish congregations because (so Frank was assured by the Office of the Chief Rabbi) Orthodox Jews may not carry money on Shabbat and cannot possibly, therefore, make a cash donation at a Sabbath service. Only a civil servant who was an Orthodox Jew could reasonably be expected to have known that.

Journalistic shorthand

Section 1(1) Marriage (Same Sex Couples) Act 2013: Extension of marriage to same sex couples, states that “Marriage of same sex couples is lawful”, i.e. that within the statutory legislation of England and Wales, the term “marriage” now encompasses both same-sex and opposite-sex marriages solemnized within these provisions and those of the Marriage Act 1949, as amended.  Strictly speaking, therefore, the term “same-sex marriage” is incorrect in the context of statute law insofar as it implies that its status is different in law from “opposite-sex marriage”. It is not.

In a similar vein, although the adjectival use of “women” in the context of “women bishops” is not incorrect in law at present, we are aware that it is a source of irritation to some and we likewise attempt to avoid its use wherever possible[3]. However, once the draft Measure and amending Canon receive Royal Assent, the term “women bishops” will be unnecessary since “a man or a woman may be consecrated to the office of bishop” (Canon C2). The remaining problem will then be the style by which women who become Lords Spiritual are addressed.[4]

The Council of Europe on sects

We noted the outcome of the Parliamentary Assembly of the Council of Europe’s deliberations on The protection of minors against excesses of sects. The text as agreed turned out to be much more nuanced and much less muddled than the original draft submitted by the Assembly’s Legal Affairs and Human Rights Committee.

Property rights and the applicability of Hindu law

We also noted the extremely complicated case of Singh v Singh & Anor [2014] EWHC 1060 (Ch), about a property dispute in a Sikh family in England and whether or not the principles of the Mitakshara – the 11th-century legal code which forms the basis of the orthodox system of Hindu and Sikh law that prevails in most of India – applied to the situation.

Our take on it was from the point of view of the potential applicability of a foreign system of religious law in the English courts. In a comment, however, Jen Smith argues that the point of the case is, rather, that because India does not have a unified secular system of family law, the applicable law (which would include Mitakshara) in a particular situation depends on the faith of the person concerned so Hindu family law is merely the secular family law of India for Hindu and Sikhs. On reflection, hers may be the better view.

This Armet, I suppose, was meant to ward off blows . . . . .

On Monday, the Church of England issued a Statement following the judgment of the Court of Arches[5] that “reaffirmed the principle that Treasures from Churches, including those on loan to museums should only sold in exceptional circumstances”, even if for security reasons there is no prospect of such items ever being returned for use or display in a church.

However, perhaps the Court has unwittingly solved the Richard III dilemma: at para. 94 it states that “ … we would hope that it might be possible to secure from [the Royal Armouries Museum in Leeds] such a fibreglass replica of the armet. This could then, subject to faculty, be hung in the church above the effigy of Sir Thomas Hooke … “.

If two fibreglass or resin replicas of Richard III’s bones are made, both York and Leicester can have a set and put them on display (just like the plaster casts of the Pompeii victims) and the real ones can go back in the car park as some have suggested, or perhaps somewhere more respectful but “neutral”.  As in Pompeii, the cathedrals’ audiences are likely to be curious tourists rather than devout pilgrims who have travelled to see a holy relic[6] and the punters are unlikely to be deterred, as the recent increased visitor figures to Leicester, senza Richard, have shown.

And finally … witches, guinea pigs and a dilemma over censorship

Third Sector reported a curious case of religious beliefs intruding into the workplace when Martin Edwards, Chief Executive of the Dorset children’s hospice Julia’s House, offered to read a story to preschool children at a community outreach group run by the hospice. He takes up the story as follows:

“People probably thought it was quite sweet that the chief exec would do the story-time slot. But our staff asked in advance what my choice of reading matter would be, perhaps fearing that I might choose to read from a strategic plan or a commissioning contract. Winnie the Witch, I replied, which I had read to my young children so many times I could almost recite it in my sleep. What could be better, I thought, than this fun and beautifully illustrated children’s book about the amusing mishaps of Winnie and her fluffy black cat Wilbur. But how wrong I was. Word reached me that this choice was not acceptable to certain staff. The word ‘witchcraft’ wasn’t said overtly, but it was clear that the objections were on religious grounds”.

Julia’s House is a secular institution open to children and families of all faiths or none. But Edwards points out that many staff in hospices, as in many charities, are deeply religious – so to avoid offence he chose instead to read My Best Friend Bob, an innocuous story about two guinea-pigs. “Was it wrong to censor my first choice?” he asks – and concludes that “sometimes it’s better just to keep the peace and save our energy for providing services to our service users”.

And a happy Easter to all our readers.

[1] The Parliamentary Unit has published a three-part series on the parliamentary work of the successive occupants of the Sees of Bradford, Ripon & Leeds and Wakefield.

[2] The new Diocese is the largest by area with 656 Anglican churches  serving its population of 2.3 million people and including the cities of Leeds, Bradford and Wakefield as well as North Yorkshire towns such as Skipton, Catterick, Harrogate and Settle. The new diocese is the first to be created in England for over 85 years: it comprises five smaller Episcopal Areas – Bradford, Huddersfield, Leeds, Ripon and Wakefield – each with its own Area Bishop  and Archdeacon, responsible for local decision making. The new diocese will retain its three cathedrals – Bradford, Wakefield and Ripon.

[3] The term “Boy Bishop”, however, has been in widespread use since the Middle Ages and relates to a custom whereby a boy was chosen among cathedral choristers to parody the real bishop, commonly on the feast of Holy Innocents.

[4] Presumably as “The Right Reverend Prelate the Lady Bishop of [Barchester] –though it was some time after her appointment before the title of the first female member of the Court of Appeal (Butler-Sloss LJ) was changed to “Lady Justice”.

[5] Re St. Lawrence Oakley with Wootton St. Lawrence [2014] Court of Arches.

[6] St Edward the Confessor is the only English monarch with an extant shrine, (Westminster Abbey); The only monarch to be buried in a similar “pole position” such as that proposed for Richard III is King John, (Worcester Cathedral), although he was not canonized.

5 thoughts on “Religion and law round up – 20th April

  1. Oh, wow…. I’m famous! 🙂

    I’d really like it if someone could explain to me (preferably in short, simple words), why the Church of England is of the opinion that same-sex marriage is OK for lay people, but not for clergy (as per today’s post, and the one from 25/03/2014)?

    To my admittedly not-theologically-subtle mind, same-sex marriage is either morally acceptable, or it is not.

    If it’s morally acceptable, surely it’s acceptable for everyone? And the reverse is also true.

    I could understand an attitude of “We don’t like same-sex marriage, and we don’t condone it, but we won’t actually excommunicate laypeople who do it – but clergy we’ll hang from the rafters.”

    Equally, I could understand an attitude of “Right, all you gay clergy, now same-sex marriage is legal, we’ll be asking just the same questions of unmarried clergy in same-sex relationships as we do of those in opposite-sex relationships, so get those banns called.” (If there are such questions asked…)

    To me, there is a qualitative – and extremely important – difference between *higher* standards, and *different* standards. The former assumes the same moral code but more stringently enforced; the latter assumes an entirely different moral code.

    Even more puzzling is the decision that civil partnerships (involving a long-term commitment to one partner) are OK for clergy, but same-sex marriages (involving a long-term commitment to one partner) are not. I could understand an attitude of “It’s OK to be gay as long as you don’t make a song-and-dance about it,” but that would equally mitigate against civil partnerships.

    Even if you see marriage primarily as a mechanism for stopping people bed-hopping, surely you’d want your clergy neatly sorted into tidy couples even more urgently than laypeople? Or aren’t clergy supposed to be providing a good moral example for their congregation any more?

    It does make one wonder whether the Church of England has lost sight of what marriage is: an expression of love and commitment between two people who want to be together forever (or for as much of forever as they have).

    To my mind, by discouraging gay people (clergy or not) from getting married to the person they love, this undermines marriage as a promise of love and faithfulness, and makes it into a sort of religious ceremony that is barred to those judged to be ‘unclean’ by the religious hierarchy.

    It reminds me of what Jesus’ stance was with respect to ritual purity versus ethics.

    So, if anyone could explain the logic behind why the Church of England would prefer to have unmarried gay clergy ‘living in sin’ rather than married ones (but married gay laypeople are fine) and why they make a difference between one public commitment to a monogamous relationship with a person of the same sex and another (marriage vs civil partnership), I’d be grateful.

    • Whilst I would hesitate to justify the position of the Church of England or to explain its logic regarding clergy in same sex relationships, some insights might be found in: Issues in Human Sexuality, House of Bishops, 1991; House of Bishops’ Pastoral Statements on civil partnerships, (25 July 2005) and House of Bishops’ Pastoral Statement on same sex marriage (February 13th 2014).

      The latter suggests that the CofE’s current position is quite close to the first part of your suggestion: “We don’t like same-sex marriage, and we don’t condone it, but we won’t [actually] excommunicate laypeople who do it”, i.e.

      “15. In Issues in Human Sexuality the House affirmed that, while the same standards of conduct applied to all, the Church of England should not exclude from its fellowship those lay people of gay or lesbian orientation who, in conscience, were unable to accept that a life of sexual abstinence was required of them and who, instead, chose to enter into a faithful, committed sexually active relationship.”

      With regard to the second part, “but clergy we’ll hang from the rafters,” there have been no reports of any disciplinary action having been taken, and individual clergy are in conversation with their bishops. In some cases, union representatives and diocesan HR are said to have been involved, which does appear to stretch the notion of “pastoral discussions” somewhat. Equally, the Rt Rev John Pritchard, Bishop of Oxford has stated publicly “there will be no witch-hunts in this diocese”.

      With regard to the respective roles of clergy and laity, Issues in Human Sexuality states [para.5.17]

      “We have, therefore, to say that in our considered judgement the clergy cannot claim the liberty to enter sexually active homophile relationships. Because of the distinctive nature of their calling, to allow such a claim on their part would be seen as placing that way of life in all respects on a par with heterosexual marriage as a reflection of God’s purpose in creation. The Church cannot accept such a parity and remain faithful to the insights which God has given it through Scripture, tradition and reasoned reflection on experience”.

      However, it then goes on at para. 5.18, appearing to echo your point “It’s OK to be gay as long as you don’t make a song-and-dance about it,”[my emphasis]

      “ . . . . . any general inquisition into the conduct of the clergy would not only infringe their right to privacy but would manifest a distrust not consonant with the commission entrusted to them, and likely to undermine their confidence and morale. Although we must take steps to avoid public scandal and to protect the Church’s teaching, we shall continue, as we have done hitherto, to treat all clergy who give no occasion for scandal with trust and respect, and we expect all our fellow Christian to do the same.”

      The “avoidance of public scandal” does not appear to be a sound basis from which to demonstrate the Church’s doctrinal commitment in this area. Furthermore, it places in context the position of priests in long-term commitments who have recently married their same-sex partner or announced their intention of doing so.

  2. Thank you; I shall make a point of finding those documents and reading them.

    However, I think now that the first gay clergyman has married his partner, a sort of don’t-ask-don’t-tell compromise clearly isn’t going to to happen. Reports are one thing; real life is an entirely different proposition and tends to be a lot messier and more unpredictable (especially if it involves sex, which has never been an area of life known for its positive effect on people’s ability to be sensible and logical).

    It will be interesting to see what happens next: condemnation, support, or a tacit decision to ignore the whole situation for as long as possible.

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