Update on developments in the US

In November 2014, the Revd Ephraim Radner and the Revd Christopher Seitz published The Marriage Pledge on the First Things web site, in an attempt to encourage priests and ministers to refuse to perform civil marriages: a response to their concerns regarding the changing governmental definition of marriage, primarily in the US, but acknowledging that similar changes are occurring elsewhere. The Pledge was in effect a unilateral decision of individual priests and ministers to reject the current situation in the United States in which religious certifications of marriage are accepted by the secular authorities.

Although initially appearing to gain a degree of traction within the US, it was criticized by some within the Roman Catholic Church, notably Dr Ed Peters, and also by Foley Beach, the Archbishop and Primate of the Anglican Church in North America (ACNA), who sounded a strong note of caution. These developments were followed in L&RUK here and here, and five months on the Pledge has attracted only 444 signatories, including a number of laity for whom action in support of the Pledge is not within their gift.

On 13 April, First Things published an update acknowledging that “the debate over the marriage pledge has died down, but it shouldn’t be dismissed. It still has a useful function, a clarifying function … Unless the churches make the difference between the church and the world as stark as possible, Christians will likely be blown this way and that. Not everyone will sign the marriage pledge, but churches that refuse to address this issue at all are abusing the sheep(?)”.

Republic of Ireland

On 27 March 2015 the Seanad passed legislation to allow for a referendum on same-sex marriage: the Thirty-Fourth Amendment of the Constitution (Marriage Equality Bill) was accepted by 29 votes to three in the Upper House after a week of sometimes heated debate. The referendum will take place on 22 May in addition to another on the Thirty-fifth Amendment of the Constitution (Age of Eligibility for Election to the Office of President) Bill 2013. Counting will commence on Saturday 23 May, and results will be updated here and here, respectively, as they become available.

Voters will be asked whether the Constitution should be changed to extend civil marriage rights to same-sex couples through the insertion into Article 41, after section 3, the words:

4. Féadfaidh beirt, gan beann ar a ngnéas, conradh pósta a dhéanamh de réir dlí.
5. Marriage may be contracted in accordance with law by two persons without distinction as to their sex.

In cases of dispute, the Irish version will take precedence.

The Irish Times provided a useful FAQ summary, Everything you need to know ahead of vote on constitutional change on May 22nd, including likely opponents and supporters (as of Monday 13 April). It states that a bishops’ pastoral statement, The Meaning of Marriage, has been circulated to 1,360 parishes nationwide, and suggestes that the Church’s ability to reach and mobilize people will be vital to the “No” side’s chances, much depending on how actively the hierarchy decides to make its case. Another article in the IT on 14 April states that a spokesman for the Irish Catholic Bishops has reaffirmed the position in their submission to the Constitutional Convention in 2013: i.e. that any change to the definition of marriage would mean the Church could no longer co-operate with the civil aspect of marriage.

However, The Tablet subsequently reported that the bishops’ Council for Marriage and the Family is expected to discuss the issue under its chairman, the Bishop of Clogher, Liam MacDaid, at a meeting during the week, but no formal decision will be taken by the Bishops’ Conference on the matter until its next general meeting on 8 June, two weeks after the referendum. Furthermore, the Archbishop of Dublin, Diarmuid Martin, “appears to have been less forthright about following through on the boycott, with his spokesman telling The Irish Times that the Archbishop’s view is that you ‘cross bridges when they come’. No other Catholic bishop has spoken on the matter to date.”

The Church of Ireland bishops have not made any collective statement on the matter; however, the Bishop of Cork, Cloyne and Ross, Dr Paul Colton, has supported civil same-sex marriage and has said he that would like to see a discussion on same-sex couples one day having marriages, or at least blessings of civil partnerships, in church.

Marriage in the Republic of Ireland

An overview of marriage in the Republic is summarized on the Health Service Executive (HSE) website here and here in relation to religious ceremonies; more detailed legal requirements are available from the pages of the General Register Office. Mirroring the developments in the UK, there have been significant changes in marriage law following the introduction of civil partnerships: the Civil Registration Act 2004 became law on 5th November 2007 and was subsequently amended by the Civil Registration (Amendment) Act 2012 becoming law on 23rd January 2013.

Marriage by civil ceremony is a civil contract; marriage by certain religious and secular ceremonies is also recognised by civil law as being a civil contract. As in Scotland and Northern Ireland, marriage is based upon registered officiants, (“solemnisers”), rather than registered buildings as in England and Wales, and on documentation initiated by the Registrar. Since 5th November 2007 any couple proposing to marry is required to make an appointment with their local Registration Office at least 3 months in advance of the wedding. Provided the Registrar is satisfied that all required details have been provided and that the couple is free to marry, he or she will issue them with a Marriage Registration Form (MRF), which is effectively the civil authorization for the marriage to proceed.

For marriage by religious ceremony, the MRF must be shown to the person solemnising the marriage, (“the solemniser”) who must be a registered solemniser, nominated by his or her religious or secular body, i.e. a priest in the case of the Roman Catholic Church. However, the venue for a religious marriage is a matter for the authorities of the church or religious body under whose auspices the marriage is being performed. At the end of the ceremony, the solemniser, the couple, and the witnesses must all sign the MRF. The completed MRF should be given to a registrar (not necessarily the registrar who issued it) within 1 month of the ceremony, so that the marriage can be civilly registered.

As of 5 April 2015, there were 5,461 registered solemnisers, of whom 107 were with the civil authorities, 4,121 were Roman Catholic priests, and the remainder were of other denominations. Data from the Central Statistics Office indicate that 59 per cent of the 22,045 marriages registered in 2014 were celebrated in Roman Catholic ceremonies.

Comment

By refusing to participate in the certification of marriage, the Marriage Pledge raised two legal issues: the basis of the state’s recognition of religious organizations to solemnize marriage; and the specific requirements it places on these organizations and the individuals involved. In Ireland, the state recognizes the validity and public effects of religious marriages formed at the time of their ritual celebration, providing the conditions of civil law are met[1]. The relationship between church and state follows the “separation” model and not the “state church” one; responding to the bishops’ warning, the Taoiseach, Enda Kenny, is reported to have said that it is a matter for the Church to determine whether or not to continue solemnizing marriages for the state.

The Irish Times indicated that it is uncertain whether the decision around carrying out the civil element would be left to be made by each bishop in his own diocese or whether a central decision will be made which would apply across all dioceses. Whilst Ireland’s registered officiant system could in theory permit individual priests or dioceses to opt out of the present scheme, it would be necessary to uncouple their involvement in the MRF scheme, and could result in a “postcode lottery” for couples wishing to be married.

In contrast to the US, the potential impact of such a withdrawal is significant, given the high percentage of marriages currently conducted by the Roman Catholic Church. We will follow developments with interest.

[1] i.e. the first of the three broad categories identified by Professor Doe: N Doe, Law and Religion in Europe: A comparative introduction, (OUP, 2011), pp 216-222.