Slow progress in this area was anticipated by both Houses when the Regulations were debated last year

On 7 December, Madeleine Moon (Bridgend)(Lab) asked the following “Named day” question on religious buildings on military bases, [18992]:

“To ask the Secretary of State for Defence, how many military chapels there are in England and Wales; and how many such chapels are registered to conduct (a) same-sex and (b) other marriages”.

In reply, the Minister of State (Ministry of Defence) (Minister for the Armed Forces), Penny Mordaunt, (Portsmouth North) (Con) answered on 14 December:

“There are 190 military chapels in England and Wales registered for marriages under the rites of Church of England or otherwise, as described under sections 69 and 70 [respectively] of the 1949 Marriage Act. The Ministry of Defence allows same-sex marriages in military chapels, but none of the Sending Churches [Anglican, Roman Catholic, Methodist, Church of Scotland, Presbyterian, Baptist Union, United Reformed, Congregational, Free Church of Scotland, Elim Pentecostal, Assemblies of God, Salvation Army] using the chapels currently allows same-sex marriages to be conducted there. I have asked the Chaplaincies of the three Services to advise me on how Parliament’s sanction of same sex-marriages may be fully implemented”.

The Minister’s response was greeted with headlines “Military chapels could be forced to conduct gay marriage as minister steps in” (Daily Express), and “Military chapels ordered to allow gay marriages after 18-month stand-off”, (Metro); in a creative interpretation of her words, the latter suggested “Church heads have been ordered to permit same-sex marriages in military chapels”, apparently assuming that the Minister’s use of “sanction” referred to a threatened penalty for not introducing same sex marriage, rather than the official permission within the Regulations that same sex marriage might take place.

There is some clarification in the Ministry of Defence blog on 22 December which states: “[a]n article in The Daily Telegraph [now unavailable] claims incorrectly that church leaders have been ordered to allow same-sex marriages in military chapels. The paper says that Defence Minister Penny Mordaunt has written to military chaplains after churches using the chapels refused to allow the ceremonies”. It then quotes the written question and answer, referring to the Minister’s letter to the three chaplaincies.

The National Secular Society commented: ”Military chapels are for the benefit of all military personnel, so it is discriminatory, as well as disingenuous to veto their use for same-sex marriages. The churches repay the privilege of being provided with chapels for their services paid for by the state by denying their use to those wishing to be lawfully married. Shamelessly blocking the use of military chapels to gay serving personal who want to marry also illustrates that the centuries-old persecution of homosexuals by the institutional churches is being actively perpetuated today by their leaders, despite support for same-sex marriage by the majority of those that identify as Christians.”

Parliamentary debate on the Regulations

It is clear that when the Regulation was debated prior to its introduction, the Parliamentary Under-Secretary of State for Defence (Anna Soubry) and others on the Government benches anticipated very slow progress.

The Marriage of Same Sex Couples (Use of Armed Forces’ Chapels) Regulations 2014 SI 815 came into force on 3 June 2014, after consideration by the Delegated Legislation Committee on 25 February 2014, following which the Upper House agreed a motion to approve [27 Feb 2014 Vol 752(120) Col 1075]. It is clear from the discussions in both Houses that the provisions within the measure were not designed to ensure a rapid implementation. Baroness Northover (LD) explained, [27 Feb 2014 : Col 1077, emphasis added]:

“The regulations provide that, before applying to the Registrar General to register a military chapel for marriage of same-sex couples, the Secretary of State must consult the relevant governing authority of any religious organisation that makes significant use of the chapel. When considering whether and when to make an application, the Secretary of State must take into account various matters, including a same-sex couple who wish to have their marriage solemnised in the chapel and the rights of the religious organisations that use the chapel. The regulations also ensure that Armed Forces’ chapels consecrated by the Church of England under ecclesiastical law will not be registered for marriages of same-sex couples”.

In summing up the debate, she said:

“… on military chapels, the noble Baroness asked me if it is possible for a veto to be exercised as regards what happens within a military chapel for a same-sex couple. With the exception of chapels which are consecrated, the Secretary of State must be able to exercise their discretion, so there can be no absolute power of veto over the decision on registration. However, the regulations are clear as to the matters to which the Secretary of State must have clear regard. Important considerations will be the views of the religious organisations that are significant regular users of the chapel, and the availability of a chaplain who is willing to conduct the wedding of a same-sex couple and who belongs to a religious organisation that has opted in. Currently, none of the religious organisations that license chaplains to serve with the Armed Forces has announced its intention to opt into the marriage of same-sex couples. The 2013 Act is clear in requiring the consent of both the religious organisation whose rites would be used and the minister of religion involved.”

The expected slow take-up of the provisions was explored more fully in the Commons. Anna Soubry said [emphasis added] :

“Armed forces’ chapels cannot be used for the marriage of same sex couples using the rites of the Church of England or the Church in Wales as there is no provision for such marriages to be lawfully solemnised. I should also make it clear that while the regulations are scheduled to come into force on 3 June this year, we do not anticipate any immediate registrations of chapels, or marriages of same sex couples in them. As I understand the position of the sending Churches, those Churches that send chaplains into the chaplaincy—and not all our Churches are sending Churches—none has announced any plans to opt in to the marriage of same sex couples. Only if and when they do so will the question of registration of military chapels arise, just as civilian places of worship can only be registered for marriage of same sex couples when the relevant religious organisations have opted in.

[…]

Regulation 4(d) deals with authorised persons, and I emphasise two points. First, the draft regulations are designed to deal with circumstances in which there is a real prospect of a marriage taking place, not speculative registration against the possibility of a future request. The availability of a person to be present at the marriage, so that it can be solemnised, is therefore a sensible factor in deciding about registration. Secondly, under section 43B of the Marriage Act 1949, an authorised person may only be appointed to a particular chapel for the marriage of a same sex couple after that chapel is registered. Regulation 4(d) is therefore formulated in terms of a person who is available, but has not yet been authorised” [Col 3].

In addition, she alluded to the Overseas Marriage (Armed Forces) Order 2014 when she indicated that same sex couples couple could not marry in military chapels in countries such as Afghanistan, where same sex marriage in is illegal. Replying to a question from Charlie Elphicke, (Dover) (Con), the Minister clarified that:

“nobody will ever be forced to do anything that is against their conscience. It is perhaps unfortunate that throughout this long-running debate people seem to think that there is some intention that that happens. The 2013 Act makes it absolutely clear, with talk of quadruple locks and so on, that no one will be forced to do something against their conscience, or simply against their will, [Col. 9]”,

and

“The law makes it very clear that in civil law under the Act, no verger or organist could be forced to take part in a same sex marriage in any place of worship, and exactly the same provisions apply to people who might be the organist or the verger in a military chapel. I do not know how many times I have said it, but the position is that not one of the Churches which at the moment supply the chaplains—the sending Churches—has indicated that they wish to opt in to same sex marriage”, [Col 13].

The Marriage of Same Sex Couples (Use of Armed Forces’ Chapels) Regulations 2014

The relevant parts are Regulations 3 to 5, below:

“Consultation by the Secretary of State

3. Prior to making any application, the Secretary of State must consult with the relevant governing authority of any relevant religious organisation which in his opinion makes significant regular use of the chapel.

Matters to which the Secretary of State must have due regard

4. In considering whether to make an application and the timing of such an application, the Secretary of State must have due regard to the following matters—

(a) any agreement or objection by the relevant governing authority of a relevant religious organisation as to the proposed application;

(b) any changes or proposed changes in the use of the chapel;

(c) the interests of a same sex couple who wish to have their marriage solemnized at that chapel; and

(d) in relation to an application under section 70A(1) of the 1949 Act, whether in respect of that chapel—(i) a person has agreed to be authorised under section 43B(1) of the 1949 Act; and (ii) the Secretary of State would so authorise that person(2).

Certificate by the Secretary of State

5. Any application under section 70A(1) of the 1949 Act must be accompanied by a certificate in which the Secretary of State certifies that the chapel in respect of which the application is made is not consecrated according to the rites of the Church of England.

Comment

It is clear from Regulation 4 that the registration of military chapels for same sex marriage is at the discretion of the Secretary of State, “so there can be no absolute power of veto over the decision on registration,” [Baroness Northover, supra]. Equally, however, the Secretary of State must have due regard to the interests of the same sex couple, Regulation 4(c), and although this discretion extends to the authorization of celebrants, the restriction imposed by Regulation 5 is absolute.

It is unacceptable to suggest “[I]f they cannot get married in a military chapel, which is currently more than likely, they will be able to get married by going to a registry [register] office or another place that is registered for same-sex marriages,” [Anna Soubry, supra, Col 7]. However, it is difficult to see how the Chaplaincies of the three Services might advise Penny Mordaunt on how Parliament’s sanction of same sex-marriages may be fully implemented; the constraints are of the Government’s own making and the role of the Secretary of State is a key factor.

The NSS makes an important point that “[it should be made] clear to all service personnel that if they want a same-sex marriage in a military chapel they can have one”; but we fear that this issue, along with caste discrimination, may end up on the Government’s pending tray.

Footnote

The solemnization of marriages in naval, military, and air force chapels is governed by S68 Marriage Act 1949 Act which precludes non-military marriages unless at least one of the parties is a qualified person at the relevant date.