The current legal provisions underpinning the House of Bishops Report

On 27 January, the Church of England published Marriage and Same Sex Relationships after the Shared Conversations: A Report from the House of Bishops, GS 2055. The Bishops comment:

“We know that this report may prove challenging or difficult reading. We are confident, however, that the commitment that has been shown to listening to one another, not least through the Shared Conversations, in dioceses and in the General Synod, will have helped prepare us all as members of Synod to address together the challenges we face as a part of the One Holy, Catholic and Apostolic Church. We would ask for it to be read as a whole, with each paragraph being understood in the context of the whole report“.

The House was also provided with legal advice which described the effect of the relevant provisions of ecclesiastical law [19]. The parts of that advice which are material to the content of this report are attached as ANNEX 1, which is reproduced below [emboldening in original]:

SEXUALITY ISSUES: WHAT IS AND IS NOT POSSIBLE UNDER THE RELEVANT LEGAL PROVISIONS

This is an extract from a note from the Legal Office which was provided for the Bishops’ Reflection Group on Sexuality & the House of Bishops; and is made available as background resource for the General Synod.

Services

1. The starting point is Canon B 1.2:

“Every minister shall use only the forms of service authorized by this Canon, except so far as he may exercise the discretion permitted by Canon B 5. It is the minister’s responsibility to have a good understanding of the forms of service used and he shall endeavour to ensure that the worship offered glorifies God and edifies the people.”

2. The forms of service authorized by Canon B 1 are basically the forms contained in the Book of Common Prayer and forms of service that have been formally approved by the General Synod. The Convocations, the Archbishops and diocesan bishops can approve services for use on occasions for which no provision is made in the BCP or by the General Synod and if they do so, these services are authorized. We are not aware that any such services have been approved. The Accession Service and some other services are also authorized.

3. Canon B 5.2 provides:

“The minister having the cure of souls may on occasions for which no provision is made in the Book of Common Prayer or by the General Synod under Canon B 2 or by the Convocations, archbishops, or Ordinary under Canon B 4 use forms of service considered suitable by him for those occasions and may permit another minister to use the said forms of service.”

4. Canon B 5.3 provides (so far as relevant here):

“… all forms of service used under this Canon shall be reverent and seemly and shall be neither contrary to, nor indicative of any departure from, the doctrine of the Church of England in any essential matter.”

5. Canon B 5.2 and 5.3 together provide incumbents and priests in charge with a limited authority to compose or adopt services that have not been authorized. It is by virtue of this provision that they are able to adopt services which, although unauthorised, have been “commended by the House of Bishops of the General Synod for use by the minister in exercise of his or her discretion under Canon B 5 of the Canons of the Church of England”. A great deal of the material published as Common Worship is in this category [Reference 10 – at the time of writing, this link was not working]  .

6. The effect of Canon B 5.3 is that the authority conferred on the minister to compose or adopt forms of service is subject to the overriding condition that a form of service must not be contrary to, or indicative of any departure from, the doctrine of the Church of England in any essential matter.

7. Canon B 30 summarises the doctrine of the Church of England in relation to marriage. The effect of Canon B 5.3, in the light of the doctrine described in Canon B 30, is that it would not be lawful for a minister to use a form of service which either explicitly or implicitly treated or recognised the civil marriage of two persons of the same sex as equivalent to holy matrimony.

8. The applicable canonical provisions accordingly limit the possibility for providing services for same sex couples in a way that leaves the following options:

a. Amend Canon B 5 to remove the requirement that forms of service “shall be neither contrary to, nor indicative of any departure from, the doctrine of the Church of England in any essential matter”. This would additionally need an amendment to the Church of England (Worship and Doctrine) Measure 1974 which requires Canon B 5 to contain that requirement.

OR

b. Amend Canon B 30 so that the Church of England no longer “affirms, according to Our Lord’s teaching, that marriage is in its nature a union … of one man with one woman”.

OR

c. Make no legislative change and

i. make it clear to the clergy that it is not lawful for them to use a form of service which either explicitly or implicitly treats or recognises the civil marriage of two persons of the same sex as equivalent to holy matrimony, but

ii. explain that it would be lawful for the clergy to use a form of service which celebrated the relationship between two persons of the same sex provided that the form of service did not explicitly or implicitly treat or recognise their relationship as equivalent to holy matrimony.

OR

d. Make no legislative change and maintain the position set out in the 2014 pastoral guidance on same sex marriage.

9. So far as limb ii of option c is concerned, the House might need also to explain that the form of service used should not implicitly or explicitly convey the idea that the Church was sanctioning or condoning a sexual relationship between the two persons. Whether or not it would need to do that would depend on whether or not the House maintained the position set out in the 2005 pastoral statement on civil partnerships that–

“the Church of England teaches that “sexual intercourse, as an expression of faithful intimacy, properly belongs within marriage exclusively” (Marriage: a teaching document of the House of Bishops, 1999). Sexual relationships outside marriage, whether heterosexual or between people of the same sex, are regarded as falling short of God’s purposes for human beings”.

If that remained the Church of England’s teaching, then a service which sanctioned or condoned such a sexual relationship would not meet the requirement that a service must “edify the people” and would probably also be contrary to, or indicative of a departure from, the doctrine of the Church of England in an essential matter.

Clergy conduct

10. Canon C 26.2 provides (so far as relevant):

“Every clerk in Holy Orders … shall be diligent to frame and fashion his life and that of his family according to the doctrine of the Christ, and to make himself and them, as much as in him lies, wholesome examples and patterns to the flock of Christ.”

11. This provision is regularly cited by Bishops’ Disciplinary Tribunals in misconduct cases as a basis for finding that conduct complained of is “unbecoming or inappropriate to the office and work of a clerk in Holy Orders”. It is a fundamental provision so far as the manner of life of the clergy is concerned.

12. It is prima facie a breach of Canon C 26, read in the light of Canon B 30 (Of holy matrimony) (see above), for a clerk in Holy Orders to enter into a marriage with a person of the same sex. That is on the basis that by doing so, he or she is fashioning his life in a way that is inconsistent with the doctrine of Christ as expounded by Canon B 30 and making him or herself a bad example to the flock of Christ.

13. The applicable canonical provisions accordingly limit the possibility for tolerating the contracting of marriages by members of the clergy with a person of the same sex. The options are as follows:

a. Amend, or provide an exception to, Canon C 26 so that being married to a person of the same sex is not of itself a breach of Canon C 26.2

OR

b. Amend Canon B 30 so that the Church of England no longer “affirms, according to Our Lord’s teaching, that marriage is in its nature a union … of one man with one woman”.

OR

c. Amend Canon B 30 to state that [civil marriage] [marriage to a person of the same sex] is a different institution from holy matrimony and that entering into a civil marriage with a person of the same sex does not of itself amount to an act contrary to the doctrine set out in the Canon.

OR

d. Leave Canon B 30 as it is but issue a teaching document which explains that [civil marriage is no longer the same institution as holy matrimony] [civil marriage with a person of the same sex is a different institution from holy matrimony] and that a person who enters into such a civil marriage should not, merely by doing so, be considered as acting in a way contrary to the doctrine set out in Canon B 30.

OR

e. Make no change and maintain the position set out in the 2014 pastoral guidance.

The Legal Office
Church House, London SW1
November 2016