With the College and House of Bishops meeting next week and the July General Synod just over a month away it seems a good time to try to stop and take stock afresh on the turmoil of the last four months or so (my earlier attempts to do so are here and here). With greater, albeit still limited, distance, what can we say about what has happened since the House of Bishops announced their proposals—particularly the draft Prayers of Love and Faith – for the Church of England and the General Synod debated and approved, with one amendment, a motion supportive of them?
What follows falls into three parts. The first summarises what the bishops have done—their sense of a consensus on a number of important questions but their failure adequately to address others and the significance of one of their apparent significant agreements: the division between holy matrimony and civil marriage.
Part two explores this last point in more detail. Solid principled reasons to reject this proposal have already been put forward and are noted but this section approaches it from a different perspective. It asks what the implications are of the new relationship being proposed between marriage and civil marriage in relation to the key questions of liturgical development and the pattern of life expected of the ordained. These, I will argue, demonstrate the serious problems that arise if this division is accepted in terms of the stability, coherence and plausibility of the current argument undergirding the Prayers of Love and Faith and so suggest that to build anything on it is to build on sand.
Part three then argues that, rather than seeking to find some agreed response to changing social and legal patterns of same-sex relationship and how we should relate them to marriage, the bishops should instead build on a more solid foundation. They should offer a theological account and moral vision of holy living, including for gay and lesbian relationships. Only if they can find consensus here can they avoid generating more instability and incoherence in all the other areas. Only on this basis can they consider properly how the church should embody this pattern of life and relate it, including liturgically, to social and legal patterns of relationships.
In conclusion I will argue that this should have been addressed first before developing prayers and that if the bishops and Synod cannot find sufficient consensus here then they need to acknowledge that reality and consider its implications for any proposals they wish to make and for the structure of our shared life in the Church of England.
I Reviewing the bishops’ proposals
At General Synod the Bishop of London described the bishops’ proposals (GS 2289) in the following terms:
In proposing our way forward as bishops, what we have done is chart a path that navigates the realities of the disagreements among us in a way that enables us to walk together—acknowledging its discomfort and ensuring that individual conscience is protected. One way of describing this way forward is to see ourselves standing in different places—and finding a point that each of us, by stretching out our arm, can touch and reach the fingertips of the other. It will be uncomfortable for everyone, but it is about creating a space for the Holy Spirit to move among us and to continue to guide us and shape us into the likeness of Christ.
It would appear that the bishops in January believed they had achieved a clear and strong consensus among themselves and they thought they had a coherent argument for their proposals on the basis of which they could proceed to revise the prayers and develop pastoral guidance and respond to the concerns of those unhappy with the developments. As the important reflection from Christopher Cocksworth noted, and he had explained in more detail in his earlier letter, “Some form of diversified consensus on key intentions of the provision seemed to have emerged”. The following were key features of this consensus:
- The church has failed in its response to LGBT+ people and needs to recognise this and apologise and take action which embodies this recognition and repentance;
- There are goods in same-sex relationships that the church needs to recognise;
- This recognition can take a liturgical form;
- As there are a range of patterns of relationship and understandings of them there should be a suite of prayers rather than a single “one size fits all” liturgy;
- The prayers should remain silent on sexual activity;
- The doctrine that marriage is between a man and a woman remains unchanged at present;
- The prayers can nevertheless be used for those in same-sex civil marriages as this is to be viewed as a legal status quite distinct from holy matrimony;
- The prayers must not be, and are not, contrary to the doctrine of the church or indicative of a departure from its doctrine (this is required by canon law and reaffirmed in the Cornes amendment passed by Synod);
- There needs to be respect for people’s consciences so any new prayers must be optional;
- We must seek to “walk together” and are actually able to do so despite our differences and disagreements.
Unfortunately, the leaking of the decision and then public comments by various key leaders, particularly the Archbishop of York, meant the nuances of this were quickly lost. The proposals were presented and understood by many as simply an affirmation of sexual same-sex relationships, including same-sex marriages, which the church would now bless. As a result although they were approved by General Synod (a fuller analysis is here) the consensus among laity and clergy was much less than among the bishops (86% bishops voting for but only 56% of clergy and 52% of laity).
Furthermore, the decisions have led to significant damage in the wider Communion (as seen in statements from the Global South Fellowship of Anglican Churches and GAFCON) and many in the Church of England are also unhappy to varying degrees, with some declaring they are “compelled to resist” the changes. There has also been a growing recognition of the challenges (not least in making clergy open to legal action for either using or not using the commended prayers) and problems the proposed route of introducing the prayers has created.
The evidence of a growing lack of confidence in the bishops and their proposed way forward is seen in the creation of an implementation group focussed on “reassurance” and the leaked photo of post-it notes at the last College of bishops which highlighted that the bishops themselves were painfully aware of some of the risks and threats the church was facing.
Any decision at the end of the LLF process was going to face challenges but the responses to the bishops’ proposals suggest that there are four particular failures in their approach which have made matters worse.
Firstly, in contrast to the detailed work of LLF, and failing to draw on that work, the bishops gave minimal explanation or theological justification for their proposals. Secondly, they proposed a liturgical response to different life situations without—as the ten points above demonstrate—offering any account of what pattern of same-sex relationship might be considered fitting within Christian discipleship. When asked about this the Bishop of London said in an answer (to Q163) in February, that we need to wait for the Pastoral Guidance as that “will include setting out unequivocally the necessary qualities for a relationship to be considered chaste, faithful and holy”. Thirdly, although committing to uphold the doctrine of marriage and thus rejecting a change to extend this to include same-sex marriage, the bishops were not clear as to what else—particularly in relation to sexual behaviour—should be considered as part of the doctrine of marriage. Nor were they clear whether they were proposing to change current teaching on sexual ethics. It was, for example, unclear whether what the Bishop of London had stated only in November last year in answer to a Synod question still applied:
Canon B 30 does indeed continue to articulate the doctrine of the Church, including asserting that holy matrimony is the proper context for sexual intimacy.
All three of these failings arose because it seems there was not sufficient time to achieve any consensus on them. The problem is that without any clarity and consensus in these areas, the proposals are inherently unstable and arguably incoherent.
A further cause of instability and incoherence is a fourth feature of the proposals (number 7 above): to justify offering the prayers, including prayers of blessing, to couples in same-sex marriages the bishops, with the support of the Legal Office, offered a novel and contentious argument distinguishing holy matrimony from civil same-sex marriages. The relationship between civil marriage and holy matrimony after the introduction of same-sex marriage was not a question covered within LLF although it produced an invaluable “Brief History of Marriage Law” by Professor Julian Rivers. The answer now being offered represents a complete reversal of all previous legal and theological statements including in the Church of England’s successful case defending the refusal of Bishop Inwood, Acting Bishop of Southwell and Nottingham, to give a licence to Jeremy Pemberton who was in a civil same-sex marriage. There, as set out in the original employment tribunal judgment of October 2015, the employment appeal tribunal judgment of December 2016 and the Court of Appeal Decision in March 2018, a key argument advanced was that the bishops’ actions were necessary because to be in a same-sex civil marriage was incompatible with the doctrine of the Church of England in relation to marriage.
II “Another fine mess….”
A number of weighty arguments have already been advanced to challenge the legal advice, incorporated by the bishops in their GS 2289 proposal to General Synod. This, in order to justify the legality of their Prayers of Love and Faith, draws a sharp distinction between holy matrimony and civil marriage (at least same-sex civil marriage) as I discuss more fully here. Most recently and fully there has been a further commentary on the legal advice where sections 1.2 and section 2 (especially 2.1 and 2.5) address this question of the relationship between holy matrimony and civil marriage. Central to these arguments is the case that what we are facing is not, as the bishops now claim, two separate and unconnected legal institutions but competing and incompatible definitions of the same institution ie marriage or, to use more traditional language, matrimony (which the church describes as “holy matrimony” because it believes it is an institution created by God not simply by human law). In the words of the commentary noted above:
From a legal perspective, there is one institution (marriage) with broader and narrower views as to who is entitled to enter that single legal state. This is the view of Parliament, the Government and the Supreme Court, and there is no reason for ecclesiastical law, which is part of English law, to take a different view (2.1 conclusion, p. 7).
Or, in the words of the Employment Appeal Tribunal judgment summarising the bishop’s case:
As for the argument that the Church has no belief on civil marriage, there was a distinction between the institution of marriage (on which the Church clearly had a belief) and the particular form of the ceremony that accompanies it. The 2013 Act does not provide that there are two forms of marriage—Church and civil—simply that there may be same-sex marriage (para 64).
What if, however, for the sake of argument, as a thought experiment, the bishops’ legal interpretation, a lynchpin in their case for the legality of the prayers, was accepted? What follows from this premise in relation to the questions of same-sex marriage in church and same-sex married clergy?
Why not same-sex marriage in church?
The initial leak concerning the proposals was that the bishops had rejected same-sex marriage in church. In an important sense that is clearly the case. However, if the logic of the crucial and necessary step in the legal advice being followed by the bishops is followed through, a strong case can be made that, in fact, it opens up the possibility of same-sex marriage in church in a significant sense.
A central claim in the Legal Office’s new argument here is (GS Misc 1389 para 7) that
The civil marriage of a same-sex couple confers a civil status on the couple: they are married so far as the general law is concerned but that status is not—and by definition does not purport to be—Holy Matrimony. On that basis, they do not need be treated as doing more than obtaining a civil status, and in particular they do not need to be considered simply by obtaining that civil status as rejecting or challenging the definition of Holy Matrimony in Canon B30.
It is then argued (para 8) that
The proposed prayers and other forms of service which may be used for a same-sex couple who have entered a civil marriage, do not indicate or imply that the couple are considered to be in a state of Holy Matrimony; they recognise that the couple’s relationship has been marked by their entering into a particular civil status (albeit regarded by the State as “marriage”). Provided that the prayers meet the requirements described in the preceding paragraphs, the fact that they are for use—among other occasions—for a couple who have entered into a civil marriage is not indicative of a departure from the doctrine of Holy Matrimony as set out in Canon B 30, just as that would not be the case for prayers for use with a couple who have entered into a civil partnership or a covenanted friendship.
As noted, there are weighty arguments against this position but if instead it is accepted then it would appear that there is no incoherence in introducing same-sex marriages in church as long as the couple are not treated as entering holy matrimony. In the words of para 3 of the legal advice:
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 corresponding to Holy Matrimony. But it would in principle be lawful for a minister to use a form of service for two persons of the same sex who wished to mark a stage in their relationship provided that it did not explicitly or implicitly treat or recognise the civil marriage of two persons of the same sex as corresponding to Holy Matrimony.
If the words “mark a stage in their relationship” are replaced with the words “to thereby enter a civil marriage” then the problem of squaring this circle of allowing same-sex marriages in church while not changing the doctrine of marriage has, it seems, been solved.
At present the state recognises a form of Church of England service (“Solemnization of Matrimony”) as sufficient to enable an opposite-sex couple to enter marriage in the eyes of the state. If we accept this line of argument in the legal advice, then it should now be possible for the state to be able to recognise a form of Church of England service as sufficient to enable a same-sex couple to enter the “particular civil status” which the state regards as marriage. It should also be possible for the Church of England to do this within its current doctrine as long as the service “did not explicitly or implicitly treat or recognise the civil marriage of two persons of the same sex as corresponding to Holy Matrimony”.
If entering a same-sex civil marriage is to be treated as only “obtaining a civil status” and this action is not “rejecting or challenging the definition of Holy Matrimony in Canon B30” then why does the Church of England refuse to enable such a ceremony to take place in church? It must, surely, be able to happen in a way which, on these legal arguments concerning the relationship between holy matrimony and same-sex civil marriage, is “neither contrary to, nor indicative of any departure from, the doctrine of the Church of England in any essential matter”. Why does it refuse to allow its buildings to be legally registered for a ceremony which gay and lesbian couples would like to hold in them so they can obtain, in the context of a service of Christian worship, a civil status that is not “rejecting or challenging the definition of Holy Matrimony in Canon B30”? If the church refuses to do so, then on this logic it would appear to be apologising to gay and lesbian people while continuing to deny them a service of Christian worship which it has no doctrinal reason to deny them, even as it offers them other new forms of Christian service which it previously claimed it could not offer because of its unchanged doctrine of marriage.
In short, the argument being advanced to defend the development of the prayers, if accepted and followed through, by cutting apart same-sex marriage and holy matrimony, cuts off the branch on which the church has been sitting to resist same-sex marriage in church as contrary to doctrine. It would appear to entail that there is no reason, in principle, why there cannot be a service in church in which two people of the same sex enter a same-sex marriage in law without such a service being indicative of a departure from the church’s doctrine of marriage. The question then becomes whether an argument which reaches this conclusion is coherent or plausible.
If, as seems likely, the church refuses to take this step, at least at present, then the state—appealing to the legal logic used by the bishops to defend the prayers—could simply amend the current legislation to enable some form of Prayers of Love and Faith to be recognised as the means to enter marriage as a civil status and permit Church of England buildings to be used to enter such marriages on the basis that the Church of England has declared that doing so is not contrary to its doctrine and so has no grounds, especially as the established church, to refuse to allows its buildings to be used in this way. Should the Law Commission proposals that marriage in future be legally structured around authorised celebrants rather than buildings then this would become even easier with clergy simply being so recognised and then authorised to officiate and able to argue they are not acting contrary to the doctrine of holy matrimony.
The most serious, perhaps only serious, potential stumbling block to following this logic through in this way is that contracting a same-sex civil marriage currently (unlike civil partnership, meaning there really is no obvious ground given the legal advice to prevent these being entered into in church as now permitted in law) requires making vows in which each party takes the other “to be my wedded wife/husband”. This language, it might be argued, cannot be used in a Church of England service given its doctrine of marriage. But once one has accepted that “marriage” can be used both for holy matrimony and civil marriage and it is recognised the language is used here to speak of the latter and so something other than “husband” and “wife” in holy matrimony are these terms really only able to be univocal and so an insurmountable problem? If it is a problem, why is coming to church for prayers of blessing having just uttered these words to each other and in order to mark and celebrate that occasion and having this legal status in relation to each other not also a problem?
If, however, it is simply the terms used in the vows to enter a civil marriage which are a problem, then we need to follow through the logic of this position as well. It presumably means that all services using the prayers with a same-sex married couple will, if they are to be legal, have to avoid the language of “husband” or “wife” or “spouse” or “marriage” or “wedding” because however true they are in terms of civil status and common usage their use in a service of Christian worship would amount to a rejection of the church’s doctrine of holy matrimony. In the words of the lawyers critiquing the official legal advice (2.3 conclusion, p. 9), the minister will on this basis have “to explain to the congregation that they are gathered to seek God’s blessing on the couple on the occasion of their entering into a civil marriage, which is however, in spite of appearances, not really a marriage and nor is the marital dimension of their relationship being blessed”. This almost Monty Pythonesque condition is, in fact, accepted in earlier official Church of England legal advice from 2018 in relation to the Hereford motion’s call for “an Order of Prayer and Dedication after the registration of a civil partnership or a same-sex marriage”. Referring to the condition 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” (repeated exactly in the current legal advice at para 3 as quoted above and so still applicable), it observed that while in theory it might be “possible to compose a form of service” which met this requirement (surely one will appear soon in Private Eye),
it seems unlikely that such a form of service would be considered usable by those clergy who would wish to officiate at a service of prayer and dedication after the registration of a civil partnership or a same-sex marriage. Such a form of service would have to omit any reference to the parties’ marriage or their being married; or, if it did contain such a reference, would have to contain explanations and disclaimers as to the nature of the civil marriage and its not amounting to marriage so far as the Church’s teaching was concerned. Either way, such a service might well be considered pastorally unusable in respect of the occasion for which it was intended. It is not clear what such a service would or could actually do. Nor is it clear in what way it would glorify God and edify the people (see Canon B 1.2 for this requirement).
In summary, if the legal office’s argument about separating holy matrimony from civil marriage is accepted (as it currently must be for the legality of the prayers to be secure) then either there is no reason not to allow same-sex marriages in church or the prayers are likely to be “pastorally unusable” in relation to a couple in a same-sex marriage.
Why not same-sex married clergy?
A similar argument can clearly be developed in relation to a question which is still undecided within the episcopal discernment process but will presumably be answered in the pastoral guidance—whether or not the church should continue its prohibition on clergy entering same-sex marriages.
The current position of the Church of England is summed up in the Pastoral Guidance issued in 2014which stated that “Getting married to someone of the same sex would, however, clearly be at variance with the teaching of the Church of England” (para 26). As noted above, the arguments advanced in the Pemberton case was that clergy should not enter same-sex marriage because of the church’s doctrine of marriage. Here, again, however, the logic of the current proposals and their legal rationale seems—without any reference to Scripture or theology or Christian moral reasoning—to have effectively sawn off the branch on which the church has been sitting.
If a same-sex civil marriage is indeed as described above by the lawyers—simply the conferring of a civil status on the couple who “do not need to be considered simply by obtaining that civil status as rejecting or challenging the definition of Holy Matrimony in Canon B30”—why are clergy prohibited from entering one? We have accepted clergy in civil partnerships on the basis that these are not marriages so if we are now saying that civil marriages are also not marriages why not at least extend the rules in relation to civil partnerships to same-sex marriages? Furthermore, if, as proposed, clergy can officiate at a service blessing those who have just entered a same-sex civil marriage why can they not enter one themselves?
Once this step is taken then of course there are all sorts of difficult questions raised concerning the conduct expected of clergy in same-sex marriages given their need to fashion their own life and that of their household according to the way of Christ and be a pattern and example to Christ’s people (Canon C26): should a surviving spouse from a previous legal marriage (either same-sex or opposite sex) or a civil partnership be an impediment to ordination as it is for holy matrimony (canon C4.4)? Should questions be raised about the appropriateness of any long-term cohabiting same-sex relationship that is not a legal marriage just as it would be for an opposite-sex long-term cohabiting relationship? Given that there are no vows to exclusivity or permanence for same-sex marriages what would count as conduct unbecoming for clergy in them? Here the legal advice in seemingly entailing the lifting of the current prohibition on same-sex clergy highlights the need for the church to develop a theological account and sexual ethic in relation to same-sex civil marriage.
How did we get into this mess?
Although the background to the change in legal advice and novel argument concerning the relationship of civil marriage and holy matrimony is unclear there is an obvious and hopefully not unduly cynical explanation. There was a desire to keep marriage restricted to opposite-sex couples but to develop the church’s practice, particularly liturgically, in response to committed same-sex couples many of whom would be in civil marriages. In order to satisfy the legal requirement that any liturgy be “neither contrary to, nor indicative of any departure from, the doctrine of the Church of England in any essential matter” previous legal advice needed to be reformulated and some distinction drawn between holy matrimony and civil marriage. What we have been given is the best attempt to do this in order to provide legal cover.
However, it now appears that in relation to same-sex marriage, the novel argument concerning the limited relevance of the church’s doctrine of marriage to justify the prayers has wider ramifications and probably unintended consequences. If it is accepted and we move out from it in our thinking (rather than just producing it to defend what we have decided we want without considering its logical consequences) then there are potentially major implications in relation to the church’s liturgy and expectations for authorised ministers.
Some will welcome this and argue we need to accept these outcomes because they flow from the rationale currently offered for the prayers’ legality. Others, unwilling to accept these outcomes on theological grounds or on the grounds that even if the outcomes are desirable it is ridiculous to claim they are possible without indicating a departure from the doctrine of marriage, will see this as a further argument against the legal distinction between holy matrimony and same-sex marriage which undergirds the prayers’ legality.
This risks an unproductive impasse and highlights that the current approach is driving us into a cul-de-sac. It would be much better to approach the questions we face from a different angle, one which for some reason the bishops decided to leave to the side in their rush to commend prayers. Instead of asking “how can we respond, especially liturgically, to those in our churches and communities who are in same-sex relationships, including civil partnerships and same-sex marriages without changing our doctrine of marriage?” why not ask “Given we agree that “God gives us the Bible…to call the whole world into holiness” (LLF, 275), what should we teach concerning the pattern of holy life to which we are called as baptised believers in Christ and in particular what do we say and offer to those who are in or seeking to be in a committed same-sex relationship of some form?”. Then, in the light of this, we can address how our biblically-formed Christian vision relates to various forms of “civil status”.
Read it all in Psephizo
