This article argues that:
- This claim that “nothing has changed” with PLF is neither plausible nor cogent.
- It does not fit with previous published legal advice concerning public prayer for those in non-marital sexual relationships or same-sex civil marriages.
- The options open to individual bishops who share this scepticism in response to PLF’s commendation by the House are also set out.
- Honesty and the need for clergy to be able to make their own informed judgments about the legality of PLF (as those who risk facing legal challenge for using the prayers) means that the House of Bishops has to acknowledge that previously published legal advice is not obviously being followed.
- They should therefore make available the changing written legal advice which they have received throughout this process, particularly for their 9th October meeting, and a clear explanation as to how what they are now proposing in PLF is, and indeed always has been, legal and how this judgment relates to the content of past legal advice which they have published that would suggest otherwise.
Only then can we assess whether indeed “nothing has changed” either legally or doctrinally in the position of the Church of England when the prayers are commended.
Following the long debate and narrow vote at General Synod on 14th and 15th November it seems likely that the House of Bishops will (either this Wednesday or in early December) proceed formally to commend the Prayers of Love and Faith (PLF) Suite of Prayers. This will implement the in principle decision they took on 9th October from which 12 bishops present dissented in part because of “legal and theological advice the House has received”. It is therefore important to consider exactly what is and what is not being done should the bishops take this decision and the plausibility, coherence, and significance of this step.
In effect, such a decision amounts to a statement by the House of Bishops that it is of the view that it has always been legally permissible within the Church of England for clergy, in a public service, to pray using the prayers found in PLF, including for God’s blessing on two people of the same sex who are in a sexual relationship and/or a civil same-sex marriage. Commendation means that the prayers have been legal for nearly 50 years (since the 1974 Worship and Doctrine Measure came into force) and could have been commended by bishops at any point since then. All that the bishops are doing in now commending the suite of prayers is clarifying that this has always been the legal situation despite the fact that in the past they, and legal advice they have published, have suggested otherwise.
This is perhaps a surprising claim of what is about to happen. That this is the situation is also a claim which is not immediately either plausible or coherent (let alone cogent) but it is evident from the nature of commendation and the various arguments that are being used and the answers given to various questions.
Has the church’s doctrine of marriage and/or sexual ethic been changed?
The official answer to this is “No”:
- “We want change but without changing the doctrine of the Church” (GS 2328, p.4, para 22)
- “The Church’s doctrine remains as set out in Canon B 30 (Of Holy Matrimony); we have been clear that we have no intention of changing that doctrine. We also note that the Church’s teaching on sexual relations has been treated as being part of the Church’s doctrine of marriage. We are not proposing to change that teaching” (GS 2328, Annex A, p.7, para 13).
- “The introduction of PLF does not change the shape of marriage in the Church’s doctrine nor its understanding of the place of sexual intimacy within marriage” (GS 2328, Annex H, p.91).
Has the church’s law changed or is the law being altered by commendation?
Again the answer to this is “No”. The bishops had the option of introducing a change to the canons (some of which were set out in the 2016 legal advice in GS 2055) but have decided not to follow this path. It is a mistake to see commendation as effecting a change in the church’s law. Commendation by the bishops is an act which has no canonical basis or legal effect. It was introduced in the 1980s (as recounted in the important recent briefing from the Liturgical Commission, GS Misc 1359, pp. 15-23) and has been extensively used since then to introduce liturgy in the Church of England in a more speedy manner than the standard process of authorisation through General Synod under Canon B2.
Commendation is strictly an act recommending that certain prayers are legal to use under Canon B5.2 at the discretion of the parish priest. This action does not (unlike authorisation under other canons) give the prayers commended any canonical or legal authority. In fact, it is noteworthy that in the canons the House of Bishops (unlike General Synod, Convocations, the Archbishops, the Ordinary, and ministers conducting a service or having the cure of souls) has no legal authority whatsoever in relation to liturgy. Despite this, commended prayers are often included as part of “Common Worship” materials. We now therefore face the situation where prayers which clearly have no chance currently of receiving two-thirds majorities in each House of Synod (as required for authorisation under Canon B2) are being added to the Church of England’s formal liturgies by the House of Bishops with serious consequences for the liturgy, governance and unity of the Church of England and the Worship and Doctrine Measure.
Commendation is simply a statement by the House that they are collectively (and a simple majority appears to be sufficient) of the view that using these prayers is lawful under Canon B5.2. Whether or not that collective episcopal judgment is correct is not established simply by the House making the judgment. Were it to be challenged, moreover, the challenge cannot be raised against the bishops who commend. Any legal challenge must be made against the clergy who trust that judgment and use the commended prayers.
A key question, therefore, is whether the bishops have a strong legal basis for making this judgment. Here there are two major problems.
Firstly, they have refused to offer even a summary of the most recent legal advice they have received despite having provided this in the past and claiming that nothing has been hidden. I have critiqued this and it is also noteworthy that the Bishop of Southwell and Nottingham said in his Synod speech,
I am compelled to say respectfully and very regrettably that I cannot agree with the opinion that nothing that might be useful to this Synod is being withheld. I do believe that there are a number of things—discussions, decisions and advice that we have received in the House—that would be useful to this Synod and important for its work at this time but that is held behind SO14.
Secondly, the past legal advice that has been published makes the legal basis and security of the prayers the bishops are commending look very weak.
What then has changed?
At a fundamental level it is being claimed that nothing has changed legally or doctrinally. Although the bishops are not admitting it (because the 51%-52% of the Synod’s clergy and laity now supporting PLF largely rejected this argument when it was originally made back in 2017), they are in effect claiming to be in exactly the same position we have always been in and that PLF is fully consistent with the 2017 proposal the bishops made after the Shared Conversations i.e. that they are “proposing no change to ecclesiastical law or to the Church of England’s existing doctrinal position on marriage and sexual relationships” (GS 2055, para 26).
However, although nothing has apparently changed at this fundamental level, there is clearly a proposed change from present practice, past episcopal statements, and the 2017 proposals. What makes commendation so controversial is summed up by the bishops in these terms:
If the PLF are to be available for same-sex couples without there being an assumption as to their sexual relationships, there would have been a change in the Church’s formal position on what its doctrine of marriage, and the place of sex within it, did and did not preclude in terms of public worship. Such a change might indicate a departure from the previous understanding that the Church’s teaching precluded public worship being offered for a same sex couple who were or might be in a sexually active relationship (GS 2328, Annex A, para 17).
There is also (as summarised in GS 2328 Annex A, paras 25 and 26 and set out in Annex H) a new argument not considered in past legal advice but important in the claimed legality of PLF: the prayers “discern and affirm what is good, and pray for God’s presence and blessing over the people within the relationship” and are justifiable as “pastoral provision in a time of uncertainty”. One difficulty (as I discussed here, particularly in section 8) is that this does not address the fact that the church’s doctrine continues to teach that certain patterns of sexual behaviour are forms of porneia and as shown below this fact has been important in past legal advice.
So are the prayers legal?
It would appear, reading between the lines, that the Legal Office, have informed the bishops that “it would be difficult to say that making the PLF available for same-sex couples without there being an assumption as to their sexual relationships was not indicative of any departure from the Church’s doctrine” (GS 2328, Annex A, para 17). The PLF is thus not compatible with the February General Synod motion as amended. PLF may however still be legal as the canons only prohibit prayers indicative of a departure from doctrine “in any essential matter”.
There are two issues here in the light of the church’s doctrine of marriage:
- the use of PLF for a same-sex couple in a sexual relationship (addressed in GS 2328) and
- the use of PLF for a couple in a same-sex civil marriage (now largely ignored in GS 2328 apparently on the basis that the prayers are not for use only with such couples and do not refer to their legal status although that does not mean the married status of a couple can be treated as irrelevant given the bishops have previously clearly stated that to enter a same-sex marriage is to depart from the church’s teaching, 2014 pastoral statement para 21).
Legal for a sexual relationship?
In the 2016 legal advice summarised in GS 2055 and presumably the basis for the bishops not then commending any prayers it was made clear that if it remained the Church of England’s teaching 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 (2005 Pastoral Statement, para 4 subsequently reiterated in 2019 Pastoral Statement, para 9).
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. (GS 2055 Appendix, p.19, para 9).
As we have seen, the “if” condition is still in place (“nothing has changed” in relation to doctrine) even though many of those supporting the prayers wish it had and believe the church’s teaching here to be in error. The two-fold “then” conclusion therefore still follows unless this legal advice has now been revised or rescinded. There is, however, nothing in the latest papers which addresses the strong statement here from the Legal Office that means PLF being used for a sexual relationship “would not meet the requirement that a service must ‘edify the people’”. In fact, this canonical requirement has disappeared from view in the latest documents which focus solely on the goods of the relationship.
There is also only the briefest of explanations (Annex A, paras 21-26) as to why although using the PLF for a same-sex sexual relationship would be “indicative of a departure from the doctrine of the Church of England” this is nevertheless not “in an essential matter”. This limited treatment is despite this being a crucial theological question and the earlier published legal advice from 2016 saying it would “probably…be contrary to” this requirement. The January 2023 legal advice in GS Misc 1339 stated:
The draft Prayers contain no implication that what is being celebrated or blessed is a sexual relationship. The argument that the Prayers are therefore indicative of a departure from doctrine so far as sexual relationships are concerned cannot be sustained (para 9, the advice does not refer to the “edifying” argument).
However, it is clear (not least in the emphasis that covenanted friendships, now a distinct category, are not sexual) that sexual relationships are to be celebrated and blessed using the PLF. The final statement in the January advice relating to the replacement of Issues noted:
Nothing in the draft Prayers pre-empts what the replacement might say on the subject of sexual relationships. In reaching a final view on the legal position the Legal Office will need to see both the final draft of the Prayers and the replacement pastoral guidance.
This points to the fact that were the teaching in Issues to be maintained (as has now been stated) then the legal position of PLF would be less secure than it was in February. This condition of the Legal Office will also not be satisfied if commendation proceeds next month before the full Pastoral Guidance is issued.
Both of these tests (“edifying the people” and not being “indicative of a departure from doctrine in any essential matter”) are legal requirements for any prayers used under Canon B5 if they are to be lawful. For both tests there is previous published legal advice pointing to PLF being contrary to law if used for a sexual relationship other than marriage. There is no published legal advice over-riding this. This would need to provide legal justification for the commended prayers being used in such a situation and offer a legal assessment of the new argument based on “pastoral provision”.
Legal for a civil same-sex civil marriage?
The question as to whether there are problems with using PLF for a couple in a civil marriage (particularly using them in a service shortly after they have entered such a marriage as may happen with the commended prayers and certainly will with standalone prayers) depends on how the bishops and church law now view the relationship between civil marriage and holy matrimony.
In 2016, as reported in GS 2055, the advice was that within the current law the only option that would allow the possibility of services for same sex couples would be to
- 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
- 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 (para 8c).
This is clearly the pathway that the bishops decided to follow when they proposed PLF.
Read it all at Psephizo
