On Tuesday 12 June, two days before the end of the consultation by the Government Equalities Office (GEO) on same-sex civil marriage, the Church of England submitted an unsigned response. The response contains a number of arguments, which we feel are deeply flawed or simply inaccurate:

• Same-sex civil marriage violates the fundamental principle of marriage: complementarity, which arises from the difference between the sexes. If this argument does not depend upon the  importance of procreation, and it cannot, then the argument is circular.
• Legislation on civil marriage will impact religious marriage because the institution of marriage is one and the same for both. But one of the foremost Christian apologists in the Church of England has argued that they should be different, and the Church of England has fought successfully to maintain the distinction between the two.
• The Church of England’s bishops have supported civil partnership policy in the UK. In fact, they have not.
• European law may force churches to perform same-sex marriages if the government does so. In fact, the authority that the church relies on leads to exactly the opposite conclusion.
• Nothing is gained by giving same-sex partners the option of a civil marriage when they already have civil partnership. This argument is wrong, because (a) important benefits obtain in marriage, which do not in civil partnerships; and (b) separate is not equal.

On Thursday 14 June, the consultation deadline, seven Oxford academics, including the authors, Professors Leslie Green (Philosophy of Law) and Diarmaid MacCulloch (History of the Church); the Rev Canon Dr Judith Maltby, Dr Adrian Kelly, and Will Jones, M.Phil., submitted a response to the church’s position, addressing each of these arguments in turn. We summarise those arguments here.

‘Complementarity’ Is Not An Argument

The argument from ‘complementarity’, which seems to originate with Hildegard of Bingen (1098–1179), is used by Roman Catholics to justify an all-male priesthood. The Church of England conflates it with an argument concerning potential procreation. (¶ 10) But adoption (including single-parent adoption), step-parenthood and assisted reproductive technology have rendered procreation and raising children independent of marriage. Indeed, the Church of England, since the time of the Tudors, has recognised that women ‘past childe byrth’ might marry, omitting the prayer for the ‘procreacion of children’ from the marriage ceremony in such circumstances.

Left without the procreation premise, the argument runs thus: ‘[T]he distinctiveness of male and female is part of what gives marriage its unique social meaning.’ The statement begs the question.—marriage must be between a man and a woman because it must be between a man and a woman. In addition, the premise is sexist. In a modern liberal democracy gender may not serve as a basis for policy distinctions in the absence of a functional rationale (just as such criteria as skills, talent or education must be supported by such a rationale). In the absence of a functional distinction between men and women, ‘complementarity’ cannot be essential to marriage, nor can it serve as an objection to civil same-sex marriage.

Religious Marriage Is Different From Civil Marriage

Civil marriages performed under the Marriage Act, 1949 cannot include religious elements, including prayers, readings from religious texts or religious songs. When this provision was being liberalised, the Church of England stated in its response to that consultation, ‘We believe that maintaining such a distinction [between civil and religious marriage] is as much in the interest of the State as of the churches and other faiths.’ Indeed, C.S. Lewis one of the foremost Anglican Christian apologists of the twentieth century wrote, in the context of a discussion of divorce:

I should like to distinguish two things which are very often confused. The Christian conception of marriage is one: the other is the quite different question—how far Christians, if they are voters or Members of Parliament, ought to try to force their views of marriage on the rest of the community  … There ought to be two distinct kinds of marriage: one governed by the State with the rules enforced on all citizens, the other governed by the Church with rules enforced by her on her own members.

The church argued in its submission to the GEO that permitting civil same-sex marriage would affect religious marriage, because the institutions are one and the same. Their positions are at least inconsistent; indeed, they are probably incoherent.

Under English law, marriage is a civil contract. As William Blackstone wrote in 1765:

Our law considers marriage in no other light than as a civil contract. … [T]aking it in this civil light, the law treats it as it does all other contracts; allowing it to be good and valid in all cases, where the parties at the time of making it were, in the first place, willing to contract; secondly, able to contract; and, lastly, actually did contract, in the proper forms and solemnities required by law.

The Church Has Not Supported Civil Partnerships

As Lord Harries of Pentregarth and Iain McLean have pointed out, and as the Guardian recognised at the time; in the main debate on the civil partnership bill in 2004, six bishops voted in favour of (and one against) a wrecking amendment. The church claims in its submission to the GEO, ‘[T]he introduction of civil partnerships … was supported by the majority of our bishops who voted on the legislation in 2004 when it was before the House of Lords.’ (¶ 15) When the House of Lords reconsidered the bill after the Commons rejected the amendments, eight bishops voted against a similar wrecking amendment, but the statement issued after passage of the bill was not unconditional in its support:

[The House of Bishops] notes that the Act leaves ‘entirely open the nature of the commitment that members of a couple choose to make to each other when forming a civil partnership.  In particular, it is not predicated on the intention to engage in a sexual relationship’.

It went on to state that while some civil partners might not live consistently with the teachings of the church, which preclude same-sex sexual activity, it would not be right to authorise a liturgy in connection with such civil partnerships nor to offer services of blessing for them. The church did not offer the compassion and pastoral support for these relationships, which it now claims to have offered.

European Law Will Not Mandate Same-Sex Religious Marriages

The Church of England claims that European law may force religious organisations to recognise same-sex marriage if the state does so. But this is flawed. It relies upon a concatenation of treaty provisions, including Article 9 of the Charter of Fundamental Rights of the European Union (CFR), which provides for a right to ‘marry and … found a family’, and Articles 12 and 14 of the European Convention on Human Rights and Fundamental Freedoms (ECHR), which protect the right to marry and found a family and also prohibit discrimination. But the church de-emphasises the impact of Article 9 of the ECHR, which protects religious freedom. The church’s submission is based upon a single precedent, Schalk v. Austria (App. No. 30141/04), which held that Austria did not have an obligation to offer same-sex civil marriage, even though the benefits afforded under its registered partnership law differed from those offered to married couples.

One prominent legal commentator has argued that the case against the church, to force it to perform same-sex religious marriage, is ‘reasonable’; another has claimed that the church’s argument is hysterical. The European Court of Human Rights (ECtHR), meanwhile, found it sufficiently complex that it considered Schalk on its merits. However, even though the ECtHR found that the couple in the case was entitled to protection of their ‘family life’ under applicable law, it refused to force the state to offer same-sex civil marriage. It based its decision on the fact that ‘marriage has deep-rooted social and cultural connotations which may differ largely from one society to another’ (¶ 62) and that differential treatment of the applicants’ rights fell within the ‘margin of appreciation’ afforded to member states. (¶ 109)

Separate Is Not Equal

The best analogy for the differential treatment of same-sex couples by offering them civil partnership as opposed to civil marriage is in the systematic prejudice suffered by African-Americans in the United States. In Loving v. Virginia, Mildred Jeter (who was black) married Richard Loving (who was white) in Washington D.C., where their marriage was not illegal. But when they returned to their home in Virginia, they were prosecuted under that state’s anti-miscegenation law. The trial court sentenced them to one year in jail, which would be suspended provided that they left the state and did not return for twenty-five years. The judge said,

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix.

The United States Supreme Court held,

Marriage is one of the ‘basic civil rights of man’, fundamental to our very existence and survival. … To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.

Long before this 1967 decision, the court had decided Brown v. Board of Education, where the Supreme Court held,

Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system. 

It went on to hold that in the field of public education, separate but equal had no place. Similarly, in Britain, same-sex couples, who are treated differently, are disadvantaged because separate treatment denotes inferior treatment. This differential treatment can, even if it does not always, retard the development of their relationships and deprive them of marriage-related benefits.

Moreover, as Professor Leslie Green shown in a recent programme at the British Academy (Gay Marriage: Prospects and Realities, 29 May 2012), marriage offers a number of advantages not offered by same-sex civil partnerships, including portability of status, a broader understanding of the couple’s status, as well as the potential for religious recognition, depending upon the religious group involved.

Imaginary religious arguments, like those used by the sentencing judge in Loving, should not be used to bar faithful couples, of whatever race or gender, from the same civil institution of marriage that the majority enjoy. Even if marriage were no different from civil partnership (and it is), separate would not be equal.

Conclusion

The Church of England’s submission to the GEO has been criticised strongly. One commentator called the church’s argument that it might be forced to perform same-sex religious marriages ‘fanciful and neurotic’. Another has called its argument that a change in civil law will affect the internal rules of the Church of England a ‘cynical strategy’. And the church’s own newspaper, the Church Times, has called the church’s submission ‘patronising’. One might wonder whether there will be pressure to withdraw the statement at the upcoming meeting of the church’s general synod.

We believe that the important thing is to hold the logic of arguments like the church’s to rigorous standards, so that we do not permit its leaders, who participate ex officio in the upper house of the legislature, to emulate Lewis Carroll’s Bellman:

“Just the place for a Snark!” the Bellman cried,

As he landed his crew with care;

Supporting each man on the top of the tide

 By a finger entwined in his hair.

“Just the place for a Snark! I have said it twice:

 That alone should encourage the crew.

Just the place for a Snark! I have said it thrice:

 What I tell you three times is true.”

Iain McLean is a Fellow in Politics at Nuffield College and Professor of Politics, University of Oxford.

Scot Peterson is a Lecturer in the Department of Politics and International Relations, Oxford. 

Comments

comments