Following the publication here of Linda Woodhead’s article titled An error in the House of Bishops Guidance on Same Sex Marriage some further discussion continued at Law and Religion UK where Frank Cranmer wrote An error in the House of Bishops’ Guidance on Same Sex Marriage? – perhaps not.
Now, Scot Peterson has published Generalizations, Just-So Stories and Marriage Law and Doctrine. He reviews the discussion so far, explaining that:
..As Iain McLean and I have written in our recent book, Legally Married, the law of marriage in the UK has changed frequently. Here, the question is whether the Marriage (Same-Sex Couples) Act 2013 is ‘the first time’ there has been a divergence between
the general understanding and definition of marriage in England as enshrined in law
and
the doctrine of marriage held by the Church of England and reflected in the Canons and the Book of Common Prayer.
After laying out the facts he is in no doubt about the outcome, finishing with:
…Conclusion: Woodhead’s argument is correct, and Arora and Cranmer are mistaken. The House of Bishops’ statement is in error. The civil law in England and Wales (and elsewhere) has frequently diverged from religious rules about marriage. Social norms about marriage have moved ahead, public policy about marriage, expressed in laws, has evolved, and so has church doctrine, but not always at the same rate. It would be honest of the Church of England, and its bishops, to admit that fact and get on with it.
As that magisterial historian of the mid 20c Dean Norman Sykes put it ” If the Church is going to appeal to history, to history it should appeal”…..one wonders where the historical expertise used by the ecclesiastical bureaucracy comes from…It often doesn’t appear to have a rigorous grounding in contemporary historical scholarship.
Even the simple fact of the Church of England’s turnaround on the issue of Divorce and Re-Marriage in the Church, gives ample evidence of the Church having changed its Marriage doctrine in the past.
This renders obsolete any argument that the Church’s acceptance of Same-Sex Marriage would be unable to be accommodated by the Church, on account of the unchanging dogmatic structure of what a Christian Marriage consists of.
I think it’s great that heavy-weight academics are weighing in on this. It is so important to discredit our generically low-grade bishops on this issue.
Back in the 1960s the church produced a report on divorce and remarriage, called IIRC “Putting Asunder”. The group was chaired by the then Bishop of Exeter, Robert Mortimer, who came to address us at Theological College. I remember tackling him on this very issue of whether it was right that civil law and church law should diverge, and particularly on the issue of whether the church was right to propose a change in the civil law to something the commission saw as more reasonable and just, while at the same time saying that it would preserve its own discipline… Read more »
A We need to separate out things that are being confused. First, before the reformation, marriage law was the province of the Church and not the state: canon law proclaimed exclusive jurisdiction over substantive matrimonial questions and this was not contested by the English royal courts (Ox. Hist. Laws of England vol I p 522). After the reformation, this was reversed by the Submission of the Clergy Act 1533, which is still good law. This provides that no Canons shall be contrary to the Royal Prerogative or the customs, laws or statutes of the realm. Since then, the Church is… Read more »
B Second, divorce means different things at different times. Until quite recent times, divorce was a word used for what we would now call a separation – divorce “a mensa et thoro” – which ended the right and duty of the couple to live and sleep with each other. Such a divorce did not entitle the parties to remarry. These divorces were granted by ecclesiastical courts before and after the Reformation. But another divorce was what we might now call annulment – divorce “a vinculo matrimonii” – which determined that the marriage was not valid – which freed the parties… Read more »
C Third, the great innovation is section 1(3) of the Marriage (Same Sex Couples) Act 2013, which was passed at the entreaty of the Church of England and which it cannot complain of, therefore. This says: “(3) No Canon of the Church of England is contrary to section 3 of the Submission of the Clergy Act 1533 (which provides that no Canons shall be contrary to the Royal Prerogative or the customs, laws or statutes of this realm) by virtue of its making provision about marriage being the union of one man with one woman.” It is this which allows… Read more »
D
It seems to me that Canon B30 does not actually purport to state the law of marriage at all (that would be absurd, because of the supremacy of Parliament); rather, it states, in its own words what is “affirms, according to our Lord’s teaching” – it is teaching morality, not law. Surely, no-one can doubt that morality and the law have diverged wildly in the past, on marriage as on so much else.
The odd thing here is the way Arun Arora can’t just admit the error and move on.
Whatever one thinks about the pastoral statement, the internal coherence of the document does not stand or fall on whether or not this is the first divergence between secular and canon law on marriage.
But Arora has chosen to go to the wall to defend the accuracy of a minor rhetorical flourish. This may lead some to question his honesty. It leads me to question his competence as a communications counsel.
The position is more simply stated than Peterson does, who seems to elide dates and issues in a confusing way. From the Reformation until 1857, to quote Kenneth Kirk, ‘ the reformed Church of England has in the main incorporated into it own usage the innovations in matrimonial affairs introduced by civil legislation since the time of Henry VIII … the general result of this process was salutary, whatever the motives of particular legislators may have been.’ From the Divorce Act of 1857 to the Matrimonial Causes Act of 1937, individual clergy were permitted by law to exercise a right… Read more »
I’ve been away from this site for a few days so may have missed something but a report to the London Diocesan Synod this evening (Monday 24th February) on the Bishops’ statement includes the lines: ‘Apparently, the Guidance is only intended to cover the period while the Pilling inspired facilitated discussions take place, so as not anticipate any change in the church’s teaching. This is not stated anywhere in the letter or its appendix.’
Hmmm – if that’s the case the letter has even less integrity.
It is interesting, and more than a little telling, that the Church of England’s Communications Office and Media Centre has so completely ignored Linda Woodhead’s article about the inconvenient truth that the House of Bishops’ Statement was factually incorrect. Clearly the truth hurts and it cannot be allowed the light of day. One wonders if it was lost down a memory hole at the Ministry of Truth operating out of Church House.
Another voice on this subject from Gladstone’s biographer, summarising Gladstone’s position in the1857 Divorce debates: “The legal doctrine of marriage had been established against the theological doctrine by Lord Hardwicke’s famous act of 1753, for that measure made the observance of certain requirements then set up by law essential to a good marriage. A further fundamental change had begun with the legalisation of civil marriage in 1836. The conception of marriage underlying such a change obviously removed it from sacrament, or anything like a sacrament, to the bleak and frigid zone of civil contract; it was antagonistic, therefore, to the… Read more »
Interested Observer’s comment is the first that I’ve heard it suggested from any bishop or official spokesman that this is a time limited policy. Surely this would have been made clear at the time? It’s just about possible that they decided to keep this quiet until the Global South meeting was over. but honestly I’m not sure I entirely believe this. It strikes me as more likely that bishops are making things up as they go along, and have been taken aback by the strength of the negative reaction. That means the more reaction there continues to be, the less… Read more »
I’ve been previously criticised for “Kremlinology” about what individual bishops are signing up for, but perhaps someone should make a catalogue of all the obfuscatory remarks they have made: “read the whole letter, not just the nasty bits” “don’t worry, because I only want to know what you think about it” “it’s only time limited”—the last is the most interesting, given that the Pilling process can’t really be meaningful since its conclusion is apparently pre-judged by the St Valentine’s Day statement, unless someone (perhaps Arora?—because he would speak with real authority) would say publicly that it is indeed time limited!
Oh, and the best bit of all—-“we will come and celebrate with you in your own home as long as you keep your dirty business out of our churches!”
“Oh, and the best bit of all—-“we will come and celebrate with you in your own home as long as you keep your dirty business out of our churches!”
Of course, that would be no change at all. Brave priests have long blessed us in our own homes and in other places outside formal worship.
That is nothing more than a continuation of the current shameful Don’t Ask Don’t Tell.
Lord Hardwicke’s marriage act can hardly be said to replace an ecclesiastical with a legal definition of marriage when it made marriage according to the rites of the Church of England compulsory for nearly everyone for the first time. It was meant to address the problem of clandestinity, and exactly the same process was taking place in Roman Catholicism beginning with the decree Tametsi at Trent and concluding with Ne Temere in 1908. The plot of Manzoni’s classic Italian novel I promessi sposi revolves around this. The introduction of civil marriage in 1836 was essentially a process to provide relief… Read more »
That there have been changes over the centuries is beyond doubt. Bishop Alan tells us what Gladstone thought in his day – but that doesn’t mean that he was right to think that. Indeed each change seemed stupendous in its own day, and we may come to see that this change is not so stupendous after all. The question is over stupendous changes and ones of detail. It still seems to me that it is a real change. Both in terms of male-female, but also in omitting consummation and adultery (and no one much seems to be commenting on that… Read more »
Lots has been said about the Church now accepting the second marriages of people with a former spouse still living. I think perhaps it’s a judgement call on whether accepting divorce is a change in definition of marriage. But, and this may be rather beside the point, I wonder whether it is correct to say that the Church’s teaching on this has changed in more than just pastoral detail. Persons with a former spouse still living may be allowed to marry in church under “exceptional circumstances.” This is surely a case of “the exception proves the rule” – that there… Read more »
Bernard, as I commented over at Frank Cranmer’s article, the bishops chose to use the phrase “the general understanding and definition of marriage” and therefore deserve to be judged against that wider phrase.
Nobody denies that same sex marriage is a significant change, but it is not the first ever significant change, which is precisely what has being claimed for it.
“The determination of a marriage never existing is thus to be regarded as analogous to a case of annulment, even though the law calls it divorce.” You’re welcome to try to make that argument stick in the case of Charles Windsor and Camilla Parker-Bowles, nee Shand. In that case (Private Eye’s great line “Greater love hath no man than this, that he lay down his wife for his country”) the parties the marriage we are considering were willing adulterers. Although one can point to (later) infidelity by Andrew Parker-Bowles (now married to his long-term mistress) and by the late Diana… Read more »
Simon, I do indeed think the bishops should be judged on the phrase they used – which is “general understanding and definition.” My argument is that on these terms they are correct. There have certainly been changes and divergences in details and rules – and some of these may have been “significant.” “Significant” does not seem to me the same as “definitional.” Scot Peterson’s piece has an interesting line. He argues that even the Deceased Wife’e Sister Marriage Act introduces a change in definition, because diriment impediments are part of the definition of marriage. But then, in the second paragraph… Read more »
Bernard, I would suggest that people are using the phrase “general understanding” in a wide variety of ways. I do not see how anyone can argue that the “general understanding” of marriage has not changed significantly over time. And further, that some of the earlier changes were not in sync with the church’s understanding at that time.
Bernard, as I tried to articulate in another place, which you may not have read, or having read found unpersuasive: the “definition” contains a number of criteria that lay out that which is properly called “marriage.” If any of them be lacking at the onset, the marriage is void; if any be departed from after the marriage is made, it can be terminated. The definition requires that all of these points be met and maintained. Removing any one of them, or allowing the removal even under “exceptional circumstances,” marks a change in the definition. I do take your point on… Read more »
Simon, it would take a lot of research to pin down the “general understanding” of marriage through the ages. My hunch is that, apart perhaps from second marriages after divorce, it hasn’t changed significantly up to now, even though in details of entitlement to marry it clearly has. I don’t see how it can be argued that historically in England marriage has not been understood as between a man and a woman, in principle for life (no one, surely, enters a marriage hoping for divorce), and with the assumption of exclusive sexual activity. This has certainly now changed in wider… Read more »
Interested Observer,
I think my argument holds over Charles and Camilla. Regardless of who committed adultery when in their previous marriages (and I think you may be wrong in what you say), it’s clear that they would not have been candidates for marriage in church (or at least not Camilla, since Diana was dead by this time). So they had Civil Wedding, followed by a service of Prayer and Dedication. There is no suggestion of what I have suggested as being analogous to annulment.
Tobias, I’ve read so much that I can’t honestly say if I’ve read your piece in another place. But you seem to make my case for me – if any of the items in the definition is departed from, the marriage is terminated. And if a marriage is deemed terminated then it cannot be a bar at the outset to a new one. Thus the definition of marriage is secure against allowing second marriages of divorcees. OK, it’s a bit more complex than that, because I’ve argued that its effectively annulment (never was), rather than divorce (terminated), but that’s the… Read more »
Bernard — as was pointed out ad nauseam in the debate prior to the legalisation of same-sex marriage: the only relevant way in which the male-female relation could contribute to the *essence* of marriage is through its presumed procreative capacity. Let’s accept, for the sake of argument, your claim that “no-one … enters a marriage hoping for divorce” (although I’m not sure that it is true). By contrast, what *is* true is that there are people who enter a marriage hoping, and indeed planning, never to have children; and in some cases, who enter it knowing that they are sterile.… Read more »
The general understanding of marriage has certainly changed over time. For example, the domestic arrangements outlined in Genesis 29-30 (which we’ve been reading in Morning Prayer) do not seem to be the subject of moral condemnation. Esther’s marriage – displacing the existing queen – seems to be approved. That the arrangements for Ruth’s marriage to Boaz were current in Jesus’ time is shown in a discussion he had with Sadducees about the resurrection.
Marriage has a longer history than the history of the Church of England.
Bernard, a lot of research has already been done, by historians and others, about the “general understanding” of marriage through the ages. So you don’t have to rely on your own hunch. Our hunches are not a very good guide to history, precisely because we are so often unaware of how things that appear to us to be universal and perpetual are, actually, local and temporary. To take just one example from your comment, there was no assumption of exclusive sexual activity in marriage until 1923, which is when, for the first time, women became entitled to cite the simple… Read more »
Very good exchange, those of us who are indissolubilists have never found the simple repetition of the mantra “marriage is for life …..” by bishops of the CofE a credible part of their teaching. I find Bernard Randall’s arguments worthy of reflection, but tend to find Tobias persuasive. Badman’s split thinking could do with a little enlargement and publication as a TA article. And while I agree with the view and conclusions of the principal of Staggers, this little extract from a speech some years ago delivered by Ruth Deech as she anticipated ruefully the coming of equal marriage supports… Read more »
Saint Paul seems to have become quite agitated over one diriment impediment, cf. I Cor 5:1-5. Someone should have reminded him that such impediments are merely rules capable in principle of amendment and not part of the general understanding and definition of marriage.
“the only relevant way in which the male-female relation could contribute to the *essence* of marriage is through its presumed procreative capacity.” In Genesis 1, male and female constitute the image of God in created form, and only after that is the charge to ‘be fruitful and multiply’ given, in the optative. In Genesis 2, a second perspective is given. Man/Adam is given a ‘helper fit for him’, and the ‘ishah is taken from the ‘ish. There is gender difference suitable for the Adam-Eve relationship and created by God to that end. The Church Fathers and the tradition routinely appeal… Read more »
Bernard, the point of a diriment impediment is that it is definitional: that is, should one seek to enter a marriage while so impeded, the law states that no marriage exists. This seems to me a robust meaning of “definition” and as to change clearly applies in the case of the deceased wife’s sister, as the impediment is incest by affinity, a notion I think “generally understood.” The definition of incest was changed, no longer to include this particular category. This changed the definition of marriage, allowing “marriages” to take place that formerly were not only forbidden, but technically impossible.… Read more »
cseitz: Are intersex people made in the image of God?
With respect, can you give a full report on what you mean by ‘intersex people’?
Historic Anglicanism has never seen marriage as a sacrament.The belief amongst Anglo-Catholics dates from the nineteenth century and is an import from Roman Catholicism.
However Anglican canon law as reconstituted in 1604 forbids divorce and re-marriage. This was only over turned in 2001, although TEC allowed it from 1801.
Church tradition and Jesus himself may appeal to Genesis 1 and 2, but they’re not historical, are they, and they do not describe human sexuality remotely as well as modern science (or indeed lived experience), do they?
Glad at any rate that you see that God must be at least half female.
I wonder if Bernard Randall has ever heard of the phrase ‘de facto’, when applied to a relationship between a man and a woman, that actually falls short of what the church might consider to be a marriage, but which has all the rights of marriage. Many couples in the world are now not entering into a legal marriage situation, and yet live together monogamously ans raise their children together. How would that fit in with what you call the doctrine of marriage? Would it be outside of that description, simply because of no Church or civil involvement? Whether we… Read more »
@cseitz: http://en.wikipedia.org/wiki/Intersex @Bernard: With respect, I think your argument is circular. If I understand correctly (and I may not), you approximately defend the idea that the change of marriage to admit same-sex couples is an “essential” and unprecedented divergence from the ecclesiastical definition, but then assent to a perfect example of where another divergence is already extant (i.e., the church would not (or, for the sake of argument, would not) marry Charles and Camilla, but the State would). This is precisely because of an essential difference in state and ecclesiastical understandings of the relevance of adultery in dissolving previous, and… Read more »
Lots of comments to catch up with – I’ll do my best. Sorry if I miss anything out. I think this is a good debate we’re having. Andrew (Tuesday pm) – I’m quite happy with “presumed procreative capacity” being the reason for male-female being part of the definition of marriage. Up until quite recently I think that was generally understood to be the norm. That there are some who, because of age, are not likely to have children doesn’t invalidate the principle – the Bible gives plenty of examples of older people being blessed with children, so hope springs eternal.… Read more »
badman (Tues pm) I’m sure a lot of research has been done – I wasn’t meaning to imply it hasn’t, though I wonder how much of it has been into popular “general understanding” rather than official shifts in the law: there may be differences. I don’t know enough about this, I’m afraid. I take your point about mutual fidelity seeing a change in 1923, but as you say, the vows of fidelity were there in the BCP service, so I’d suggest that his was a change in the enforcement of the definition, rather than a change in the definition itself.… Read more »
Tobias (Tues eve) a diriment impediment is indeed definitional in terms of what the law defines as a valid marriage – but that’s surely not the same thing as the general definition. The definition may include that there are diriment impediments (though I suggest even that is introducing too much detail for a general definition) – I don’t think the definition can include precisely what those impediments are. That a marriage is not incestuous may be part of the definition, precisely what constitutes incest is not. And so, as you say, surely correctly, the Deceased Wife’s Sister Marriage Act changed… Read more »
In most of the references with which I am familiar, the emphasis given to “male and female” — including Jesus, the Dead Sea Scrolls (CD), and the Fathers (e.g., Tertullian, who goes on about this at great length) — is in support of the notion that the singularity of the original couple (“a male and a female”) necessitates monogamy. Two — not three or four — become one.
Fr Ron in England we have the notion of common law marriage (i.e. long-term co-habitation), but it is emphatically not something “which has all the rights of marriage.” The law may be different elsewhere, but co-habitees do not, for example have rights over next of kin status when a partner is hospitalized, nor rights to inherit a family home own by only one partner. This was behind the drive to create civil partnerships for same sex couples, who could not attain these rights by marrying. That things are/have been different in other countries and cultures does not see to affect… Read more »
Andrew (Wed am) my argument is that whilst same sex marriage has changed the definition (union, one man one woman), the second marriage of divorcees while it changes some things does not change the definition. The key point, as I take it, is that marriage in the lifetime of a former spouse was regarded as adultery, and adultery contravenes the requirement for exclusivity. My argument, and I accept it may come down to a judgement call, is that by allowing the second marriage what has changed is not the definition of marriage but that of adultery (analogously to the Deceased… Read more »
Oh, and the best bit of all—-“we will come and celebrate with you in your own home as long as you keep your dirty business out of our churches!”
I sense a whole new business opportunity for quick-thinking entrepreneurs — the revival of priest holes, either completely installed for you or the supply of DIY materials.
“Church tradition and Jesus himself may appeal to Genesis 1 and 2, but they’re not historical, are they, and they do not describe human sexuality remotely as well as modern science (or indeed lived experience), do they?” One can see from this quote why it is very unlikely that anyone will agree o\in the present age’s wrestling with sexuality. Genesis 1-3 were not held to be true by Jesus or the Church because they were historical in some post-Baconian sense. But leaving that aside for a moment, if ‘modern science’ is to be the judge of what Christians now believe,… Read more »
Bernard,
I may misunderstand you completely.
If the deceased wife’s sister act only changes the definition of incest, not that of marriage, and if allowing second marriages after divorce only changes the definition of adultery, not that of marriage, then why does the same sex marriage legislation not only change the definition of the gender of the participants but not the definition of marriage?
Either all these changes change something about the definition of marriage or none of them does.