Since the coming into force of the Marriage (Same Sex Couples) Act 2013, I have pointed out to my students that, for the first time in its history, the Church of England has a different definition and conception of marriage to that of the law of the land. In preparation for the forthcoming General Synod, the Legal Office of the CofE has had to clarify this distinction, in order to pass a judgement on whether the new rites contained in Prayers of Love and Faith contradict the Church’s doctrine and law of marriage. In order to do this, they have had to draw out and make a clarification on that difference which now exists between the Church of England and marriage law in England and Wales. They do this, by making a distinction between Holy Matrimony as defined in Canon B30, and marriage as presently defined in law.
In Living in Love and Faith: A response from the Bishops of the Church of England about identity, sexuality, relationships and marriage, the box on page 7 headed ‘Marriage, the State and the Church of England’ refers to a distinction that has, since the coming into force of the Marriage (Same Sex Couples) Act 2013, arisen between civil marriage and Holy Matrimony. Civil marriage and Holy Matrimony both continue to be recognised by the state as conferring the same civil status and there remains a substantial overlap in the legal rules as to preliminaries, annulment and dissolution and they are treated in the same way by other areas of the law, such as immigration law, taxation and so on. However, because what is capable of constituting a marriage for the purposes of ecclesiastical law (the union of one man and one woman) now differs fundamentally from what is capable of constituting a marriage for the purposes of the general law (the union of two persons without regard to their sex), there is a good case for saying that the institution of Holy Matrimony and the institution of civil marriage are now distinct, even though the legal incidents are generally the same for both.GS (Misc) 1339 § 5 [italics mine]
Quite what makes Holy Matrimony, in the Church of England’s sense, ‘Holy Matrimony’ is a moot point. However, a quick legal answer now would be ‘marriage, between a man and a woman, solemnised according to the rites and ceremonies of the Church of England.’ And this distinction is where a lot of questions and potential problems arise…
For not only are civil marriages affected by this (new) distinction, but so too are a good number of others. Other Christian denominations, Jews and Quakers have long been allowed to have marriage solemnised according to their own customs in their own buildings, using their own rites, and to have those marriages registered and recognised in English law. Indeed, if Scottish Law is also included as well, that covers the marriage services of, inter alia, the Scottish Episcopal Church (Anglican) and the Church of Scotland (Presbyterian, the established Church in Scotland). The 2013 Act also specifically covers the difference between the Church of England and the Church in Wales, although at the time, the latter had not expressed an intention to change its practice to include same-sex couples. Section 8 of the Act specifically refers to the possibility of the Church in Wales changing its practice, which it now seems likely to do in the coming years. Other religious bodies (for example, Quakers and liberal Jewish congregations) also may ‘opt-in’ to marrying same-sex couples under the provisions of the Act.
The cumulative effect of the 2013 legislation and the Church of England’s position (according to GS Misc 1339) is that – in words similar to those of the Legal Office – there is a good case for saying that the institution of Holy Matrimony and the institution of marriage solemnised by other religous, Christian and Anglican bodies are now distinct, even though the legal incidents are generally the same for both.
There are several purposes behind the Legal Office’s note:
- To prove that prayers asking for God’s blessing on a same-sex (civil) marriage were not the same as blessing a couple joined in Holy Matrimony – this is a point to fend off a conservative criticism in any synodical debate.
- To clarify that clergy cannot, in any liturgy, blur the distinction between Holy Matrimony (as defined in Canon B30) and a same-sex marriage solemnised under current marriage law, without falling foul of Canon B5. This distinction is real and forceful, as the Canons of the Church of England also form part of the law of the land.
- To form the legal basis behind the future ‘pastoral guidance’ which is to be issued by the House of Bishops to replace Issues in Human Sexuality (1991) – which bares particularly on LGBTIQ+ clergy in a disciplinary, as well as a pastoral, sense.
The guidance and clarification from the Legal Office, however, also raises an important question – with implications – which bears on any couple (not only LGBTQI+) who have not been married according to the rites and ceremonies of the Church of England since the passing of the Marriage (Same Sex Couples) Act 2013: is such a couple living in Holy Matrimony?
Legally, it would appear not to be the case. Let me give an example from my own life: my late wife Wendy and I were married in a civil ceremony in early July 2017. Wendy was terminally ill, and we wanted a low-key affair conducted early on a Monday morning, so that we could move in together without delay, should her health rapidly deteriorate, needing me to take care of her. This need for speed, associated with an uncertain future, guided our plans. However, as the date approached, it was clear that her decline had been arrested by drugs, so – in addition – we then arranged for a ‘service of prayer and dedication after civil marriage’ for the following September, when we could celebrate with friends in church in a bigger way. It all worked out very well, and to our joy, Wendy survived for nearly five years of our deeply-blessed marriage. However, according to the recent legal advice, it would appear that – at least from July 2017 to our blessing in September 2017 – we were not living together ‘in holy matrimony’. (Incidentally, we were both ordained Anglican priests at the time.) But a further question follows: despite our ‘service of prayer and dedication following a Civil marriage’ conducted according to the service in Common Worship: Pastoral Services, were we ever ‘living in holy matrimony?’
The Legal Office here make one clarification based on the definition of Canon B30 – namely, that Holy Matrimony can only take place when the couple is a man and a woman:
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.GS Misc 1339 § 7
So far so good, but it also raises the question of what, if anything, can make a (civil) marriage between a man and a woman Holy Matrimony? Is it merely their gender? Since there now exists a difference between ‘marriage’ (in statute law) and ‘holy matrimony’ (in canon law), what brings the latter into effect? What GS Misc 1339 doesn’t clarify is whether civil marriage – since it has definitively departed from Canon B30 – can bring into effect Holy Matrimony in the case of a man and a woman, and – if it could – in what circumstances this would be the case. For example, are an opposite-sex couple in a state of Holy Matrimony following:
- A marriage conducted in a liberal synagogue, which also marries same sex couples?
- A marriage conducted in a Baptist church, which also marries same sex couples?
- A marriage conducted in the Scottish Episcopal Church, which also marries same sex couples?
- A decision between themselves to live faithfully together, for life, without any civil ceremony?
Given that, in the first three examples, the context may not bring about a state of ‘holy matrimony’ merely by virtue of the rite and the context, to what extent do they differ from the final example where the rite and the context is absent altogether? This matter needs clarification. Why?
Firstly, for pastoral reasons. I must say that I feel, at least, ‘rather odd’ that my marriage to Wendy is now at risk of not being seen as a state of ‘holy matrimony’ given the implication of the Legal Office’s judgement of the context and ceremony under which it was established, despite the fact that – in our case – it was between a man and a woman. Prior to this judgement, I had always assumed our marriage was the same as ‘holy matrimony’ in the eyes of the Church as well as the state, but now a basis for ambiguity and doubt has crept in. Now it seems that it may have been no more ‘holy matrimony’ in the eyes of the Church than a relationship between a man and a woman who were living faithfully together without having had a civil marriage conducted by the state. I realise that the Common Worship service of Prayer and Dedication after Civil Marriage helped bring our marriage into a church ambit, but that service is not the service of Holy Matrimony conducted by the Church, and contains different liturgy and blessings. It is, if you like, a bit like the services in Prayers of Love and Faith: we were prayed-for, even though we were not, it would seem, in ‘holy matrimony’, either before or afterwards.
Secondly, it creates a dilemma for those Christian opposite-sex couples who may wish to enter a legally unambiguous state of Holy Matrimony, but who have already been ‘married’ by the state in a civil ceremony: they cannot be married again by the Church of England. Since there is nothing in the Common Worship service of Prayer and Dedication after Civil Marriage which offers the same blessing on the couple as would have been offered by a priest in a Church of England marriage service, it would appear that they now exist in a canonical, and possibly spiritual, limbo.
Thirdly, it matters theologically. Canon B30 is quite clear, saying that the ‘teaching of our Lord affirmed by the Church of England is expressed and maintained in the Form of Solemnization of Matrimony contained in The Book of Common Prayer.‘ (Canon B30 § 2) In that service, is it clear that it is Holy Matrimony ‘which is an honourable estate, instituted of God’ and – as the Legal Office has now made clear – this is different to what is now called ‘marriage’ in English law. The purposes of Holy Matrimony are clearly set out in the service, including:
Secondly, it was ordained for a remedy against sin, and to avoid fornication; that such persons as have not the gift of continency might marry, and keep themselves undefiled members of Christ’s body.Book of Common Prayer, Solemnisation of Matrimony
In other words, if sexual activity takes place outside of Holy Matrimony, even between a man and a woman, it is regarded by the Church of England as the sin of fornication. It would appear, therefore, that the only clear route the Church of England is now offering opposite sex couples to avoid fornication is to marry according to the rites and ceremonies of the Church of England – and too bad it you have already married according to the rites and ceremonies of the state, or in some other church.
Fourthly, it matters in terms of Church discipline. Given the ambiguity which has opened, up, it is possible that clergy of the Church of England who have married (since 2014) in rites other than those of the Church of England could, potentially, be subject to proceedings under the Clergy Discipline Measure for conduct unbecoming, since there is no longer clarity that their sexual activity in their relationships is subject to that ‘remedy against sin’ which the Book of Common Prayer clearly states Holy Matrimony provides, irrespective of the sex of their marriage partner. This ambiguity will now be affecting not only clergy who were married in register offices from 2014 onwards, but in services of other religions or Christian denominations, including Anglican ones. It must surely be a cause for thanksgiving that the Sovereign and the Queen Consort managed to marry at Windsor Register Office prior to the coming into force of the 2013 Act, otherwise they, too, would be regarded by the Church of which he is Supreme Governor as living publicly outside the state of Holy Matrimony, with its attendant spiritual and pastoral benefits.
Obviously, this state of affairs is ridiculous, but it does need tidying-up for the reasons stated above. The quickest way would be for an amendment of Canon B30 to be passed by the General Synod, to clarify the meaning of the phrase ‘holy matrimony’ – including how it is brought into effect – so that faithful opposite-sex couples who have been married according to other legal rites and ceremonies of ‘marriage’, recognised in English law since 2013, can be brought back into the holy matrimonial fold. On the other hand, why stop at that?