The last few days have seen a flurry of developments in relation to Civil Partnerships and the Church of England. Following on from the official release of a legal guidance leaked over a month ago, the Church of England has published a response to the Government consultation on registering Civil Partnerships in religious establishments. You will remember that I wrote about the proposals here a few months ago and raised the following issues of concern.
The key issue is how far down the food-chain (as it were) one defines a “faith group”? Given that all parochial church councils are now individual charities, might a freeholder get away with arguing that his/her church is a “religious body” of its own?
The Government believes it shouldn’t interfere with the structures and governance of religious bodies. But what about the courts?
These two key issues are the primary areas that the Church of England response picks up.
5. We agree that because governance structures in faith groups are complex and varied, the Regulations should reflect that diversity.
6. In the case of the Church of England the relevant national decision-making body is the General Synod. The two Archbishops are its presidents, and it comprises a House of Bishops whose membership includes all the diocesan and some suffragan bishops, and Houses of Clergy and Laity whose elected members represent, respectively, the clergy and laity of each diocese. The statutory functions of the General Synod include legislating in respect of matters concerning the Church of England (under legislative powers devolved by Parliament) and considering and expressing its opinion on other matters of religious or public interest.
7. The specified body for the Church of England should, therefore, be the General Synod and it should be named for that purpose in the Regulations.
The Church’s response is quite clear. To avoid any element of doubt, the Regulations themselves should explicitly identify the General Synod of the Church of England as the body within the Church that will have the decision making capability as to whether individual buildings may be used to register Civil Partnerships. This avoids a freeholder using his independence and arguing that the Parish, not the Synod is the appropriate “religious body” to determine whether registration can take place.
The Church’s response also explores the area of legal jurisdiction.
The faculty jurisdiction
35. In English law, all parish churches of the Church of England and a number of other ecclesiastical buildings are subject to the jurisdiction of the consistory court of the diocese. This aspect of the court’s jurisdiction is called “the faculty jurisdiction”. It extends to controlling not only the making of physical alterations to a church building and to the introduction or removal of articles to or from the building, but also the uses to which a church building may lawfully be put with the consent of the bishop through his chancellor.
36. Any non-sacred use of a church building which is subject to the jurisdiction of the consistory court (other than a use which is expressly authorised by legislation) requires the authority of a formal permission – called a ‘faculty’ – from the consistory court in order for that use to be lawful.
37. The registration of civil partnerships in a church building would, as a matter of law, amount to a non-sacred use of that building. It would, accordingly, require the authority of a faculty. The regulations need therefore to be drafted in a way that leave no doubt that that they are without prejudice to the jurisdiction of the consistory court of the diocese.
Q.22: Potential legal challenges
39. The exposition of the legal positions in paragraph 3.35 is helpful and accords with our own understanding that it would not be possible to bring a successful discrimination claim on the basis of religious premises – which were available for the solemnization of marriages – not being available for the registration of civil partnerships. It would be helpful if Ministers could read this analysis into the Parliamentary record when the Regulations are eventually debated.
The summary of that would be that the Church is reminding the Government very firmly that legal determination of the usage of a Church of England consecrated building is a matter of Canon, not Civil Law. A judge in a secular court could not rule as to whether it was illegal to deny a freeholder the right to use his church to register Civil Partnerships.
All in all, a pretty robust and conservative response from the Church, highlighting the very issues of concern I raised in April. Were they reading my blog?
Also this week, Reform have published a response to the legal advice issued on Monday morning (and leaked over a month ago) on whether candidates in a Civil Partnership could be considered for preferment. Reform write,
Mr Thomas said: “This goes far beyond anything the Church has decided to permit and opens up the possibility of a bishop being appointed who, whilst being celibate, is in a civil partnership and openly opposes the Church’s teaching on marriage.
“To be in a civil partnership is to be seen as having forged a lifelong bond with someone of the same sex; to have created family ties; and to have engaged in a commitment similar to marriage. A bishop vows to protect the church’s teaching both by what he says and by the way he lives. This is immediately compromised when he engages in a civil partnership. If the Church no longer wants bishops to support the Bible’s teaching on marriage and sexual relations, it is not up to a legal office to hint at it. It must be decided by the House of Bishops and affirmed by the General Synod.
“There can, of course, be no bar on a person being appointed as a bishop because of their sexual orientation. The issue is what they teach and how they live.”
I have sympathy for Reform’s position, but let me offer a critique for the purpose of iron sharpening iron. At present candidates are successfully offered for preferment who ”openly oppose the Church’s teaching on marriage”. Just look at the recent list of appointments to see a number of new Bishops who are quite vocal in their promotion of same-sex unions. If that is so, how can the refusal to appoint someone who holds such a position, but is celibate (and “gay”) be anything other than discrimination on the grounds of sexual orientation? I understand that in an ideal world candidates who were revisionist on the Doctrine of Marriage should not be offered preferment in the first place, but are after-all in a Wheat and Tares situation until the Second Coming. We simply don’t disregard folk for consecration as a Bishop simply because they want to ask us to change our minds about a particular issue? Indeed, can’t it be argued that someone who wants to revise church teaching but agrees to hold to it until such a change comes about is a better example of catholicity then someone who disagrees with their Diocesan Bishop on an issue and then goes and disobeys the rules regardless?
Might it not be good for the Church to consecrate as Bishop men who, whilst being attracted to those of the same-sex, have fashioned their life to provide companionship but in a clearly non-sexual manner? Wouldn’t this actually demonstrate that this was possible and that sex wasn’t necessary for friendship and mutual support? The legal advice indicates clearly that previous sexual behaviour and one’s attitude towards it can be taken into account when considering candidates, and that should be good enough. Indeed, we can be as bold as to state that such conversations and decisions have already been made by the relevant authorities way before any legal advice was issued. Let the reader understand.