CDM or EJM?

This morning the Guardian Komment Macht Frei published a piece by Giles Fraser quoting Bishop Alan Wilson on whether clergy can be charged under the Clergy Discipline Measure for entering a same-sex marriage.

Bishop Alan WilsonIts Section 7 lays down that matters of doctrine and worship are not justiciable under the measure, but must be tried under the Ecclesiastical Jurisdiction Measure 1963. Insomniacs may remember that around 10 years ago there was a proposal to have a Clergy Discipline Measure type measure for doctrine and worship cases but it failed. The legal trail leads from here to section 39 of the EJM63. The maximum penalty it lays down for a first offence is a rude letter telling you not to do it again – which hopefully people getting married won’t.

All this means that the bishops won’t be able to do a damn thing about their clergy having same-sex marriages. As the bishop of Buckingham explained: “If a member of the clergy wants to marry, I may like or not like the match, but I have no legal power to stop them marrying.” And when this happens, the toys will be thrown from many a Nigerian church pram. The fiction that is the Anglican Communion will be over and we can go back to being the Church of England, rather than the local arm of the empire at prayer. And thank God for that.

I was made aware of this by someone with considerable experience in the exercising of the Clergy Discipline Measure and the processes before it and who has a firm founding in Ecclesiastical Law (unlike both Bishop Alan Wilson and Joshua Rozenberg who was cited in the report on this issue on the Radio 4 Sunday programme this weekend).

I have been offered by this person the following commentary which I share with you for your consideration.

Judge's Wig and GavelThe Clergy Discipline Measure 2003 was designed to deal with a range of disciplinary issues concerning the clergy in the Church of England – but to the exclusion of matters of doctrine or ritual.

The 1963 Ecclesiastical Jurisdiction Measure (one of whose chief architects was the late +Eric Kemp) retained the jurisdiction inherited from the Victorian era, and ultimately from the middle ages, expressly as a criminal jurisdiction, modelled on the former Assize Courts.

This meant among other things that the procedures of the consistory court when sitting under the EJM were those of a criminal trial, that prosecutors had to achieve a criminal standard of proof – beyond all reasonable doubt – in persuading the court to convict – and that the court’s sentences were effectively criminal convictions for what in some cases were relatively trivial offences. Its proceedings were open to the public and to the media.

The CDM was designed to be a civil tribunal and to operate without the full glare of publicity brought by EJM proceedings. The world’s press turned up for the trial of the Dean of Lincoln, Brandon Jackson, and the false evidence against him was published on the front pages of national newspapers. He was acquitted.

Those who preside at CDM hearings rely on a number of sources in determining whether a clerk has committed “conduct unbecoming”. Removal from office is in practice automatic if the person concerned has been divorced on grounds of adultery or unreasonable behaviour. This is provided in the Measure itself. Other forms of misconduct are assessed by reference to a variety of sources, such as the judgement of the secular courts leading to a criminal conviction; and in less clear-cut cases to the  Guidelines for the Professional Conduct of the Clergy; to guidelines issued by the House of Bishops or by the diocesan bishop concerned; and to many existing precedents. It is sometimes a simple matter of common sense that such an action as that alleged is simply immoral by any Christian standard.

The CDM was intended to be (effectively) CDM part 1. Matters of doctrine or ritual were expressly left to be dealt with by the EJM 1963, which has rarely been used, except perhaps as a threat to persuade someone to modify their behaviour or to resign. An attempt was made in General Synod some eight years ago to start work on CDM part 2, to replace the remaining provisions of the EJM, not least because it was now apparent that the EJM is no longer considered human rights compliant, and can no longer be used. General Synod voted narrowly not to have a modern tribunal capable of dealing with doctrine and ritual, thus ensuring that it had no tribunal at all.

There can be no doubt that for a member of the clergy to commit matrimony in a civil register office with another person of the same sex, would be both perfectly legal according to the new Act of Parliament, and conduct unbecoming a clerk in holy orders so far as the Church of England is concerned. That Act of Parliament acknowledges that the law of the Church diverges from that of the state in such matters, and expressly permits the Church to act independently where marriage discipline is concerned. Even if Church legislation directly contradicts the law of Parliament, the Act expressly allows for this.

The House of Bishops has expressly stated that it will not allow the clergy to enter into same-sex marriages. This statement forms part of the discipline of the Church, since the House of Bishops is the teaching authority for the Church, and its members administer the CDM. All of the clergy in office have signed the Declaration of Assent and have taken an oath of canonical obedience. The latter commits them to obeying the canon law of the Church of England, including the lawful directions of their bishop where he has authority to do so.

There can therefore be no doubt that a CDM tribunal will rule that a same-sex marriage by one of the clergy constitutes conduct unbecoming, just as surely as if the minister concerned had committed adultery or some other act of immorality of a sexual nature. This is not a matter of doctrine but of morality.

In one sense, the government has called the bluff of those sexually active clergy who have defied their bishops and entered into civil partnerships, relying upon the legal fig leaf that a civil partnership is not legally marriage and that therefore no sexual relationship can be presumed. If they replace their civil partnership with a marriage certificate, or turn up at the register office for a formal wedding ceremony, they enter into a relationship which legally does presume a relationship of a sexual kind, and the fig leaf becomes as obvious as it did on that evening in the garden of Eden.

And so clerical marriage has become the place at which the House of Bishops has decided to take its stand against the new Act. The canon law of the Church of England is not binding upon the laity, and therefore the Church can have no say in any matter affecting the laity – the Equality Act will prevent it from doing so in any aspect of church life except for the bar on same sex marriage taking place in Church of England premises.

But the clergy are very much bound by canon law, and by their oath of obedience, and anyone who dares to challenge the House of Bishops by arranging a wedding with a same sex partner, will find very quickly that they are free to marry, according to law, but not free to continue in office in the Church of England. It will take only one test case to establish this.

Let me put this in layman’s terms. If Alan Wilson wants to argue that same-sex marriage should be covered by the Ecclesiastical Jurisdiction Measure 1963 then other actions committed by clergy which are “conduct unbecoming” should also be (e.g. divorce or adultery). Since these are clearly covered by the Clergy Discipline Measure, so will the action of entering into a same-sex marriage.

Update

I wanted to share this comment from below which lays out my position on whether a CDM on this issue will succeed or fail. As always, I welcome comment.

The issue isn’t whether gay marriage is akin to adultery in that it is seen as a breach of covenant. The issue is whether the doctrine of the Church of England is that marriage can only be between a man and a woman. If you think that is a doctrinal issue to be adjudicated by the EJM rather than the CDM then one could equally argue that adultery should be dealt with under the EJM (is it really conduct unbecoming to have sex with someone the Church says you shouldn’t have sex with).

The place I can see a CDM on this issue becoming unstuck is whether a same-sex marriage is presumptively a sexual relationship. If not then it begins to look like a Civil Partnership which is currently *not* conduct unbecoming in and of itself.

If a same-sex marriage is presumptive a sexual relationship then it de facto becomes conduct unbecoming in the same manner as adultery or fornication (and will therefore be possibly liable for the penalty). If it isn’t then the Bishops’ case may fall apart, unless it can be proved the clergy person in question has engaged in sexual behaviour within said marriage.
The first complaint will be very interesting.

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