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.

Posted in Church of England, Gay Marriage, Legal Stuff Tagged with: , , , , , , , , , , , , , , , , , , ,
  • James Byron

    This might be correct: ultimately, some court or other will decide jurisdiction.

    Taking a wider view: labeling same-sex marriages “conduct unbecoming” will be a PR disaster for the church. Law isn’t a closed system, decided by its own internal rules; it’s society’s way of ordering itself, and in a democracy, must be acceptable to wider society.

    How long will the UK parliament stand by as priests are, in effect, stripped of their pensions & livelihoods and thrown out on the streets for being gay? How long will the church’s own members tolerate it?

    If the prosecution wins, it loses. This is the definition of a no-win scenario.

    • They won’t be stripped of their pensions. Fallacious nonsense like this helps no-one.

      • James Byron

        If the CDM doesn’t allow that under its list of penalties, I withdraw & apologize for the error.

        Does nothing to change the wider point: “prohibition for life” and “removal from office” would be just as devastating.

        • Yes, but it is one option for “conduct unbecoming” and no-one forces anyone to undertake any such conduct.

          • James Byron

            No one forced Mildred Jeter to marry Richard Loving, either, but we (rightly) don’t see it as mitigation for the wrong they suffered.

            • Yes folks, once again the race = sexual orientation equivalence rears it’s unconscionably facile head.

              If you must make a comparison, why not genetic sexual attraction? It’s the next frontier for ‘equal marriage’. Our society readily discriminates against re-united siblings who experience GSA and fall in love. Banned from marriage for unwittingly being a couple who ‘just happen to be related to each other.’ Genetic screening provides the perfect remedy against the likelihood on inbreeding depression.

              Go on! One more bus campaign won’t hurt: ‘We’re blood relatives: get over it!’

              • James Byron

                And how often does this scenario rear its tragic head? Is it even in double figures?

                What’s your position on couples in this situation? D’you care about their wellbeing, or is this just a flagrant attempt to force supporters of equal marriage to voice support for incest?

                If so, no dice. I take no position on headline-grabbing cases of reunited siblings. Let the courts or legislatures sort it out.

                • After Loving vs. Virginia, interracial marriages in Georgia rose from 21 in 1967 to 115 in 1970. According to census data, 0.4% of US marriages were interracial in 1960, and 2.0% in 1980. I thought it was the principle that mattered more than the prevalence.

                  I do care about the well-being of GSA couples, but its still no reason to undermine the public policy of ensuring that there is no precedent for the State to connive at the kind of sexual motives that could easily destroy the established platonic framework of close-family biological kinship.

                  Taking no position only exposes same-sex marriage for what it is: a trumped-up special pleading that ignores the plight of another kind of ‘love that dares to speak its name’.

                  • James Byron

                    There are factors that separate incestuous relationships (in general) from non-incestuous ones: potential for harm; potential for coercion; inbreeding.

                    If you want to argue for a narrow exception for estranged siblings who meet in adulthood & fall in love, maybe you have a case, maybe you don’t. I’d start with a rebuttable presumption that you don’t.

                    In any case, this raises concerns not applicable to same-sex marriage, and casts far more heat than light.

                    • Your generalisation is no more than a stereotype of potential issues. Personal harm and coercion are not generally precipitated by close-family marriage.

                      The actual issue for both incestuous and same-sex marriages is their inherent conflict with the institution’s public purpose in upholding responsible biological kinship rights.

                      Granting the marital presumption of parenthood to a same-sex spouse (as they do in some US states, Netherlands, Spain, Australia and Canada) undermines the accepted kinship rights/responsibilities of the known biological father.

                      Granting the right to marry to close-family relations undermines the accepted kinship rights/responsibilities of known biological siblings.
                      You have to substantially alter the accepted rights and responsibilities of marriage in order to forestall the impact of these issues.

                      In any case, your race = sexual orientation equivalence remains completely invalid.

                    • jillfromharrow

                      So you are saying in effect that homosexual relationships cause no harm?
                      I think you ought to get a bit better informed, really I do.

                    • Stuart, Devon

                      Jill, I suspect most of us both know of homosexual relationships which bring much good and of heterosexual ones which bring harm (and vice versa).

                    • jillfromharrow

                      Stuart, I am talking about the sex aspect of homosexual relationships. Without sex they are – well – friendships, and as such are usually good.
                      There is nothing harmless about same-sex sexual activity. Peter might ban me if I get too graphic, but James Byron cannot pull the wool over my eyes.

                    • Stuart, Devon

                      Jill, I’m no expert and I certainly wouldn’t want the conversation to get too graphic, but as far as I’m aware the various forms of intimate activity in which gay or lesbian couples might engage are a subset of those in which straight couples might partake. If, for example, two couples, one gay, one straight, favour oral sex (and now I probably am heading into overly graphic territory) there’s no fundamental reason that the activity would be harmful in the case of the gay couple but not the straight one.

                    • I’ve always found that obsession with what a gay couple does in bed rather misses the point that the Biblical prohibition is on them doing anything in bed, rather than concentrating on how the specifics are somehow worse than if a heterosexual couple cuddle under the duvet.

                      The Scriptures are remarkably silent as to the ranking of despicableness of various forms of consensual sex, even if it is sinful. And this remarkable silence should be a guide to us if we think that detailing *exactly* what goes on under the duvet of a same-sex couple has any particular theological force.

                    • The issue is the incongruence with the creation ordinance that arises from the thoroughly intentional gift from God of human sexual differentiation. How that incongruence is expressed is a secondary matter.
                      Another incongruence would be for a minister to appeal inventively to our yoof by replacing communion wine with fanta and the wafers with chewing gum. All in the name of personal freedom.

                    • jillfromharrow

                      Blow the theology, what about the practical aspect? The fallout from this new approval of gay sex is going to be enormous. I have pointed out numerous times both here and elsewhere that new cases of HIV have doubled in a decade, mostly among young gay men. This is a serious illness requiring a lifetime of toxic medication. The cost is huge, both to those directly involved, and to the rest of society. It sickens me that this is constantly pushed under the carpet. Stuart’s comment is nothing unusual – people are simply unaware of the scale of harm.

                    • Jill,

                      NOTHING of what you have written is in any sense a *Christian* argument against same-sex marriage (or behaviour for that matter). That is the whole point of what I am saying.

                    • jillfromharrow

                      Well, you’re a theologian, I’m not. I’m a practical person, and I look with horror at the high price that society is paying for disobedience to the moral code set out in the Bible.

                      Anyone with children should be worried.
                      Free sex – who pays?

                      http://www.jubilee-centre.org/document.php?id=424

                    • Guglielmo Marinaro

                      What remedy are you proposing, Jill? Abolish homosexuality or, as you like to call it, “same-sex attraction”? Or failing that, abolish gay sex? Those are practical possibilities only in a place known as Nephelokokuggia (or in English Cloud-cuckoo-land), not in this real world that real people live in. When the AIDS problem first exploded, those countries where gays were legally and/or socially oppressed escaped, did they? Like hell they did. Have countries where gays are STILL legally and/or socially oppressed escaped? Like hell they have. You might also do well to remember that, in many of the Third World countries, in the overwhelming majority of AIDS cases the virus is transmitted by HETEROSEXUAL sex. You’re a practical person, are you? Well, thank you very much for telling us; I don’t know how I could have discovered it otherwise.

                    • Guglielmo Marinaro

                      What you need to understand, Stuart, is that what Jill is obsessed with is anal sex – gay anal sex, that is. For her, what she calls “the sex aspect of homosexual relationships” is simply ABOUT nothing but “sodomy” this, “buggery” that, and anal intercourse the other. Oh, and more far out and kinky practices such as “fisting” and coprophagia.

            • And again, not an issue. There is no scriptural prohibition on having sex with a spouse of a different colour.

              • James Byron

                The analogy isn’t dependent on the Bible. It stands on its own merits.

                • Except that we’re discussing what the Bible says.

                  • James Byron

                    Discussing the Bible doesn’t make the case that voluntariness should mitigate a wrong. We don’t give the nod to anti-miscegenation laws because a couple could avoid interracial marriage, and should extend the same principle to same-sex marriage.

  • Firstly, the distinction regarding issues of doctrine and ritual in Section 7 of CDM2003 derives from the Church Discipline Act 1840: ‘for punishing those offences which do not depend on disputable points of law, or on matters that are so highly controversial as doctrine or ritual; but which in the consensus of general opinion are acts of personal immorality’.
    The bishop of Buckingham is mistaken. Same-sex marriage is not a matter of worship and doctrine, but discipline.
    The question is whether a same-sex marriage per se could be construed as conduct unbecoming. I woul agree with Philip Jones’ Ecclesiastical Law blog post on this: http://ecclesiasticallaw.wordpress.com/2014/02/19/clergy-discipline-and-same-sex-marriage-inappropriate-conduct/

    He suggests that the issue is not that it falls under EJM, but that CDM 2003 is part of English law and cannot frame a lawful marriage as ‘conduct unbecoming and inappropriate’, even if it diverges from church teaching:

    ‘Homosexual acts may be capable of constituting misconduct under s.8(1). This is clear both from the plain wording of s.8(1) and its legislative history. However, it does not follow from this that entering into a same sex marriage would contravene s.8(1). Modern ecclesiastical legislation makes clear that the clergy cannot justify their immoral behaviour merely because such behaviour is no longer illegal. The law has permitted or tolerated homosexual acts for many years now. However, as a result of the Marriage (Same Sex Couples) Act, same sex marriage is not merely an act that the law permits or tolerates. It is a status that is positively conferred by law.

    It is therefore hard to argue that the law should regard as immoral, or even as unbecoming and inappropriate, the acquisition of a status that the law itself confers.

    He also cites Banister v Thompson (1908) Probate 362. While he admits that the case involved withholding Holy Communion from a man who had married his deceased wife’s sister, he makes a good point:

    ‘The case concerned a lay parishioner’s right to the Sacrament, not a clergyman’s tenure of office. However, it makes the point that the law cannot very well condemn someone for making a lawful marriage, even if the marriage contradicts the Church’s teaching.’

    The same could be said of divorced clergy. While the general rule is that the divorced cannot be admitted to Holy Orders (except by faculty), ‘there is still no law to forbid a clergyman who has been divorced from marrying again, even though his former spouse is still alive, or from marrying a divorced person.without minister who re-marries.

    He envisages the only avenue of discipline as General Synod legislating a canon that would forbid clergy from entering a same-sex marriage. I think this is unlikely in the current climate.

    As I stated in a previous post, I think that there will be two significant realistic consequences in respect of CDM 2003 and same-sex marriage:

    1. Those clergy who enter a same-sex marriage in defiance of the HoB pastoral guidance can reasonably be denied preferment.

    2. Rather than same-sex marriage per se, the measure of whether it constitutes a breach of church discipline is in its effect of parishioners. It may be held that it is not the marriage itself, but the consequent loss of influence over

    As Gillian Rosemary Evans states in Discipline and Justice in the Church of England:

    ‘There is a continuing recognition in the modern Church of England canons that parishioners have a legitimate interest in the conduct of their priest.’

    This is what is meant when CDM 2003 states that a complaint must be made by a person with a proper interest in making the complaint.
    She goes on further to state that: ‘part of the effect of not setting a good example may consist in loss of influence. In Rice vs. Bishop of Oxford the notion was weighted that ‘the church in Sympson had lost the hold which it formerly had over the people and that the appellant had lost his influence’
    ‘It is the scandal of misdoing rather than the misdoing itself which is the offence described
    So, if the impact of a priest’s same-sex marriage has caused such offence as to disaffect committed parishioners, it may be held that his conduct is unbecoming and a penalty could be imposed.

    • Alan Wilson

      David, Thank you for a very helpful post. I don’t agree with your simple
      assertion that entering a same sex marriage is subject to a law “for punishing those offences which do not depend on disputable points
      of law, or on matters that are so highly controversial as doctrine or
      ritual; but which in the consensus of general opinion are acts of
      personal immorality.”

      Same sex marriage is arguably every single one
      of these things — the law about how it applies to clergy is in dispute,
      it is controversial, it does rest on different views of doctrine, and
      the consensus of general opinion in the Church is split down the middle
      on it, and outside the Church generally unfavorable to the idea that
      SSM is inherently immoral.

      Therefore, Forbidding clergy from marrying can only be done on the basis of a narrow interpretation of Canon B30 rather than the broad interpretation of it that bishops exercise in relation to every other group living outside its bounds.

      Clergy who propose to marry are not doing it to defy bishops, but in order, as they
      see it, to frame the life of their household after the doctrine of
      Christ in the conditions that are now allowed in contemporary society. As
      long as legal marriage was unavailable to them, they were content to
      live as morally married, but unable to do so publicly.

      They believe ordering their life in a way that assumes impermanence bears a poorer
      witness to Christ’s life and teaching than permanence faithfulness
      stability and mutual love.

      They may be wrong, but a law intended to
      punish people who steal the office stapler or commit acts everyone
      agrees undermine marriage like adultery cannot determine such a matter.
      It can only be done by a doctrinal tribunal. Philip Jones’ wise words
      about lawful status apply particularly here. Furthermore if the whole
      thing went ballistic under human rights law, what would have to happen
      is an application of articles 11 and 8 proportionately and in relation
      to article 9. That, however is another dimension, beyond the point
      that’s generally under discussion here.

      • First – “Peter” (How hard is this to get right?)

        Second – It’s not my analysis but the that of the person who wrote it

        Third – If you believe Canon B30 in conjunction with the BCP marriage service do not teach that marriage is only between a man and a woman then I think you are stretching credulity for the sake of your liberationist dogma.

        • Stuart, Devon

          Peter, I think Alan was responding to David.

        • jillfromharrow

          As Andrew Goddard points out in his very helpful peice, (Part 1) none of the previous ‘offences’ on which the C of E has given way would require the rewriting of the BCP (one of the historic formularies of the Church of England) marriage service in the way that same-sex marriage – which completely alters the definition of marriage – would.

      • Bishop Alan,

        Thanks for your reply.

        While Pilling and the HoB indicate that they are not of one mind, it remains the clear duty of the priest to serve his/her parishioners, especially those who might be scandalised into abandoning the church because of an optional adherence to the current doctrine. Philip Jones only addresses the issue of clergy entering a same-sex marriage per se.

        Whatever the internal and external balance of social attitudes towards same-sex marriage, choosing to marry a same-sex partner contradicts the doctrine of the church established in law by Canon B30.

        Nevertheless, a proper interest in making a complaint would not arise solely from the divergence of same-sex marriage from church doctrine. It would involve the impact of such a marriage on the priest’s parishioners. The jurisprudence shows that the church does not have to consult widely on societal opinions, the role of discipline is to maintain behavioural order and to thwart any notion that the church is happy to connive at the the rejection of order and the due process for amending canon law.

        The church could not just ignore the complaint of conservative parishioners who, for instance, discover that their vicar has suddenly decided to ‘come out’ and enter a same-sex marriage. In contrast, in spite of the lawfulness of civil re-marriage, even Christians who have divorced for their spouse’s desertion, abuse or adultery are subject to inquiry before they can be re-married in church.

        Whatever controversy that surrounds gay marriage, the House of Bishops can lawfully impose restriction on clergy without contravening human rights legislation. The only qualification to this in the SSM Act is Clause 2 (permitting individual opt-out from a religious organisation that opts in).

        In respect of human rights, Professor Ian Leigh of Durham University wrote in Balancing Religious Autonomy and Other Human Rights under the European Convention – Oxford Journal of Law and Religion ( http://ojlr.oxfordjournals.org/content/early/2012/01/24/ojlr.rwr015.full ): ‘It might be thought that domestic courts are free to grant additional constitutional protection against non-governmental bodies where Strasbourg would not do so but even this raises potential difficulties. Religious organizations have Convention rights of their own and to tip the balance too far in favour of the individual at the domestic level could leave the state open to challenge by the organization at the Strasbourg level.’

        While you have identified possible contraventions of individual human rights, the Equality Act 2010 specifically exempts religious organisations on restrictions imposed in relation to sexual orientation. A restriction is permitted where it is necessary to comply with the doctrine of the organisation or in order to avoid conflict with the strongly held convictions of members of the particular religion or belief.

        While there may be an on-going discussion, the CofE discipline in restricting clergy from entering a same-sex marriage is lawfully exempted from the Equality Act 2010.

      • Tom

        I must be totally naive. That clergy have been living in same sex “moral marriages” all these years is still something of a surprise to me. Obviously there are gay vicars but I was under the impression that they were required to be celibate.

        This is why the Fr. Cain thing seemed incredible to me but I’m beginning to understand; frankly if the bishops knew he was in a homosexual relationship all these years it does seem ridiculous to discipline him for “making it official”. What I now need to understand is why it’s OK for church leaders to blatantly flout the standards clearly laid out by the CofE. Years of incensingly smug nods and winks are coming round to bite their arses.

        Right, I’m off to “morally drive” my stolen car with a member of the youth group who I’m in a “morally sexual relationship” with.

    • For what it’s worth, I rather think that “It is the scandal of misdoing rather than the misdoing itself which is the offence described” is open to a devastating theological critique, a la Rene Girard…

      • Yes, for who if any are scandalised apart from Mrs Beamish and the Bishops?
        Interesting…..

  • I’m sorry, I thought you were responding to the piece, not a comment.

    “Mr Pooter”? Why not just call him a Pharisee and have done with it?

    You are still not dealing with the point that the CDM deals with actions not doctrinal teaching, and the entering into a sexual relationship outside of marriage is an action. The doctrinal position on that action is very clear (until it changes).

  • Martin Reynolds

    Your anonymous correspondent writes:
    “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.”

    But I would say that it is highly doubtful that a CDM will rule that marriage will be seen as constituting conduct unbecoming a cleric.
    Interestingly, they will fail to make this judgment precisely because there is no possible way they could make the leap described here, that marriage can be described as immoral or be seen as akin to adultery.

    Your correspondent is perfectly correct in saying that the these tribunals will be able to draw on a wide range of sources in coming to their conclusion and amongst those are those to which he makes reference and that is the crushing defeat the Church experienced in Parliament, the wide welcome for this law in the Church itself and the overwhelming, even enthusiastic embrace it has had from the wider community.

    The law does not presume a sexual relationship. I know several couples who do not have sex who will be married and so the law is perfectly right not to assume this. Fig leaves are intact.

    The Church cannot say what is suggested here through its tribunals, this would not just have a bearing on clerical marriage but imply all marriages are unbecoming or immoral.
    This is precisely why this cannot last, not even for a short time.

    • The problem with your argument (like others) is that it is currently possible for a member of the clergy to undertake an action that is perfectly legal under the law of the land (for example, to commit adultery – the law makes no presumption of the morality of that act) and yet to be disciplined for it because the Church sees that as an immoral or unGodly act. In this regard the position is already established. Add to this that the Church of England’s official position on same-sex marriage is very clear and *either* you have to argue that all CDMs for adultery should actually be tried under the EJM *or* your position makes no sense.

      • Martin Reynolds

        No, that is not what I am saying, Peter.
        I am saying that no Church tribunal can come to this conclusion for the reasons you repeat. They will not be able to find any reasonable justification for saying marriage is akin to divorce, etc.

        What those who are agitating against this guidance are saying is that it is unworkable, it will fall at the first hurdle.

        I can just about imagine a tribunal whose members would say “unbecoming” but I cannot believe anyone would be foolish enough to populate a tribunal with these.

        All law has to be workable, it requires assent and that people will in general agree with the outcomes.
        This law can claim none of the above, that is why it will not last past the summer.

        • The issue isn’t whether gay marriage is akin to adultery. 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.

          • Stuart, Devon

            Two thoughts on those points Peter.

            Firstly, of course the Act omitted non-consummation and adultery from same sex marriage, which could be taken as suggesting that sex is not fundamental.

            Secondly, sex before marriage, even having sex with someone you do not go on to marry, is not in practice treated as conduct unbecoming. That suggests that adultery is not just about having sex with someone you shouldn’t, it’s about breaking a covenant. That could point to same sex marriage being more akin to pre-marital sex than to adultery.

            [And a bit of a third thought… the notion of a tribunal receiving evidence as to whether a clergy person has had sex truly makes the heart sink – what the tabloids would make of a group of lawyers and clergy peering at some unwashed bedsheets.]

            • While the Act omitted non-consummation and adultery as facts of divorce, the existing case law for divorce shows that a pattern of sexual neglect or unfaithfulness is considered unreasonable behaviour deemed sufficient to justify dissolving the same-sex marriage.

              That would suggest that sex is a fundamental to the nature of all marriages.

              Secondly, sex before marriage, even having sex with someone you do not go on to marry, is not in practice treated as conduct unbecoming
              The issue is what sort of behaviour could lead a person with a proper interest to make a complaint. If the priest had left a string of broken hearts in the wake of his pre-marital sexual exploits, they might be sufficiently egregious to prompt the accusation of conduct unbecoming.
              There’s been far too much emphasis on specifying which acts would incur a penalty by contradicting church doctrine. Instead, we should recognise conduct unbecoming involves behaviour that not only contradicts the church’s teaching, but also precipitates disaffection towards the church.

              • Stuart, Devon

                David, on the first point, pretty much anything can be accepted as unreasonable behaviour nowadays, I’m unconvinced that that suggests that subjects so raised are fundamental to marriage. I would agree that sex had traditionally been fundamental to marriage, so one could argue that as same sex marriage is marriage, ergo sex is fundamental – although I’d still feel that the specific decision not to require consummation provides a counter argument.

                The second point is perhaps the more important. I think there are two ways one might interpret it.

                Firstly, one might say that it implies that whether a cleric is married to someone of the same or a different gender is irrelevant, it is how they conduct their married life that counts. Here we have the odd situation that marriage tends to suggest a more stable and committed form of relationship, but whilst the church has accepted for years (indeed decades) gay clergy relationships without the benefit of marriage, and continues to do so, it opposes them being formalised in matrimony.

                Secondly, one might say that, given the church’s stance in opposition to same sex marriage, parishoners might be scandalised by their minister contracting one. On that point, I suspect the challenge might well be that in those churches where the incumbent might marry their partner, the congregation might well be more scandalised by a potential disciplinary action than by its supposed cause.

                Unless Captain Renault has joined Fr Cain’s flock, perhaps.

              • “The issue is what sort of behaviour could lead a person with a proper interest to make a complaint.”

                Well, the behaviour is simply entering a same-sex marriage. So as soon as the Bishop knows this he has to act.

                Or is that too simplistic?

          • Martin Reynolds

            There is real discussion to be had around how the Church of England defines marriage, but for the moment we were engaged with the claims made above by your correspondent and they were making the assertion that marriage is now going to be immoral and unbecoming to a cleric.
            Stuart, Devon makes further points below I would like to support.

            I would say there will be no case.
            I would suggest that with the present uncertainty, made even more so by the letters from the bishop of Oxford and others, no diocesan authority would be advised to prosecute a cleric for marrying.

            In fact, although only one bishop voted against this guidance, the movement against its content and tone is so strong that we can expect more and more bishops to express the need for urgent revision.

  • Martin Reynolds

    Can I also add as a matter of some small interest; the bishops of the Church in Wales received the report on these matters from the Standing Doctrine Commission a couple of weeks ago.

    We await their statement and note that unlike England, Canon Law here applies to all.

    • How does that work? How do you apply Canon Law to non Church goers?

      • Martin Reynolds

        Oh dear, so imprecise!

        Canon law here applies to all the members of the Church in Wales.

        • My dear Martin, precision is everything, as any good (canon) lawyer will tell you.

          Be interesting to see what the Welsh Doctrine commission comes up with.

  • Stuart, Devon

    A few specific points on the article.

    It asserts that “The House of Bishops has expressly stated that it will not allow the clergy to enter into same-sex marriages.” To be precise, it has issued “Pastoral guidance” that the house “considers that it would not be appropriate conduct” for clergy to do so, and “urge[s]”
    clergy to follow that guidance.

    It states that clergy are committed “to obeying the canon law of the Church of England, including the lawful directions of their bishop where he has authority to do so.”

    This appears to claim that lawful directions from an individual bishop form part of canon law. I’d suspect this might represent a degree of confusion – canon law certainly establishes circumstances in which it authorises bishops to set direction (eg on forms of service) but those are specific to those circumstances, I can see none which are relevant here (though I would be interested to hear if I’ve missed something).

    Reference is made to the oath of canonical allegiance. Some have described this as a dead letter – partly due to its feudal origin, partly as there are far too many examples of clergy
    disregarding their bishops with impunity for it to form a credible basis of action. Over at Ecclesiastical Law, Philip Jones has written:
    “Clerical disobedience is now dealt with under s.8(1) of the Clergy Discipline Measure 2003. S.8(1) provides that it is a disciplinary offence for a clergyman to: (1) do any act in contravention of the laws ecclesiastical or (2) fail to do any act required by the laws ecclesiastical.
    According to the doctrine of canonical obedience stated by Lord Kingsdown in Long v Bishop of Cape Town, a clergyman will be guilty of disobedience to an order only if the bishop or other Church authority giving the order has the legal right to do so. A clergyman is within his rights
    to disregard an order that is given without proper authority.
    It is also argued that it is a defence to a complaint of disobedience, even to a lawful order, if the accused clergyman was not adequately notified of the order, or if the order was not clearly expressed to be an order rather than a suggestion.”

    So, for clerical disobedience to be used as the basis of an action, it would need to be established (a) that a bishop has the legal right to forbid clergy from entering into civil marriage with someone of the same sex and (b) that the “Pastoral guidance” was clearly an order, not a request.

    The article above (here on Peter’s site) continues by stating “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” – I don’t see that this has been established. Same sex marriage has not been specifically defined under the CDM nor in law as constituting such, so the tribunals and appellate bodies will depend on case law and precedent, and by definition the first case
    will start to establish that, but only when it comes.

    Finally, the writer states that clergy “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.” This assumes that even if a tribunal does conclude that entering into such a marriage constitutes conduct unbecoming, that they decide the appropriate penalty to be removal from office or prohibition for life. Again, until we have case law, that is pure speculation. It could well be that a lesser penalty would be imposed.

  • Rhibeor Taurlhann

    While I wish no trauma or stress on gay vicars who decide to marry, I rather hope the Church does decide to institute disciplinary proceedings against them. The ensuing public relations disaster will make the (temporary) scuppering of the women bishops measure look like a cake walk in comparison.

    Letting conservatives do their worst is the best way to counter them. When the wave of public and parliamentary disapproval breaks over the Church it will sweep reactionaries before it like an all-devouring tsunami. The carnage will be terrible but as always in these kinds of situations reason will prevail and once the obscurantists have been disposed of a whole new Church will arise from the wreckage.

    Oh happy day !

    • jillfromharrow

      Without wishing to rain on your parade, the exact opposite has happened in the US where the conservative breakaway churches are the ones which are flourishing, whereas the pro-gay Episcopal Church is dwindling.

      • Rhibeor Taurlhann

        By all means, break away! I’m sure there are many like you who’d be much happier in your own ecclesiastical version(s) of Ukip. Or failing that you could hop on the Coetibus and take a ride to Rome. You obviously don’t want to share a church with gays, women bishops, assorted liberals and other milksops, so what’s stopping you?

        • Jonathan Lancaster

          Because it’s our church and if the liberals want to abandon scripture and tradition, and elevate their own experience as the sole guiding principle they can bugger off and join the the Sunday Assembly, or the unitarians, or indeed start their own people’s front of judea.

          • Stuart, Devon

            To pick up on a specific point, in the spirit of using this dialogue to seek better mutual understanding, it’s a false conception that those in favour of same sex marriage want to abandon scripture, or elevate their own experience.

            On this, as on many other matters, people read scripture differently.

            • Jonathan Lancaster

              Which is fine, so long as it’s an honest reading, genuinely approached with a good faith attempt to understand what the Bible is actually saying, rather than with the heuristic of ‘I don’t like the sound of that – how can I twist scripture to fit with what I really want it to say?’. If you believe what you like in the gospels, and reject what you don’t like, it is not the gospel you believe, but yourself.

              This whole concept that the problem is that we just don’t understand each other and if we did we’d all just get along fine is rubbish. The Bible’s instructions on false teachers is that they should be rebuked and corrected and if that fails they should be put out of the church. It’s just folly to instead embrace some nonsense where we all gather round, and bare our feelings and hug it out as if we can suddenly all be friends again and get on with the work of proclaiming the gospel, which henceforth will be our common word to describe whatever we want it to.

              • Stuart, Devon

                Jonathan, of course, it must be an honest reading, which equally must not be dictated by a previously prevailing interpretation of scripture stemming from past social contexts.

                We must put out false teachers, of course – but do you define as “false” anyone with whom you have any disagreement? How much falsity do you wish to allow? Is it acceptable for those who oppose and support women’s ordination to remain in the same church? Baptismal regeneration? Differing theologies of atonement? Differing ecclesiologies? If one were to follow your logic to the extreme, the church would forever be fragmenting into smaller groups; historically and currently we can observe that that can be detrimental to its mission. I’m not suggesting that you’re arguing to the ultimate point of this logic, but nor am I suggesting that we just “hug it out”.

                I can see three prime reasons for joining a discussion on sites such as Peter’s:

                1) to convince people who disagree with us to change their minds – frankly, I think we have enough experience by now to know that that (at the fundamental level) is not going to work;

                2) to reinforce ones own smug satisfaction in ones self-righteousness – frankly, whilst I value Thinking Anglicans, I have of late found that the posting community there can tend towards that, as it can on other sites of all stripes: motes and barges, this feels dangerous;

                3) given that neither broad position is a marginal one within the church, to seek to understand better why others hold the views they do and to elucidate ones own views – and here I’ve had, for example, what I’ve found some very constructive exchanges with David S.

                So, one can simply condemn (whichever view one holds personally) the vast number of Christians on the other side as heretics and say one wants nothing to do with them, or one can appreciate that we still have more that unites us than divides, we share together the Great Commission, and that if we understand each other better we may perhaps mitigate the more erroneous and extreme interpretations of the opposing position and by doing so better fulfill the mission entrusted to us.

                • Jonathan Lancaster

                  Oh, I’m all for divorce – all that’s left to decide is who gets the house… Given that’s not going to be resolved anytime soon, though, I have great confidence that liberal theology will eventually peter out – once a church becomes little more than secular humanism sprinkled with some spiritual glitter it ceases to have any real purpose beyond a christmas tradition. If you embrace Choose Your Own Adventure Christianity eventually people choose to stay at home.

                  • I was chatting this through with someone at my client yesterday. This non-church goer, without any prompting, said, “Of course the reason why you lot [conservatives] will survive and the more progressives will lose is that once a church doesn’t look any different to society around it, why should society bother going to it?”

                    • Stuart, Devon

                      So Peter, your take on every previous disagreement within the church over the centuries is that the more conservative position prevailed?

                    • Non sequitur.

                    • Stuart, Devon

                      Is it? The logic chain, if I understand it (maybe I’m missing something) is not that there is a specific problem with the “liberal” position on the current issue, but that conservatives survive and progressives lose. Surely on that basis the same should apply to every disagreement within the church, of which there have been hundreds over the years.

                  • Stuart, Devon

                    Well, I guess it’s fortunate that the church neither represents secular humanism nor Choose Your Own Christianity – but as you seem to be intimating that you neither wish to understand where others are at nor to be understood better yourself, I guess you don’t want to know that.

                    I really don’t get this desire on either side of this debate to dress up ones opponents in demon-costumes. “They’re all homophobic bigots!”, “They’re all secular humanists!” Well, whatever floats your boat, I suppose.

          • jillfromharrow

            Thank you, Jonathan. I wasn’t going to dignify that spiteful little comment with a reply, but you have made the point very well – as has he, which illustrates only too clearly why the orthodox are leaving The Episcopal Church in droves.

      • William R. MacKaye

        Harrow is, of course, some distance from the United States. If you were here, Jill, you would know that the breakaway churches are far from flourishing. They’re struggling to maintain their insignificant numbers–100,000 in total, maybe?–and wondering how to pay their bills. Organizations whose raison d’etre is to attack the Episcopal Church in the end don’t have much to say to people who are struggling to find meaning in their lives. The message of God’s all-embracing love, as preached by the Episcopal Church among others, has a good deal more appeal. It is, as well, the overarching message of the Bible I read..

        • jillfromharrow

          Harrow might be a long way from TEC, but I can read!

          “Following Gene Robinson’s 2004 consecration, FCA/GAFCON was formed; it encompasses at least eleven Primates and their Anglican provinces, fully 80% of the Anglican Communion. The Anglican Mission in the Americas (AMiA) was formed in 2000. There is now a new Anglican Church in North America (ACNA) that includes the Convocation of Anglican Churches in North America with four dioceses (CANA); five Episcopal dioceses have left TEC; an Anglican Network in Canada has formed (ANIC); and a body in England – the Anglican Mission in England (AMIE) — all pointing to a worldwide realignment of Anglicanism. That is precisely because Robinson and those who preceded him and now follow him have, in fact, caused a de facto (but not a de jure) split in the Anglican Communion. This is NOT about diversity; it is about a united Anglican Global South that is 90% evangelical and 100 percent heterosexual along with a fast failing western Anglican Communion that is withering and dying and will soon be on life support. The Episcopal Church can barely muster 700,000 on any given Sunday, the equivalent of one diocese in Nigeria. (That African province has over 21 million practicing Anglicans).” (Information courtesy of David Virtue.)

          As for God’s all-embracing love, people who struggle to have meaning in their lives should not be deceived by the false comfort coming from the ‘progressives’ in TEC.

          Congregations which have broken away have left empty-handed, thanks to the legalised theft called the Dennis Canon, which relieves them of all their property (which they and their ancestors bought and maintained) and all other assets, which now fall into the hands of the Diocese – at least one of which preferred to sell the property to Muslims rather than sell it back to the departing congregants. But in spite of all this they have gone on to flourish and grow.

          Choose life – not death.

          • Stuart, Devon

            Jill, it seems clear that *neither* TEC nor ACNA are doing brilliantly in terms of growth. Perhaps the message is that allowing internecine strife to dominate is bad for all concerned.

  • wondering_soul

    I realise that this is a hopelessly old-fashioned observation, and potentially off topic in that it does not relate directly to the the question of what measure, if any clergy may be disciplined under, but it seems to me that there is a question of underlying integrity here that is not being addressed. Clergy take an oath of obedience – and an oath (I swear to Almighty God…) should be a serious matter to any believer. The authoritative body in the church has made it clear what obedience in this matter requires. If individual members of the clregy wish to undertake a same-sex civil marriage, they are entirely at liberty to do so. As far as I can see they can if they so wish remain as communicant members of the church after having done so. But how do they reconcile in their conscience being actively foresworn while remaining a clerk in holy orders in the Church of England? If a civil servant is unable ethically to implement Government policy they are required to resign and oppose it as a private citizen. The same principle seems to me to apply equally to the clergy with respect to church doctrine. As I said, hopelessly old fashioned But at core this seems to me to come down to a number of intelligent, charming, deeply committed people trying to have their cake and eat it.

    • James Byron

      The obedience is conditional on honesty and lawfulness: on those conditions hangs the difference between authoritarianism and the rule of law.

      Bishops have knowingly colluded in a realpolitik policy of institutional dishonesty and caprice (Jeffrey John was driven from office despite fulfilling Issues … to the letter, to keep a shameful peace), and cannot now expect to turn around and demand clergy play by the rules.

    • Stuart, Devon

      wondering_soul, you raise an important point, the problem is that clergy of many different flavours have long since failed to abide by that oath. Established practice has rendered it one of the many aspects of the formularies of the church (Canon C27 anyone?) that seem to have fallen into desuetude.

  • Alan,

    Yesterday I spoke to two people who deal with CDMs on a professional basis and they both expressed the opinion that your nit-picking has no legal substance. For example, the same EU rights you reference mean that the EJM is dead in the water and this is exactly *why* the CDM was introduced. And the CDM has a much wider remit than you give it – it is specifically designed to cover all forms of “conduct unbecoming”.

    • James Byron

      Out of interest, why do they believe the EJM is incompatible with the ECHR (or is it some EU legislation)? It gives due process before an impartial tribunal, after all.

      • I think It’s to do with the way the court is constituted.

  • Scandal is a red herring. The misdemeanour will be entering a same-sex marriage, not the “scandal” it does or doesn’t cause.

  • Father_Ron

    Your phrase, Komment Macht Frei, has all the hallmarks of a Nazi Gauleiter. Why must you be so nasty when someone speaks of a love you neither understand nor recognise?

    • Coming from a chap who is constantly using snide language about conservatives, this is hilarious.

      And Gauleiters had very little to do with KZs. If you’re going to use historical references, please get them right.

  • The only reason that the ‘narrow’ interpretation is unpalatable is that few bishops can stomach recalcitrant breakaway parishes. Your recollection is probably better than mine regarding Rev Kit Chalcraft’s reinstatement by the current bishop of Norwich after being removed from office for entering his third marriage.

    Sure, Bishop Peter Nott responded to concerned parishioners forthrightly, but clearly several breakway parishes thought that his removal of Chalcraft from ministry was a step too far. It’s always good to keep churchwardens on side.

    In the end, the current bishop of Norwich decided to restore Chalcraft’s PTO. The Communication Officer for the diocese was appointed last year to become the Venerable Jan McFarlane.

    At the time she said: ‘The bishop certainly agrees with the ideal that marriage should be for life and divorce is something we wish did not happen.

    ‘But we live in the real world and we recognise that it does happen. The Church is now recognising that divorce does happen more and more often. Things have certainly moved on in the last seven years.

    Chalcraft’s own words are almost prescient of ‘faciltated conversations’:

    ‘In a situation of many conflicting issues, he has gone for the best solution.

    “There was an enormous schism here when he came to Norfolk and he has tried to heal an unhappy situation by bringing people face to face.

    “It is not that he has lax views on marriage. He is just trying to deal with the situation as it is. What has happened is marvellous and I feel much happier now.’

    The same will happen over any attempt to enforce the pastoral guidance to clergy in relation to same-sex marriage. Intractable parishes will be placated in the same way.

    Nevertheless, let me be perfectly clear that this regime of mutual flourishing will do nothing to revive the CofE’s fortunes: ‘the salt has lost its savour’ with sexual values becoming firmly aligned with the zeitgeist.

    When people like me do leave the CofE to let liberals get on with it, we leave to join churches experiencing exceptional growth. We will leave because of the capitulation that allows clergy to ignore the church’s own due process by which her canons are agreed. We will leave because of clergy who exclude themselves from being governed by the synodical process.

    ‘Pure religion and undefiled before God and the Father is this, To visit the fatherless and widows in their affliction, and to keep himself unspotted from the world