Same-sex marriage and the Church of England: an argument for disestablishment

A consultation has been launched on allowing civil partnerships to be registered on religious premises in England and Wales. Some have claimed the Church of England should be exempt - because it is established. What would this special treatment mean for religious freedom and equality?

The UK government has promised to launch a consultation on ‘how to make civil marriage available to same-sex couples’ in England and Wales. Note: HOW, not WHETHER. This reflects the astonishing social change in the last two decades in the UK and other liberal democracies. Surveys such as British Social Attitudes show that moral opposition to gay relationships has gone from a substantial majority to a minority in only 20 years. The Coalition is going with the flow, although not as fast as the devolved Scottish government, whose consultation on the same subject has already taken place.

This is a very difficult subject for faith communities, many of which have been left stranded; and many of which have a principled opposition to recognising same-sex relationships in their churches, synagogues, or temples. That opposition must be honoured, if religious freedom is to mean anything; but equally, so must the principles of those who do want to recognise same-sex commitments in their places of worship.

I posted an article on OurKingdom in early December about the looming threat to religious freedom posed by Baroness O’Cathain, who secured a debate in the Lords in mid-December to repeal the “Alli amendment” that permits, but does not require, faith communities to host civil partnerships. Thankfully for religious freedom, the threat has been averted. Lady O’Cathain withdrew her motion, probably sensing that, despite intensive lobbying of Peers by conservative Christians, she would lose heavily in a packed House.

In the debate, two Peers both made the startling claim that “there is surely no need for the Church of England to be included in these regulations at all. Indeed, it should be expressly excluded from them” (in the words of the Rt Reverend Prelate the Bishop of Blackburn. The Noble Lord Cormack, for many years a member of the Ecclesiastical Committee of Parliament, made the identical claim in different words). The Rt Reverend Prelate used his seat in the UK’s legislature, bestowed on him because his church is established, to speak for Lady O’Cathain’s motion. If she had not withdrawn it, he would have voted for it, thereby cancelling the vote of the Bishop of Oxford and the advice of his own church’s lawyers that the threats conjured up by Lady O’Cathain were imaginary.

What is going on here? A demand that the established church should be exempt from regulation that applies to every other faith community in England and Wales: just because it is established. If there is a better argument for disestablishment, I have not come across one. The bishop and the noble lord want a sweeping exemption from equality law for the Church of England, and only for that church. Merely to state the claim is to expose its absurdity.

Allowing civil partnerships for religious couples in their Quaker meeting-house, Unitarian church, or Liberal Jewish synagogue affects only a tiny number of people (although that is no justification for the graceless suggestion that they may be ignored). A much bigger battle looms. The Liberal Democrat Equalities Minister Lynne Featherstone reiterated the promise to consult on same-sex marriage in her reaction to the Lords debate. The Church of England’s lawyers, while confirming that the “Alli amendment” cannot be used to force unwilling vicars to host civil partnerships (and who would ever want to be married by an unwilling vicar?), nevertheless added:

'If Parliament were in due course to legislate for same sex marriage, as recently suggested by the Prime Minister, we would of course be in new territory.'

Too damn true we would. Those who defend the establishment of the Church of England argue that its unique burdens permit unique privileges. It alone has an obligation to marry any parishioner who asks it to (although there are conscience clauses allowing vicars to refuse to marry divorced and/or transgender people). If Parliament makes same-sex marriage possible, will the obligation not then extend to offering same-sex marriage to any parishioner?

No. it cannot and it must not. As the Quakers, Unitarians, and Liberal Jews told the Lords last month, religious freedom must mean the freedom to say no as well as the freedom to say yes. Article 9 of the European Convention of Human Rights says the same thing. In England, although not in Scotland, the current proposal is to exclude religious communities entirely from the arrangements for same-sex marriage. This will predictably come under pressure if the Government’s intention to legislate for civil same-sex marriage in England and Wales by 2015 comes to pass, and/or if Scotland allows religious celebrants to officiate at same-sex marriages. But, in any such extension of permission to religious communities, there must at an absolute minimum be a conscience clause modelled on the existing ones relating to divorced or transgender people. To force unwilling religious celebrants to celebrate same-sex marriage would be deeply illiberal, and plain stupid.

But this blows English-style establishment out of the water. The courts have already ruled that a Church of England parish is not a “public authority”. This ruling was necessary to protect religious freedom. If parishes were public authorities, they would be subject to the public-sector equality duty laid down in the Equality Act 2010. They could not then refuse to marry an otherwise-qualified same-sex couple. In the interests of religious freedom, it is appropriate to insist that the Church of England is no more a public authority than is any other faith community. But then, it is imperative that it be treated in the same way, and subject to the same law, as all the others. True religious freedom does not only permit, but requires, the full disestablishment of the Church of England and the removal of its bishops from the UK’s legislature. The Church of England could remain a “national” church like the Church of Scotland, but without the entanglements that have led it astray. Each faith community must then decide its attitude to same-sex marriage on its own principles and according to its own rules. There must be no bullying of either side by the other; but nor should there be any claims for special treatment.

About the author

Iain McLean FBA is Professor of Politics, Oxford University, and author of What's Wrong with the British Constitution? (Oxford University Press, November 2009).