Equal Marriage – the key to the (quadruple) lock

by Savi Hensman

Savitri Hensman was born in Sri Lanka and lives in London. She is a writer and activist working in the voluntary sector. She is an associate of Ekklesia and has published a number of articles; her book Sexuality, Struggle and Saintliness: Same-Sex Love and the Church was published in 2015.

“Although same-sex marriage legislation has changed, it remains the case that it is not legally possible for same-sex couples to marry in the Church of England”, states the Church of England’s ‘Your Church Wedding’ website. This is accurate but could be misleading. As with other faith bodies, church weddings will get the go-ahead when the central decision-making body – in this case General Synod – says ‘Yes’ (and this is ratified by Parliament, like other Synod legislation). No prior change in marriage law is required: the main challenge is needed to get the majority needed among lay and clergy representatives and bishops.

When the Marriage (Same Sex Couples) Act 2013 was passed, a government factsheet explained that this:

  • enables same-sex couples to marry in civil ceremonies;
  • ensures those religious organisations which wish to do so can opt in to marry same-sex couples according to their rites;
  • protects religious organisations and their representatives from successful legal challenge if they do not wish to marry same-sex couples

… and gave more details of how this would work, including how religious freedom would be protected:

The quadruple lock

  1. Makes clear that a religious marriage ceremony of a same-sex couple will only be possible if:
    • the governing body of the religious organisation has opted in by giving explicit consent to marriages of same-sex couples; and
    • the individual minister is willing to conduct the marriage, and
    • if the ceremony takes place in a place of worship, those premises have been registered for marriages of same-sex couples.
  2. Explicitly states that no religious organisation can be compelled by any means to opt in to marry same-sex couples or to permit this to happen on their premises; and no religious organisation or representative can be compelled by any means to conduct religious ceremonies for same-sex couples.
  3. Amends the Equality Act 2010 to make clear that it is not unlawful discrimination for a religious organisation or representative to refuse to marry a same-sex couple.
  4. Ensures that the common law legal duty on the clergy of the Church of England and the Church in Wales to marry parishioners does not extend to same-sex couples. It also protects the Church of England’s Canon law, which says that marriage is the union of one man with one woman, so that it does not conflict with civil law.

The factsheet also makes it clear that Synod can opt in when it decides to do so:

The Act takes account of the particular circumstances of the Church of England and the Church in Wales. It does not give them preferential treatment. It simply ensures they end up in the same place as every other religious organisation by containing specific measures to deal with their unique legal position. Unlike any other religious organisation in this country, their clergy have a specific legal duty to marry parishioners …

To enable marriage of same-sex couples according to its rites, the Church of England would need to bring forward to the Synod an Amending Canon to amend its Canon Law and a Measure to amend the Book of Common Prayer and primary legislation as necessary. Like all Synodical legislation the Measure would be subject to parliamentary approval.

Should the Church in Wales decide to allow marriage of same-sex couples, the Act sets out a procedure for its governing body to ask the Lord Chancellor to make secondary legislation enabling it to do so.

As the government minister Maria Miller had told Caroline Lucas in Parliament in February 2013 when the Bill was being debated (see Hansard), “this Bill is not in any way trying to treat the Church of England or indeed the Church in Wales differently. The end result for the[se] Churches will be exactly the same as for other religious institutions … I absolutely assure her that if either of those organisations chose to opt in to same-sex marriage, the provisions of the Bill would allow them to do so.”

Unless there is a major swing in Parliament towards the far right (which is unlikely though not impossible), the Church of England holds the key to its own lock. It is up to General Synod to determine if church weddings of same-sex couples, celebrated by clergy who wish to do so, are to be authorised.