Lawmaking for the Church: The Church of England and Marriage

In an interview on the Andrew Marr Show on 11 March, the Archbishop of York, John Sentamu, got into a muddle. First, in response to a question about the government's consultation on same-sex marriage, he argued that the government couldn't permit civil marriage between same-sex couples, because the definition of marriage was in the 1662 Book of Common Prayer of the Church of England ('BCP') and in 'Article 30 of the Church of England'; second, he argued that both were Acts of Parliament but that only the General Synod of the church could change them. He then said that the government should not press ahead with its promise to introduce civil marriage for same-sex partners. The confusion here needs to be untangled, because the Church of England will undoubtedly be trying out as many arguments as it can devise to oppose same-sex marriage (SSM). It will be important to respond to each one carefully in turn.

First, the definition of marriage is not in the Book of Common Prayer, nor is it in Canon B 30 of the canons of the Church of England, which the archbishop mistakenly referred to as Article 30. The BCP contains a definition of marriage in the preamble to the marriage service:

[A]n honourable estate, instituted of God in the time of man's innocency, signifying unto us the mystical union n that is betwixt Christ and his Church: which holy estate Christ adorned and beautified with his presence, and first miracle that he wrought, in Cana of Galilee; and is commended of Saint Paul to be honourable among all men: and therefore is not by any to be enterprized, nor taken in hand, unadvisedly, lightly, or wantonly, to satisfy men’s carnal lusts and appetites, like brute beasts that have no understanding; but reverently, discreetly, advisedly, soberly, and in the fear of God; duly considering the causes for which Matrimony was ordained. 

First, it was ordained for the procreation of children, to be brought up in the fear and nurture of the Lord, and to the praise of his holy Name.

Secondly, it was ordained for a remedy against sin, and to avoid fornication; that such persons as have not the gift of continency might marry, and keep themselves undefiled members of Christ's body.

Thirdly, it was ordained for the mutual  society, help, and comfort, that the one ought to have of the other, both in prosperity and adversity.

While beautiful, this is not a legal definition of marriage; it is the church's definition of marriage (and that of a rather outdated theology, at that). The legal definition of marriage for England and Wales, which tells people (whether Christian or not) when a marriage has taken place, is contained in the Marriage Act 1949. There, marriage is celebrated (i) according to the rites of the Church of England, by banns, a common license or a superintendent registrar's certificate or (ii) under a superintendent registrar's certificate, either in a registered building (a non-Church of England Church, recently expanded to include registered secular premises such as hotels) or in a registry office for civil marriages. Any definition that the Church of England may have for marriage applies only to the first of these.

What is more, the words 'man' and 'woman' occur only in the description of prohibited degrees of relationship in the 1949 statute; nowhere does the statute define marriage as being between 'one man' and 'one woman'. Interestingly, this passage from the BCP also does not contain a reference to 'one man' or 'one woman'; and much of it can easily be interpreted to apply to same sex couples, who are just as capable of entering into relationships advisedly, avoiding sin, offering mutual support, and bringing up children 'in the fear and nurture of the Lord and to praise his holy Name' as any others.

Canon B 30 (promulgated in 1969) is much shorter:

[M]arriage is in its nature a union permanent and lifelong, for better or for worse, till death do them part, of one man with one woman, to the exclusion of all others on either side, for the procreation and nurture of children, for the hallowing and right direction of the natural instincts and affections, and for the mutual society, help and comfort which the one ought to have of the other, both in prosperity and adversity.

The canon echoes the purposes from the marriage service (procreation, monogamy and mutual support), but it goes further, too. It includes a limitation to one man and one woman, which had not been in the BCP definition, and it includes the criteria 'permanent and lifelong, for better or for worse, till death do them part'. Inclusion of the second set of requirements was a late-nineteen-sixties pot-shot at divorce. However, the liberalization of divorce laws has since forced the church to temporize. In 2002 the church's general synod passed a resolution, which acknowledged that 'regrettably' some marriages fail and that in 'exceptional circumstances' a divorced person may be married in church during the life of a former spouse. So now clergy may marry divorced persons (but don't have to, just as they don't have to marry post-operative transsexuals or men who wish to marry their deceased wife's sister). The canon is certainly susceptible to the same reinterpretation where same-sex marriages are concerned.

What force do these two provisions have? Are they binding on the government?

Parliament can make or unmake any law whatever, and no institution in Britain has the power to override its policies. Unlike the United States, which has a supreme court that exercises strong judicial oversight, the UK lacks a formal, set of checks and balances. At bottom, the archbishop is claiming status for the Church of England as a check on Parliament. It is not. Since 1919 it has been customary (in British terms, a 'constitutional convention') that matters dealing with the church be initiated by the church and not in the civil legislature. That custom is not a fundamental, core principle of British democracy: it can be changed, like any other act of parliament.

The pre-eminent expert on ecclesiastical law in this country, Mark Hill, writes, '[T]he inextricable link between Church and State permits the State to legislate for the Church and its religious affairs, either directly or by implication. Examples of this in more recent times include the Marriage Act 1949...' So according to the leading lawyer for the Church of England, Parliament has the power to legislate on marriage and has done so. Hill goes on to quote, in a different context, from Morritt, LJ in Williamson v. Archbishops of Canterbury and York, a judicial challenge to the ordination of women: '[T]he Church of England is and at all material times has been the established church. As such its doctrines and government were and are susceptible to change by the due processes of law'. (emphasis mine)

So it seems that the archbishop has gotten it exactly backwards. Even if its doctrine were opposed to, say, same-sex marriage, parliament's authority to legislate in that area is not restricted by the church's different view of these matters. Until the UK adopts a different system of government, parliament can do whatever a majority of its members think is best. The Church of England has, since 1919, been allowed a great deal of autonomy to legislate concerning its own, internal affairs. But that autonomy is not a right, as rights are not entrenched in the British constitution; instead, it is a matter of grace. Moreover, while much will undoubtedly be said in the coming months about religious freedom, that freedom must at least be limited for an established church that has a privileged role in the state. Anyone for a codified constitution, with a bill of rights that protects freedom of religion and prohibits establishment? I didn't think so.

Zac Goldsmith, the Election Finance Laws and Gaming

Channel 4 News has run an expose on campaign spending by MPs in May's general election. Zac Goldsmith (Con, Richmond Park) did not acquit himself well during an interview with Jon Snow, and now the Electoral Commission has announced that it will investigate his expenses. Channel 4's expose seems like an effort to replicate the Telegraph's exposure of MPs improper expense claims. And there are similarities between the two: unrealistic caps on payment (in MPs' salaries and for election advertising) led MPs and candidates to game the system by finding ways around the caps. Both were a fertile ground for legalistic interpretations of rules. And once legalistic interpretations had become commonplace, as they seem to have done, it became easy to use them to explain increasing deviations from the 'spirit' of the law--as difficult as such a spirit is to define in any meaningful sense.

The problem with the election funding scandal is that it's nearly impossible to articulate administrable rules about election spending that can be both predictable and fair. Less experienced candidates (with fewer advisers willing to help them find loopholes) will inevitably suffer, and more experienced candidates (with resources to spend on coming up with creative interpretations of the rules) will benefit. The real winners are election lawyers.

One solution is the one followed by the United States, where election spending cannot be limited because of principles of Free Speech in the First Amendment but where elections are very expensive. That leads to its own problems in terms of rent seeking by candidates' donors, who ask for political favours (or at least face time) in exchange for their contributions of money (as well as time and influence). Some political scientists speculate that the entire political economy of the United States may be broken because of this problem. But there are other ways of dealing with these issues.

Bruce Ackerman and Ian Ayres have made two really neat proposals. The first, as a response to the US Supreme Court's decision in Citizens United v. FEC, would prohibit all companies with federal contracts from making any donations to political campaigns. Since most large corporations have some contracts with the federal government, it would force all of them to make a decision about whether to eliminate the appearance of impropriety by either foregoing the donations of the profits from such contract. The second (even neater) proposal would allocate $50 in patriot dollars to each voter, which would be contributed to a campaign anonymously through an ATM. Voters could also contribute their own money in addition to the amount allocated, but they would have to contribute that money anonymously as well. Thus, there would be no way for a candidate to know who had contributed to his/her campaign, and the adverse influence of campaign contributions on the political process would be limited, if not eliminated entirely. Corporate and other large contributions would be diluted with (substantial) federal funding, and it would be impossible for a legislator to grant any political favours to large contributors, as no contributors could prove that they had contributed.


The application to the British problem is not entirely clear, but there is one. First, the system in the United States emphasizes the provision of information (including advertising); the system in the United Kingdom emphasizes the need for candidates to have an equal opportunity to gain office. But that equality seems illusory when wealthy people, with access to legal advice and the ability to spend a great deal of money on durable goods (like Goldsmith's famous tricycles and coats) can find ways around necessarily brittle rules on expenditures. One important question, which should be asked, is whether there is more demand for information during campaigns, or whether the market for information is currently saturated. That, of course, depends on the quality of the information being provided and on other largely indeterminate factors. But it seems like there ought to be a place for more debate, unconstrained by artificial campaign finance limits. Government funding is one way around the problem, which is frequently adopted in European countries; a market system (financed by the government) is another one, and that might be more administrable than any of the alternatives.

The New Fixed Terms

A.V. Dicey wrote, 'Parliament... has... the right to make or unmake any law whatever . . . Parliament is not bound by its predecessor.' The outline of the coalition agreement between the Conservatives and the Liberal Democrats provides,

The parties agree to the establishment of five year fixed-term parliaments. A Conservative-Liberal Democrat coalition government will put a binding motion before the House of Commons in the first days following this agreement stating that the next general election will be held on the first Thursday of May 2015. Following this motion, legislation will be brought forward to make provision for fixed term parliaments of five years. This legislation will also provide for dissolution if 55% or more of the House votes in favour.

 A 'Parliament' as the term is used here, exists between general elections. It can, but need not, be dissolved on a vote of no confidence in the government. Parliament cannot bind its successors, but it can bind itself for its own duration, even under Dicey's rule. Assume also that the 55% rule applies to the current Parliament (which it may not!).

In the current Parliament, this means that David Cameron cannot go to her majesty and request a dissolution until May, 2015. That ties his hands. It also withdraws the royal prerogative to grant such a request for at least five years. However, if there is a vote of no confidence, that does not mean that there will be a general election. The Liberal Democrats will preserve their position as the pivot in the House of Commons for the full five years until May 2015. Assume that the 55% requirement will apply in the current parliament as well as in future ones. The Conservatives lack the ability by themselves to dissolve Parliament (55% = approximately 358 votes, depending on how one counts). Thus, if the Liberal Democrats leave the coalition and the Conservatives cannot pass supply or other important legislation, her majesty will call on the next largest party to form a government. That will be Labour. This strengthens the Lib Dems' hand when they are negotiating with the Conservatives. It, too, preserves their position as a pivot in the House of Commons. This takes power from (a) the queen; (b) the executive; (c) a party in the House of Commons that has less than 55%. It gives power to everyone else. If you're trying to force people to get along, that's a good thing. If you want an elected dictatorship, it's a bad thing.

No matter what, it's another stake in Dicey's heart if the legislation is passed, presumably with a supermajority requirement on its repeal, which limits every future government's ability to dissolve but also narrows the royal prerogative. At the same time, it's all in the details. Will there be a super-quorum requirement? How will the 55% be counted? Will the speaker and deputy speaker and Sinn Fein be part of the requirement?

This historical background just in: Constitution Unit Briefing Paper on 55% dissolution requirement.

Electoral Reform and the Hung Parliament

What is the effect of a hung parliament? Constitutional reform is the objective of everyone except the Tories. But the problem is that there will be a coalition government in the coming months. If the Lib Dems and the Tories combine in a coalition and there is a referendum on electoral reform, then the Tories cannot claim that coalitions will not work if they are in one. They need to avoid that trap. So Ken Clarke claims (this evening) that if the UK adopts another electoral system, then uncertainty like that we are experiencing now will happen after every election. This is the beginning of the Tory spin, which is part of their forcing a coalition on Labour, the Lib Dems and other minority parties. But it is in the interests of member of a minor party and every member of a party that may not be in the majority in the future to reform the electoral system. The Conservatives are in retreat (probably for good reasons arising from their electoral and parliamentary base). But that does not solve the problem. The problem is solved by a LibDem-Labour coalition.

13 May 2010: Okay, so I got this one wrong. But isn't Ken Clarke now in an interesting position?? Maybe the referendum on AV should take place later rather than sooner in the new Parliament--perhaps preceded by Lord Reform. As David Cameron said yesterday, 'We're all going to have things thrown back at us.' Strident statements concerning constitutional reform will not be de rigueur in the new parliament.

The House of Lords and Autonomy in the Church of England

The debate and division on Lord Alli's amendment to the British Equality Bill reflect a number of really interesting things about the British government. First, the House of Lords is sometimes not as ridiculous as it would appear to be to someone who is not British. As with the (elected) United States Senate and the (unelected) United States Supreme Court, the House of Lords is a veto player that can drive policy closer to the status quo (especially in the run-up to a general election) and can even introduce new ideas into the political debate.

The news is not as positive for the Church of England. While a group of senior clergy (bishops and dignitaries in Anglo-speak) supported the amendment to allow non-Anglicans to hold religious ceremonies in connection with civil partnerships on religious premises, others like the Bishop of Winchester seek continuing protection of the church. Only the most attenuated arguments support a threat from outside the Church of England based on hypothetical application of EU anti-discrimination laws. More likely are the possibility that (1) the Church of England will be forced to debate whether to allow such ceremonies to take place in its churches or (2) a renegade rector will conduct ceremonies in a church, where he holds a parson's freehold. The strict hierarchical structure of the Church of England is not always as strong as it appears, and traditionally local clergy have had a great deal of power. S.J. Brown has referred to the nineteenth century financial provision for local churches as creating local establishments in each parish; his point is illustrative.

What we can hope for is rational debate. As long as people of differing opinions can argue about principles, then there is hope for a reasoned outcome. My fear is that fuzzy thinking and slippery slope arguments will be emotionally persuasive and will carry the day.

Who Cares about British Consitutional Reform?

At Power 2010 there has been a recent poll to determine what are the top priority issues for constitutional reform in the coming election. The top five are: 1. Proportional Voting; 2. Eliminating ID Cards and Rolling Back the 'Database State'; 3. Replacement of the House of Lords with an Elected Chamber; 4. Allow Only English MPs to Vote on English Laws; and 5. Draw Up A Written Constitution. The suggestions are interesting but not necessarily coherent and reflect the problems with prioritizing issues. Indeed, I would argue that No. 2 is not a constitutional issue at all.

If, as by all counts is likely, there is a Conservative government following the general election, then the only really likely candidates are 2 and 4. (1 disserves the party in power, 3 ended up being practically impossible even under a Labour government, and 5 is probably impossible at any time.)

The elimination of ID cards is an easy call for Tories who can capitalize on the appeal of the policy to Libertarians who oppose government identification. It carries a cost, however, because every time the now-Opposition Labour Party can identify a criminal who is not caught or who cannot be identified properly when he/she is, they will be able to claim that better identification cards would have solved the problem. This is particularly true in areas like benefit fraud and other financial and bureaucratic areas, control of which is particularly appealing to Conservative voters. Moreover, the actual costs to a given individual of having highly accurate identification are nearly zero. I should not be able to avoid being identified properly, if I am claiming to be someone. The reciprocal benefits are great, insofar as I am less likely to be the victim of identity theft. The difficulty is with what government may do with my identity: I object to a police officer being able to ask for it without a good reason. But that's a different question and one that can be answered independently of the ID issue.

English votes for English laws is another difficult case. Who decides what laws are English? And is it possible that in a new parliament in the future the government of the United Kingdom will lack a majority in the English subdivision of the legislature? People worry about bicameralism creating deadlock if the House of Lords is strengthened, but this seems like a potential nightmare. Until we are willing to devolve power to regional governments and adopt a really federal system, tinkering along these lines is likely to lead to problems.

All of these problems have long been obvious and were undoubtedly debated at length in the voting discussion boards on Power 2010. But it's surprising how often the same old arguments get trotted out, and people simply talk past one another.

In short, although the process was interesting, it looks more like a dead end than anything else. Perhaps there is a reason to have Royal Commissions after all.

Campaign Finance and Free Speech

Citizens United v. Federal Election Commission will remain the subject of debate for a long time. Despite the fact that I recognize the need to control expenditure on campaigns and on the influence of entrenched corporate interests, I am sensitive to the dangers to free speech when regulation may subject corporations to criminal penalties for expressing political views. I live in a country that is about to have a general election, and much of what we know will come either from print media or from 'party political' advertisements that many will not watch. Public debate is damped down at the expense of the kind of deliberation that makes for good government.

With all that said, we should welcome the efforts of Senator Charles Schumer (N.Y.) and Representative Chris Van Hollen (Md.) to impose further requirements on corporate campaign expenditures. I oppose efforts to limit speech (except in carefully limited, necessary cases), but I wholeheartedly support disclosure requirements, including forcing CEOs to appear personally in advertisements that their companies pay for. Indeed, I have a difficult time imagining any disclosure requirement, however onerous, that would not be perfectly legitimate. And failure to disclose or inaccurate statements in the context of disclosure can be punished as a crime. Lawyers know that there's always more than one way to skin a cat, and Congress is finding a better, more efficient and less dangerous way to regulate indirect campaign finance because of the decision by the Supreme Court in Citizens United.

This puts me in what Stanley Fish calls the principled camp of First Amendment jurisprudence, along with Justice Brandeis and perhaps Justice Holmes (as well as the Citizens United majority). I do not see my support for disclosure requirements as inconsistent with that view, however. With the power of speech comes responsibility. And disclosure insures that speakers can be held accountable for their statements. It seems reductionist to me to argue that freedom of speech necessarily implies that disclosure cannot be required, and even those of us who supported the majority decision in Citizens United (with reservations) should applaud a requirement that political speakers be honest about who they are.

The House of Lords and Religious Freedom

On 25 January the House of Lords defeated an amendment (119A) to the Equality Bill, which would have permitted religious organizations to hold civil partnership ceremonies in religious buildings. The amendment, sought by Liberal Jews, Quakers and Unitarians, was defeated following a speech in which the Bishop of Winchester argued that the amendment 'would blur the distinction between civil and religious marriage' and would 'blur the characteristics of the civil partnership as distinct from marriage'. (Hansard 25 Jan 2010 col. 1202) He went on to hold up the parade of horribles that would result if the pressure group Stonewall should put 'steady and continuing pressure on, if not forcing of, the churches, the Church of England among them, to compromise on our convictions that marriage has a character that is distinct from that of a civil partnership. Churches of all sorts really should not reduce or fudge, let alone deny, that distinction.' In a vote that followed, on a definition that the bishops opposed, the government was defeated 177-172 with eight bishops voting and therefore being decisive.

In 1927 and 1928 the House of Commons rejected a proposed revised Church of England Prayer Book, by votes of 238-205 and 266-220. Nevertheless, the Church of England was able to resist this 'continuing pressure on, if not forcing of' the Church of England to continue to use the same religious services in the face of actual Parliamentary pressure to do so.  In the past the church has been able to resist pressure, even when it came directly from parliament. It is perfectly capable of doing so now and should stop adopting a stance against the potential for victimisation by Stonewall.