Error in the Bishops Guidance on Same Sex Marriages

There is a lot of excitement about an (alleged or apparent or possible or real) error in the House of Bishops Pastoral Guidance on Same Sex Marriage (on which I have reflected here). A number of academics have now written to the House of Bishop. Among them the Bishop of Buckingham who reproduces the letter on his blog. 

The offending statement is this

There will, for the first time, be a divergence between the general understanding and definition of marriage in England as enshrined in law and the doctrine of marriage held by the Church of England and reflected in the Canons and the Book of Common Prayer.

Not so, the academics point out:

This is inaccurate. Civil law and church teaching have diverged before, on at least two occasions. The first was in relation to the marriage to a deceased wife's sister, the second in relation to the remarriage of divorcees.

The letter does not actually tell us why the divergence of church teaching and civil law in these two cases is thought to affect "the general understanding and definition of marriage" but points instead to a summary by one of the signatories, Scot Peterson, of the "robust discussion of this topic" in recent days and stresses that

We are all in agreement that the statement in the Bishops Guidance is mistaken and misleading.

Not only that. It seems to these academics that the error "forms an important part of the case which is being made" which is why they tried to resolve this with "Mr Arora and Mr Fittall" [Revd Arun Arora, Director of Communication, and Mr William Fittall, Secretary to the House of Bishops] but these attempts "have failed."

There is growing concern amongst the academic community about the situation.

Some of these academics "are anxious to improve channels of communication with the Church" in the hope that their "research and scholarship can be used constructively."

This is maybe by way of contrast to the response they received from William Fittall who had the audacity to disagree with their reading of the situation.

Bernard Randall suggests in a comment thread at TA that while the prohibition of incest can be considered part of the general definition of marriage, the question what constitutes incest is not:

the Deceased Wife’s Sister Marriage Act changed the definition of incest, to remove DWS from the forbidden list. Incest changed, not marriage.

He also suggests that what allowing for a second marriage changed is not so much the definition of marriage but the definition of adultery but accepts that this may come down to a judgement call. What is noteworthy about the academics' letter is that they do not allow for the possibility of disagreement on this. They refuse point blank to allow the Bishops to distinguish between diverging understandings of marriage at the margins and at the heart of what constitutes marriage.They may have a good case for their reading but is it strong enough to silence the other side with claims of historical blunders?

In effect, the letter-writing academics argue that each divergence in law, however slight, reflects an essentially different understanding of marriage, while the House of Bishops' statement worked from the assumption that  any divergence which did not require a re-writing of the definition of marriage as found in Canon B30 is not one which affects "the general understanding and definition of marriage". The use of the word "general" rather than "legal" in the guidance suggests to me at the very least that the legalistic approach of the academics is not the only defensible.

The  Deceased Wife's Sister Marriage Act never came close to touching Canon B30 although it affects Canon B31. Allowing for second marriage while the partner to the first marriage is still alive left Canon Law itself unchanged. There may be an argument as to whether or not it required a re-interpretation of Canon B30. Maybe surprisingly the academics appeal to Princess Margaret for the view that the Church of England had always considered marriage indissoluble rather than to the Archbishop at the time who has written on Marriage and Divorce (see excerpts here) and seems to be closer to the view that the life-long design of marriage means that a marriage should not be broken rather than cannot be broken.

See also Frank Cranmer on the Law & Religion UK site, An error in the House of Bishops' Guidance on Same Sex Marriage? - perhaps not.

Reading the Pastoral Guidance on Same Sex Marriage

The House of Bishops Pastoral Guidance on Same Sex Marriage has drawn fierce criticism (see TA for a round-up of reactions). Here is an attempt at a more sympathetic reading of the guidance. 

The guidance consists of a letter and a statement. From the letter I highlight two things. First, while we are not agreed as a church on how to respond to the introduction of same sex marriage, the House of Bishop is agreed that “the Christian understanding and doctrine of marriage as a lifelong union between one man and one woman remains unchanged.”

Secondly, the Bishops re-affirm that same-sex partnerships can embody crucial virtues and allow that there are questions about “the meaning, interpretation and application of scripture to which we all seek to be faithful.” The Bishops do not spell out what brought about the need to re-consider our doctrine of sexuality.  Two factors come to mind. One is that the link between sexual intercourse and procreation has been severed in our society as a result of more advanced means for (a) preventing pregnancies and (b) procreating without sexual intercourse. Another is “the lived experience of lesbian, gay, bisexual and transgendered people” which suggegts the use of sexual activity for strengthening the bonds of friendship and love without the sort of sexual greed condemned in the Scripture. The greedy immorality of which, e.g., Ephesians 5 speaks is found within the LGBT community as well as outside it but not all sexually active same-sex relationships fall in this category.

The appendix to the letter (the statement) first spells out the Church of England’s teaching on marriage and homophobia. It then sets out the effect of the Marriage (Same Sex Couples) Act 2013. The Bishops observe that

there will, for the first time, be a divergence between the general understanding and definition of marriage in England as enshrined in law and the doctrine of marriage held by the Church of England and reflected in the Canons and the Book of Common Prayer.

It could be argued that the increased frequency with which marriages end in divorce has also changed the general understanding of marriage in society but it has not yet changed the definition of marriage. It may well be that before long our society will see marriage as a long-term but temporary arrangement (different spouses for different phases of one’s life) but this is not yet the general understanding --people who enter into marriage do so in the hope that it will last for life--and certainly the church still insists that marriage is for life. Allowing for divorce does not as such redefine marriage if, as at present, divorce is understood to relate to something having gone wrong. 

Declaring sex/gender irrelevant for the purposes of marriage marks a major departure from the traditional understanding and definition of marriage. It is completely different from affirming that ethnicity is irrelevant. (Properly understood, sexual orientation is as irrelevant as ethnicity. What is relevant in the traditional understanding is that marriage couples a man and a woman, regardless of their sexual orientation or their ethnicity.)

The introduction of polygamy would not re-define marriage to the same extent. Even in polygamous societies each marriage covenant is between one man and one woman. The difference is the permission given, usually to men only, to enter into more than one such covenant, a permission which the catholic church never granted even in societies that did.

The Bishops then re-affirm that

the Church of England should not exclude from its fellowship those lay people of gay or lesbian orientation who, in conscience, were unable to accept that a life of sexual abstinence was required of them and who, instead, chose to enter into a faithful, committed sexually active relationship.

The reference to “a faithful, committed sexually active relationship” sets these relationships apart from, e.g., greed and adultery, even if these two rarely if ever lead to excommunication either. Same-sex marriage is not characterised as institutionalising sexual immorality but treated analogously to what the church’s response might have been if the government had liberalised the law to allow people to enter into more than one marriage covenant at the same time. 

If there was a serious commitment to sacramental discipline in the Church of England, this would be a most significant concession. Even with the Church of England being what it is Thurstan Stigand fears that it will make it very difficult to exercise pastoral care in accordance with the received understanding of sex and marriage. He may well be right. The omission of reference to the General Synod motion of November 1987 which affirms that “homosexual genital acts” fall short of the Christian ideal and are to be met “with a call to repentance and the exercise of compassion” could be significant. But it could be argued that the advice is consistent with general practice in the Church of England:

Those same sex couples who choose to marry should be welcomed into the life of the worshipping community and not be subjected to questioning about their lifestyle. Neither they nor any children they care for should be denied access to the sacraments.

In fact, the only group of people of which I am aware to be “subjected to questioning about their lifestyle” with the consequence of limited access to worshipping communities are paedophiles and this is done for the protection of our children more than as a means of pastoral care for the offenders. Are there many churches in which people are excluded from the sacraments in the hope of bringing them to turn away from a sinful lifestyle? No. Even so, turning a blind eye to same-sex marriage may be harder than turning a blind eye to domestic abuse, as the former is by its nature public. (It could be argued that we should be more concerned about greed and domestic abuse than sex outside marriage but to use sacramental discipline as a call to repentance for some sins but not others is difficult without a reasonably clear concept of “mortal sins” or their equivalent in Anglican theology.)

The pastoral guidance on “acts of worship following civil same sex weddings” reminds us that “same sex weddings in church will not be possible” and reaffirms that no services should be offered which would suggest that the church’s doctrine of marriage has changed. The new guidance is explicitly paralleled to the guidance following the introduction of civil partnerships. The difference is that being a party to a civil partnership is not in itself contrary to the doctrine of the Church of England, while being a party to a same-sex marriage is. The assumption is therefore

that any prayer will be accompanied by pastoral discussion of the church's teaching and their reasons for departing from it.

The reiteration of the phrase “services of blessing” is noteworthy. Chancellor Nigel Seed (and Revd Brian Lewis) argued that the 2005 pastoral statement, while prohibiting “services of blessing” allowed for services of prayer and dedication. The argument was not persuasive in the first place (see here) and will be harder to make now, as Nigel Seed based on the strict distinction between civil partnership and marriage. But it is clear that the House of Bishop did not want to give more detailed guidance.

The section on clergy and ordinands in particular has given rise to accusations of political naivety and the charge of hypocrisy and double standards. Let's assume for a moment the government had given us legal permission to enter into more than one marriage covenant at the same time. Surely we would not expect the House of Bishops to lead us in the direction of either excommunicating everyone who is party to more than one marriage or to ignore the number of marriages in which ordination candidates or members of the clergy are involved. Just because something is legally possible would not mean that clergy are free to avail themselves of the opportunity. 

It is defensible to restrict admission to the choir to people who are prepared to sing in tune and with the tempo indicated my the director of music without requiring everyone in the congregation who sings out of tune to shut up. The choir is to give a lead. Clergy are to model a pattern of life which agrees with the teaching of the church. This places a burden on clergy who are convinced that the church's teaching is wrong, even if

The Church of England will continue to place a high value on theological exploration and debate that is conducted with integrity. That is why Church of England clergy are able to argue for a change in its teaching on marriage and human sexuality, while at the same time being required to fashion their lives consistently with that teaching.

 This can lead to hypocrisy, as Michael Nazir-Ali fears, but it does not seem to me entirely impossible to uphold the church's teaching, to fashion one's life in accordance with it, and even to preach it, while questioning its validity. If the church prohibited the eating of halal meat, I could abstain from eating halal meat and encourage the congregation to do so, while arguing that it is an unnecessary restriction which should be lifted.

Cranmer is right to say that "it is not what Canon Law prohibits in theory but how the bishops handle disobedience in practice which will determine and define the Church's theology on same-sex marriage" and he is likely also right to anticipate no end to bad publicity (and worse) along this road. But it is possible that the House of Bishops went down this road not naively but because they could not go down any other road with integrity.