The Church will have to fight this attempt to redefine marriage
It's hard so far to see the tempest behind the first clouds and hastening winds. But an announcement yesterday by the UK government that it intends to lift the ban on civil partnerships being celebrated in places of worship is set to unleash a storm which could well redefine the relationship between Church and state; and have profound long-term consequences -- especially for Anglicanism.
Nothing has happened as yet. The Government says it wants to consult. The Churches have (mostly) held fire until they see some of the detail of what is proposed. But the Government's intention is clear; the consequences much less so.
The Civil Partnership Act 2004 gave same-sex couples rights and responsibilities similar to those in a civil marriage: civil partners are entitled to the same property rights, the same exemptions on inheritance tax, social security and pension benefits as married couples. They also have the same ability to get parental responsibility for a partner's children as well as maintenance, tenancy rights, insurance and next-of-kin rights in hospital and with doctors. There is a process similar to divorce for dissolving a civil partnership.
In purely legal terms, therefore, a civil partnership looks and acts like a marriage. There are even vows. But it isn't marriage, as the then Labour government stressed when it was pushing it through Parliament. It is a purely contractual, civil, legal arrangement. That's why civil partnership ceremonies cannot be solemnised in churches, or include religious readings, music or symbols. In passing the Civil Partnership Act, therefore, the state's message was clear: a civil partnership is not marriage, because marriage is a sacred institution, whether solemnized in a church or registry office; and inherent in the understanding of marriage is that it is between a man and a woman for the sake of children.
The Churches, at the time, were not wholly taken in by this. The Catholic bishops objected that if this were really so, why restrict those legal privileges to same-sex (implicitly sexual) couples? Why not -- as happens in France and Italy, say -- create a legal contractual arrangement with tax, inheritance, hospital visiting rights etc. for any stable, long-term, cohabiting pair of people, which could include carers, maiden aunts, and so on? In France, 90 per cent of those who enter into such arrangements are not same-sex couples.
But the demand for a civil partnership scheme specifically for same-sex couples had been a longstanding demand of the gay rights lobby, and the Blair government was keen to deliver a major victory to a sophisticated campaign group representing significant political clout. Most Labour MPs -- actually, MPs of all parties -- saw and see gay rights as the civil rights de nos jours.
More than 18,000 civil partnerships were formed in 2006, the first year they were legal in Britain, since when there have been out 6,000 a year.
The Catholic bishops of England and Wales said at the time (April 2004): "We believe these problems which are essentially associated with financial and property matters could be remedied by legal changes other than the introduction of formal civil partnerships which, in the case of same sex couples, is likely to be seen as a form of same-sex marriage with almost all the same rights as marriage itself."
But their protests could hardly be vigorous, because the Government kept insisting that this was not marriage. Some bishops even supported the move, believing that the common good of society should support stable relationships among those unable to enter marriage.
So in the UK we have two ways of tying the knot: one called marriage, open only to heterosexual couples; the other a civil partnership, available only to same-sex couples. The first can be celebrated either in a civil registry or in a place of worship; the latter only in a civil registry.
Logically, therefore, as far as the state has been concerned, the defining characteristic of marriage is that it is capable of being religiously solemnized.
Hence the inevitable demand from gay rights groups that civil partnership ceremonies should be too. As an Independent editorial puts it: "as long as the institution of marriage remains the exclusive preserve of a man and a woman, the message being sent out is that gay couples are still in some way different, second class and only almost equal."
Recognizing the equality of gay people, in other words, must entail the creation of a new kind of institution: gay marriage.
Not to do so means that the Government must cope with a new kind of resentment. Only 10 years ago, gay rights advocates wanted nothing to do with marriage. Now they are appalled to be excluded from it. "By saying we are civil partners and not a married couple the government is segregating us," complains a contributor to a BBC website discussion. "My partner and I are both decent, professional people who pay taxes on time, we do not commit crimes and as such we should not be made to feel as second-class citizens."
The logic seems compelling: if gay couples can have the same legal privileges as marriage, why can't they marry?
There are many answers to that question, but they are all uncomfortable for a secular modern politician to make: because marriage is a sacred institution defined in all cultures and ages as the complementarity of man and woman making a lifetime commitment for the sake of creating a stable environment for children, thereby safeguarding the healthy regeneration of society. Because marriage is not primarily about love and commitment; all kinds of relationships involve both but are not marriage. Because it is the combination of commitment and sexual complementarity which define marriage. Because marriage is not, nor has ever been, a "right": in both canon and civil law, there is a whole range of impediments to marriage. Because it is not a matter of subjective feeling: it is not about "expressing the love I feel"; because it is a an institution designed for the good both of those in it, and for society as a whole, precisely because of those characteristics -- sexual complementarity, stability, children -- which define it.
To be more accurate, it is the potential capability of those characteristics which define a marriage: a couple may be too old or unable to have children, or they may split up; but without sexual complementarity, neither of the other two are possible. The logical difficulty which civil same-sex partnerships and same-sex adoption have created is that by allowing both, the state has conceded that two of the properties of marriage -- lifelong commitment and children -- pertain in the case of same-sex couples as much as in heterosexual ones. That's why the logic of yesterday's announcement is extremely hard to contest, unless you are willing to pronounce that sexual complementarity is an intrinsic property of marriage, to the extent that marriages can happen without children and may not last, but they cannot happen between two people of the same gender.
That's a tough argument to make to the gay rights lobby. That's why last year a majority in all three parties voted for the amendment to the Equality Bill which paved the way to yesterday's announcement. The Coalition's junior partner, the Liberal Democrats, called for it in their manifesto. Public opinion appears also to back the idea of gay marriage.
And if the state wishes to create such a thing, can or should the Church object?
Yes and yes. Because this is a major assault on religious freedom.
Remarkably, the Government has tried to frame their proposal as an advance for religious freedom. The mainstream Churches -- Anglicans, Catholics and Evangelicals -- have made clear that they will not allow gay marriage ceremonies. But there are small, autonomous religious bodies which will: part of the push for lifting the ban comes from liberal Jewish synagogues, Quakers and Unitarians. The Government says it is acceding to these wishes, and that no religious body will be forced to allow gay weddings. "But for those who wish to do so this is an important step forward", said the Home Secretary, Theresa May, adding: "This government is committed to both advancing equality for lesbian, gay, bisexual and transgender people and ensuring freedom of religion for people of all faiths."
Freedom of religion? Let's examine this.
Even though marriage has a civil dimension -- tax, property, and so on -- which it is proper for the state to regulate, marriage is not, and has never been, an institution created by the state, or pertaining to the state, even when it is recognized and supported by the state. In all cultures, in all times, marriage exists as a means of providing a means of protecting and providing for children; it is a "sacred" institution, in the sense that it involves rituals, invocations and blessings. It antecedes the state. It belongs properly to the civil sphere. In Christian cultures, it is also underpinned by a theology, one that sees the union of a man and a woman for the good of children as embodying something of God's own covenant with His people.
Giles Fraser, canon chancellor of St Paul's Cathedral, argues in the Guardian that church authorities have no right to impose this theology on their own members. "The Church must not impose its own institutional homophobia on gay Christians who want to use the Bible in a civil marriage ceremony," he says, telling the equalities minister that she "must not be distracted by a nervous Church protecting its control of biblical hermeneutics".
But this isn't a matter of mere hermeneutics. If religious authorities cannot define the nature of a sacred institution -- and over 2,000 years that definition has remained pretty fixed, at least in its essentials -- who can? Can the state? Should the state?
A gay rabbi who supports the announcement has no doubt about what this means: the state reshaping religion, long the ambition of totalitarianism. "Civil Partnerships are, by the very nature of the word ‘civil’, supposedly devoid of all religion", writes David Mitchell in Pink News. "Accordingly, what the Government may have actually sanctioned is a gently pitched process towards same-sex marriage in religious institutions."
Apart from the "gently pitched", that's exactly right. Here's the kicker. The state is seeking to condition, define and reshape a sacred institution embedded in civil society and shaped by religion. That's a takeover.
This move doesn't advance religious freedom. It's a major assault on it. And the Church that is most clearly in the firing line here is the established one. The Anglican Church is embedded in the state. Unlike other churches, Anglican churches are marriage registrars; the religious ceremony and the civil ceremony are the same.
Once the state has created, therefore, this new institution of gay marriage -- created precisely by virtue of permitting it to be religiously endorsed -- it is, literally, a matter of time before a same-sex couple brings a quite reasonable case before the courts, arguing that the Church of England is discriminating against them on the grounds of their sexual orientation.
The judge would then have to explore this question of who defines a religious marriage. And he would quickly conclude that it is the state, rather than the Church, which has the authority to do so. How can it not be otherwise, when the state has authorized religious ceremonies in which gay couples tie the knot, when the consensus of the mainstream Churches (Anglican, Catholic, Orthodox, evangelical) is that gay marriage is a theological impossibility?
It is the same logic behind the closure of Catholic adoption agencies in 2007. The concession of a right -- same-sex adoption -- leads to a practice; and the practice begs the question: if here, why not there? Each time, the basic principle of religious freedom (the same principle underpinning civil society) is forced to give way to the logic of equality.
The problem is not that the Church fails to persuade wider society of its point of view: that happens all the time. Nor is the problem that the Church fails to persuade the state to enforce its point of view: the Church long ago abandoned its theocratic ambitions. The problem is that the state appropriates to itself that which does not belong to it. It extends its reach, and shrinks religious freedom in the process.
Yesterday's announcement has exposed a vast contradiction at the heart of the coalition government. Just days after David Cameron recommitted himself to fostering a "big society" his Government has announced it will shrink the religious freedom on which a vigorous civil society depends.
But that's a secondary matter. The important thing is that this is one move the Churches will have to fight. Their natural rights and freedoms are at stake.
[LATEST - added 21 February 2011: statement from Catholic bishops' conference of England and Wales:
The Government statement on 17th February makes it clear that they are now considering a fundamental change to the status of marriage. That is something which was never envisaged by the Equality Act or any other legislation passed by Parliament. Marriage does not belong to the State any more than it belongs to the Church. It is a fundamental human institution rooted in human nature itself. It is a lifelong commitment of a man and a woman to each other, publicly entered into, for their mutual well-being and for the procreation and upbringing of children. No authority – civil or religious – has the power to modify the fundamental nature of marriage. We will be opposing such a change in the strongest terms.
The Equality Act was amended to permit Civil Partnerships on religious premises, which unhelpfully blurs the distinction previously upheld by Parliament and the Courts between marriage and civil partnerships. A consenting Minister is perfectly free to hold a religious ceremony either before or after a Civil Partnership. That is a matter of religious freedom, but it requires no legislation by the State. We do not believe it is either necessary or desirable to allow the registration of civil partnerships on religious premises. These will not take place in Catholic churches.