A legal opinion commissioned by the National Secular Society (NSS) from barrister and UCL law lecturer Dr Ronan McCrea says the Church of England’s response to the government’s public consultation says the Church’s failure to distinguish between social, religious and legal institutions of marriage “confuses the issues”.
The opinion says:
“Since the introduction of civil marriage in the Marriage Act (England and Wales) 1836, the law has envisaged the possibility that individuals who are not married in the eyes of the Church may be married in the eyes of the law.
“Divorced individuals who subsequently marry for a second time while their former spouse is still alive, are, for example, married in the eyes of the law and the State but not in the eyes of the Roman Catholic Church. The solemnisation of non-Christian and non-Jewish religious marriages is not recognised by the State, so in these cases generally both religious and State ceremonies are held.
“Quite properly, the State maintains its own definition of marriage and leaves religions to define marriage for their own purposes.”
Dr McCrea also questions the Church of England’s indication that the government’s proposed blanket ban on religious gay ceremonies may be overturned by the European Court of Human Rights. Further legislation would be required, it said, to protect the Church from carrying out ceremonies for gay couples. The opinion says:
“Any successful court challenge would apply only to those denominations that wished to carry out same sex marriages. As an organisation opposed to same sex marriage, the Church of England would be unaffected.”
The NSS says “sincere commitment to religious freedom requires those religious bodies that wish to carry out same sex marriages to be able to do so. Religious freedom and the principles of secularism, dictate that religious bodies that do not wish to conduct same sex marriages should not be forced to do so.”
The Church of England’s response said gay marriages would “dilute” the institution and threaten the church’s role as state religion by making canon and state marriage laws incompatible. The National Secular Society says that the Church’s use of “manifestly false” legal arguments is threatening to “obstruct democracy”.
Keith Porteous Wood, executive director of the NSS, said: “The evident desperation of some of the Church hierarchy to prevent same sex marriage at all costs has led them to put forward disingenuous and specious arguments in the form of manifestly false legal arguments. They have done so in the name of the whole Church, when it is well known that some in the hierarchy and probably the majority of those in the pews do not oppose same sex marriage.
“To argue that the proposed change is inconsistent with continuing establishment is a foolish overplaying of the Church’s hand.
“[The Church] is damaged irreparably by the barely disguised threat that establishment can bind the Government’s hands from making democratic decisions, particularly those giving greater human rights.”