Changing Attitude is grateful to a member of the legal team at Church House who has clarified English marriage law as it relates to the Church of England, and helped us understand why the Church disagrees with the way the so-called 4th lock was presented by the Government.
It is clear to us that individual priests and churches are fully protected by the existing legislation from being forced to conduct same-sex marriages and any attempt to take someone to court for refusing to take allow a same-sex marriage in their church would fail. Conservatives are erecting a false possibility as part of their attempt to scare people.
Marriage in England
Marriage in England is regulated by the Marriage Act 1949. http://www.legislation.gov.uk/ukpga/Geo6/12-13-14/76/contents
Part 2 of the Marriage Act 1949 is the section applying to Marriage according to the Rites of the Church of England. Part 1 identifies Restrictions on Marriage and Part 3 Marriage under Superintendent Registrars Certificate.
Marriage in the Church of England
Marriage in the Church of England is defined by two documents: Canon B 30 Of Holy Matrimony and the Book of Common Prayer 1662. Although the 1928 Prayer Book service became the more commonly used version, to be superseded by the Alternative Service Book and Common Worship, marriage is still defined according to the 1662 BCP.
To redefine marriage to include same-sex marriage would require two things; an amending canon to Canon B 30 passed by General Synod and a Measure to amend the 1662 BCP service. This could either be a textual amendment or a clause that states: where in the service it says X, read Y.
General Synod is a devolved legislative assembly responsible for passing Primary Legislation relating to the Church of England.
The “4th lock”
The so-called “fourth lock” is not a “ban”, or any other restriction of its freedom, that is being imposed on the Church of England. What it amounts to is including provision in the new legislation making it clear that the legislation will not change the position with regard to marriage according to the rites of the Church of England. That provision is needed so that marriage according to the rites of the Church of England can continue to be defined in accordance with the Church’s own doctrine of marriage as set out in the Canons and in the Marriage Service.
It is not a case that the fourth lock is not needed, but rather that it has been wrongly described and its effect misunderstood as a result.
If Parliament passes the legislation same-sex marriage will become possible under Part 3 of the Marriage Act 1949. That means that it will be available in civil ceremonies, and also in religious ceremonies in the case of some religious denominations who expressly opt-in. But the marriage of two persons of the same sex will continue not to be legally possible in accordance with the religious ceremonies of those denominations that do not opt-in.
As far as the Church of England is concerned, the position is that if the legislation is passed by Parliament it will still not be legally possible for two persons of the same sex to have a marriage solmenized according to the rites of the Church of England.
Were it desired at any point in the future to change that position, that could be achieved by legislation made by the General Synod which can, by Measure, amend Acts of Parliament (including the Marriage Act 1949).
That would be the Church of England’s method of opting-in – which is different from that of other denominations owing to the fact that, uniquely, the Church of England has its own devolved legislature.
1. The Church of England affirms, according to our Lord’s teaching, that marriage is in its nature a union permanent and lifelong, for better for worse, till death them do 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.
2. The teaching of our Lord affirmed by the Church of England is expressed and maintained in the Form of Solemnization of Matrimony contained in The Book of Common Prayer.
3. It shall be the duty of the minister, when application is made to him for matrimony to be solemnized in the church of which he is the minister, to explain to the two persons who desire to be married the Church’s doctrine of marriage as herein set forth, and the need of God’s grace in order that they may discharge aright their obligations as married persons.