Guidance to Church of England clergy in dealing with issues arising from the document: House of Bishops Pastoral Guidance on Same Marriage of 15 February 2014
The relevant section of the Pastoral Guidance reads (boldface in original):
27. The House is not, therefore, willing for those who are in a same sex marriage to be ordained to any of the three orders of ministry. In addition it considers that it would not be appropriate conduct for someone in holy orders to enter into a same sex marriage, given the need for clergy to model the Church’s teaching in their lives.
The legal status of the Pastoral Guidance is not clear-cut, but it should be viewed as very strong guidance to assist the clergy and Bishops in terms of disciplinary measures.
The use of the phrase ‘appropriate conduct’ which is Clergy Discipline Measure language is wrong, says one legal adviser. It doesn’t explicitly threaten action but indicates a hint and a threat.
The Bishop of Buckingham’s advice
Bishop Alan Wilson set out the legal position as it applies to married lesbian and gay clergy as he understands it in the Radio 4 interview on Sunday morning.
Clergy Discipline Measure (CDM)
There are separate elements of church law that the bishops are relying on. The Clergy Discipline Measure deals with, as Alan put it, workplace misdemeanours and immorality among the clergy – seventeenth things like card-sharping and drunkenness and adultery.
Ecclesiastical Jurisdiction Measure (EJM)
Then there is the Ecclesiastical Jurisdiction Measure, that deals with doctrine and worship. A special court called the Court of Ecclesiastical Causes Reserved has to be convened to work out whether or not a doctrinal infringement that matters has happened. The only penalty they can give out for a first offence is to send what’s called a monition, a rude letter that goes on your file. That’s all they can do. That’s the sum total of what is possible.
There’s also the concept of canonical obedience, which means I’m a bishop, you’re not a bishop, you’ve got to do what I say. Bishop Alan said that’s not a very Christian way of doing things and in any case it’s a much more disciplined and tight concept. It’s about maintaining the church as a canonical structure. So actually there’s very little they can actually do.
An additional legal opinion
Changing Attitude has received a second legal commentary from another source which reinforces what Bishop Alan outlined above.
It is clear from the phrase “appropriate conduct”, that the drafters of this statement had in mind the possibility of action under the Clergy Discipline Measure section 8 (1) d which lists:
“conduct unbecoming or inappropriate to the office and work of a clerk in holy orders”
as a possible type of misconduct for which disciplinary proceedings may be instituted under the CDM. There is a possible alternative of using section 8 (1) a which establishes another type of misconduct, namely:
“doing any act in contravention of the laws ecclesiastical”
to argue that acting in defiance of the Pastoral Guidance para 27 is a violation of the clergy oath of obedience to obey the relevant bishop in “all things lawful and honest”. The interpretation of this phrase is already widely disputed but in any case it is certain that at the present time there is nothing in ecclesiastical law that prohibits Same Sex Marriage, although it is theoretically possible for General Synod to make a change to the Canons to provide this.
The scope of the CDM specifically excludes any matters of doctrine, ritual or ceremonial which remain exclusively within the scope of the Ecclesiastical Jurisdiction Measure 1963 (EJM). The Church of England, in its submissions to the government relating to Same Sex Marriage and in the statements of the House of Bishops, including the Pastoral Guidance, has repeatedly argued that Same Sex Marriage is a doctrinal matter. However, there are two reasons why proceedings against clergy under the EJM are improbable:
- the procedures of the EJM are inherently very expensive for the church, and
- the most serious penalty that can be assigned under the EJM for a first offence is a “monition”. There is therefore every reason for a clergyperson, and his or her lawyers, to argue in any CDM action on Same Sex Marriage that it is ultra vires and should instead be dealt with under EJM.
Practical advice for clergy
If you are approached by a bishop (or indeed an archdeacon) requesting a meeting, and have reason to suspect that the reason may be related to a prospective Same Sex Marriage, you should act as follows.
- Ask the bishop to confirm the specific purposes of the meeting beforehand, and to confirm who else will be present.
- If not already a member of a trade union, consider joining one immediately, prior to the meeting.
- Arrange for a friend e.g. another clergy person, or a trade union representative, or even a friendly lawyer, to attend the meeting with you.
- Notify the bishop accordingly and resist any attempt by him to dissuade you from being accompanied.
- During the meeting, remain calm and do not say more than is necessary. Make sure the bishop knows of your trade union affiliation.
- Remember that you can courteously refuse to answer a question that will “incriminate” you. If you are directly asked if you intend to marry your partner, you can say that, in the light of advice you have received, you will not reply to that question.
- During the meeting, make notes of what is said, write up a file note immediately afterwards, and agree its accuracy with your companion. Do not send it to the bishop.
- Acknowledge any letters received after the meeting, but respond to the content only by saying that you have retained a detailed file note. If there is any indication that some kind of disciplinary action is likely to follow, you should consult a lawyer immediately. If you do not have trade union support, the LGBT Anglican Coalition may be able to point you towards a suitable lawyer with knowledge of ecclesiastical disciplinary processes.
Church and State definitions of marriage
The claim that the introduction of equal marriage has created a divergence from the Church’s traditional marriage doctrine is wrong both in fact and in law. The 1857 Act permitting divorce and remarriage after divorce introduced a divergence from Church teaching into the State’s definition of a legal marriage. The deceased wife’s sister Act of 1907 introduced a further divergence between the State and the Church’s definition of marriage. In both circumstances, couples married under State law are legally married and are not ‘evil livers’, doing something illegal.
The Clergy Discipline Measure is not broad enough to be used to discipline lesbian and gay clergy for making what is, under the State law, a legal marriage. How can a perfectly lawful marriage be deemed an offence? The CDM may be used to take action against clergy in a same sex marriage but shouldn’t be so used. There is nothing in the Canons or in Ecclesiastical law to prevent same sex marriage is the advice Changing Attitude has been given.