A History of Marriage Legislation and the Church

 

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Author: Philip Booth Member of St Mark's Church, Sheffield

All new legislation exists within a context, a context created by perceived inadequacies in the legislated framework to date, and social discourse and the policy debates that precede new law.  To understand what the Marriage (Same-Sex Partners) Act 2013 does and why it has been drafted in the way it has requires an account of the way in which religious and legal understandings of the nature of marriage have evolved.  This note explores the legal antecedents of the 2013 Act and not the theological debate on the nature of marriage.  But no exploration of marriage law can avoid touching on the way in which marriage has been understood in western Christianity and in particular in the Church of England.

The idea that marriage is one of the seven sacraments is not derived from the bible but appears to have evolved slowly during the middle ages, on the basis of teaching by St. Augustine.  It has also to be set against a view that celibacy was a higher calling than marriage, a view apparently deriving from Pauline doctrine.  Until the later middle ages there was no specific ritual and marriage vows did not have to be made in church, or even in the presence of a priest.  Within the Roman Catholic Church, the sacramental nature of marriage was formalised by the Council of Trent, which also formalised arrangements for the ceremony to enter matrimony.  

The protestant reformation in western Europe seems to have been ambivalent about the nature of marriage, but at least part of the protestant movement rejected the idea that marriage was a sacrament and considered it to be a contract freely entered into by two people, albeit one blessed by God.  The establishment of the Church of England and the wholesale reform of liturgy by Archbishop Cranmer led to the formalisation of a wedding ceremony.  There may have been no single ritual available in the church before the reformation but there were rituals that Cranmer could draw upon.  The Form of Solemnization of Matrimony in the prayerbook of 1549 laid emphasis on the consent of partners, the exchange of vows and the lifelong commitment of partners in marriage.  In spite of modifications in 1552 and again in 1662, it was to remain the basis of Anglican marriage rites thereafter.

Until the eighteenth century, marriage, though by now formalised in the Church of England, remained a product of canon, not civil, law.  However, the growing abuse of marriage in the marriage of under-age partners for the purpose of maintaining landed interests and ensuring dynastic succession, and the practice of marriage without parental consent, led to the intervention of the state in the form of the Clandestine Marriage Act of 1753, more usually referred to as Lord Hardwicke’s Act.  Its main provisions were:

• Marriage ceremonies had to be conducted by ministers of religion ordained in the Church of England;
• Ceremonies had to take place in an Anglican church or chapel;
• Partners under the age of 21 could not marry without parental consent;
• The Act was not to apply to Jews or Quakers but did not exempt Catholics or Non-conformists.

The effect of the Act was to confirm that marriage was an ecclesiastical matter, but one that was under the oversight of Parliament and the civil courts.  It meant that ordained clergy became, for the purpose of marriage, officers of the state, and gave them an obligation to marry all those in their parish who wished to be married and met the appropriate criteria.  It also effectively excluded those who were not confirmed members of the Church of England.  Since the Hardwicke Act did not apply in Scotland, couples who wished to marry without parental consent could do so by crossing the border, where the smithy at Gretna Green, as the first village on the road Glasgow, provided a convenient place for the exchange of vows.

The law was changed in the Marriage Act 1836 when Non-conformists and Roman Catholics were permitted to be married on their own premises.  It also allowed for marriage vows to be exchanged before a registrar; the Act is understood to be the origin of civil, as opposed to religious, marriage.  But there was a paradox: the form of words prescribed by law for civil marriage was modelled closely on the Anglican marriage service.  Also worthy of note is the fact that the term civil marriage was not used in the 1836 Act and did not apparently feature much in the debate at the time.  Indeed, the term civil marriage was reserved for countries such as France, where from 1789 the only recognised form of marriage has been secular.

A further change to the law came in 1855 when non-Christian places of worship could be registered for marriage.
By the twentieth century marriage as a state-sponsored contract was firmly established.  But the ambiguity between civil and religious marriage remained.  Ordained Anglican ministers of religion have retained their role in the registration of marriage, and the order of marriage in registry offices is still derived from Anglican forms of worship.  It is within this context that the move towards registering the partnerships of same-sex couples must be understood.

Civil Partnership Act 2004
Just as the 1836 Act had been preceded by a prolonged period of discussion, so too the Civil Partnerships Act was the end-product of lengthy debate about the desirability of recognising officially the partnership of people of the same sex.  By the early twenty-first century, most of the population no longer rejected the possibility of same-sex relationships, and a socially liberal government was open to the idea of legislating to recognise such relationships.  The Church of England was, however, in large part opposed to the idea of marriage for same-sex partners on theological and biblical grounds.  Any bill before parliament that proposed marriage for same-sex couples was therefore likely to be rejected, if not within the House of Commons, then certainly in the House of Lords.

The solution was a proposal for legislation that would recognise partnership between same-sex couples that was an entirely secular contract.  Much of the Civil Partnership Act was devoted to what we could call the incidents of marriage, in particular resolving the questions of taxation, rights of tenure and inheritance and pension rights, which were henceforward to be the same as for heterosexual marriage partners.  There were, however, significant differences between the Civil Partnership Act and the Marriage Acts:

• The only requirement for entering civil partnership was to sign a contract in the presence of the registrar and witnesses.
• There was to be no formal declaration of commitment.
• Partnership ceremonies were not to take place on religious premises and “no religious service [was to be] used while the registrar was officiating at the signing of the partnership document”.
• Partnerships were expected to end only with death, but provision was made for dissolution of partnerships, but only the grounds of desertion or unreasonable behaviour, and not non-consummation or sexual ‘misdemeanour’.

There are two consequences of the way the Act was worded.

• Civil partnership legislation was not predicated on sexual relationship.
• The specific exclusion of religious rites made the legislation acceptable to Parliament.

The Civil Partnership Act did, therefore, for the first time in England and Wales introduce a form of union that was purely civil.  But it did not do away with the ambiguity between religious and secular marriage.The government declared that it was not its intention to introduce marriage for same-sex partners.  In popular imagination, however, civil partnerships were about committed sexual unions and the term ‘gay marriage’ was widely used.  Civil partnership ceremonies acquired many of the attributes of heterosexual weddings, sometimes to the point of caricature.

On the other hand, the hierarchy of the Church of England remained rooted in its opposition to the idea of gay marriage, or indeed to the blessing of civil partnerships, which nevertheless did from time to time take place.

Marriage (Same-Sex Couples) Act 2013
At the time of the passing of the Civil Partnerships Act, some commentators wondered whether – and when – it might ‘ripen’ into marriage.  This was to happen sooner than might have been expected, given the usually slow pace of legislation for social change.  But the coalition government in office from 2010 was as socially liberal as Gordon Brown’s that had preceded it.  Moves to introduce what became known as ‘equal marriage’ began early in the new administration’s life.  It was once again recognised that there would be opposition from the Church of England and once again legislation was caught on the ambiguous relationship between marriage as a civil contract before the law and marriage as a life-long commitment made before God.

The main provisions of the Act are set out in section 1:

• Marriage between two people of the same sex is lawful.
• The provisions of the Marriage Act 1949 for heterosexual couples are extended to same-sex couples.
• However, the Act specifically does not extend the duty of ordained ministers of the Church of England (clerks in Holy Orders) to solemnize same-sex marriages, nor does it create an expectation that same-sex couples may have their marriages solemnized church.

Further sections allow for opting in and opting out of the provisions of the Act:

• As in the Hardwicke Act of 1753, Quakers and Jews are not required to opt into the Act.
• Places of worship other than churches and chapels of the Church of England, may opt in by registering as places in which the solemnization of same-sex marriages may take place.
• Marriages may take place according to the rites of other Christian denominations and other religions in registered premises, provided a registrar is also present.
• There is no compulsion to conduct the solemnization of same-sex marriages.

There are several points to note about the Act:

• The term ‘equal marriage’ is misleading.  Though the Act does indeed offer equality of status for those same-sex couples who wish to have a civil ceremony of commitment, it does not do so for Anglicans who wish to make their commitment before God.
• Ordained ministers of the Church of England are specifically excluded from the provisions of the Act by Canon Law in line with traditional teaching on marriage.  On the other hand, ministers of the Church of England may enter civil partnerships.

Same-sex marriage in the United Kingdom
So far, we have considered only the legal framework in England and Wales and the attitude of the Church of England.  Anglican churches in the other constituent parts of the United Kingdom and other Christian denominations throughout the United Kingdom have taken different views. 

England
Both the Methodist (2021) and the United Reformed (2016) churches have voted to solemnize marriage between same-sex partners.  In each case, the churches are required to register their church buildings for the for same-sex marriages.  
The Quakers in Britain have long campaigned for the right of same-sex partners to marry, and marriages take place at Quaker meetings.  We have already noted that the Quakers are not required to ‘opt in’ to the legislation by registering their buildings.

The Church of England has since November 2023 approved a liturgy for the blessing of same sex partners during a trial period pending the production of new pastoral guidelines that are expected early in 2024.  The willingness to conduct such blessings is at the discretion of the parish priest.  The liturgy of blessing is not, however, a blessing of the union, but rather of the partners in it.
 
Wales
The Marriage (Same-Sex Partners) Act applies in Wales and Welsh Anglican churches are bound by the same exclusions as the Church of England.  However, in September 2021 the Church in Wales approved a liturgy for the blessing of same-sex unions, whether marriage under the 2013 Act or civil partnership under the 2004 Act.

Scotland
The General Synod of the Episcopal Church of Scotland voted in favour of allowing priests to solemnize same-sex marriages if they so wished.  To do so, involved modifying the Canon on Marriage to include partners of the same sex.
The Church of Scotland approved the solemnization of same-sex marriages in 2022.

Northern Ireland
Both the Church of Ireland and the Presbyterian church have reaffirmed the traditional doctrine of marriage as being between a man and a woman.  Marriages between same-sex couples have, however, taken place in other non-conformist churches.

It should be noted that in every case the willingness of churches to be registered for solemnizing same-sex marriages requires their consent.

International Comparison
A full review of the status of same-sex marriage world-wide is beyond the scope of this paper.  Worth noting, however, are the following points:

• 35 countries have now legalised same-sex marriages
• Almost all these countries are in Europe and the Americas
• Australia and New Zealand have both legalised same-sex marriages
• Only one country in Asia – Taiwan – has legalised same-sex marriages, although it is possible that a second – Nepal – will follow suit.
• Only South Africa has legalised same-sex marriage in the African continent
• 23 countries legalised same-sex marriages directly through legislation approved by their legislatures.  In the remaining 12, legalisation was the product of legal challenges before the courts, either by virtue of the courts ruling that same-sex marriage was legal or by mandating legislatures to pass the necessary legislation.
• The first country to legalise same-sex marriage was the Netherlands in 2001.  The most recent is Estonia where legislation comes into effect on 1 January 2024.

The attitude of Christian churches world-wide is complicated.  Again, worthy of note are the following points:

• The Roman Catholic church remains opposed to same-sex marriage.  However, in December 2023, the Pope introduced the possibility of blessing for same-sex unions at the discretion of the priest.  Such blessings are not to take place during the normal liturgy of the Roman Catholic Church.
• Eastern Orthodox churches also appear to be opposed to same-sex marriage.
• Lutheran churches world-wide vary but have tended to be liberal in their acceptance of same-sex unions, and the Lutheran churches of Scandinavia have been notably accepting of same-sex marriage.

 

Author/copyright permissions Philip Booth

 

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