In a report today, the Church of England rejected as “flawed, conceptually and legally,” the Cameron government’s proposal to legalize same-sex marriage. Conceptually, the report argues, the proposal would “alter the intrinsic nature” of marriage as a union between one man and one woman. Notwithstanding the “genuine mutuality and fidelity” often found in same-sex relationships, the report states, the C of E felt bound to resist the proposal both for reasons of Christian faith and the Church’s “commitment, as the established church in England, to the common good of all society.”
The report argues that the government’s proposal, which purports to apply only to civil marriage, raises serious legal questions. The distinction between “civil” and “religious” marriage, an innovation in English law, is likely to be untenable in the long run, the report predicts. English law grants any resident, regardless of his or her religious affiliation, the right to marry in the local C of E parish (a great illustration, by the way, of Grace Davie’s point about religion’s public role in Europe). Once Parliament defines marriage to include same-sex marriages, could a parish church deny this right to same-sex couples? The C of E is doubtful. Even if Parliament were to allow C of E parishes to refuse to perform same-sex marriages, the ECtHR might not. Under existing ECtHR caselaw, once a state legalizes same-sex marriages, those marriages are covered by article 12 of the European Convention, which grants a right to marry, and article 14, the Convention’s anti-discrimination provision. Under these articles, a state church could justify a distinction between “civil” and “religious” same-sex marriages only by “very weighty reasons.” The report is skeptical that the ECtHR would ultimately allow the distinction to stand.
Critics immediately characterized the report as alarmist. Maybe it is. Given the recent vote of the Danish parliament requiring the Church of Denmark to perform same-sex marriages, though, it’s hard to completely dismiss the report’s concerns. It’s possible that, in time, either Parliament or the ECtHR would require the C of E to solemnize same-sex marriages, whatever the C of E’s religious objections. Of course, the problem may lie in the concept of the state church itself; the autonomy of a private church on religious questions would likely be more secure, particularly in light of the ECtHR’s recent Fernandez Martinez decision. But the Brits decided all that under the Tudors.