Ian Le Marquand has recently raised a number of important questions about same-sex marriages, and in particular, what effect that would have on the Church of England in Jersey. While I think the Senator is right to raise these issues, his presentation of them seems to ignore the fact that they were both raised and dealt with by the framing of the Marriage (Same Sex Couples) Act 2013.
In fact, most of what he appears to be asking for consultation and answers about seems to have been dealt with during the process of implementing the English marriage laws and I can see no reason why the same restrictions and safeguards should not apply in Jersey.
For a licensed reader in the Church of England, he seems to have read very little on this matter, as he does not seem to show any awareness of the copious information available to him, and which I have put further down this posting. He seems to have ignored the fact that the Church of England in the UK is just as bound up with the State as an established church regarding marriage, and that these issues were dealt with in the relevant laws. It is absurd to present matters as if these had not already been the subject of discussion and legislative safeguards which any Jersey legislation can adopt as a model.
In short, he presents a series of red herrings, which would make sense if we were dealing with a “tabular rasa”, a blank slate, on these matters. But because England has dealt with these matters, it is clear that Jersey can do so just as easily. We have no need to re-invent the wheel.
I cite below links, and extracts from those links, which are particularly pertinent to the matter of the Church of England as an established church.
Other matters regarding education, for example, have also been raised and discussed – I add a very short link here to show the matters that were raised for consideration. I leave the reader to search out those discussions.
Because the Canon Law of the Church of England is also part of the public law of the land and cannot be in conflict with statute law, it is important that any legislation for same-sex marriage makes it clear that it does not apply to marriage according to the rites of the Church of England. The legislative drafting of what is needed for the Church of England is necessarily unique because of that; and because Church of England clergy normally have a legal duty to marry people by virtue of their office.
The Government, in accepting that the legal effect of the Canons of the Church of England need to be preserved (in line with its assertions about protection of religious liberty), have committed to drafting legislation on same sex marriage accordingly.
Any change to the Church of England's doctrine and practice of marriage would require legislation by the Church's General Synod. In addition to an Amending Canon that redefined the nature of marriage such a legislative package would also involve the General Synod passing a Measure (the General Synod's equivalent of an Act of Parliament) that altered both the statute law concerning marriage according to the rites Church of England and the marriage service in the Book of Common Prayer.
The effect of the Marriage (Same Sex Couples) Act 2013
The effect of the legislation is that in most respects there will no longer be any distinction between marriage involving same sex couples and couples of opposite genders. The legislation makes religious as well as civil same sex weddings possible, though only where the relevant denomination or faith has opted in to conducting such weddings. In addition, the legislation provides that no person may be compelled to conduct or be present at such a wedding.
The Act provides no opt in mechanism for the Church of England because of the constitutional convention that the power of initiative on legislation affecting the Church of England rests with the General Synod, which has the power to pass Measures and Canons. The Act preserves, as part of the law of England, the effect of any Canon which makes provision about marriage being the union of one man with one woman, notwithstanding the general, gender free definition of marriage. As a result Canon B30 remains part of the law of the land.
When the Act comes into force in March it will continue not to be legally possible for two persons of the same sex to marry according to the rites of the Church of England. In addition the Act makes clear that any rights and duties which currently exist in relation to being married in Church of England churches do not extend to same sex couples.
In her statement to the House of Commons on 11th December on the Government's proposals for Equal Marriage, the Secretary of State said:
"Because the Church of England and Wales have explicitly stated that they do not wish to conduct same-sex marriages the legislation will explicitly state that it would be illegal for the Churches of England and Wales to marry same-sex couples. Mr Speaker, this provision recognises and protects the unique and Established nature of these churches. The church's canon law will also continue to ban the marriage of same-sex couples. Therefore, even if these institutions wanted to conduct same sex marriage, it would require a change to primary legislation at a later date and a change to canon law. Additional protection that cannot be breached."
The law prohibits the Church of England from performing same-sex weddings.
The Archbishop of York raised questions about whether the definition of all marriages must change in order to accommodate the desire of same-sex couples to marry
The Bishops of Ripon and Leeds and Leicester sought assurances that schools of a religious character, including Church of England schools, would have legal clarity about the teaching of marriage according to the tenets of the faith.
The Bishop of Leicester also argued for measures to support freedom of speech for those who continue to hold and express a belief about traditional marriage.
The Bishop of Guildford raised questions and concerns about the place of fidelity and the position of children in relation to parents in same-sex marriages