(Earthly) Law and (Holy) Order

by Kevin Smith 

One way, or the other?

One way, or the other?

The Government’s intention to use the legislature to intervene in some matters relating to the Church of England but not others is not only worrying for the Church, but ill-advised for the Government too.

The Church of England has been unusually talked about in the past few weeks, even for the Christmas season. The hot-button issues of the General Synod’s rejection of female bishops, and the Church’s response to the Government’s plans to introduce same-sex marriage, have thrust the UK’s national religious institution and its leaders into something of a political maelstrom.

Justin Welby and Co. could be forgiven for feeling somewhat battered and buffeted by the swirling winds – or at least hot air – in Westminster. After all, the leaders of the Church – the bishops, some of whom retain seats in the legislature as Lords Spiritual, and the clergy – both voted overwhelmingly in favour of approving the ordination of women to the higher ranks of Church leadership, only to have this rejected by the lay representatives at the Synod by six votes. The public outcry was swift and predictable, with many questioning whether the C of E could continue to seemingly flaunt equality regulations while enjoying its unique position of privilege as the national church. Church leaders must have breathed a sigh of relief, therefore, when the Government made it clear that female bishops would not be imposed by statute: although it was clear which way they wanted the Church to tilt, it was equally clear that they recognised how crucial it was that the Church arrive at that conclusion themselves.

Enter gay marriage, and the anticipated hue and cry from both religious groups and a non-trivial sampling of Tory MPs. Eager to please all sides, Cameron et al made reassuring noises: this would be a purely secular shift, and no religious institution would be forced to perform same-sex unions. With the “anti” camp unmoved, the coalition went further: not only would religious bodies not be forced to perform the marriages, but the Anglican clergy especially need not worry, because the Church of England would be legally forbidden from celebrating same-sex ceremonies. This coup de grace seemed to piss off just about everybody.

What a difference two weeks makes. In that time, the coin flipped from the threat of legally forcing equality to the prospect that the Coalition would legally forbid it. The reality is, each is as worrying a prospect as the other.

Make no mistake: it is essential that secular same-sex marriages be legalised. The UN, the ECHR, and countless other bodies and institutions confirm that adults have a right to marry. If we accept that sexual orientation is inherent, and unless we are to argue that gay individuals are not people, it follows that they have that right. It really is that simple.

Near the heart of the disagreement on the matter is the fact that there are two “versions” of a status and ceremony both called “marriage,” one spiritual – what happens before a judge – and one secular: what happens before an officer of the court. They’re both equally “marriage.” For a time, these were distinct. For a time, they were congruent. Now they’re largely distinct again. Although the Christian idea of marriage was pervasive for centuries in Western society, marriage predates Christianity, and the Church has no exclusive jurisdiction to define it.

That’s not to say that the Church has no jurisdiction to define marriage; rather, that we must be clear where that line is drawn. The answer must be at the door of the church. It is entirely right that religious groups be permitted to decline to recognise or sanction practices that are against their beliefs. If the Church of England or any other religious organisation chooses not to practice certain ceremonies because they feel their faith forbids it, whether the marriage of same-sex couples, or divorcees, or people without turbans, or people who wear eyeglasses, so be it. Simply put, it’s their club. They can decline to endorse whatever they like.

If spiritual marriage is shaped by spiritual laws, then so too must secular marriage be shaped by

Should she be doing that?

Should she be doing that?

secular laws, and more to the point, by secular lawmakers. For this reason, our government must extend all legal rights equally. It is no good to protest that same-sex couples already have equivalent rights, in the form of civil partnerships. An analogy here is the increasing practice in many countries to eliminate gender titles that imply a female’s marital status. “Mrs” and “Miss” become “Ms.” Madmoiselles are increasingly madames, and frauleins fraus. What we call things matters, and as long as the group to whom a title is given feels inferior or deprecated by it, there can be no true equality of title. It is one thing to deny a right based on incapacity or being beneath the age of majority, but to deny to one group identifiable based on a shared inherent trait a right that we extend to all other people would fatally undermine all the ideas of equality that we as a secular society claim to take seriously.


What makes the way the government proposed intervening in this issue so curious is that their intended intervention isn’t “forcing you to”, but “preventing you from”. It was a cynical calculation, based on the assumption that the Church would welcome having their position enshrined in legislation, and thus would be more likely to support or at very least not aggressively oppose the forthcoming Bill. Gratifyingly, church leaders immediately objected to the move.[1] They surely realised that this was a can of worms best left shut, for if the precedent is set that the government can speak on the issue of religious ceremonies at all through statutory intervention, then surely the door is opened for future intervention. Today it might be a law the Church happens to support, but what about tomorrow?

The precedent set by state intervention in the institutional practices of a religious body is one that the government should want to avoid as well. Just as Church leaders might fear that one legislative intervention would lead to another, legislators should be mindful of the fact that a demonstrated willingness to intervene would invariably lead to appeals by proponents of one cause or another for subsequent intervention by the government into matters of religious practice down the road. Although in centuries past (indeed, perhaps never more so than at the founding of the Church of England) the lines between government and state were blurry, it serves both sides well in the modern day to keep a respectful distance and to see the mutual meddling in each other’s business as historical fact, but not contemporary practice. For the government, the principled stand of “it’s not our place to intervene” provides a welcome veil to hide behind, but once pierced, the veil vanishes, begging the question, “If you got involved before, why not now?”

This question of deference and ultimate sovereignty strikes to the nub of the issue. As the Church leaders who objected to the proposed legislation realised, in order to preserve freedom of religion, it is not enough for the Church (or any other organisation) simply to get the outcome it wants. Rather, it should get the outcome it wants because that’s the decision the Church makes – not because the secular law provides for it.

Perplexingly, this was effectively the reasoning given by the Government for declining to intervene on the issue of female bishops. Under the Church’s own decision-making process, the issue had failed, albeit by six votes at the final hurdle, and the Government, while expressing regret at the outcome, respected the Synod’s right to vote in the way it did.

What religious groups should fear most is any intervention that would rank the (secular) government above that religious group’s leadership in respect of decisions that affect how the religious group practices. Just as religious groups should have the right to decide who can serve as their leaders, they should be able to decline to observe or endorse practices that are against their beliefs.

It’s easy to forget that the concept of a separation of Church and State is a two-way street. We hear that expression – so common in American political discourse as to almost render it meaningless – and often take it as a byword for the need to limit the role of the Church in public life and civil governance. That is entirely as it should be – but it’s only half of the answer. It is equally important for a government to acknowledge where the limits of its authority lie.

Scripture bids followers to “render unto Caesar what is Caesar’s, and render unto God what is God’s. In the same vein, there are decisions which it is simply inappropriate for a government to make, and areas into which they must not tread. The practices, beliefs and governance of private institutions should with very few exceptions be the concern of their leaders and members. The institutions themselves would surely welcome such a “hands off” approach by a government, it would serve the government better too, as they could much more credibly resist calls to intervene in the practices of such organisations in the future. There are some thresholds that it is best not to cross.



There are two provisos that should be added to the argument set out above. The first is the question of whether the Church of England is a public body, and the second is whether and to what extent it is appropriate for the government to intervene in the practices of religious organisations. Both topics probably deserve dedicated pieces of their own, but I shall attempt to address them here.

A Lord Spiritual. And a wise man.

A Lord Spiritual. And a wise man.

The Church of England holds a unique constitutional position in the United Kingdom. It is the national church, the Queen is its titular head, and it retains an influence over the law of the land via the 26 Lords Spiritual who retain seats in the House of Lords (although under the 2011 Coalition Government draft proposal for Lords reform this would be reduced to 12 bishops in the reformed Upper House). There is a strong case to be made that the Church of England is a public body, and as such falls under the Human Rights Act 1998, the Equalities Act 2010, and a wealth of other anti-discrimination and employment legislation. If this is true, the consequences are potentially enormous, not least the possibility that a discriminated-against party (a female barred from the episcopate; a gay couple denied the right to marry in an Anglican church) could bring a claim against the UK to the European Court of Human Rights.

The first question therefore is whether the C of E is a public body. I think it’s a debatable point. If it is not, then the remainder of the discussion is moot though, so for our purposes, let’s assume that it is.

If it is a public body, then there are two further options: either the Church is treated like every other public body, or we find a way of rationalising the status quo through which we can get comfortable, more or less, with the way things stand.

I don’t think treating the Church “like every other public body” is really an option. I would suggest that there would be something deeply unsavoury about subjecting any religious organisation to the whimsy of party politics and public opinion. And why would we want to? For the faithful, the sight of clergy ruefully going through the motions, giving blessing to a secular morality in a house of worship at the say-so of the State, would be practically dystopian. For non-believers, any pleasure felt at such a sight would be at best one of vindictive schadenfreude.

If this is the proposal, then it would be far preferable for the Church to abdicate any pretentions of being a “church for all Britons, whether they like it or not,” and to become a truly private organisation – open to all, but by their choice, not by default. The entire population of Britain (or their elected representatives), irrespective of belief or lack of belief, shouldn’t have a say over what happens to the Anglican Church; that said, the population of Britain who aren’t Anglicans might very reasonably say that the Anglican Church shouldn’t have a say in what happens to them, and currently, there is at very least the impression that this is the case. Delineating a more distinct separation of Church and State would go a long way to assuaging these concerns.

If, on the other hand, our approach is to try to justify the position as it stands, there appear to be a few branches of the argument that we might pursue.

One line of reasoning would argue that the bishops’ role in the House of Lords has broadened over the years. Whereas before they would articulate the view of the Anglican Church (as the church of the vast majority of Britons), now, as Britain’s religious representation has diversified, the role of religious representatives in the House of Lords has widened to include representing people of all faiths. However, the logical extension here is that, in the same way that “freedom of religion” protections have been broadened to include the freedom to have no religion, the remit of the representatives of believers therefore ought also to be broadened to include representing non-believers. The idea of expanding the role of the religious representatives in the House of Lords in this way seems perverse.

Another would link the Church’s traditional constitutional position to Britain’s history. From this perspective, the bishops in the House of Lords are effectively in the same boat as the 92 remaining hereditary peers: reduced in number, perhaps, but recognised as a traditional element of the British parliament and one that it might be appropriate to reduce to the point that they would lack the numbers to exercise any real sway over legislation, while retaining them in some form. If the objection to bishops is that they are an undemocratic presence in the legislature, we might plausibly query whether the entire practice of a governing party appointing life peers ought to be abolished too. If this is the objection, then bishops (and hereditary peers, for that matter) might be seen as a welcome voice, precisely because they are ostensibly not beholden to party political interests in the way that a political appointee might be. This, needless to say, is a far broader discussion.

The second issue lurking in the background is the question of when and to what extent a government should be able to interfere in the practices of religious groups. The view advocated here has been, broadly, one of restraint. As argued above, the principle of separation of Church and State cuts both ways. In general, the two sides should leave each other alone.

Clearly this can’t be a comprehensive division, though. If groups would attempt, for instance, to marry children or force someone into servitude while citing their beliefs as justification, no government should turn a blind eye.

In general, I think the most significant distinction to be drawn is between interventions that “prevent one from” versus interventions that “force one to”. I see the former as serving to protect basic individual rights: the right not to be hurt, the choice of who we marry or have sex with, and so on. As a rule of thumb, my view is that only interventions in this category (i.e. those that are specifically aimed at protecting individuals by preventing religious groups from doing [X]) should be permitted. For instance, it’s entirely reasonable for a government to say that, regardless of what a certain religious group claims to hold as a tenet of their faith, no organisation will be allowed (for example) to enable minors to be taken as “wives” by church leaders.

This kind of intervention serves to protect individual members of a religious group in their capacity as members of a broader secular society. It’s the primary purpose of government as “sovereign” to ensure that citizens’ most basic rights – not to be killed, not to be raped, not to be injured, not to be married off against their will – are upheld. The intervention is in fact only concerned with the religious group indirectly; the primary focus is protecting individuals as citizens, regardless of what church (or similar) they go to. Interference with the religious group is deemed necessary because it is the religious group’s practices that are deemed threatening to the individual.

Forcing a religious group to do [X] – for example, to conduct marriages that they consider to be fundamentally against their beliefs – serves not to protect the individual from harm, but rather, to provide the individual with certain opportunities that we as a society deem to be important. The rights associated with the latter – the right to equal employment opportunities, or the right to marry whomever we choose, and so on – are all worthy, but they’re all secondary rights, that is, important only after the primary or basic rights cited above have been assured.

I think an individual’s right to religious belief (and a religious organisation’s right to practice what it believes) lies somewhere in between the two. The fact that [Group X] believes its elders should be able to choose and impregnate any girl of childbearing age in the congregation doesn’t mean it should be able to happen. The girl’s rights as an individual outweigh that right to religious practice. On the other end of the spectrum, I don’t think that it’s plausible to claim (for example) that a church’s refusal to marry two divorcees is a “harm” to those people comparable to that facing the girl in the example above, and one which should be avoided by forcing that church to celebrate and recognise the marriage despite it being against their faith.

The argument here is that governments should intervene with the practices of religious organisations where it upholds “freedom from” (…death, harm, etc), but not where it would only ensure “freedom to” (…marry a divorcee, become a female Catholic priest, etc). In brief, broadly speaking: a church omitting to do or recognise something for reasons of faith is fine; a church forcing something on individuals for the same reasons is not.


[1] There were other objections from other religious groups too, but for different reasons: hilariously, the Muslim Council of Britain railed against the fact that Islamic organisations were not going to be legally banned from practicing same-sex marriages too. One imagines the younger of two small children complaining, “But mum, why can’t I be banned from doing that too?!”

  1. trampshining said:

    Its time to get rid of the church altogether. Believe is just that: believe. We need a public who can think for itself and make decisions based on rational conclusion and is able to realize that there are things we simply don’t know. Insight in our human condition in this vast universe is essential for our survival. But then politicians prefer to manipulate than to educate.

  2. senex72 said:

    People have rights and freedom of religion is one of them. A modern State empowering individualism and the emergence of individual choice and belief must protect that; provided that the right not to believe and the right to leave are protected, which means ending child circumcision ( as a forced entry rite) and protecting those who would avoid arranged marriages etc. So the State might well protect a church set up by people who believe in “gay” marriage; but has no right to interfere with those who don’t.. I suggest that for a liberal and just society there should be protection for those who wish to join and those who wish to leave, those wish to associate and those who do not wish to associate. It is separation that recognises and enshrines free choice, not enforced collaboration, just as we separate traffic from pedestrians and ought to allow separation of smokers from non-smokers by separate facilities: a just result allows both sides to win..

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