Why prohibiting a religious act will preserve religious freedom

Ever get the feeling you can’t win?

In the latest episode in the long-running saga of same-sex marriage, the government have published their proposed legislation, and a particular section has attracted a huge amount of attention. Religious bodies will be permitted to act as they wish, with two exceptions: the Church of England (CofE) and the Church in Wales (CinW) will be specifically banned from conducting same-sex marriages.

The immediate reaction to this peculiar clause has been interesting. Some have called it ridiculous, some have complained that it restricts religious freedoms, and some have even seen it as revenge for the CofE’s rejection of female bishops a few weeks ago. No conspiracy has been left unvoiced, but the reality is a little more complicated than it appears.

The position of the CofE as the established church (and to a large extent the CinW as a historic offshoot of the CofE) is constitutionally quite complicated. The state and the church are intertwined, and that throws up some oddities, the most important being that their clergy are entitled to register marriages on their own, while other religions and denominations perform services under licence. That may appear to be an administrative detail, but it has significant consequences.

In most cases, a minister of religion could refuse to marry a couple on grounds of conscience without a fuss. They could still be married by the state, and all this would have no more practical impact on the couple than if they were denied communion. But the CofE and CinW act as agents of the state in performing both religious and civil functions. If they were to say no to a couple, the freedom of religion would be tangled up with the civil function, and that’s where the problems come in.

One of the fears that was raised in the consultation process was that once same-sex marriage was legal, it would be possible to take legal action against the church if they refused to marry a couple, especially if they would have gone ahead had the couple been a man and a woman. That wouldn’t stand a chance in most cases, as religious freedom would win out, but where the claimed discrimination was on behalf of the state, it’s conceivable that the courts would have upheld the case. Explicitly banning the church from carrying out such an act protects them from that risk.

Nor is the ban likely to be permanent. In the event that the churches decide that they wish to permit same-sex marriage, it would be as simple as striking out a clause in the legislation in recognition of the decision taken by General Synod. And given the church’s recent behaviour, that could easily be arranged by the time they catch up in a couple of centuries.

This proposal ensures that in line with the wishes of the CofE and CinW, they can’t be forced to conduct marriages against their will, so you’d think that everyone would be happy. But you’d be wrong. Some supporters of same-sex marriage are unhappy that too much ground is being conceded, even though the CofE and CinW have no intention of marrying same-sex couples anyway, and forcing them to do so would enter very dangerous territory. And opponents are unhappy because… actually, I’m not sure why.

As far as I can see, all the genuine fears and concerns that were raised by religious groups have been addressed, religious freedoms have been protected, and anyone opposing same-sex marriage shouldn’t be bothered at being told not to do something they didn’t want to do anyway.

I suppose you just can’t please some people.

Photos by laverrue, used under Creative Commons Generic Attribution License 2.0, and mensatic, used under morgueFile License