Freedom, Restriction, and the Law

The British Government are going to legalise religious gay marriage for any religious institution that wants it, but make it illegal for the Church of England to opt in.  And they are making it illegal for the CofE to offer gay marriage on religious freedom grounds.

Sounds ridiculous, doesn’t it?  If you think so you are certainly not alone.

In fact, and I say this as someone in full support of marriage equality and someone who would reach for an umbrella on instinct if this government told me it was sunny, on religious freedom grounds the government is absolutely correct – although the only two summaries I’ve seen as to why are from Thinking Anglicans and the Church of England itself.  I’ll explain why below.The Church of England is an established church which means that its internal rules are tangled up in the law of the land – the way each established church works is different because they all arise out of custom and precedent.  In the case of the Church of England, the law the Church of England follows is quite literally the law of the land.

The recent General Synod vote about female bishops wouldn’t have immediately created female bishops; it would have had a measure (something with the full force of an act of parliament) put before a committee of the House of Commons.  It would have then almost certainly been passed without argument and turned into a Measure (something with the force of an Act of Parliament) and turned into the law of the land.  In theory, parliament can veto any such change it makes – in practice the only time such a law has been vetoed in the 93 years this system has existed was to block the proposed 1928 Book of Common Prayer for being too ritualistic.

So why is this relevant?  Under the Church of England Assembly (Powers) Act 1919, the Church of England has the power to write laws concerning the Church of England – and that is how it modifies its own rules.  If it wants to make it legal for priests in the Church of England to perform gay marriages despite it being illegal under the government’s proposed legislation it can literally change the law – and this is the normal way it changes its own rules.

The Church of England is being singled out under the law because the Church of England’s internal rules are the law of the land, and if it was allowed to marry people under the law of the land it would be the equivalent of it deciding to marry people under the law of the land.  It also isn’t a meaningful difference because when the Church of England decides it finally wants to join the 21st Century and marry gay people it will change the law in order to do so – no other church in England could or would.  (Edit: Whether the Church of England in Wales has the same rules is open to interpretation.)

Sometimes the law is an ass.  Sometimes, as here, what looks like the law being an ass is an attempt to keep things equal – and the practical results of gay marriage being legally banned for the CofE are exactly the same as the practical results of any other denomination in England having the power to decide for itself.

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