Civil Partnerships and the Church of England
The Civil Partnership Act 2004 (“the 2004 Act”) was described by the then Lord Chancellor and Secretary of State for Justice as an “important and groundbreaking piece of legislation,” as well as “the greatest advance towards equality for lesbian, gay, and bisexual people for many years.” While characterized as “totally distinct from marriage,” the legislation sought to provide civil partners “parity of treatment with spouses in the rights and responsibilities that flow from forming a civil partnership.” The 2004 Act defined a civil partnership as “a relationship between two people of the same sex.” Civil partnership services are conducted by a civil partnership registrar, and no religious service may be used while the civil partnership registrar is officiating.
In 2005, the House of Bishops of the Church of England (“the Church”) issued a pastoral statement concerning civil partnerships. As the pastoral statement made clear,
[T]he new legislation makes no change to the law of the land in relation to marriage. It remains the case that in law, as in the eyes of the Church, marriage can be entered into only by a man and a woman. The Government has stated that it has no intention of introducing “same-sex marriage.” Civil partnerships are not a form of marriage.
The House of Bishops considered whether it would be appropriate for the Church to offer “blessings” for those who sought them in connection with a civil partnership, but in their 2005 statement (paragraph 17), they concluded that it was not. This reflected the position taken by the Primates of the Anglican Communion in their 2003 pastoral letter, which observed, among other things:
The question of public rites for the blessing of same sex unions is still a cause of potentially divisive controversy. The Archbishop of Canterbury spoke for us all when he said that it is through liturgy that we express what we believe, and that there is no theological consensus about same sex unions. Therefore, we as a body cannot support the authorization of such rites.
Subsequently, the marriage of same-sex couples was made lawful. However, this did not impact the position of the Church that, insofar as it was concerned, marriage remained the lifelong union of one man and one woman. It did, however, mean that same-sex couples could now lawfully enter either a same-sex marriage or a civil partnership. That choice was not available to different-sex couples who could of course marry but could not enter a civil partnership. This led to a legal challenge on the grounds that the restriction of civil partnerships to same-sex couples amounted to a violation of Articles 8 (the right to respect for private and family life) and 14 (the prohibition of discrimination) of the European Convention on Human Rights (the “ECHR”).
In R (on the application of Steinfeld and Keidan) v Secretary of State for International Development, the UK Supreme Court concluded that to the extent that the 2004 Act precluded different-sex couples from entering into a civil partnership, it was incompatible with both Articles 8 and 14 of the ECHR.
Following the judgment, the Civil Partnerships, Marriages and Deaths (Registration etc.) Act 2019 (“the 2019 Act”) was enacted, which required the Secretary of State to pass regulations amending the 2004 Act to allow two persons who are not of the same sex to form a civil partnership. Those regulations were passed, and the first “mixed-sex” civil partnership was formed in December 2019.
In light of this development, the House of Bishops reconsidered its position on civil partnerships, and on January 22, 2020, the Church published a new pastoral statement online that reiterated the Church’s position:
It has always been the position of the Church of England that marriage is a creation ordinance, a gift of God in creation and a means of his grace. Marriage, defined as a faithful, committed, permanent and legally sanctioned relationship between a man and a woman making a public commitment to each other, is central to the stability and health of human society. We believe that it continues to provide the best context for the raising of children, although it is not the only context that can be of benefit to children, especially where the alternative may be long periods in institutional care.
While the pastoral statement acknowledged that civil partnerships are now open to different-sex couples as well as same-sex couples, it nevertheless noted that the registration process remains civil in nature and may not take place at religious premises or include a religious ceremony.
The pastoral statement observed that the principles underlying the pastoral statement that the House of Bishops issued following the 2004 Act also apply to different-sex civil partnerships with the consequence that the Church should not provide services of blessing for those who seek them following the registration of a civil partnership.
The timing of the pastoral statement is perhaps unfortunate as the Church is currently undertaking its Living in Love and Faith project, which is shortly to produce resources “that will help the Church to learn how questions about human identity, relationships, marriage and sexuality fit within the bigger picture of what it means to embody a Christian vision of living holy lives in love and faith in our culture.” Indeed, according to the Church Times, a number of bishops led by the Bishop of Gloucester have reacted adversely to the pastoral statement. This is of potentially wider significance; as the Church Times piece observes, “This breaking of episcopal ranks has raised questions about governance in the House of Bishops, including the process whereby statements from the House of Bishops are read and approved.”
What is not immediately clear, but will perhaps become so in the forthcoming weeks and months, is whether the bishops who are voicing their dissent are aggrieved with the content of the new pastoral statement, the way in which the issue was debated, or the manner in which the pastoral statement was released. As for the pastoral statement itself, it might be said that the content is hardly surprising, as it amounts to no more than a restatement of the Church’s current teaching on marriage and sex. While the timing might be unfortunate, given the imminence of the Living in Love and Faith resources, it might be argued that it was incumbent upon the Church to do something in light of the 2019 Act and the regulations issued under it. What is perhaps most surprising is the number of bishops who have publicly expressed concern following the issuance of the pastoral statement. As the Church Times piece alludes to this, it certainly raises questions over the efficacy of the internal processes and procedures of the House of Bishops.
Three members of General Synod, along with the Chaplain to Lady Margaret Hall (University of Oxford), have written an open letter to the Archbishops of Canterbury and York expressing their “anger and disappointment” regarding the new pastoral statement:
The pastoral statement makes clear there has been no desire to listen or learn from those of us who spoke to explain how offensive we found the tone of the House of Bishops’ previous document. Indeed, this statement is anything but “pastoral”―it is cold, defensive, and uncaring of its impact on the millions of people it affects.
There can be no doubt that while individual clergy will have to continue to exercise pastoral sensitivity, the Church’s present position on civil partnerships is, at least insofar as the House of Bishops is concerned, quite clear civil partnerships are not marriages. The legislation prohibits the use of religious premises or services in connection with the registration of civil partnerships, underlining the fact that they are wholly civil in nature. Notably, civil partnerships are not solemnized with vows. The Church’s present understanding of marriage is enshrined in the ecclesiastical law and its published teaching documents. The Church’s approach to civil partnerships in the most recent pastoral statement clearly intends to reflect and uphold its understanding of marriage and related issues of sexual ethics. What is equally clear, however, is that there is far from unanimity of view on this issue. The new pastoral statement has certainly caused upset among many within the Church. A lot is riding on the outcome of the Living in Love and Faith project; it is very much hoped that this will result in greater understanding, compassion and unity, but this remains to be seen.
Christopher Grout is a barrister who holds a LL.B degree from Newcastle University and a LL.M degree in Canon Law from Cardiff University. He was called to the Bar of England and Wales by the Honorable Society of the Inner Temple in 2007.