10 December 2014 A.D. College
of Bishops of the Scottish Episcopal Church: Guidance for Clergy and Lay Read
in Light of Marriage & Civil Partnership Law of Scotland, Act 2014
SCOTTISH EPISCOPAL CHURCH
College of Bishops
Guidance for Clergy and
Lay Readers in the light of the Marriage and Civil Partnership (Scotland) Act
2014
The Scottish Government has announced that same-sex
marriage ceremonies will be possible under the Marriage and Civil Partnership
(Scotland) Act 2014 from 31 December 2014. Under the legislation, marriage is
redefined so that two people can marry irrespective of their gender. The Act
also allows for the possibility of civil partnerships being registered in the
context of a religious ceremony. The Scottish Episcopal Church (SEC) is
currently in a period of discussion regarding its understanding of same-sex
relationships and pending the conclusion of that period of discussion, the
College of Bishops has produced the guidance contained in this note to support
and inform clergy and lay readers, as public representatives of the Church, in
the exercise of their ministries and in their provision of pastoral care.
Some churches and other religious bodies have an
explicit doctrinal understanding of marriage and the passing of the new
legislation, therefore, potentially gives rise to a number of issues for such
bodies. The doctrine of marriage of the SEC, as currently expressed in Canon 31
of the Code of Canons, is that marriage is “a physical, spiritual and mystical
union of one man and one woman…”
The 2014 Act makes changes not only to enable
marriage between two people of the same-sex, but also to certain procedures
regarding marriage between opposite sex couples. The ability of a body such as
the SEC to undertake same-sex marriages or religious civil partnerships is
subject to the Church, as a denomination, “opting in” to that facility. Pending
any decision on the part of the SEC to “opt in”, our clergy are not able to
solemnise same-sex marriages or register religious civil partnerships.
Authority to Solemnise
“Opposite Sex” Marriages
At present, clergy of the SEC are entitled to
solemnise (opposite sex) marriages because, as a denomination, we are
specifically prescribed by the State in statutory regulations. Under the new
legislation, we expect to continue to be so prescribed, but there is a
possibility that, as a condition of being so prescribed, a number of new
requirements will need to be met. The Scottish Government is intending to
consult on such requirements during 2015 and it is expected that a response
will be made on behalf of the SEC by the provincial Faith and Order Board. Once
the nature of any new conditions is clarified, clergy will be notified.
Authority to Solemnise
“Same-Sex” Marriages and to Register Civil Partnerships
As mentioned above, once the 2014 Act has been
brought into force, SEC clergy will not be recognised by the State to solemnise
same-sex marriages. This would be possible only if the SEC decides to “opt in”,
a decision which would require canonical alteration by General Synod and
certain statutory procedures (essentially, the Government processing any
application to opt in) would also need to be undertaken before any member of
clergy could solemnise such a marriage. Without such alterations and
procedures, SEC clergy would not be legally permitted to solemnise same-sex
marriages. If they conduct a ceremony in such a manner as to lead the parties
concerned to believe that they are solemnising a valid marriage they would be
committing a criminal offence.
For clergy to be authorised to register a religious
civil partnership there would similarly require to be an “opting in” process
and, again, an offence would be committed by a person who registers a civil
partnership in circumstances where they are not permitted to do so.
Use of Church Buildings
for Same-Sex Marriages
As mentioned, SEC clergy are not permitted to
solemnise same-sex marriages or register religious civil partnerships. Given
the provisions of Canon 15, clergy are also not permitted to invite someone who
is an authorised celebrant (for example, of another denomination) to conduct a
same-sex marriage or register a religious civil partnership in an SEC church
building.
Blessing of Same-Sex
Marriages/Civil Partnerships
In light of the fact that clergy are not authorised
to solemnise same-sex marriages or register civil partnerships, the College of
Bishops recognises that some clergy may nevertheless wish to provide some form
of informal blessing or prayers for same-sex couples following a civil
ceremony.
The College is of the view that any such informal
blessing should be kept separate from the civil ceremony and, accordingly,
should not be conducted in the same location as the ceremony. Instead, if such
a blessing is to be public, it should take place in church and should be done
in a context outwith the normal pattern of regular services.
The SEC has no liturgical rites for the blessing of
a same-sex civil partnership or marriage and the College is of the view that it
would not be appropriate to use SEC marriage liturgies for this purpose
The Church cannot give official sanction to
informal blessings but, without intending to pre-empt the outcome of ongoing
discussions within the Church about same-sex marriage, each Bishop would
nevertheless expect to be consulted by clergy prior to the carrying out of any
informal blessing of a same-sex marriage or civil partnership in his diocese.
Clergy entering into
Same-Sex Marriage
The College recognises that once the 2014 Act comes
into force, the possibility of entering into a same-sex marriage exists as much
for clergy and lay readers as for any other member of the population. Clergy
and lay readers are, of course, authorised public representatives of the SEC.
At the time of their ordination and upon any subsequent appointment, clergy
promise to render due obedience to the Code of Canons. Lay readers also
undertake to adhere to the SEC’s doctrine and act under the direction of their
Bishop.
As things stand, a clergyperson or lay reader who
chooses to enter a same-sex marriage will put themselves in a position outwith
the SEC’s doctrinal understanding of marriage as expressed in Canon 31. While
the SEC’s doctrinal understanding remains as currently expressed, the
expectation of the Bishops is that clergy and lay readers will not enter into a
same-sex marriage and that anyone considering such a step will consult their
diocesan Bishop.
Recruitment and Selection
Similarly, a candidate in the recruitment and
selection process for ordination or lay readership who has entered, or is
intending to enter, a same-sex marriage would be unable to promise obedience to
the Canons. The Bishops likewise expect candidates not to enter into a same-sex
marriage in the current situation and that any candidate considering such a step
will consult their diocesan Bishop.
Statutory Protections
With a view to meeting concerns of those opposed in
principle to same-sex marriage, the Scottish Government has included certain
protections in the legislation and the UK Equality Act is also being altered.
The Equality and Human Rights Commission in Scotland is working on guidance
regarding the legislation and is intending to issue specific material in
relation to religious or belief bodies.
Under the 2014 Act, there is no duty on a religious
body to seek authorisation to solemnise same-sex marriages or register civil
partnerships, nor is there any duty on a religious body to nominate persons to
the Registrar General to solemnise same-sex marriages or register civil
partnerships. Even where an individual is an approved religious celebrant,
there is no duty on that person to solemnise same-sex marriages or register
civil partnerships.
Amendments to the Equality Act will be enacted by
the end of the year to provide that religious celebrants who do not wish to
carry out same-sex marriages or civil partnerships will not be regarded as
acting in a discriminatory way even if their own denomination has opted in. It
will also cover other persons (such as an organist or choir member) who plays
an integral part in the religious aspects of a marriage or civil partnership
ceremony and will similarly protect any person controlling the use of religious
premises who refuses to allow the premises to be used for a same-sex marriage
or civil partnership.
The 2014 Act also states specifically that it does
not affect the exercise of the right to freedom of thought, conscience and
religion or the right to freedom of expression under the Human Rights
Convention. Individuals may express positive or negative views about same-sex
marriage and the Scottish Government has stated that the belief that marriage
should only be between a man and a woman is “a belief worthy of respect in a
democratic society”.
The Lord Advocate has also published prosecutorial
guidance which recognises the importance of being able to hold and impart
views, including opposition to marriage of same-sex couples. Provided comments
or behaviour do not incite hatred and are not intended to cause public
disorder, they will not be subject to criminal prosecution. Freedom of
expression is, nevertheless, subject to limits to protect the rights and
freedoms of others.
Other Matters
In addition to the various matters referred to
above, there are two further items to note: –
1. Time Limits (whether for
opposite or same-sex marriage)
The new legislation increases the current minimum
period of 14 days which must elapse between the district registrar receiving
the Marriage Notice and issuing the Marriage Schedule to 28 days. This change
will be introduced at some point during 2015 (the Government has not yet
indicated exactly when).
2. Couples who are
related by Affinity
One further matter which does not arise from the
new legislation, but which clergy should be reminded of, is that Appendix 26 to
the Code of Canons sets out a table of kindred and affinity. This constitutes
the categories of people related by blood or affinity whom a person may not
marry. It has come to our attention that this Appendix does not appear to have
been altered when the civil law was changed in 1986. The civil law already
allows some people who are related by affinity (but not blood) to marry so long
as both parties are at least 21 years old at the time of the marriage and
provided the younger party has not at any time before the age of 18 lived in
the same household as the other party and been treated by the other party as a
child of his or her family. A consequence of this discrepancy between the civil
law and the Appendix to the Code of Canons is that a registrar may issue a
Marriage Schedule for a couple related by affinity and who are permitted by the
civil law to marry but who may not be married by the SEC. Consequently, clergy
should ensure that they check whether any proposed marriage would fall within
the prohibited degrees of relationship set out in Appendix 26. The number of
marriages likely to be affected by this discrepancy is expected to be minimal.
The Faith and Order Board has decided to consider
whether the Appendix 26 should be altered to align with the civil law in this
regard once the current period regarding the understanding of same-sex
relationships has been concluded.
College of Bishops
Scottish Episcopal Church
December 2014
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