1. The Archbishops’ Council of the Church of England welcomes the opportunity
to respond to the Consultation Document which the Government issued on 30 June.
2. The Church’s approach to ethical issues is founded on Holy Scripture, interpreted in the light of Tradition and Reason. As our knowledge and understanding of the world and the mysteries of humanity grow, so we are called to engage prayerfully and thoughtfully both with new issues and with other issues which, though familiar, may need to be explored afresh. This is a process requiring great wisdom and patience, not least on moral and ethical issues at a time when views in our society have been in considerable flux.
3. It has always been the teaching of the Church of England that marriage - that is, faithful, committed, permanent and legally sanctioned relationships between a man and a woman - is central to the stability and health of human society. In our view it continues to provide the best context for the raising of children. For that reason it warrants a special position within the social and legislative framework of our society. We remain committed to this principle of marriage and to a unified recognition of its meaning by the law of our country.
4. Sexual activity outside marriage, whether heterosexual or homosexual has, of course, been known throughout recorded history. Nevertheless, the almost universal Christian tradition has been to regard it as a falling short of God’s purposes for human beings. That remains the declared position of the Church of England, though there is a continuing internal debate over the acceptability of sexually active relationships between gay and lesbian people who are in faithful and committed partnerships. A discussion document providing a comprehensive guide to that debate will be published by the House of Bishops in November.
5. Alongside this approach to sexual ethics, the Church also attaches high importance to the promotion of social justice and the safeguarding of human rights. As a result the Church has, on occasions, taken a positive view of particular legislative changes where there has been a need to remedy injustices in our diverse society, even where the result may have been to facilitate developments about which the Church has had particular concerns given its doctrine and teaching. An example would be the law relating to divorce.
6. It is with these two key considerations in mind that the Archbishops’ Council has approached the Government’s proposals: the need to do nothing to devalue or undermine marriage and the family; and the importance of using the law of the land to promote justice and human rights.
7. We welcome the Government’s recognition of the distinctive place of marriage in the law of our country and the need to preserve it. We note that the consultation document states at para 1.3 that ‘it is a matter of public record that the Government has no plans to introduce same-sex marriage’.
8. We support the Government’s wish to encourage long-term stable relationships as being more in the interests of society as a whole than a culture of transient or promiscuous relationships. Fair treatment for such relationships within a framework of legal rights and safeguards may well help to promote this objective.
9. We also endorse the Government’s intention to recognise the rights of individuals within same sex relationships in relation to such matters as protection from domestic violence, the registration of a death and inheritance matters including tenancy succession. The law no longer reflects current social patterns and needs amendment to remedy injustice.
10. The consultation document, including in the foreword by the Minister of State, Jacqui Smith, refers to the importance of securing culture change through legislation. If this means the promotion of greater mutual acceptance of others, the embracing of diversity within our society and the repudiation of homophobia then we agree. Society is stronger and more harmonious if we each respect the decisions which adults make about the ordering of their own lives so long as those decisions are not clearly to the detriment of others.
11. If, however, culture change means the promotion of the view that it is discriminatory to distinguish between marriage and same sex relationships, then it is not clear what the Government’s declared recognition of the distinctive place of marriage means in substance. We believe that it is in the interests of society for marriage to continue to enjoy a unique status. We seriously question whether there will in practice be a sufficient distinction in law between marriage and registered same-sex partnerships if the proposals outlined in the consultation paper are implemented.
12. Secondly, there is an ambiguity at the heart of the Government’s proposals about the nature of the proposed partnerships and about what precisely the couple are promising to be to each other. This is reflected in the shifting language in the document between ‘gay, lesbian and bisexual’ couples in some places and ‘same sex partnerships’ (potentially a wider category) in others. In a matter of this kind clarity is crucial.
13. The extremely close parallel between the new arrangements and the legal framework for marriage is likely to deter some people who might otherwise register- for example those who choose to share a home with others for a substantial period and may wish to benefit from the new partnership provisions in relation to successor tenancy rights but are not homosexual. Conversely, gay and lesbian couples will receive less protection than they might expect from a legal framework so akin to marriage- no apparent protection against sexual infidelity within a supposedly exclusive relationship, no equivalent to a nullity process should a sexual relationship be wilfully refused, no specific provision for dissolution on grounds of refusal to live together.
14. We would urge the Government to be clearer and more consistent over what it is trying to achieve. Is the primary aim to remedy injustice and create some new legal rights and safeguards for those who are not married but who may wish to share important parts of their lives with each other, whether or not within a sexual relationship? If so, the logical approach would be to remove the prohibited degrees of relationship, thereby enabling, say, two brothers or two sisters to access the new set of rights. Indeed, if this is the primary aim it could be argued that they should not be confined to same-sex couples.
15. If, on the other hand, the Government’s primary aim is to confer rights on gay and lesbian people in long-term, committed relationships, the logic would be for the legal framework to acknowledge the sexual nature of the relationship. The hybrid nature of the present proposals is a recipe for confusion.
16. We are also concerned about what the document says in relation to the treatment of children. In particular we have reservations about the use of the problematic phrase ‘children of the partnership’ in paragraph 8.3, presumably to refer to the children of one party who are being brought up by a parent and their partner. It is very important that the difference in role and status of actual biological or adoptive parents and those parents’ partners (whether spouses, registered partners or unregistered partners of either sex) should not be blurred. Members of registered partnerships should not have greater rights or responsibilities towards the children of their registered partners than husbands or wives have over their spouse’s children.
17. . We shall want to look particularly carefully at the details of the new legislation to see evidence of the Government’s assurance that it ‘has no plans to introduce same-sex marriage’. As they stand these proposals risk being seen as introducing a form of same-sex marriage with almost all of the same rights as marriage We accept that there are issues of social justice which need to be addressed in the light of changing patterns of relationship in our society. We believe that it would be possible and indeed right to do so, consistently with safeguarding the special position of marriage. While accepting the case for conferring some new rights on adults who wish to share important parts of their lives with each other, we have significant concerns about the proposed new partnership arrangements and the uneasy compromise they appear to represent.
18. A schedule of more detailed points is attached.
Archbishops’ Council 30 September 2003
Church House
Great Smith Street
LONDON
SW1P 3NZ
1. Paragraphs 1.4 and 2.8 We recognize the force of the arguments against including opposite-sex couples in the proposed scheme of registration. Any such approach would risk confusing the role and position of marriage. We would urge the Government not to be ambivalent about marriage but to support the function and purpose it has in society and to encourage cohabitants to consider it. There is, nevertheless, a need for specific measures to address the considerable hardship suffered by some cohabitants after relationship breakdown or death of a partner.
2. Paragraph 3.2 We are doubtful whether it is prudent to allow those who are not yet adults to enter into this long-term legal commitment. We recognize that any notion of different ages for marriage and for same-sex partnerships is contentious and raises questions of justice and human rights. Nevertheless we do not see it as axiomatic that the minimum age for this new form of partnership simply has to mirror that for marriage. In addition the issues here are rather different than in relation to the age of heterosexual and homosexual consent. We note that a number of countries, including in the EU, do impose a qualifying or minimum cohabiting period before partnerships can be registered. While we do not press for that, the case for setting a minimum age limit of 18 merits further consideration.
3. Paragraph 3.3 We suggest that the definition of ‘exclusivity’ has to be clearly explained to avoid problems of ambiguity (see para 12).
4. Paragraph 4 Under the proposals in the consultation paper the signing of the register of same sex partnerships is the act by which the partnership comes into effect. There is some concern here about the privileging of the act of writing over that of speaking, which may cause problems for the less literate or those with learning difficulties.
5. Paragraph 4.13 Marriage attracts certain rights, privileges and responsibilities because of its public nature. Whilst we recognize the very real threat of homophobic violence, we agree with the Government that civil partnerships could not work without the public nature of the registration. It cannot be kept private. Those who enter into such legal arrangements have to be willing for the fact of them to be on the public record.