The conclusion of the week was in The Guardian’s balanced blog by Michael White: “Noisy bishops aren’t always wrong”. High praise indeed for the Church from that quarter.
Cardinal O’Brien, the Archbishop of St Andrews and Edinburgh, and the Archbishops of York and Canterbury (past as well as present) have had their initial say on the Government’s proposal to reform the law on marriage. This weekend, it is the turn of the Archbishops of Westminster and Southwark.
The Independent described the archbishops’ letter as “less shrill” than Cardinal O’Brien’s attack on the Government. It would have been a challenge to have been more shrill than his condemnation of the Government’s plan as a “grotesque subversion” and as “staggeringly arrogant”, with “weasel words masking a great wrong”.
The Archbishops of Westminster and Southwark have their own style. As they call for the laity to make our voices heard, there is still time, during the Government’s consultation and beyond, for all sides to deploy different arguments, rather than rehearsing the same points.
The bishops have argued about what is natural. This is treated by some of their opponents as an invitation to attack the Church by dismissing celibacy and child abuse as unnatural. This conflates something of which the Church approves in certain circumstances – celibacy – with abuse, which it condemns in all contexts but which it has not been sufficiently vigilant in confronting.
Another predictable exchange is when proponents of the law reform say that the bishops and others who disagree do not have to be involved in the marriage ceremonies which the new law envisages – a favourite line of campaigners taking part in radio and television debates.
Alongside this inevitable cut and thrust, it would be good for the bishops and others to consider at some point four other elements which often feature in debates about law reform – our own court judgments, the European Court of Human Rights,
contributions to legal philosophy and different conceptions of the role of elected and unelected politicians in a democracy, with particular reference to manifestos – elements curiously absent so far from this particular debate.
The archbishops could have pointed to the case of Susan Wilkinson and Celia Kitzinger, which in 2006, gave Sir Mark Potter, as President of the Family Division in the legal system of England and Wales, the chance to consider many of the arguments now being used.
Living in Canada, the two women were able to marry each other. On returning to this country years later, their argument was that the law was discriminating against them in not recognising marriages between people of the same sex. They lost their case. The Civil Partnerships Act 2004 here had come into force during their litigation. The judge thought that the law made sense and upheld the law on marriage as traditionally understood between a woman and a man.
The law was not saying that single-sex relationships are inferior, but that they are different. The same reasoning was then adopted by the majority in a chamber of the European Court of Human Rights in upholding Austria’s traditional law of marriage as only being recognised between a man and a woman.
One of the most famous arguments in the history of legal philosophy came when the Catholic judge, Sir Patrick (later Lord) Devlin took issue with the Oxford professor of jurisprudence, Herbert Hart, over the relationship between law and morality.
Hart had spoken in the 1950s. Devlin replied in the 1950s and 1960s. My own first book, Law & Morals, published in 1986, was a reflection on this debate.
The judge argued that “the Christian institution of marriage has become the basis of family life and so part of the structure of our society. It is there not because it is Christian. It has got there because it is Christian, but it remains there because it is built into the house in which we live and could not be removed without bringing it down.”
Lord Devlin’s eloquent support of the law on marriage gives an underpinning to the archbishops’ letter. Of course, he was explaining why the law favoured monogamy rather than polygamy. There is some work to do in considering his arguments in this different context of whether civil partnerships should be called marriages. Nevertheless, it is jurisprudential territory which the Church needs to explore.
Finally, there is a fundamental point about our constitution and the meaning of democracy. The Prime Minister and the Deputy Prime Minister have both argued for reform of the House of Lords because it is “unelected”. The judges and the monarch are also unelected, however, and democracy is more than a matter of arithmetic, as noted by Edmund Burke who is quoted by the Prime Minister on other points when it suits the Government.
Still, if we are to rely on elected politicians, then their legitimacy, on the Government’s own approach, comes from the votes they garnered on the basis of their manifestos. In this case, the Government is not following manifesto commitments as traditionally understood, although the Conservatives did publish some quasi-manifesto glosses on their main document.
In one of them, their Contract for equalities in May 2010, they did state that: “We will also consider the case for changing the law to allow civil partnerships to be called and classified as marriage.”
Next time, it will be interesting to see how much attention is paid by the bishops and others to these documents on the side.
The archbishops’ letter warns that: “Changing the legal definition of marriage would be a profoundly radical step”.
Profound radicalism, as properly understood in the sense of going back to the roots of our understanding of the common good, is what they themselves could be confidently advocating, in contrast to the lack of profundity, of depth, in the foundations of the Government’s thinking.
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