In the midst of the current discussion about the House of Bishops’ response to the LLF process and the new liturgical resources that accompany it, there is one thing that is agreed on all sides, which is that to be legal what is proposed has to conform to the requirement of the Canons of the Church of England that any liturgical development is ‘neither contrary to, not indicative of any departure from, the doctrine of the Church of England in any essential matter’
In the legal note on page 22 of the new Prayers we are told that the propose new liturgical resources meet this test:
‘The prayers and forms of service commended here are ‘neither contrary to, nor indicative of any departure from, the doctrine of the Church of England in any essential matter’ (including, but not limited to, the definition of Holy Matrimony in Canon B 30).’
Yesterday the legal advice from the Church of England’s Legal Office underlying this claim was published as GS Misc 1339 ‘Prayers of Love and Faith: A note from the Legal Office.’ 
In my previous paper on the bishops’ proposals I applied what I called the ‘Green test.’ This test, named after the late Canon Michael Green who taught it to me, holds that that there are two key questions that a student should ask of any item on a theological reading list. These two questions are (a) ‘What is this writer trying to sell me?’ and (b) ‘Is this something I should buy?’ In my previous paper I argued that the bishops’ proposals failed this test. In this new paper I want to argue that the advice from the Legal Office likewise fails this test with the consequence that it does not show that what the bishops are proposing is legal.
The advice from the legal office
The starting point for the advice from the legal office is the claim that a service for a same-sex couple would be lawful if it did not treat their civil marriage as ‘Holy Matrimony.’
‘The Church’s doctrine of Holy Matrimony as being between one man and one woman is set out in Canon B 30. The effect of Canon B 5.3, in the light of the doctrine described in Canon B 30, is that it would not be lawful for a minister to use a form of service which either explicitly or implicitly treated or recognised the civil marriage of two persons of the same sex as corresponding to Holy Matrimony. But it would in principle be lawful for a minister to use a form of service for two persons of the same sex who wished to mark a stage in their relationship provided that it did not explicitly or implicitly treat or recognise the civil marriage of two persons of the same sex as corresponding to Holy Matrimony.’ (Para.3)
In defence of this claim the advice then goes on to say:
‘The Legal Office has carefully examined the draft Prayers. It considers that none of the text contained in the draft Prayers of Love and Faith treats the civil marriage of two persons of the same sex, either expressly or impliedly, as amounting to Holy Matrimony. The Prayers are careful to avoid any such implication. Moreover, the Prayers are framed so that they do not bless civil marriages (or civil partnerships); any blessing is of the couple and the good in their relationship, not of the civil status they may have acquired (bearing in mind that not all will have a civil status – those in covenanted friendships in particular). Note 5 in Notes to the Service specifically states, “Any adaptation or new texts added by the minister here or elsewhere in the service must not involve the incorporation of the blessings contained in the Marriage Service from the Book of Common Prayer or Common Worship.” Accordingly, nothing contained in the draft prayers would amount to, or be indicative of, a departure from the doctrine contained in Canon B30.’ (Para 4)
To put it simply, what the advice is saying here is that the prayers are legal because:
- They do not state or imply that a civil marriage is ‘Holy Matrimony’
- They do not involve the blessing of a civil same-sex marriage as if it was Holy Matrimony (as shown by the avoidance of the blessings of marriage contained in the Book of Common Prayer and Common Worship).
These two points are critical because Canon B.30 ‘Of Holy Matrimony’ holds that marriage is a union of ‘one man with one woman’ and therefore to imply that a same-sex civil marriage was Holy Matrimony, or to treat it liturgically as if it was, would be contrary to this Canon and as such a departure from the doctrine of the Church of England and therefore illegal.
However, these two points are entirely dependent on the proposition that civil marriages are not Holy Matrimony being true. The Legal Office advice argues that this distinction is a consequence of the 2013 Act of Parliament legalising the marriage of same-sex couples:
‘This follows from the terms of the Marriage (Same Sex Couples) Act 2013, which explicitly provides for a definition of marriage in ecclesiastical law (one man and one woman) which is different from the definition in the general law. The two definitions are mutually exclusive and this can be seen as having resulted in there now being two different institutions by the name of “marriage”. Since the coming into force of the 2013 Act, civil marriage in England has taken no notice of the respective sexes of the parties to a marriage; it has become in effect a ‘gender-neutral’ institution. But Holy Matrimony continues to be defined by ecclesiastical law – not by the changed position in the general law brought about by the 2013 Act – and remains “in its nature a union … of one man with one woman”. The 2013 Act explicitly preserves the position in the Canons of the Church of England. Because the sexes of the parties are irrelevant so far as the general law concept of marriage is concerned, the concept of civil marriage is now of a different nature from the concept of marriage set out in Canon B 30 (Holy Matrimony).’ (Paragraph 6)
As a result of this distinction:
‘The proposed prayers and other forms of service which may be used for a same sex couple who have entered a civil marriage, do not indicate or imply that the couple are considered to be in a state of Holy Matrimony; they recognise that the couple’s relationship has been marked by their entering into a particular civil status (albeit regarded by the State as “marriage”). Provided that the prayers meet the requirements described in the preceding paragraphs, the fact that they are for use – among other occasions – for a couple who have entered into a civil marriage is not indicative of a departure from the doctrine of Holy Matrimony as set out in Canon B 30, just as that would not be the case for prayers for use with a couple who have entered into a civil partnership or a covenanted friendship.’ (paragraph 8).
At the end of the Legal Office’s advice two further points are then made.
The first relates to content of the draft prayers proposed by the bishop. It argues that they are legal because they do not imply that the relationships being prayed for involve same-sex sexual activity.
‘Some people have raised concerns that the draft Prayers of Love and Faith are contrary to, or indicative of a departure from, the doctrine of the Church of England in an essential matter, on the basis that they are for use in connection with relationships that involve sexual relations between persons of the same sex. But a sexual relationship is not inherent in a same sex marriage, any more than it is in a civil partnership. The draft Prayers contain no implication that what is being celebrated or blessed is a sexual relationship. The argument that the Prayers are therefore indicative of a departure from doctrine so far as sexual relationships are concerned cannot be sustained; they are simply silent on that point.’ (Paragraph 9)
Secondly, what follow from this is that ‘nothing in the draft Prayers pre-empts what the replacement [for Issues in Human Sexuality} might say on the subject of sexual relationships.’ (Paragraph 10)
Should we accept the Legal Office’s advice?
The first thing to note about the Legal Office’s advice is that it is not derived from anything that is said in the 2013 legislation to permit same sex marriages.
The 2013 Act does not create two different kinds of marriage, religious and civil. What the relevant portion of the Act says is that:
‘A person may not be compelled by any means (including by the enforcement of a contract or a statutory or other legal requirement)—
(a)to conduct a relevant marriage,
(b)to be present at, carry out, or otherwise participate in, a relevant marriage, or
(c)to consent to a relevant marriage being conducted,
where the reason for the person not doing that thing is that the relevant marriage concerns a same sex couple.’ 
What this section of the Act provides is an exemption for, among others, ministers of the Church of England from having to perform the marriages of same sex couples. The very fact that such an exemption is required shows that there is one form of marriage. Were this not so, a Church of England minister could refuse to celebrate the marriage of the same sex couple simply on the grounds that the Church of England performs ‘Holy Matrimony’ and not ‘marriage’ and therefore a normal legal requirement to conduct a marriage does not exist.
In addition, the Government’s own commentary on the legislation specifically states that the Act:
‘Ensures that the common law legal duty on the clergy of the Church of England and the Church in Wales to marry parishioners does not extend to same sex couples. It also protects the Church of England’s Canon law, which says that marriage is the union of one man with one woman, so that it does not conflict with civil law.’ 
Here again there is the presumption that there is a single entity, namely marriages, and not two separate entities, marriage and Holy Matrimony. It follows that the advice from the Legal Office is at variance with what the Government thinks the implications of the 2013 Act are.
Furthermore, since 2013 the Church of England has never previously said or implied that there is a distinction between marriage and Holy Matrimony.
The House of Bishops Pastoral Guidance on Same Sex Marriage in 2014 (which was presumably drawn up with advice from the Legal Office) has an entire section on the effect of the 2013 Act. This section states:
‘9. The Government’s legislation, nevertheless, secured large majorities in both Houses of Parliament on free votes and the first same sex marriages in England are expected to take place in March. From then there will, for the first time, be a divergence between the general understanding and definition of marriage in England as enshrined in law and the doctrine of marriage held by the Church of England and reflected in the Canons and the Book of Common Prayer.
10. The effect of the legislation is that in most respects there will no longer be any distinction between marriage involving same sex couples and couples of opposite genders. The legislation make religious as well as civil same sex weddings possible, though only where the relevant denomination or faith has opted in to conducting such weddings. In addition, the legislation provides that no person may be compelled to conduct or be present at such a wedding.
11. The Act provides no opt in mechanism for the Church of England because of the constitutional convention that the power of initiative on legislation affecting the Church of England rests with the General Synod, which has the power to pass Measures and Canons. The Act preserves, as part of the law of England, the effect of any Canon which makes provision about marriage being the union of one man with one woman, notwithstanding the general, gender free definition of marriage. As a result Canon B30 remains part of the law of the land.
12. When the Act comes into force in March it will continue not to be legally possible for two persons of the same sex to marry according to the rites of the Church of England. In addition, the Act makes clear that any rights and duties which currently exist in relation to being married in Church of England churches do not extend to same sex couples.’ 
Paragraph 9 here notes the divergence that the Act creates between the understanding of marriage held by the state and that held by the Church of England. However, the guidance does not go on to say that there is therefore a general distinction between marriage and Holy Matrimony such that everyone who has not been married by the Church of England is civilly married but not in a state of Holy Matrimony.
No subsequent Church of England document prior to the new Legal Office advice has then made this distinction, and such a distinction is contrary to both the Church of England’s practice and its theology.
It is contrary to Church of England practice in three crucial ways.
First, when Church of England clergy marry a couple they act on behalf of both the Church and the state. The one action creates one marriage that both the Church and the state then recognise.
Secondly, the converse is also true. When, with the exception of same sex marriages, when a couple marries in a civil ceremony (or in a religious ceremony made legal by the presence of a civil registrar) the Church of England automatically recognises that couple as married both in the eyes of God as well as in the eyes of the state. That is why, for instance, the service of ‘Prayer and dedication after a Civil Marriage’ refers to the couple as already being husband and wife. Thus, in the Preface to the service the minister declares:
‘N and N, you stand in the presence of God as man and wife to dedicate to him your life together, that he may consecrate your marriage and empower you to keep the covenant and promise you have solemnly declared.’
The Legal Office’s denial of this reality would mean, for example, that from a Church of England’s perspective a Christian opposite sex couple civilly married in an Evangelical Free Church whose minister was not licensed to act as registrar would not be properly married. Their union would not be ‘Holy Matrimony.’ Really?
Thirdly, the Church of England has never accepted the claim that a couple in a civil marriage can enter into a state of Holy Matrimony without their previous marriage being ended by either death or divorce. Unless either of these two events happens, they cannot enter Holy Matrimony because they are still married and would be committing bigamy.
It is contrary to Church of England theology because of what the Church of England believes about the nature of marriage. To quote the 2013 Faith and Order Commission report Men and Women in Marriage:
‘Neither the state nor the Church can claim a prior right over marriage, nor does either of them ‘make’ marriages, which is done by God’s providence working through the public promises of the couples themselves.’ 
The point being made here reflects the point previously made in the Marriage Service in the Book of Common Prayer which declares that Holy Matrimony (which it also calls ‘matrimony’ or simply ‘marriage’ – the terms are synonymous) ‘is an honourable estate, instituted by God in the time of man’s innocency.’ These words refer us back to the account of the institution of marriage by God given to us in Genesis 2:18-25. In line with Genesis 2:24 (‘Therefore a man leaves his father and mother and cleaves to his wife and the two shall become one flesh’) they hold that all subsequent marriages owe their origin to this institution of marriage by God.
Marriage, that is to say, is state of life (an ‘estate’) created by God which human beings can then enter, and the way that a man and woman enter into it is through an exchange of vows through which they commit themselves to live in it. To quote the Marriage Service again, it is the ‘vow and covenant betwixt them made’ that makes them married before God and by God. The form of their making this vow and covenant, and the subsequent legal recognition of their act by the state or the Church, are secondary matters (which is why a man and a woman stranded alone on a desert island could perfectly properly marry each other).
All this means is that the Church of England’s recognition of a marriage is precisely that. It is a recognition of an antecedent reality and the basis of this recognition is that the couple have thus entered into the way of life instituted by God and described in Genesis 2. The converse of this is that if they have not entered into this way of life then they are not married. That is the point of the warning in the Marriage Service ‘… by ye well assured that so many as are coupled together otherwise than God’s Word doth allow are not joined together by God; neither is their Matrimony lawful’ (that is, lawful according to God’s law, and not just the law of the state or the church).
In the light of all this, we have to say that the distinction made by the Legal Office between civil marriage and Holy Matrimony (and on which their defence of the bishops’ proposals ins principally based) has no merit. The objection to what the bishops’ propose is not that their draft prayers mark civil marriages as if they were Holy Matrimony (as we have seen, in Anglican thought as well as in the 2013 Act no fundamental distinction is made between the two).
The objection is that by allowing the marking in a church service of same sex civil marriages the Church of England would be saying that it is right (in the words of the Preface to the draft prayers) ‘to celebrate in God’s presence the commitment two people have made to each other,’ even when the couple involved are ‘coupled together otherwise than God’s word doth allow.’
As I noted in my previous post, no provision is made in Scripture for same-sex ‘marriages’ or partnerships and there is no theological room within the teaching of Scripture for them to exist. As Michael Brown observes:
- Every single reference to marriage in the entire Bible speaks of heterosexual unions without exception, to the point that a Hebrew idiom for marriage is for a man ‘to take a wife’.
- Every warning to men about sexual purity presupposes heterosexuality, with the married man often warned not to lust after another woman.
- Every discussion about family order and structure speaks explicitly in heterosexual terms, referring to husbands and wives, fathers and mothers.
- Every law or instruction given to children presupposes heterosexuality, as children are urged to heed or obey or follow the counsel or example of their father and mother.
- Every parable, illustration or metaphor having to do with marriage is presented in exclusively heterosexual terms.
In the Old Testament, God depicts his relationship with Israel as that of a groom and a bride; in the New Testament, the image shifts to the marital union of husband and wife as a picture of Christ and the Church.
The basic problem, which the legal advice does not so much as acknowledge, is that within the framework of Anglican doctrine to liturgically mark with celebration, in the presence of God, a form of life which is unlawful because it claims to be marriage but is not in line with marriage as God has ordained it to be, is something that is never right to do. It is blatantly ‘contrary to, and indicative of a departure from, the doctrine of the Church of England.’
This problem would exist even if the same sex unions in question were completely sexually abstinent. They would still be ‘unlawful.’
However, the fact that the pattern of liturgical practice proposed by the bishops does not distinguish between sexually abstinent and sexually active unions does create another problem. This is because, as I noted in my previous post, both Scripture and the entire Christian tradition declares with one voice that same sexual activity (along with any other sexual activity outside marriage) is sin. Accordingly, as the 1987 General Synod motion notes, this activity has to be met not only with compassion but also a call to repentance.
The Legal Office is probably right when it says that the prayers don’t explicitly refer to sexual activity, but you cannot simply detach a relationship from the sexual activity within it. The obvious point that the Legal Office either hasn’t thought about, or has chosen to ignore, is that the fact you would not allow any liturgy to pray for incestuous or adulterous relationships or for ones involving sado-masochistic activity highlights this point. Why wouldn’t you pray for them? Because the sexual activity involved makes them wrong.
Two points follow from this. First, there needs to be a distinction, which the draft prayers do not make, between the kind of same-sex relationships which it might be right to pray for (such as non-marital sexual friendships) and those which it would never be right to pray for (any involving sexual activity outside marriage) so that the clergy and others know which they can pray for and which they cannot. Secondly because liturgy is a declarative active which states what the Church believes to be right, the Church has to distinguish publicly between these different categories of same-sex relations (something for which again no provision is made). Without such clarity the proposed liturgies would be ‘indicative of’ a departure from the existing doctrine of the Church of England and therefore unlawful.
Back in 2005 the House of Bishops noted that it would not be right to ‘produce an authorised public liturgy in connection with the registering of civil partnerships’ precisely because of the ‘ambiguity’ caused by the fact that ‘people in a variety of relationships will be eligible to register as civil partners, some living consistently with the teaching of the Church, others not.’  Eighteen years later this point still applies, not just to civil partnerships, but to all forms of same sex unions. Unless the Church of England can make an explicit public distinction between such unions, saying which are licit and which are illicit, and why, it cannot make them the subject of public prayer.
A final point is that because the draft prayers allow for same-sex marriages, and sexually active same sex unions in general, to be celebrated before God through the liturgy this must pre-empt the guidance that will be provide to replace Issues in Human Sexuality.
If such relationships are already allowed to be celebrated how then does this not mean that the Church believes that to do so is right in God’s sight?
As with the House of Bishops proposals as a whole, for the reasons set out above the advice from the Legal Office fails the Green Test. It is trying to sell us something that we should not buy.
Appendix – Failing the Green Test II – A Defence
A paper on the EDGE facebook site has criticised my paper ‘Failing the Green Test II’ on the following lines:
‘Unfortunately he’s making the mistake that keeps being made since the release of the Prayers. The bishops (and their lawyers) are NOT saying that only the CofE can perform Holy Matrimony services!!! Why do we keep misunderstanding this point?
What they’re saying, and *it is something that bishops have argued before*, is that there are two overlapping definitions of marriage. It is only at the point at which they depart (namely, where the state marries people of the same-sex) that what the State does is not Holy Matrimony (i.e. marriage as the Church has always understood it). An opposite sex couple that legally marries anywhere and in any way IS entering into a state of Holy Matrimony, and the bishops have not argued otherwise.
Please, please can we stop attacking that straw man.’
While I am grateful for this critique because all criticism is useful in forcing me to think carefully about the validity of my thinking, I nonetheless still think that my argument stands.
The key defence made by the bishops and the lawyers of the legality of the proposed services to mark among other things same-sex civil marriages is that the prayers themselves do not ‘treat the civil marriage of two persons of the same sex, either expressly or impliedly, as amounting to Holy Matrimony.’
This defence absolutely depends on a distinction between ‘civil marriage’ and the entity referred to as ‘Holy Matrimony.’
The problem with this defence is that it fails to engage seriously enough with the fact that there are now two understandings of marriage in this country, which for convenience we shall call understandings A and B.
Understanding A, which is held by the state, and by some religious bodies and individuals, holds that marriage is a permanent and exclusive relationship between two people regardless of sex.
Understanding B, which is held by the Church of England and reflected in the Prayer Book marriage service and Canon B.30, holds that marriage is permanent and exclusive relationship between one man and one woman.
The Church of England holds that understanding B describes what marriage actually is because it is the form of marriage created by God as recorded in Genesis 2 and endorsed by Jesus in the Gospels. It follows from this that the Church of England holds that all who have entered into this way of life have entered into marriage (the term Holy Matrimony is a red herring because, as I point out in my paper, in both the Canon and the Prayer Book ‘Holy Matrimony’ is a synonym for marriage). This applies whether they have entered into a civil marriage or been married in a Church of England service. Marriage is marriage, is marriage (which is why, as I point out in my paper, the Church of England treats those who are civilly married as married).
Under the bishops’ proposals, however, it would be possible to use individual prayers, or to hold a form of service, to mark a civil marriage between two people of the same sex. According to understanding B their relationship is not a marriage at all. Whatever the state says, they are not married in the eyes of God, and this means that they are not married.
This obviously creates a problem because how can you mark a same-sex civil marriage when according to the doctrine of the Church of England (and in the eyes of God) it is not a marriage at all but a human fabrication which rebels against the order that God has established for his creation?
The bishops and lawyers try to get round this by saying, ‘Ah but we are not marking it as Holy Matrimony.’ This does not work because as I have indicated, marriage and Holy Matrimony are two ways of describing the same thing.
If you accept that a same-sex couple are married and liturgically celebrate that fact with rejoicing thanksgiving and hope as the bishops suggest clergy and lay ministers should be allowed to do, then you are saying precisely that they have entered into Holy Matrimony. This in turn means that you are reflecting a type A understanding of marriage rather than the type B understanding held by the Church of England. Consequently, you are breaking Canon law by instituting a form of service that is ‘contrary to, or indicative of a departure from’ the doctrine of the Church of England.
Of course, you could even more desperately try get round this by saying to the couple concerned ‘We think you are not married, but we will pray for you anyway.’ Even if they would accept this (which is unlikely in the extreme) the only legitimate form of prayer for a relationship formed in rebellion against God’s ordering of creation is a form of prayer marked by confession, repentance and absolution and this is absolutely not what the bishops are proposing. To celebrate with thanksgiving an act of rebellion, and therefore of sin, would itself contravene the doctrine of the Church of England.
What all this means is that the bishops and lawyers face a simple choice. Either they persist in trying to distinguish between Holy Matrimony and marriage (which is something that simply does not work given that the two terms are simply synonyms) or they have to concede that what they are proposing is inconsistent with existing Church of England doctrine (and as such illegal).
 Canons B2.1, B4.-3, B5.3.
 GS Misc 1339 ‘Prayers of Love an Faith: a Note from the Legal Office’ at https://www.churchofengland.org/sites/default/files/2023-01/GS%20Misc%201339%20Legal%20Note%20for%20Synod%20Jan%202023_0.pdf
 Martin Davie ‘Failing the Green test – A critical examination of the material from the House of Bishops’ at mbarrattdavie.wordpress.com
 Marriage (same sex couples) Act 2013, Part 1.2 at https://www.legislation.gov.uk/ukpga/2013/30/contents/enacted
 ‘Marriage (Same Sex Couples Act): A Factsheet’ at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/306000/140423_M_SSC_Act_factsheet__web_version_.pdf
 ‘House of Bishops Pastoral Guidance on Same Sex Marriage’ at https://www.churchofengland.org/news-and-media/news-and-statements/house-bishops-pastoral-guidance-same-sex-marriage
 ‘An order for Prayer and Dedication after a Civil Marriage’ at https://www.churchofengland.org/prayer-and-worship/worship-texts-and-resources/common-worship/marriage#mm107
 The Faith and Order Commission, Man and Woman in Marriage (London: Church House Publishing, 2013), p.13.
Similarly Canon B.30 refers synonymously to ‘Holy Matrimony.’ ‘marriage’ and ‘marriage’ without distinguishing between them.
 See Michael Brown, Can You Be Gay and Christian? (Lake Mary: Front Line, 2014)
 ‘Civil Partnerships- A pastoral statement from the House of Bishops of the Church of England,’ paragraph 17, at https://www.churchofengland.org/sites/default/files/2017-11/House%20of%20Bishops%20Statement%20on%20Civil%20Partnerships%202005.pdf