The Church of England: above the law or just confused?

On Wednesday of this week, Robert Key, the Conservative MP for Salisbury, succeeded in having an Adjournment Debate on “The Application of the Sex Discrimination Legislation to Religious Organisations”.

Such debates are an opportunity for Members of Parliament to discuss subjects of concern that would not normally get an airing. They do not result in legislation, but they do allow MPs to express an opinion.

It immediately became obvious, however, that Mr Key had only one religious organization in view, namely the Church of England. This may be less surprising when one realizes that he is also a member of the General Synod and, more importantly, a clear supporter of the consecration of women bishops.

Mr Key’s concern was that despite last July’s vote, the revision committee of the Synod is likely to bring forward a proposal not merely for a code-of-practice for those who do not want a woman bishop but what he called “the imposition by statute of flying male bishops, who could land in a diocese with a woman bishop and deprive her—automatically—of her authority and religious functions.” It is thus clear, as they say, where Mr Key is coming from on this one.

In his introduction, Mr Key claimed that “most members of the Church of England who go to church want women to be ordained as bishops” (though he did not explain why, as he also observed, across the entire Anglican Communion, in the last twenty years, fewer than thirty women have actually been bishops).

In a brief theological excursus, he also observed that,

Most Christians believe that God is above gender. The disciples with whom Jesus surrounded himself were both women and men. It is not true that He thought that women were not up to it; on the contrary, it is striking that Jesus treated people the same, whether they were male or female.

The absence of reference to the all-male twelve, or to the words of the Apostle Paul are certainly discrete, even if some might feel somewhat disingenuous. Nevertheless, Mr Key did have a further point to make. The Sexual Discrimination Act 1975 allows religious organizations to discriminate on the grounds of gender where this is a matter of doctrine or of the views of significant numbers of the religion’s followers (that, at least, was the summary given in the debate by the Parliamentary Secretary and Government Equalities Office, Mr Michael Jabez Foster). Mr Key held, however, that the Church of England had systematically removed itself from qualifying for that exemption: in 1975, the General Synod declared that there were no fundamental objections to ordaining women as priests, in1992, the Synod voted in favour of women priests and in 2005 it decided that there was no fundamental objection to women bishops.

It would therefore, he argued, be illegal for the Church to continue to discriminate in this area as the revision committee might propose, and (since the Church of England is an established Church) it would similarly be illegal for Parliament to endorse the proposal when it was brought for approval as a Measure.

The response of MPs, however, was mixed. Some, like Mr David Taylor of North-West Leicestershire and Mrs Ann Cryer, for Keighley, agreed with Mr Key. Indeed, Mrs Crier, in a short contribution, felt it would set a good example to the Muslims in her constituency —something of which they might perhaps take note.

Others, however, took a less enthusiastic view, including, despite his avowedly non-religious views, Dr Evan Harris, the Liberal Democrat MP for Oxford, West and Abingdon. Like others who contributed, Dr Harris felt that although he himself would prefer there to be no discrimination at all anywhere, the Church of England ought to go on enjoying the same exemptions as applied to other religious organizations. For him, such exemptions were a matter of religious freedom, with which he was reluctant to interfere.

Mr Key was supported, nevertheless, by the Roman Catholic MP for the Forest of Dean, Mr Mark Harper, who agreed that, “because the Church of England has decided in principle that women are able to be priests and bishops, [the] exemption does not apply and regular law therefore applies, and the Church of England would have to treat women bishops in the same way that it treats male bishops.”

A similar point was made by Mr Jabez in his summing up. Referring to future legislation, he observed,

Whether ... a requirement that bishops should be men was in place in order to comply with the doctrines of the religion or to avoid the kind of conflict described—is ultimately a matter for the courts.

Meanwhile, he concluded,

The Church’s debate ... [is] not about whether in principle women should be bishops, but about how, and about what accommodation could or should be made for those in the Church who do not think that they should. It is a very difficult question, first of all for the Church of England itself, and it is obvious from what we have heard today that the Church is wrestling with it.

And there, as far as Parliament is currently concerned, the debate ended. Nevertheless, it sends, as it was no doubt intended to, a clear warning-shot across the bows of the General Synod: do not presume that what you propose will simply receive a ‘rubber stamp’ by a disinterested Parliament.

What, then, can be said in response?

First, it shows that the current position of the Church of England is thoroughly Erastian, in that a Parliament of increasingly avowed non-believers nevertheless regulates the details of church life.

This, of course, was never the intention in the establishment of the Church of England by law. Rather the aim was that the nation should have an integrated life regarding both its ‘spiritual’ and ‘temporal’ organs. And indeed that vision, enshrined also in the coronation oath, was, for some considerable length of time, realized to various degrees. The degree of theological sophistication in parliamentary debates at the end of the nineteenth century is extraordinary to modern ears, and of course it was Parliament which prevented the theological innovations of the 1928 Prayer Book.

The move by Mr Key, however, represents little more than an attempt to recruit the secular will for a supposedly ‘spiritual’ end. And if that is a possibility, then it may be that the inevitability of disestablishment is to be welcomed sooner rather than later.

Secondly, however, it surely raises a real question as to whether any provision for opponents of women bishops is legal. My own view of Mr Key’s argument is that it seems essentially right in law that if the Church of England has decided that men and women can be both priests and bishops, any appeal to exemptions under the existing sexual discrimination legislation is invalid.

However, if that is the present position of the Church of England, then the present provisions are themselves illegal, including those in 1993 Priests (Ordination of Women) Measure and the Episcopal Ministry Act of Synod from the same year.

It would be surprising, however, to discover that Parliament had approved an illegal regulation and allowed it to remain on the statute books for so long. One must therefore ask whether this is, in fact, the case, and the answer would seem to be that it is not.

Yet here we run into a difficulty about decision making in the Church of England itself. Mr Key observed in his opening remarks that in 1978 the General Synod voted on ordaining women as bishops, priests and deacons. However, although the necessary two-thirds majority was achieved in the House of Bishops and the House of Laity, the House of Clergy recorded only a simple majority, and so the motion fell.

The problem is with voting and majorities (whether simple or substantial). As Mr Key pointed out, the General Synod voted in 1975 that there were no fundamental objections to ordaining women as priests. That vote, however, left the Church in a logically incoherent situation, for the sheer fact that it was a majority vote, rather than a nem con, meant that there were indeed some, even in the Synod, who felt there were indeed ‘fundamental objections to ordaining women as priests’, and rather like the Jebusites in Jerusalem, they are with us to this day —a fact which is evident in Synod itself and in the continuation of Resolution A, B and C parishes.

Winning a majority vote, even by a large margin, does not disprove a position or eliminate its supporters. Furthermore, the Church of England has itself recognized the existence and the legitimacy of the objectors in this case by putting in place legal provisions for their views and advancing them to Parliament.

Moreover, whilst there are “significant numbers” of adherents of the Church of England who take a contrary view, even to the majority, the law apparently allows the institution an exemption. That, presumably, is why there was no parliamentary objection to the 1993 legislation.

Mr Key, I would suggest, is correct in principle —that if the Church of England has decided the matter as he claims then it cannot use the legal exemption —but wrong in fact, insofar as the Church of England has clearly said one thing in terms of motions voted through Synod, but done quite another in terms of legal provisions put in place by the same Synod.

The situation is inconsistent, but the solution is not immediately obvious. One answer, as Dr Harris recognized in the debate, is that the Church of England should adopt an “either/or” solution —in effect it should make its mind up absolutely one way or the other, so that it either continues to accept there are principled objections to women priests and bishops, or it should decide that there are not and that henceforth to be a member one must accept their offices and ministry.

The latter would have the merit of consistency, but it would lack the merit —especially if it were again done by majority vote —of Christian ‘inclusiveness’. In a small way, it would parallel the ‘Great Ejection’ of 1662, forcing some to choose between the Church they regard as ‘home’ and the dictates of conscience.

It might just as easily be argued, however, that the problem lies in the Synodical process, which is responsible for this incoherent situation. And indeed it is arguable that the Synod, because of the way its structures operate, is somewhat masking the reality on the ground. It is obvious, for example, that since the advent of women priests, clerical objectors to women’s ordination are increasingly unlikely to be elected onto General Synod as the number of women voters increases. When we add to this the fact that, contrary to the Act of Synod, preferment is no longer given to those who object to women’s ordination, the Houses of Clergy and Bishops in the General Synod are, on this issue, effectively subject to Gerrymandering. Mr Key and his supporters could perhaps force through their position, but it would scarcely be a moral victory.

As things stand, then, my own conclusion would be that Parliament is right to allow for the reality that there are still those within the Church of England of the minority view, even though what the Church of England has voted on this subject might be taken as an ‘absolute’ position.

Revd John P Richardson
13 November 2009

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