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Published online by Cambridge University Press: 15 April 2014
This lecture – delivered before the Marriage (Same Sex Couples) Act 2013 became law – discusses three conceptions of the relation of Church and state: those of Richard Hooker, Thomas Warburton and Samuel Taylor Coleridge. Hooker and Coleridge bind Church and state together more closely than does Warburton in The Alliance between Church and State (1736). It is argued is that the Marriage (Same Sex Couples) Act points to an increasingly Warburtonian, superficial, pragmatic understanding of the relation between state and Church, which can all too easily be pulled apart. The subtler positions of Hooker and Coleridge are excluded. The ‘quadruple lock’, by which the Government affirms that it protects the position of the Church of England in upholding a traditional doctrine of marriage, has been put in place as promised, but the Act marks a significant step on the road to the disestablishment of the Church of England.
2 The first edition of the Laws of Ecclesiastical Polity had a complicated publishing history. The first five volumes appeared between 1593 and 1597, books 6 and 8 in 1648 and book 7 in 1662.
3 Hooker himself, like other contemporary writers, rarely uses the word ‘state’: he talks of the ‘commonwealth’, within which there is ecclesiastical and civil polity.
4 Warburton, W, The Alliance between Church and State (4th edition, London, 1766)Google Scholar, p 3.
5 Ibid, pp 85–86.
6 Coleridge, S, On the Constitution of Church and State According to the Idea of Each, ed Barrell, J (London, 1972)Google Scholar, p 4, emphasis in original.
7 Ibid, p 6, emphasis in original.
8 Ibid, p 43.
9 This is a Warburtonian idea. Warburton argues that the state needs an established religion and that the established religion should represent the faith of the majority of the people. In England, it is rightly the (episcopal) Church of England and in Scotland rightly the (non-episcopal) Church of Scotland. His model is the integration of religion and ‘state’ as seen in the Old Testament. Hence, the established religion need not even be Christian. Coleridge (ibid, p 44) follows him at this point. ‘In relation to the National Church’, he says, ‘Christianity, or the Church of Christ, is a blessed accident, a providential boon, a grace of God. … As the olive tree is said in its growth to fertilize the surrounding soil; to invigorate the roots of the vines in its immediate neighbourhood, and to improve the strength and flavour of the wines – such is the relation of the Christian and the National Church.’ See also p 45.
10 Ibid, pp 97–111, all emphases in original.
11 For the Church of England's position, see ‘Same-sex marriage’, available at <http://www.churchofengland.org/our-views/marriage,-family-and-sexuality-issues/same-sex-marriage.aspx>, accessed 3 May 2013.
12 HC Deb, 11 December 2012, col 156.
13 Lord Penzance in Hyde v Hyde (1866) LR 1P&D 130 at 133 stated: ‘I conceive that marriage, as understood in Christendom, may … be defined as the voluntary union for life of one man and one woman to the exclusion of all others.’
14 Eg, by which male relatives will it be forbidden for a woman in a same-sex marriage to be inseminated? Will same-sex siblings now be able to marry? If her brother were infertile, could a woman now bring a claim under equality legislation that she should be able to marry him? The latter two questions might arise if a person knew that they were dying and saw this as a way of avoiding inheritance tax.
15 Available at <http://www.publications.Parliament.uk/pa/bills/cbill/2013-2014/0003/en/2014003en.pdf>, accessed 21 June 2013.
16 Some have argued that in the end the Government will be forced by the European Court of Human Rights at Strasbourg to defer to EU equality law. The implications of this for state–Church relations (and/or EU–UK relations) would, of course, be very serious.
17 The ‘fourth lock’ merely affirms the status quo for the Church of England; it adds nothing. Since, however, there does not exist a similar legal channel for the Church in Wales to change its mind on this issue, the Act specifically creates one. Scottish legislation on same-sex marriage is being left to the Scottish Parliament, but it is not clear that the Scottish Parliament is competent to create an exemption for Church of Scotland ministers from national equality legislation.