The Governing Body of the Church in Wales has passed a Bill enabling the blessing of same sex marriages. For discussion of the debate see this piece by the Church Times,
The Marriage (Same Sex Couples) Act 2013 does not allow the Church in Wales or Church of England to opt in to conduct same sex marriages. This new Church law will enable blessings to occur but not marriages to be solemnised.
The Church of England and the Church in Wales are in a different position than other religious groups because it is commonly thought that there is a legal right for parishioners to be married in the parish church and this has been recognised judicially and in legislation in recent years. Indeed, the right has been extended to all those with a qualifying connection to the parish.
Although the Church of England in Wales was disestablished a century ago, some vestiges of establishment remain. This is notably true of marriage law – where references to the Church of England include the Church in Wales.
The Church in Wales and Church of England are in a different position than other religious groups because they cannot opt in like any other place of worship can under section 4 of the Marriage (Same Sex Couples) Act 2013.
Section 8 provides that this can change in respect of the Church in Wales if the Governing Body of the Church in Wales resolves that it should be allowed. It provides that if the Lord Chancellor is satisfied that the Governing Body has resolved that the law ought to be changed then he must make such provision as he considers appropriate to allow for it.
This provision was included at a late stage because if the Church of England changed its polity then it could change the law of the land by Measure. (A Measure has the same force and effect as an Act of Parliament). By contrast, the Church in Wales doesn’t have this power and so would need an Act of Parliament to change its position under the Marriage (Same Sex Couples) Act 2013 had I not been for section 8.
This means that both Churches can seek a change in the law but neither can opt in under the Act as it currently stands.
Yesterday’s vote concerns blessings rather than solemnising same sex marriages so the question of changing the Marriage (Same Sex Couples) Act 2013 has not yet arisen.
How the Act would be amended to allow for same sex marriage by Church in Wales but not Church of England is an interesting question given that the law treats references to the Church of England in marriage law as including the Church in Wales and also because of the broadness of the exceptions given to them both.
Yesterday’s Bill is an important development and may well led to even larger changes in the future.
For further discussion of the law on same sex marriages and religion see my book Religion and Marriage Law: The Need for Reform