Tag Archives: Church of England

The Church, the State, and the Special Place of Religion

Over the last six weeks on Wednesday lunchtimes in Sheffield Cathedral, a range of speakers have taken us from Old Testament Israel to discussions taking place right now about the place of Sharia Courts in British society. In this sixth and final talk in the Religion and Law series, ‘Church Establishment in a Global Context’ by Prof. David McClean, many themes raised before emerged once again.

The established nature of the Church of England is often seen as an anomaly – something out of step with the rest of the world, and thus dated and in need of change. This criticism declares that the links between the Church and the crown are ill-suited to the diversity of religions which now form a part of the United Kingdom.

In England, these links between the Church and the crown go back to the Act of Supremacy in 1538. The Act made King Henry VIII the Head of the Church, so it was his right to elect bishops, deans and some vicars, and to ratify any decisions made at a general synod. Today, royal assent for Church appointments and new pieces of law is still needed. The ‘masterly inactivity’ of the Tudor monarchs in retaining the original settlement of the 1530s still has echoes in how the Church of England is run in the present.

But this relationship between church and crown is not entirely unique, nor only associated with England. David McClean highlighted a number of examples where the church and the state work together. The Danish Church, for instance, is so  entwined with the crown that it is effectively an arm of the state, run by a “Minister for Ecclesiastical Affairs”.

In Greece, although the Greek Orthodox Church is technically the ‘dominant’ and not the ‘established’ Church, it’s still heavily state funded. Even in France, where the relationship between the Church and the State is probably the most hostile, in some areas, such as Alsace-Lorraine, the Church still receives favourable tax benefits and direct financial support.

The nature of the established church, or rather the place of the church and religion across Europe, highlights a key theme across this series of talks: that of the often special relationship of religion in law.  The interlocking of the Church of England and the crown as described by David McClean recalls the close connection of Christianity with the Roman Empire and how their development became closely entwined; but also the special position of clerics within the law of England in the twelfth and thirteenth centuries and how this ‘benefit of clergy’ continued to have resonance throughout Europe into the modern era. Another example is the intrinsic nature of Islamic law to the life of Muslims and how it guides their lives and their communities, and thus becomes a part of secular laws and systems.

The relationship between religion and law, between religion and the state is thus an old one that echoes down the centuries, and remains an area of debate today over the place not only of the Church of England but of all religions and laws in the UK.

And that’s not surprising: because religion isn’t a static entity. Throughout history, it has worked alongside secular laws, as well as created its own rules. Different communities create their own laws to define them. It’s the interaction of individual religious groups and their laws with that of secular law which shapes the societies we have today: and the societies we’ll have in the future.

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Image: Sheffield Cathedral

Religion, Law, and Confusion in Early Modern England

Indecision, compromise: both seem to be the order of the day in British politics. From indecision over the triggering of the EU’s ‘Article 50’ to the decade-long discussions over Heathrow’s third runway that seem to run and run: in the realm of politics, clear and definite decisions just don’t seem to be forthcoming.

This though is nothing new for the English political system. In the fourth talk in the Religion and Law series, Prof Anthony Milton took us back to Early Modern England and the arrival of Protestantism – and to a remarkable political, legal and religious fudge.

King Henry VIII’s divorce from Catherine and Rome, and the subsequent creation of the Church of England, led not to a complete abandoning of Catholicism and its influences, but rather to a compromise. The Henrician Compromise allowed the existing Catholic canon laws to remain valid until such time as new law could be made, provided only they didn’t go against the law of the realm and the prerogative of the King.

During the reign of Henry’s son Edward VI, new laws were actually drafted. In 1552-1553, Thomas Cranmer created a body of Protestant laws, called the Reformatio Legum Ecclesiasticarum, as part of a plan for a radical overhaul of the Church. But due to Edward’s early death, the Reformatio was never implemented. And his eventual successor Elizabeth I adopted a policy of ‘masterly inactivity’.

That meant the old laws stayed on the books. And the result was a religious law system in a state of confusion that competed with and clashed with the common law courts. Confusion over what could be discussed in what court led to abuses and delays within the legal system. The Reformatio was re-published several times in an attempt to clean up this ‘unholy mess’, but it was never implemented.

But what if it had been? What would the Church of England have looked like if the Reformatio Legum Ecclesiasticarum had been given the force of law? England would have looked very different.

For instance, a key aspect of the Reformatio concerned moral discipline. Anyone found guilty of adultery or of committing serious cruelty towards their wife could be punished with perpetual banishment and excommunication. This excommunication was to be enforced not just by the bishop, but by the local community as a form of social exclusion.

The excommunicate could be reconciled to the Church, but such a process would also have involved the local parish community. Under the Reformatio, the hierarchy of the Church would have been more flexible, with the bishop working alongside the clergy. In short, the implementation of the Reformatio would have changed the way that religion and law worked, devolving power to the local community, rather than to the law courts.

The confusion in Early Modern England due to the inability to define what was meant by Protestantism and Protestant law can still be seen today, as Catholic canon laws are still – remarkably – an element of the English legal system. But such confusion also provides interesting parallels with the political situation of the present, and the position that England once more finds itself in.

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The next talk in the series is held on Wednesday 2nd November at 1:15pm in Sheffield Cathedral, where Imam Sheikh Mohammad Ismail will discuss ‘Sharia Councils in Contemporary British Society: Conflict or not?’ For the full programme of talks see here.

Image: Archive.org (the Reformatio legum ecclesiasticarum  Londini, Impensis Societatis Stationariorum, Thomas Fisher Collection, University of Toronto)

 

Scandalous priests and bishops

In April 2014, Canon Jeremy Pemberton became the first priest in England to enter into a same-sex marriage. In September 2014 he filed a discrimination claim with an employment tribunal after he had been blocked from taking up a position as an NHS chaplain in Nottinghamshire because of his marriage.

The case is obviously personally difficult for Jeremy Pemberton and his husband, Laurence Cunnington. But for a historian it also offers some fascinating comparisons and contrasts with earlier church practice, and in particular how clergy have been disciplined over prohibited sexual behaviour. Legally, it is a relative novelty that Canon Pemberton is able to take his case to a secular employment tribunal at all. His case is complicated because of the question of whether he is employed by the NHS or by the diocese of Southwell and Nottingham (whose bishop removed his permission to officiate, which he needed for the NHS post). But employment tribunals have increasingly become willing to accept that in some circumstances ministers of religion do count as employees and thus have employment rights, although the Church of England still argues that their clergy are not employees. Secular jurisdiction over priests has historically been something that individual clerics have tried to avoid, seeking the ‘benefit of clergy’. Now, however, some of them are actively seeking it.

Canon Pemberton’s case shows more historical continuity in other respects, however. Partly this is because it raises interesting jurisdictional questions. His previous position as an NHS chaplain, which had not been threatened, was in the diocese of Lincoln, in the archdiocese of Canterbury. His new job would have been in the archdiocese of York. The implication is that different bishops and archbishops have chosen to enforce the Church disciplinary rules prohibiting same-sex marriage in very different ways. Such episcopal leeway would have seemed very familiar in the Middle Ages, where the zealous (or overzealous) enforcement of priestly good conduct by some bishops might be ignored by their successors or fellow-bishops.

And the case also displays the perennial difficulty for any Church on sexual matters: how far should it intrude into the bedroom? Sexual behaviour is by its nature private and the Church of England has stated that clergy can legitimately be in civil partnerships (and can even theoretically become bishops) provided that their relationship with their partner is celibate. There are intriguing parallels with priests in the pre-eleventh Catholic church, who could theoretically be married, though not sexually active within such a marriage.

Canon Pemberton’s offence, therefore, is not strictly speaking a sexual one, unless the bishop of Southwell and Nottingham has evidence to the contrary. Instead, it is a breach of the Church of England’s rules prohibiting clerics from entering same-sex marriages. The justification for this prohibition is taken from a canon that talks of the need for clerics and their families to be ‘wholesome examples and patterns to the flock of Christ’.

Such language concerning reputations would have been familiar to an early medieval bishop like Hincmar, Archbishop of Rheims (845-882). He wrote numerous episcopal statutes setting out how the priests and laity of his archdiocese should behave and the means for ensuring correct behaviour. His second episcopal statute from 852 gave instructions for archdeacons and rural deans as to how they should run regular investigations into priests’ behaviour. A long section is devoted to the need for priests to avoid too close contact with women, such as allowing unrelated women to live in the priest’s house.

Hincmar, however, was not concerned only with illicit sexual activity by such priests. Almost as important was the ‘evil reputation’ (mala fama) that such priests might gain within the community. As c. 21 (p. 56) of the statute points out, Hincmar’s concern is that such behaviour by priests ‘may damage the conscience of the weak by evil suspicion’ (mala suspicione infirmorum conscientias maculent). His statute details the procedure by which such priests could be removed from office if sufficient of their congregation were prepared to testify against them. Such witnesses did not have to prove immoral conduct by their priest. They had to swear only that they had seen or knew certainly that ‘women had such access or frequenting or cohabitation with that priest, from which there could be evil suspicion and an evil reputation could get out’ (c. 21, p. 58: si vidisti aut pro certo scis talem accessum vel frequentiam aut cohabitationem feminas habere cum isto presbitero , unde mala suspicio esse possit et mala fama possit exire).

In the modern Anglican church, similar principles seem to be at work, but on a much wider canvas. Public opinion and rumours about gay priests and sexuality more generally now extend not through a small rural parish, but across the globe. The archbishop of Canterbury, Justin Welby, claims that the Church of England accepting gay marriage may lead to attacks on African Christians, while another bishop reports that he was once asked in Central Africa why you now had to be gay to be ordained in the Church of England. Yet at the same time, the most common reason for people in Great Britain to have a negative view of the Church of England is that it is too prejudiced against women and gay people (as Linda Woodhead found in a recent survey). How can ‘scandal’ be avoided when different audiences are scandalised by diametrically different actions?

The Church of England may well be legally successful in Canon Pemberton’s employment tribunal. While exemptions from the law of the land for churches and their ministers are now far narrower than in the days of benefit of clergy, such exemptions are well-established and not under serious threat from secular politicians. But in an era of rapid global communication, it is far harder to ensure that either individual clerics or the Anglican church itself does not end up having ‘an evil reputation’ among many laypeople.

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BBC