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Published online by Cambridge University Press: 31 August 2017
Recent reforms to English and Scots marriage law faced the United Reformed Church (URC) with two challenges. Its hybrid structure of church government, entwining Congregational and Presbyterian strands, complicated application of the statutory criterion ‘persons recognised by [the membership] as competent for the purpose of giving consent’. Precedent from earlier decisions on human sexuality explains the ultimate identification of the local church meeting as the competent council of the URC in England, and why the ‘enabling resolution’ passed regarding civil partnership formation was not repeated. The very different focus of Scots marriage law posed different questions, less focused on buildings or the churches using them and allowing willing celebrants to be nominated by the synod, as for opposite-sex marriage.
Advisers differed on whether the denomination possessed any binding doctrine of marriage which would obstruct implementation of the amended law. The General Assembly decision on polity and how it was reached suggest an implicit ruling in the negative. This article defends that outcome, considering the doctrinal foundation of the URC in the light of concessions made at the formative union. Marriage appears as a topic on which no denominational doctrine exists, letting all councils reach theological conclusions necessary to practical decisions within their remit.
2 To distinguish local churches from the denomination, upper-case ‘Church’ will be used for the latter. Page references to the Book of Reports to Assembly appear here in the form RepA2016/1, those in the Record of Assembly as RecA2016/1. Paragraphs in Mission Council papers appear with month and year as MC/3.10/N1.3, its minutes as MC/3.10/Min7/1. Divisions of the Basis of Union, here called Articles, appear as BU/3 in footnotes, paragraphs of the Structure of the URC as S2(6)(x). ‘United Reformed Church Act’ is abbreviated URCA. The operative trusts scheduled to the Acts are here called ‘the Scheduled Trusts’. ‘England’ includes Wales. All online documents were accessed in November 2016.
3 RecA2016/18–19.
4 URCA 1972, s 5; contrast the Methodist Church Union Act 1929, s 31.
5 URCA 1981, s 5; URCA 2000, s 5.
6 URCA 1972, s 32, repealed the Presbyterian Church of England Act 1960, s 3, the only statutory provision affecting PCE doctrinal trusts.
7 Thus defeating any argument from founders’ intentions, such as succeeded in Free Church of Scotland v Lord Overtoun [1904] AC 515.
8 Compare the Methodist Church experience in Barker v O'Gorman [1971] Ch 215.
9 Westminster Confession, chapter 24, available at <www.reformed.org/documents/wcf_with_proofs/index.html>; Savoy Declaration chapter 25, available at <www.reformed.org/master/index.html?mainframe=/documents/Savoy_Declaration>.
10 First Book of Discipline, 9th head, available at <www.swrb.com/newslett/actualNLs/bod_ch03.htm>.
11 Larger Catechism, Q 139, available at <www.reformed.org/documents/wlc_w_proofs/index.html>.
12 S2(6)(A)(x) and (xi).
13 RepA1978/35; RecA1978/16.
14 S2(6)(A)(ii).
15 Mission Council acts in Assembly's name between its sessions: S2(6).
16 S2(6) and 1(3).
17 The 2006 guidance on blessings suggested that decisions to host such services could not be appealed; but there is no obvious reason why S5 should not cover decisions on blessings or marriage.
18 Marriage Act 1949, s 26A(4).
19 Respectively under S2(1)(ix), (viii), (i) and (iii) and Part I, para 3 of the Scheduled Trusts.
20 See, eg, RepA/1977/43.
21 RecA1997/12–13. At that date it was the district council which could give or withhold concurrence; today, the district council has disappeared for most purposes and concurrence belongs, under S2(4)(vii), to the synod.
22 RecA1999/15–16, 23–24.
23 RecA2000/35–36.
24 RecA1999/35–36.
25 Once the Employment Equality (Sexual Orientation) Regulations 2003 were in force, any refusal of concurrence would have had to be justified under reg 7(3)(b)(ii) (now called the ‘non-conflict principle’). Given the sequence of Assembly decisions, arguments from the ‘compliance principle’ would not have been viable.
26 RepA1999/Human Sexuality Report.
27 RepA2007/Document 2, 8–9; RecA2007/36.
28 Scheduled Trusts, Part I, para 1(a).
29 RepA2006/32.
30 Equality Act 2010, s 202, repealing the Civil Partnership Act 2004, s 6(1)(b).
31 Marriage and Civil Partnership (Approval of Premises) Regulations 2005, replacing the Marriage (Approval of Premises) Regulations 1995.
32 Marriage and Civil Partnership (Approval of Premises) Regulations 2005, regs 2D(2), (3) and (7).
33 Government Equalities Office, ‘Civil partnerships on religious premises: a consultation’, March 2011, p 21.
34 MC/5.11/H3.
35 The request was made by the LPAG on Mission Council's behalf. By Government oversight it was not given effect in the original Marriage and Civil Partnership (Amendment) Regulations 2011, but this was corrected in 2013.
36 RecA2012/21.
37 S2(5)(xxii) and 2(6)(h)(note).
38 Proposals for the Union of the Congregational Union of Scotland with the URC, March 1998, 12.
39 Marriage (Scotland) Act 1997, ss 8(1)(a)(ii) and 9. All ministers of a prescribed body can act as marriage celebrants; nomination lets a religious body choose who is to act in this capacity.
40 Ibid, s 26(2).
41 Marriage (Prescription of Religious Bodies) (Scotland) Regulations 1977.
42 Between 1981 and 2000, when its only local churches were former Churches of Christ, Scotland lay within the URC's Northern Province.
43 MC/11.13/Min13/30.
44 MC/11.14/Min14.60.
45 The 2006 guidance on services of blessing suggested that ministers should consult their churches’ elders before officiating elsewhere. This makes pastoral sense and perhaps reflected a notion that a minister somehow ‘represents’ his or her church in such situations. But it has not always been the practice in respect of opposite-sex marriage in Scotland, and should probably not be seen as obligatory in the new context. In any event, not all approved celebrants in Scotland will be ministers in pastoral charge.
47 MC/11.13/N.
48 RepA2014/23–25.
49 MC/5.15/N1/3, 12 and 13.
50 RecA/2015/4.
51 RecA/2015/5.
52 RecA/2016/18–19.
53 Marriage Act 1949, s 70A and Regulations.
54 See Marriage and Civil Partnership (Amendment) Act 2016 (Isle of Man) and Same-sex Marriage (Guernsey) Law 2016, MC/10.16/Min 16/47 and MC/5.17/Min 17/24.
55 Marriage Act 1949, s 26B(6)–(7); Marriage (Registrar-General's Licence) Act 1970, s 1(3)–(4).