What are the bishops up to now?

On Tuesday, 16th December, the House of Bishops of the Church of England announced that "more time" was needed to finalise its "proposals on the Living in Love and Faith (LLF) process". While they said that the decisions they took in October had not been "contested", they "identified some areas where further clarification is needed and agreed to continue work on a letter to the Church summarising LLF and setting out an agreed position." Later in the press release it was explained that the text of the letter would "take the form of a statement from the House," which would have a degree of authority in any future dispute.

Archbishop Stephen Cottrell also reassured the Church that the bishops "remain on course to bring proposals to Synod for consideration in February."

This has led many observers to scratch their head and ask "What are the bishops up to now?"

Of course, unless there is a leak from the House of Bishops, the Church will need to wait until January to find out for sure. Meanwhile, this blog explores the possibilities that arise from a careful reading of the both the statements and the theological and legal advice the bishops received.

The October "Update on LLF" set out a number of key decisions which this new statement says have not been "contested".

"The Bishops took part in a series of votes on elements of a statement from the House which would summarise the LLF process and outcomes. They indicated, on the basis of the advice received, that in December they will:

Confirm that the Prayers of Love and Faith, for use in regularly scheduled services, remain commended by the House of Bishops for use under Canon B5; 

Agree bespoke services require maximum communal authorisation through the Canon B2 process of approval; 

Reflect further on the legal and theological advice and explore what formal legislative process – such as an amending canon and measure – would be required before clergy could be permitted to be in a same sex civil marriage. Until then the current guidelines would remain in place.

They also agreed they would provide pastoral reassurance through: 

A restatement that no-one is obliged to use the PLF against their conscience; 

Updating Pastoral Guidance for the Prayers of Love and Faith as currently commended; 

A commitment that diocesan decisions around allocating resources, placement of ordinands and curates, or appointments, should not be affected by views held on LLF matters; and 

Re-establishing a Pastoral Consultative Group to advise and support decision-making on such matters.

Given the decisions indicated above, the Bishops concluded that there was sufficient pastoral reassurance in the elements listed and did not propose to bring forward a code of practice at this time.

While there was a range of views expressed on questions of sexuality and marriage the decisions on most points were reached with near unanimity – spanning the breadth of theological tradition."

In response to this statement, respected blogger, the Revd Dr Ian Paul asked whether it represented, "The end of the Church of England dispute on sexuality?" He was convinced that the legal and theological advice the bishops had received meant that this was "very much like the end of the process."

When that legal and theological advice was then published the Revd Dr Andrew Goddard agreed, that the LLF process had reached the end of the line and the bishops were in "reverse gear."

They may both be right.

Yet, the bishops have said they intend to bring both a statement and a set of proposals to the General Synod in February and it is worth considering what they could include, if only to avoid being taken by surprise, because it is possible to track a different pathway to that set out by Ian Paul and Andrew Goddard.

The first thing to note is that the bishops have decided that the 'Prayers of Love and Faith' are to remain commended for use in regularly scheduled services under Canon B5. There is, therefore, no actual reversal of, or repentance for, what has already been agreed. In October, the bishops said these, "are a set of prayers, readings and liturgical material which, for the first time, enable same-sex couples to come to church for public prayers of dedication, thanksgiving and asking for God’s blessing as part of a regular church service." That will continue and it is a decision that has not been contested.

Second, the bishops have accepted that there is a risk of legal challenge if they were to commend standalone services in the same way and so have accepted the view that they need to follow the 'B2' process to ensure "maximum communal authorisation".

The Revd Ian Paul is convinced that "Since [B2] requires a two-thirds majority in all three Houses in Synod, and we have never, any time in the last ten years, had that kind of balance, (and likely will not on the future) it effectively means a dead end."

Paul may indeed be correct, but it is also true that the legal process, as set out in GS Misc 1432, means that for at least two years this process can advance with only a simple majority. There is no reason why the bishops might not choose to begin the process in February 2026, aware that the synodical elections in the Autumn might give them the 2/3 majority they need, and even if it that is not the case, the process itself might gain the momentum necessary to get standalone services across the line.

Third, in October the bishops committed themselves to reflecting on the theological and legal advice they had received concerning clergy entering into same-sex civil marriages without risk of discipline. They also said they would explore the legislative process that would be required to enable this to happen. It is obvious that this is the area where most of the discussions have been taking place, with the Church Times reporting that the Alliance wrote to the House of Bishops prior to their meeting in December expressing, "“concern” that a “pathway towards same-sex marriage for clergy” was developing."

So, how could such a pathway open up?

In GS Misc 1431 the Faith and Order Commission (FAOC) suggested three possible routes which could be taken to overcome the conflict between the doctrine and discipline of the Church of England that would be created if clergy were to enter into same-sex civil marriage.

The first approach would simply align doctrine and discipline by a clear change of doctrine. It would of course require a two-thirds majority in each House of General Synod to "communally authorise a modification to Canon B30, the Book of Common Prayer and Common Worship," and it is likely that a reference would also be made to the dioceses. Whether this might be possible in the future is for the moment a moot point, because in February 2023 General Synod endorsed, "the decision of the College and House of Bishops not to propose any change to the doctrine of marriage." FAOC, therefore, chose not to explore this route in any detail and it is very unlikely that the House of Bishops would agree to opening up this particular can of worms.

It is also unlikely that the bishops would favour the third route set out by FAOC, which would necessitate the bishops, individually or corporately, exercising their discretion to relax discipline. FAOC indicated that this "carries notable concerns", as it comes with "the least possible communal authorisation". Their warning that this route, "carries the greatest risk for discipline to depart from doctrine , potentially resulting in legal challenges and increased confusion over such matters," would be enough to put off a House seeking a peaceable way forward.

Thus, both FAOC, and it can be assumed the House of Bishops, focused their attention on the second route - the possibility of some form of 'pastoral accommodation', akin to that offered to clergy entering into a 'further marriage', where one or both parties have been divorced and the previous spouse is still living.

FAOC set out the arguments for and against such an approach, without intending "to preference one or the other", and left readers with a number of questions to answer:

"1. Would making pastoral accommodation for people in same-sex civil marriages to be ordained and (re)licensed create an inconsistency between the doctrine of the Church of England and its discipline that is:

a. Of a different kind than that created by the pastoral accommodation on offer for further marriage;

b. Related to any doctrine of the Church of England other than marriage in a way that would be contrary to that doctrine, or indicative of a departure from it, in an essential matter;

2. Would adopting a pastoral accommodation for clergy in same-sex civil marriages permit (implicitly or explicitly) some clergy in the Church of England to live in a fashion that fails to provide a faithful witness to the Gospel and is not a wholesome example and pattern to the flock of Christ?"

According to FAOC, the argument in favour of making pastoral accommodation "unfolds in four moves". First, Holy Scripture, second, a comparison of the arguments made for pastoral accommodation for further marriage, third a discussion of what it means for clergy to be 'examples' and finally an examination of "where the Church of England's communal reflection on doctrine had reached when the further marriage pastoral accommodation for clergy was implemented."

It is not surprising that both Ian Paul and Andrew Goddard find nothing of merit in these arguments. They have, after all, been arguing against such a move for at least nine years (see Andrew Goddard's blog "Is pastoral accommodation the way forward?", from 2016). If one accepts that the bible speaks clearly on the sinfulness of same-sex relationships then this is an inevitable conclusion. It cannot be exemplary for clergy to embrace publicly a lifestyle that is contrary to both Scripture and the "plain meaning of Canon B30.1". It also makes no sense for a same-sex couple to express contrition for falling short of the 'ideal' for marriage, as one would do when entering into a further marriage, after the failure of the first. As FAOC explain, those who hold this view would claim, "there are identifiable, and ultimately insurmountable differences between the pastoral accommodation made for further marriage and the one proposed for same-sex civil marriages."

Yet, it is the alternative arguments that may be more attractive to a House of Bishops who are both divided on the issue of same-sex relationships and long to remain united.

Since 1991, the House of Bishops have accepted that there are those who are "conscientiously convinced" of the goodness of homosexual relationships and in 2014, they insisted that lay people entering into same-sex civil marriages should not, "be asked to give assurances about the nature of their relationship before being admitted to baptism, confirmation and holy communion, or being welcomed into the life of the local worshipping community more generally."

If one accepts that arguments about same-sex relationships are not 'primary' issues, then the possibility of pastoral accommodation opens up. As FAOC sets out, "For those advocating affirmation of same-sex relationships, both same-sex civil marriage and further marriage are positive, intentional choices made in a contested doctrinal space."

In the case of further marriage that contested doctrinal space related to the indissolubility of marriage, a question which was not resolved until at least ten years after pastoral accommodation was made for clergy to enter into a further marriage. The legal 'loophole' that was used then, and could perhaps be used today, can be found in the 1978 Lichfield Report and is quoted at length in the FAOC report. It refers to the Canon B30 and the expression that marriage is "in its nature..." rather than "is a permanent union...". This, the Lichfield Report said, "could be taken to mean either the characteristic and normative nature of marriage or its determinative and invariable essence." This ambiguity enabled the legal officers to conclude that the Canon did not "clearly prohibit further marriage". If Canon B30 could be read to say that marriage being between a man and a woman is also 'characteristic and normative' rather than 'determinative and invariable' then it might be that there is enough wriggle room for the bishops to embrace the pastoral accommodation route.

Introducing pastoral accommodation for clergy to enter same-sex civil marriages would not be simple, and legal advice even questioned what "principled basis there would be for changing the legal position as set out by the Court of Appeal (which makes it clear that the Church’s doctrine means it is not open to the clergy to enter into same sex marriage)."

If the majority of bishops have been convinced by the arguments put forward in favour of pastoral accommodation, then the legal advice is that, "it would seem necessary for an Amending Canon to be accompanied by a Measure that (i) made comprehensive provision excepting clergy from proceedings for misconduct on the basis that they have entered into same sex marriages and (ii) specified that being in a same sex marriage was not to be taken as being contrary to the requirements to be met by candidates for ordination."

Neither the Amending Canon nor the Measure would require anything more than a simple majority of each House in Synod but the process would take at least eighteen months to go through General Synod and would then have to be referred to the Ecclesiastical Committee of Parliament and go through both Houses of Parliament before gaining Royal Assent.

It is of course perfectly possible that the bishops have decided that the theological and legal gymnastics required to move forward on standalone services and pastoral accommodation for clergy to enter into same-sex marriages is too tortuous. They may just be taking time to finalise the wording of their statement and their proposals to General Synod because they don't want to avoid further hurt to the LGBTIQ+ community.

But it is also possible that they are struggling to find the right words to put forward a principled basis on which to persuade General Synod to embark on one of the long legal journeys necessary to introduce standalone services of blessing or pastoral accommodation for clergy who wish to enter same-sex marriages.

If it is the latter, then the travelator continues and LLF process is only just getting started.

---