Gay marriage raises prospect of disestablishment, says Church of England

Same-sex marriage would be one of the biggest threats to the established role of the Church of England since the reign of Henry VIII, the Church warns today.

The Church's formal response dismisses the Coalition's same-sex marriage plans as “divisive”, “legally flawed” and “essentially ideological”.

It suggests that priests could be forced to marry homosexual couples in churches by the European Court of Human Rights despite assurances that they will be exempt.

Senior figures believe the plans could allow Strasbourg to strip the Church of England of its unique power to act as an 'agent of the state’ by conducting marriages for anyone living within a parish, regardless of religious beliefs. This would, in effect, be a step towards splitting the Church from the State.

The redefinition of marriage would create a clash between the laws of Church and state thought to be unprecedented since the onset of the reformation in the 1530s, they say.

The warnings came as the Church released its own legal analysis as part of its formal response to the consultation on Coalition’s plans to redefine marriage.

It argues that the plans would amount to “abolishing” the centuries-old understanding of marriage as between a man and a woman and replace it with a vague commitment between people.

Senior figures involved in drafting the paper privately went further last night, dismissing the proposals championed by the equalities minister Lynne Featherstone as “shallow” and “frankly half baked” and warning that it would create “open season” in Strasbourg for legal challenges.

David Cameron has repeatedly insisted that churches and religious groups would be exempt from the plans which would only apply to civil marriage.

But the Church argues that this would create separate categories of “civil” and “religious” marriage for the first time.

“If the proposal to redefine marriage were to be implemented, it must be very doubtful whether limiting same-sex couples to non-religious forms and ceremonies could withstand a challenge under the European Convention on Human Rights.”

It points to a recent Strasbourg case involving an Austrian couple which recognised the right of homosexual couples to marry, which the Church claims could open the way to challenges in England and Wales.

The distinction would become “politically unsustainable”, the legal paper adds, while also calling into question whether heterosexual couples might also press for the right to have civil partnerships.

More fundamentally, it argues, the new distinction would call into question the Church of England’s place as part of the state both nationally and locally.

Nationally, they argue, it would open up a clear distinction between canon law – which is part of the law of England – and civil law by having two definitions of marriage

And locally they argue it would create a conflict between people’s automatic right to get married in an Anglican church and the exclusion for gay marriages – with different definitions of marriage in register offices and churches for the first time.

Last year a quarter of all weddings in England took place in the established Church.

“The canons of the Church of England are part of the law of England and have been continuously since the reformation of Henry VIII,” said one senior figure.

“Is it possible to have the law of the Church of England saying something different to the law of England? The question is how long we can sustain that.

“It raises the sort of problems that no one has had to address before.”

He added: “I do believe that the European Court could make it impossible for Church of England to go on having the role that it has got at the moment in relation to conducting marriage on behalf of the state.”

Another spoke of “snipping the threads” which link Church and state.

Bishop of Leicester, Tim Stevens, warns gay marriage would create a clash of civil law and canon law (RII SCHROER)

The Bishop of Leicester, the Rt Revd Tim Stevens, said: “If the civil law of the state redefines [marriage] you have got a situation in which civil law and canon law are at odds.

"That would need to be resolved – presumably in due course by changing the law of the Church because there are statutory provisions which provide that the canon law of the state cannot be contradictory to the statutes of the realm.”