Luther, in his commentary on Matthew (v.vi.vii) said:
“How are we to deal with matrimonial affairs and with questions of divorce, I have already explained, viz., that they should be left to those skilled in the law, and should be put into the hands of the secular rulers. For marriage is a secular and external matter, just as wife and child, house and property and the rest, and so is subject to the jurisdiction of the civil ruler, which in its turn is subject to the law of reason.”In the Calvinist territories jurisdiction was handed over to the civil power more promptly, though with the proviso that the civil courts should deal with marriage according to the teaching of the scriptures.
In England, spiritual courts were retained but in accord with the Act of Supremacy, the source of all jurisdiction, including the spiritual courts, was the Crown. So article 37 of the 39 articles of religion in the 1562 version reads:
“The King’s Majesty hath the chief power in this Realm of England, and other his Dominions, unto whom the chief Government of all Estates of this Realm, whether they be Ecclesiastical or Civil, in all causes doth appertain, and is not, nor ought to be, subject to any foreign Jurisdiction.”Marriage cases in England remained under the ecclesiastical courts until 1567 when a secular court was established to deal with them.
The reformation in England is a special case, but the Council of Trent condemned the protestant subjection of marriage cases to the civil courts in Canon 12 on the Sacrament of Matrimony in Session 24:
“If any one says, that matrimonial causes do not belong to ecclesiastical judges; let him be anathema.”Being familiar with all this, I was most interested to read the article by Steve Baker, MP for Wycombe: Why I voted against the Marriage (Same Sex Couples) Bill. He argues that the state should get out of marriage altogether. I hope he will not be disturbed to discover that he is agreeing with the Council of Trent against Luther and Calvin.
We could argue that if the SSM Bill completes the rest of its passage through Parliament, the state will have effectively got out of marriage since the institution which results will not actually be marriage at all.
I agree with those (including Bishop Egan) who are suggesting that we should withdraw from the civil registration of marriage. If Catholics want to get married, they can come to the Church and be married. If they then want to register their union with the state (to enjoy such legal, civil or financial benefits as might be available) they could do so afterwards. I think we should be careful to insist on keeping this order, rather than submit to a French style arrangement where the Town Hall “marriage” has to be done first. There is no reason now for the state to impose that.
Given our present arrangements, and especially given the discussion on widening civil partnerships, I would argue that the best option would be for Catholics to get married in Church and then, if they consider it beneficial, to go and register their “partnership” at the register office. This would be preferable since you can register a civil partnership without any ceremonies, simply by signing the civil partnerships schedule. In order for this to be possible, the registration of a civil partnership would need to be extended to heterosexual couples. With all the talk of equality, it seems difficult to find a justification to retain the rule that they can only be for couples of the same sex.
When in the past, I have suggested that we might de-register our Churches and conduct weddings according to the form of the Church and leave couples free to go to the Register Office or not as they choose, canon lawyers have come up with various objections. One that used to be brought forward was the possibility of a suit for “alienation of affection.” Consulting a barrister about this, I was assured that unless you live in Mississippi or Carolina, this is not possible. Another argument put to me was that we might be in trouble for conducting a “simulated marriage.” I would be interested to hear from lawyers whether this is a well-grounded fear. If it is, and since the whole law concerning marriage is now up for grabs and we in the Catholic Church have made a creditable nuisance of ourselves over same-sex “marriage”, our legislators might be fairly glad to get us off their backs in at least one respect by altering the law so that marriages according to the form of the Catholic Church can take place without fear of prosecution with civil registration left as an option.
It would be good for us to return to the situation envisaged by the Council of Trent. There is no good reason why we should be encumbered by the fiasco that is now likely to become the law on marriage in our country.