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Women's Ordination in the Church of England: Conscience, Change and Law
Published online by Cambridge University Press: 02 September 2019
Abstract
Women's ordination raised issues of conscience across church traditions. The Church of England's statutory legal framework prevented these issues being confined to the Church; they were also played out in parliamentary debate. The interface between law and conscience has, however, considerable historical and contemporary resonance, as well as sound theological pedigree. This article therefore considers the place of conscience in legal and philosophical thought before the Enlightenment. It looks at norms of conscience in Roman Catholic and Church of England liturgical use. On a broader canvas, it looks at the interplay between thought, conscience and religion in human rights case law. The article suggests that a consensus of thought which sees the dictates of conscience as founded in, and inseparable from, the teachings of religion begins to break down in the early seventeenth century. Yet human rights courts find themselves deciding cases of conscience or religion where conscience and religion are often intertwined and where the external manifestation of one is governed by the inner promptings of the other. Such difficulties are not limited to the human rights courts but also play out in debates pertaining to ordination. While the North American churches sought to deal with issues of conscience head on, the Church of England very carefully avoided the language of conscience in its early discussions of women's ordination, conscious, it seems, of a lack of consensus around its meaning and source. As the women's ordination debates developed, arguments of conscience were often deployed more by those opposed to the move than those who supported it. Conscience became as much the locus of pain caused by another's action as it was an inner faculty for self-guidance. Its valence shifted from an intellectual to an emotional category.
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Footnotes
1
Much of this article originally formed part of a dissertation for the LLM (Canon Law) in the University of Cardiff. The dissertation was awarded the 2018 Deddens Thesis Award by the Deddens Kerkrecht Centrum, part of the Theologische Universiteit Kampen, which is gratefully acknowledged here.
References
2 ‘The internal acknowledgement or recognition of the moral quality of one's motives and actions; the sense of right and wrong as regards things for which one is responsible; the faculty or principle which judges the moral quality of one's actions or motives’: Oxford English Dictionary (third edition), sv ‘conscience’, <http://www.oed.com>, accessed 2 April 2019.
3 Ibid, sv ‘conscious, adj and n.’, senses A1 and 2.
4 ‘A clause in a law or contract that allows a person to be exempted from certain actions for which he morally disapproves. For example, in the contract of employment for doctors, there is usually a conscience clause concerning exemption from carrying out abortions.’ J Law (ed), The Oxford Dictionary of Law (eighth edition, Oxford, 2015), p 135.
5 Doe, N (ed), Christianity and Natural Law: an introduction, (Cambridge, 2017)CrossRefGoogle Scholar, ‘Preface’, p xiv.
6 Ibid.
7 Aquinas, Thomas, Summa Theologiae, ed Gilby, T et al. (London and New York, 1964–1971)Google Scholar, 1a, q 79, a 12.
8 Ibid.
9 Ibid, 1a2ae, q 96, a 4.
10 ‘If, then, the reason or conscience is mistaken through voluntary error, whether directly or from negligence, then, because it is on a matter a person ought to know about, it does not excuse the will from evil in following the reason or conscience thus going astray. If, however, it be an error rising from ignorance of some circumstance without any negligence that makes the act involuntary, then it excuses, so that the corresponding act of will is not bad.’ Ibid, 1a2ae, q 19, a 6.
11 Ibid, 1a2ae, q 96, a 2.
12 Ibid.
13 Ibid.
14 For succinct definitional discussion of the forum internum and the forum externum, see Puppinck, G, Conscientious Objection and Human Rights: a systematic analysis (Leiden and Boston, MA, 2017), pp 10–12CrossRefGoogle Scholar.
15 See also Petkoff, P, ‘Forum internum and forum externum in canon law and public international law with a particular reference to the jurisprudence of the European Court of Human Rights’, (2012) 7 Religion and Human Rights 183–214CrossRefGoogle Scholar at 208–211.
16 For a recent contribution to scholarship on St German's work, including his religious motivation, his appreciation of equity in the common law (discussed below) and his understanding of conscience and synderesis, see Williams, I, ‘Christopher St German: religion, conscience and law in Reformation England’, in Hill, M and Helmholz, R (eds), Great Christian Jurists in English History (Cambridge, 2017), pp 69–91Google Scholar.
17 C St German, Doctor and Student, ed T Plucknett and J Barton (London, 1974), p 89. Like Aquinas, St German admits that conscience may err but, before the law, someone may be excused from following an erring conscience if ‘those learned in the law shall have advised him otherwise than in accordance with the truth of the law, yet if he has formed his conscience according to their advice, his conscience is clear’ (ibid, p 93).
18 Ibid, p 95. St German's reference to the ‘lyght is sette in a lanterne’ echoes Matthew 5:15: ‘No one after lighting a lamp puts it under the bushel basket, but on the lampstand, and it gives light to all in the house.’
19 Chancery is described as ‘an ancient court of conscience’ in a case of 1594: see Bryson, W (ed), Cases Concerning Equity and the Courts of Equity 1550–1660, 2 vols (London, 2001)Google Scholar, vol I, p 139; also cited in D Klinck, Conscience, Equity and the Court of Chancery in Early Modern England (Farnham and Burlington, VT, 2010), p 80.
20 For the importance of conscience in mediaeval common law and, indeed, its currency in common parlance, see N Doe, Fundamental Authority in Late Medieval English Law (Cambridge, 1990), pp 132–154. Doe also suggests the demise of the place of conscience in common law in favour of what might be regarded as a more modern rationalism (p 174).
21 Ibid, p 142.
22 For a fuller treatment of conscience and the law courts in the mediaeval period, see ibid pp 139–154.
23 Ibid, pp 146–148.
24 In relation to the law, this is perhaps most famously expressed in the often-quoted remark of John Selden that ‘Equity is a roguish thing: for Law we have a measure, know what to trust to; Equity is according to the Conscience of him that is Chancellor, and as that is larger or narrower, so is Equity.’ See S Singer (ed), The Table-Talk of John Selden (second edition, London, 1856), p 49.
25 Atkins v Temple (1626) 1 Reports in Chancery 13, 21 ER 493.
26 Cook v Fountain (1676) 3 Swan 585; also cited in Bryson, vol I, p xlviii, n 227.
27 Lawrence v Berney (1683) 2 Reports in Chancery 229, 21 ER 665.
28 In relation to the law, this is perhaps most famously expressed in the often-quoted remark of John Selden that, ‘Equity is a roguish thing: for Law we have a measure, know what to trust to; Equity is according to the Conscience of him that is Chancellor, and as that is larger or narrower, so is Equity.’ See The Table-Talk of John Selden, (above, n 24), p 49.
29 Locke's father was a legal clerk and one of Locke's early works was Essays on the Laws of Nature (1664). Butler was preacher to the Rolls Chapel in Chancery Lane from 1719 to 1725; his Analogy of Religion (1736) offers a substantive critique of Locke, by whom he was also influenced.
30 Locke, J, An Essay Concerning Human Understanding, ed Nidditch, P (Oxford, 1975; rpt 1979), p 70Google Scholar, emphasis in original.
31 Aquinas, Summa Theologiae, 1a, q 79, a 13.
32 Butler, J, Fifteen Sermons Preached at the Rolls Chapel, Sermon 2, in White, D (ed), The Works of Bishop Butler (Rochester, NY, 2006), p 58Google Scholar, emphasis in original. It is interesting to note in passing that these sermons were preached in the chapel of the Master of the Rolls and are dedicated to Sir Joseph Jekyll, Master between 1717 and 1738, and Keeper of the Great Seal in 1725.
33 Ibid, p 56.
34 Ibid, Sermon 3, pp 62 and 64.
35 For more discussion of Butler's view of conscience, see Worthen, J, ‘Joseph Butler's case for virtue’ (1995) 23 Journal of Religious Ethics 239–261Google Scholar.
36 E [Stillingfleet], Ecclesiastical Cases Relating the Duties and Rights of the Parochial Clergy Stated and Resolved According to the Principles of Conscience and Law (London, 1698), p 1.
37 Ibid, p 66, emphasis in original.
38 Newman, J, Certain Difficulties Felt by Anglicans in Catholic Teaching Considered, 2 vols, new impression (London, New York and Bombay, 1901)Google Scholar, vol II, p 250.
39 The Canons of the Church of England 2012 (seventh edition with first and second supplements, London, 2015), Canon B 29(1).
40 Canon B 29(2).
41 Canon C 26(1).
42 All references are to Beal, J, Coriden, J and Green, T, New Commentary on the Code of Canon Law (New York and Mahwah, NJ, 2000)Google Scholar. For the wider Anglican Communion, see N Doe, Canon Law in the Anglican Communion: a worldwide perspective (Oxford, 1998), p 175. Doe notes that, in some member churches of the Anglican Communion, a deputy chancellor is to act ‘according to his own conscience’.
43 ECHR, Article 9. The text here is that of the ECHR as enshrined in the UK Human Rights Act 1998, Schedule 1.
44 Hynds v Spillers Bakery [1974] SLT 191; see above n 7.
45 Locke, Essay Concerning Human Understanding, p 29. See also K Vance, ‘The golden thread of religious liberty: comparing the thought of John Locke and James Madison’, (2017) 6 Oxford Journal of Law and Religion 227–252 at 232, for Locke's argument that religious matters should be excluded from those which the state protects.
46 Eweida and others v United Kingdom, App nos 48420/10, 59842/10, 51671/10 and 36516/10 (ECtHR, 15 January 2013) at para 81.
47 Sahin v Turkey, App no 53147/99 (ECtHR, 3 February 2005), 44 EHRR 5, 99–147 at 125.
48 N Doe, Christian Law: contemporary principles (Cambridge, 2013), p 397, suggests that the churches recognise and contest this. In his ‘Principles of Law Common to Christian Churches’, he includes, at 48(5), that ‘the State should recognise, promote and protect the religious freedom of churches corporately and of the faithful individually, as well as their freedom of conscience’ (emphasis added).
49 Sahin v Turkey (2007) 44 EHRR 5, 99–147 at 125; Kosteski v Former Yugoslav Republic of Macedonia, App no 55170/00 (ECtHR, 13 April 2006), (2007) 45 EHRR 31, 713–723 at 719; Eweida v United Kingdom (2013) 57 EHRR 8, 213–259 at 242.
50 Sahin v Turkey, 125.
51 Kosteski v Former Yugoslav Republic of Macedonia, 720.
52 Ibid.
53 Eweida v United Kingdom, 244.
54 Ibid, 247.
55 For a possible application of Article 9 to the Church of England in relation to the freedom of conscience, see Doe, N, The Legal Framework of the Church of England: a critical study in a comparative context (Oxford, 1996), p 316CrossRefGoogle Scholar, n 41. Doe suggests that Article 9 might come into play in the case of baptismal families apparently unlikely to raise children in the Christian faith, and that the minister may have a duty to protect the conscience of adults in this position.
56 Eweida v United Kingdom, 255–256.
57 All citations here are from ibid. The quotation from Newman is from ‘A letter to His Grace the Duke of Norfolk’, in Certain Difficulties Felt by Anglicans, p 246.
58 For a summary of the timeline and General Synod voting figures between 1973 and 1988, see The Ordination of Women to the Priesthood: a second report by the House of Bishops (London, 1988), pp 3–5. Decisions concerning women's presbyteral and episcopal ordination required a two-thirds majority in each of the three Houses of General Synod. For a comparative point, see Doe, Canon Law in the Anglican Communion, p 34, n 142. Doe notes that the standard of a two-thirds majority in the governing body for decisions which are contentious, divisive or ‘like to cause grave problems of conscience to members of the Church’ is normal in the Anglican Communion.
59 For this 1975 Resolution, see Anglican Church of Canada, General Synod Archives, available at <http://archives.anglican.ca/en/permalink/official2273>, accessed 5 May 2019.
60 See <http://archive.episcopalchurch.org/109399_14090_ENG_HTM.htm>, accessed 5 May 2019.
61 The National Executive Council passed a motion to General Synod which affirmed the 1975 resolution ‘for those who belonged to The Anglican Church of Canada at the time’, continued ‘to recognize the rights of individual consciences’ and declared that new members or ministers ‘must recognize and accept that the ministry of women priests must also be protected conscientiously as the expressed will of our Church’. See Anglican Church of Canada, General Synod Archives, (above, n 59).
62 The General Synod Resolution was as follows: ‘That subject to the continued applicability of the 1975 Conscience Clause to those who have heretofore availed themselves of its provisions regarding ordination, this General Synod rescind the Conscience Clause and adopt the following position statement: 1) this General Synod reaffirm its acceptance of ordination of women to the priesthood; 2) no action which questions the integrity of any priest or postulant on grounds of sex alone can be defended; 3) this General Synod honours all priests, upholds them in its prayers and desires that God's will may be done in and through all priests, regardless of sex; 4) while Christian love cannot be legislated, it needs to be practised and demonstrated in the Body of Christ.’ The decision not to permit those newly coming to ministry to avail themselves of the protection clause was considered but, while the views of those ordained at the time ‘were sincere and worthy of respect, those now coming into the church have the choice of accepting or rejecting it as it now is’. See Hemmerick, W, ‘The ordination of women: the Canadian experience’, (1991) 2 Ecc LJ 177–180Google Scholar.
63 The Ordination of Women to the Priesthood (GS738), 30 April 1986, p 7.
64 ‘Traditionalist’ refers here to those describing themselves as ‘traditional catholics’ within the Church of England. Evangelicals opposed women's ordination on different grounds and were not so obviously addressed in the legislative and other provisions for opponents. The Episcopal Ministry Act of Synod did not create these additional sees.
65 See the Episcopal Ministry Act of Synod 1993 for the provincial visitors, and the Ordination of Women (Financial Provisions) Measure 1993 for details of the compensation arrangements. Those claiming compensation were required to do so within ten years of the promulgation of the Canon for women's ordination: see Financial Provisions Measure, s 1(2)(d).
66 The desire for adequate provision for those opposed to women's ordination did not only come from within the Church. In Parliament, ‘The Ecclesiastical Committee pressed Church representatives hard on whether the safeguards for those opposed to the development were adequate and, in the course of the Committee's consideration of the 1993 Measure, Synod representatives explained that the Synod had removed time limits in earlier draft.’ See <https://publications.parliament.uk/pa/jt201415/jtselect/jtecc/45/4511.htm#n16>, accessed 27 April 2019.
67 The Principles of Canon Law Common to the Churches of the Anglican Communion (London, 2008), Principle 38(5), available at <http://www.anglicancommunion.org/media/124862/AC-Principles-of-Canon-Law.pdf>, accessed 5 May 2019. Matters of conscience also appear in 76(4), where, in common with Canon B 29(2), those who cannot quiet their conscience ‘may offer private confession’.
68 HC Deb 29 October 1993, vol 230, col 1089, available at <http://hansard.millbanksystems.com/commons/1993/oct/29/priests-ordination-of-women>, accessed 5 May 2019. The Rt Hon Roger Evans, MP for Monmouth, objected to the wide scope of this provision. See ibid, col 1095.
69 Ibid, col 1094.
70 Ibid, col 1114.
71 He continued: ‘Perhaps I may give an example which your Lordships may feel is irrelevant, although I think that it has some relevance. Let us think about doctors. There are a number of women who prefer not to be examined by a male doctor. There are, I suppose, a number of men who prefer not to consult a woman doctor. Arrangements can be made, have been made, and must be made to meet those feelings. But surely no one will suggest that the logic of that is that there shall not be men doctors or that there shall not be women doctors.’ See HL Deb 2 November 1993, vol 549, col 1070, available at <http://hansard.millbanksystems.com/lords/1993/nov/02/priests-ordination-of-women-measure>, accessed 5 May 2019.
72 General Synod, Report of Proceedings: February Group of Sessions 2005, vol 36, no 1 (London, 2005), p 212.
73 General Synod, Report of Proceedings: November Group of Sessions 2012, vol 43, no 3, p 92, available at <https://www.churchofengland.org/sites/default/files/2017-10/November%202012.pdf>, accessed 27 April 2019.
74 Ibid, p 104.
75 General Synod, Report of Proceedings: July Group of Sessions 2013, vol 44, no 1, p 170, available at <https://www.churchofengland.org/sites/default/files/2017-10/July%202013.pdf>, accessed 27 April 2019.
76 Mr Aiden Hargreaves-Smith, in General Synod, Reports of Proceedings: February Group of Sessions 2012, vol 43, no 1, p 236.
77 Eweida v United Kingdom, 217.
78 Archbishop of York, in General Synod, February 2012, p 218.
79 N Doe, An Anglican Covenant: theological considerations for a global debate (London, 2008), p 66.
80 Eweida v United Kingdom, 243.
81 See above, n 9.
82 General Synod, Reports of Proceedings: November Group of Sessions 2013, vol 44, no 2, p 100, available at <https://www.churchofengland.org/sites/default/files/2017-10/November%202013.pdf>, accessed 5 May 2019.
83 General Synod, Report of Proceedings: February Group of Sessions 2009, vol 40, no 1 (London, 2009), p 175.
84 General Synod, November 2012, p 90.
85 General Synod, Reports of Proceedings: July Group of Sessions 2018, vol 49, no 2, p 193, available at <https://www.churchofengland.org/sites/default/files/2018-08/Report%20of%20Proceedings%20July%202018.pdf>, accessed 29 April 2019.
86 General Synod, February 2012, p 237.
87 ‘House of Bishops’ declaration on the ministry of bishops and priests: guidance note from the House’, GS Misc 1077, June 2014, p 2, available at <https://www.churchofengland.org/sites/default/files/2017-11/GS%20Misc%201077%20House%20of%20Bishops%20Declaration%20on%20the%20Ministry%20of%20Bishops%20and%20Priests%20-%20Guidance%20note%20from%20the%20House.pdf>, accessed 5 May 2019.
88 Ibid, pp 2–3.
89 HC Deb 12 December 2012, vol 555, col 378, available at <https://hansard.parliament.uk/Commons/2012-12-12/debates/12121240000002/ChurchOfEngland(WomenBishops)>, accessed 5 May 2019.
90 Ibid.
91 Ibid, col 377. It is notable that it is the ‘feeling’, not the ‘conscience’ or even the ‘conviction’, of the overwhelming majority to which reference is made.
92 HL Deb 14 October 2014, vol 756, pt 38, col 182, available at <https://publications.parliament.uk/pa/ld201415/ldhansrd/text/141014-0002.htm>, accessed 5 May 2019.
93 Ibid.
94 ‘House of Bishops’ declaration on the ministry of bishops and priests’, GS Misc 1076, 2014, p 2, available at < https://www.churchofengland.org/sites/default/files/2017-11/GS%20Misc%201076%20Women%20in%20the%20Episcopate.pdf>, accessed 26 April 2019.
95 Canons of the Church of England, p 214.
96 ‘Review of nomination to the See of Sheffield and related concerns’, 2017, p 14, available at <https://www.churchofengland.org/sites/default/files/2017-11/Review%20of%20the%20Nomination%20to%20the%20See%20of%20Sheffield%20and%20Related%20Concerns.pdf>, accessed 5 May 2019.
97 Ibid, pp 50–51.
98 Ibid, p 52.
99 Ibid, p 59.
100 Ibid, p 60.
101 Faith and Order Commission of the Church of England, The Five Guiding Principles: a resource for study (London, 2018), p 21.
102 ‘House of Bishops declaration on the ministry of bishops and priests: Wakefield Cathedral – report of the independent reviewer’, 2019, p 7, available at <https://www.churchofengland.org/sites/default/files/2019-03/wakefield_cathedral_independent_reviewer_report_0.pdf>, accessed 5 May 2019.
103 N Doe, ‘Richard Hooker: priest and jurist’, in Hill and Helmholz, Great Christian Jurists, p 126; A Phang, ‘A passion for justice: Lord Denning, Christianity and the law’, in ibid, p 338.