Following the row over the Archbishop of Canterbury's speech on Sharia law, the Catholic Bishops Conference of England and Wales (CBCEW) has said it is content that its own marriage regulations exist outside the civil law.
In a statement issued on behalf of the Conference, a spokesperson noted: "So far as the Catholic Church is concerned, we have our own canon law, and the processes which that requires, including a system of marriage tribunals in England and Wales. Their decisions are not enforceable in civil courts, and the Church has not sought to make them so. The way these courts work is through the consent of the parties."
The statement goes on to say that "[t]he current legal situation in England and Wales is more complex than we might think. As well as the secular law of the land, there is some recognition already given by the civil law to the decisions of religious courts. The most obvious is the Church of England itself."
The Bishops' Conference document quotes a recognised text on the issue, Freedom of Religion, Minorities and the Law, by Samantha Knights (Oxford University Press, 2007) and ist reference to "a series of ecclesiastical courts have jurisdiction over matters dealing with the rights and duties of church members, including doctrine and practice. These courts are part of the English court system."
Knights' text, quoted by the CBCEW, continues: "A number of other religions also have their own courts systems or forums for dispute resolution. Some of their decisions, such as arbitration awards, may be enforceable through the English court system. For example the London Beth Din, in its capacity of Court of the Chief Rabbi, where arbitration awards have been enforced by the civil courts. However, as regards other areas of law the English courts are not bound to enforce any order made other than orders made by the courts of the Church of England. In the area of family law, the courts have been prepared in some instances effectively to give recognition to some religious orders or decrees made by religious organizations in the circumstances of the case. To date proposals to have a system of separate religious courts for the Muslim community with jurisdiction to hear a wide range of disputes between members of the community, for example family law issues such as child custody, in England have been rejected."
However, the situation pertaining to the Church of England relates to its Established status, and is circumscribed by the law of the land. Experts also point out that the provisions for Beth Din jurisdiction relate to the recognition of private contracts which are not necessarily religious, and which can and have been challenged and overruled.
The Catholic Bishops Conference says: "The question whether the law should grant such jurisdiction to religious courts is distinct from the wider question of how far the law should accommodate religion. We have in the Human Rights Act article 9 freedom of religion, and in many aspects of UK law there is an explicit accommodation of religious views through the 'rule and exception' model of law. That is what we find, for instance, when exceptions are granted regarding employment law (allowing us to require a Catholic for a head teacher post) or conscientious objection (the doctor refusing to do a termination)."
The boundaries of such exceptions remain controversial, with civil rights groups arguing that the freedom of conscience of the individual should not negate the right of other individuals to have access to legal services such as abortion, to which some groups and individuals may object.
The question of whether the practices of church schools in selecting pupils on the basis of religion or ruling out non-Christian teachers constitutes a legitimate exercise of conscience or unacceptable discrimination is also deeply contested.
The CBCEW says that it is "very important" to keep the two categories - granting jurisdiction to religious courts as distinct from the question of how far the law should accommodate specific religious practices - distinct. It adds: "The Archbishop in fairness did make the distinction, but it has not come through in the reporting of what he said."
The CBCEW says that on the matter of greater recognition for religious courts, the two key principles are "the duty to uphold the universality of law which binds all of us equally, and the way the state appropriately accommodates the reasonable expectations of religious communities, but without undermining the common good."
"The Archbishop was pointing to the tension between these two principles and there is an important debate to be had here, but there are also wider implications as the press coverage of his remarks makes clear."
Meanwhile, two members of the General Synod of the Church of England, which meets again on Monday, have called for him to resign. He was both heckled and cheered today as he left a church memorial service at which he had preached.
It is thought that the Synod will give overall backing to the leadership of Dr Williams, though he will face some criticism, and many will dissent from his reported views.
See also: Simon Barrow, 'What lies beyond Lambeth's humiliation?' - http://ekklesia.co.uk/node/6726