Amended marriage canon would not leave traditionalists open to human rights complaints: chancellor

In the event that the marriage canon is amended, taking the oath will not mean subscribing to a certain definition of marriage – it will only mean recognizing that the Anglican Church of Canada permits the marriage of same-sex couples, Canon (lay) David Jones told the Council of General Synod (CoGS) Saturday, June 2. Photo: Tali Folkins
Published June 4, 2018

The officer of General Synod who advises the Anglican Church of Canada on canon law and legal matters says he’s “absolutely confident” that human rights complaints made against clergy who refuse to perform same-sex marriages would fail.

“Human rights legislation recognizes freedom of religion and of religious organizations, and I am absolutely confident that that complaint would be dismissed,” Canon (lay) David Jones, chancellor of General Synod, told Council of General Synod (CoGS) at a session dedicated to the marriage canon Saturday, June 2.

Jones was responding to Jason Antonio, of the ecclesiastical province of Rupert’s Land, who had asked whether the “conscience clause” in the Anglican Church of Canada’s marriage canon would protect a member of the clergy who refused to perform same-sex marriages from a complaint before a human rights body.

The clause—section 11.d—states: “The discretion of a minister to decline to solemnize any particular marriage shall not be abrogated by this Canon.” (The canon refers to those performing marriages as “ministers.”)

In a presentation he had just given to CoGS, Jones, quoting a memorandum he had prepared, said that this clause meant “there would be no basis to discipline a minister who declined to officiate at a wedding because it was not consistent with the traditional view of marriage.”

A resolution to amend the canon to allow for same-sex marriages was approved at General Synod 2016, and will need to pass a required second reading at the governing body’s next meeting in 2019 in order to become church law.

A portion of Saturday’s session consisted of a presentation by Jones on two memoranda he had prepared for CoGs: one outlining the rules around amendments and other steps that may be taken during the resolution’s second reading; and another dealing with concerns Jones said have been expressed about the proposed amendment by people with a traditional view of marriage, such as the possibility of discipline by the church.

Noting that the second memorandum dealt with concerns about measures conceivably taken by the church only, Antonio said he wanted to know whether an amended canon would protect traditionalist Anglicans from legal trouble outside the church.

Jones said he was even more confident that human-rights proceedings against clergy refusing to marry same-sex couples would be dismissed after a decision by the Supreme Court of Canada on May 31, which, he said, “held that matters of religious doctrine are not justiciable issues to be dealt with by the court.”

Jones was referring to the case of Randy Wall, a Jehovah’s Witness who was expelled from his Calgary congregation in 2014. Wall took the matter to the Alberta Court of Queen’s Bench, arguing for the congregation’s decision to be reviewed by a judge. The case eventually was heard by the Supreme Court of Canada, which, in a 9-0 decision against Wall, ruled that “the courts have neither legitimacy nor institutional capacity to deal with contentious matters of religious doctrine.”

Jones’s second memorandum also dealt with concerns that Canadian Anglicans adhering to the traditional view of marriage might not be able to take the pledges known as “oaths and declarations” that are required when they are ordained or taking up new charges.

On the one hand, Jones said, these pledges require the person taking them to obey the canons that are passed by synods “from time to time”—so that once one takes such a pledge, one is subscribing to all future amendments.

“A person who’s taken the oath is immediately bound by any amendment,” he said. “It’s not a question of a person being unable to take the oath, declaration or subscription at some point in the future.”

However, he said, the marriage canon actually does not define what marriage is—it only “regulates the circumstances in which a minister may solemnize a marriage in the Church.” So, in the event the resolution passes, taking the oath, Jones said, will not mean subscribing to a certain definition of marriage—it will mean only recognizing that the Anglican Church of Canada permits the marriage of same-sex couples.

A similar principle has applied to the marriage of divorced persons, which has been permitted in the Anglican Church of Canada for 50 years now, he said.

“As long as the person who holds the traditional view of marriage accepts that others in the Anglican Church of Canada may solemnize the marriage of divorced persons—and if the resolution passes, persons of the same sex, where permitted by the diocesan bishop—then there is no issue with the oaths,” he said.

Earlier in the session, CoGS members had taken part in an exercise, designed by a working group tasked with managing issues around the marriage canon, meant to encourage respectful conversations about the proposed amendment. Members were instructed to reflect on what they were bringing to the same-sex marriage debate emotionally—their hopes, their fears and what they had “invested” in the issue.

“If the canon is passed, and it’s with no amendments or changes, I may very well…be out of sync with one of the doctrines of this church—and that scares the living daylights out of me,” Larry Robertson, bishop of Yukon, told CoGS. Photo: Tali Folkins

The exercise brought forth a wide range of at-times emotional responses. Many members said they hoped above all that unity and amity in the church would be preserved.

“My hope is that regardless of the outcome of the vote…we can all remember that we’re still part of one church and we’re all still one family,” said Siobhan Bennett, of the ecclesiastical province of Ontario. “No matter how many times you disagree with your family, have argument, fights…you remember that you still love each other at the end of the day, and my fear is that we won’t.”

Peter Wall, dean of the diocese of Niagara and chair of the General Synod planning committee, said with a strained voice he feared he would leave the church if the vote were to fail.

“My fear is that if the resolution is defeated, I cannot stay in the church,” he said. “I really fear that I would walk away and never come back into a church again, and take all my leadership, and all my experience…And I’m afraid I would crawl into a hole.”

Said Larry Robertson, bishop of the diocese of Yukon, “If the canon is passed, and it’s with no amendments or changes, I may very well, as a bishop of the Anglican Church of Canada, be out of sync with one of the doctrines of this church—and that scares the living daylights out of me.”

Archbishop Fred Hiltz, primate of the Anglican Church of Canada, said he hoped all the members of General Synod would take part in the exercise as a way of preparing for the vote, and its aftermath.

“These are very, very good questions,” he said. “They are so good, and so focused, and so inviting and so demanding…that all the members of synod need to have an opportunity to engage with these questions in some kind of a forum before they arrive,” he said.

However, John Chapman, bishop of Ottawa, said he felt the challenge posed to the church by the coming vote on same-sex marriage had less to do with Anglicans opening up to each other emotionally than with trying to figure out a legislative solution to a legislative problem.

“We’ve boxed ourselves into this mess with our own process,” he said. “[It’s] a motion that’s probably, in hindsight, not the best motion, not particularly well written, and not particularly helpful.

“We probably need to spend a significant amount of time figuring out a strategic way that we can use our own process to make what we have done to ourselves—to present what we have done to ourselves—in a way that is more appropriate.”

Speaking after Robertson had urged the crafting of an amendment that would please traditionalists in the church, and saying he was building on what Robertson said, Chapman said he believed it was possible to bring to General Synod 2019 “a resolution that allows everyone to come out of this with their integrity intact, their theology intact and their current practice intact.

“I think the challenge is less about empathy, and how we feel, but more about how we strategically figure out a way out of this box we’ve put ourselves in.”


  • Tali Folkins

    Tali Folkins joined the Anglican Journal in 2015 as staff writer, and has served as editor since October 2021. He has worked as a staff reporter for Law Times and the New Brunswick Telegraph-Journal. His freelance writing credits include work for newspapers and magazines including The Globe and Mail and the former United Church Observer (now Broadview). He has a journalism degree from the University of King’s College and a master’s degree in Classics from Dalhousie University.

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