Legal experts tackle same-sex questions

Conflicting interpretations of the ramifications of General Synod’s recent decisions around same-sex blessings have led the bishops of the Anglican Church of Canada to consult with their chancellors.

Among the questions that have arisen: What does the approved motion stating that “the blessing of same-sex unions is not in conflict with the doctrine of the Anglican Church of Canada” mean? Can clergy and dioceses now conduct same-sex blessings? Some bishops have issued pastoral letters asking clergy not to conduct same-sex blessings – can priests be disciplined if they ignore this directive? How can clergy be disciplined if General Synod already declared that same-sex blessings are “not in conflict” with the core doctrine of the church? What does the defeat of the motion affirming the authority of dioceses to offer same-sex blessings mean?

And, for the diocese of New Westminster, which approved such blessings in 2002: Do the decisions mean an end to the moratorium on blessings? (In response to the House of Bishops’ agreement in 2005 not to encourage nor initiate same-sex blessings “until General Synod has made a decision on the matter” New Westminster had voted to impose a moratorium on allowing any new parishes to permit same-sex blessings; those parishes which already received the bishop’s approval were permitted to continue.)

At least seven of the church’s 30 diocesan bishops have issued pastoral letters stating that General Synod has decided that same-sex blessings are still not permitted. Thirteen have not yet issued pastoral letters; the rest offered reflections or reiterated the pastoral response issued by the house of bishops in April. (The pastoral response stated in part that civilly-married lesbian or gay couples may, with the bishop’s permission, celebrate a eucharist that includes intercessory prayers, but not an exchange of vows and a nuptial blessing.)

Ronald Stevenson, General Synod chancellor (legal advisor), declined to comment on the questions when reached by the Anglican Journal.Rev. Alan Perry, an expert on canon law from the diocese of Montreal, said the motion that blessings are not in conflict with the church’s core doctrine is a “declarative” but not an “enabling” motion, “which would contain some mechanism or permission to act in a certain way.” It does, however, “clear the decks for future action on blessing of same-sex unions by some body or other, ” he said.

He also believes that the defeat of the motion affirming the authority of dioceses to offer blessings has been misinterpreted. “It says General Synod ‘affirms’ that dioceses have the authority to authorize blessing of same-sex unions,” said Mr. Perry. People are reading the motion “as though it said that General Synod ‘grants’ authority to the dioceses …This is not what the motion said.”

General Synod, he observed, has not stated who, if anyone, has the authority to authorize the blessing of same-sex unions.

Mr. Perry said the question could be settled by pinpointing who has “residual authority.” Dioceses and provinces formed the General Synod, and not the other way around, he said. “Residual authority remains with the dioceses and provinces and decidedly not the General Synod.” (Residual authority differs from diocese to diocese; in some cases, authority resides with the province.)Mr. Perry said that some would argue that the church’s Declaration of Principles grants General Synod exclusive jurisdiction over doctrine. “It says the General Synod has jurisdiction over ‘the definition of the doctrines of the church,” he said. “What it does not say is that the General Synod has exclusive control over any and all actions having to do with doctrine.”James Cowan, bishop of British Columbia, offered a contrary view in a pastoral letter. “There are those who argue that because General Synod did not pass a motion claiming its authority on the matter, it may be left to a local church (diocese, parish, or parish priest) to make decisions about moving forward with same-sex union blessings. I am not of that opinion, nor will I authorize such action or concur with it,” he wrote. General Synod has not abrogated its right to make decisions around same-sex blessings, said Bishop Cowan, citing the passage of various resolutions dealing with sexuality, including the study on the possible revision of the marriage canon to allow priests to marry all legally qualified persons as proof of its intent “to see that the required work is accomplished over the next triennium and that whatever decisions need to be made will be done by the General Synod.”In a comment for the Globe and Mail, Canon Eric Beresford, president of the Atlantic School of Theology, wrote that by stating that same-sex unions is not contrary to the core doctrine of the Anglican Church of Canada, “General Synod has, at the very least, undermined the grounds for discipline against any diocese, bishop or priest who performs such blessings.”

Mr. Beresford said while priests are bound by oaths of obedience in “all things lawful and honest,” it nonetheless begs the question of “whether or not it is lawful to require obedience from a priest on something the General Synod of the church has declared to be matter indifferent.” (He defined “matters indifferent” as things that are “not essential to Anglican identity.”)Mr. Perry said that while heresy charges against a priest for blessing a same-sex union would likely fail, there would be other grounds for disciplinary action. Clergy swear an oath, “not to conduct public worship except using the Book of Common Prayer or a liturgy which has been approved by lawful authority, which means the bishop for all practical purposes,” he said. “How can you bless a same-sex union if you don’t have an approved liturgy for the blessing?”Since clergy are bound and swear an oath to obey their bishops “in all lawful and honest demands” disregarding a bishop’s directive not to bless same-sex unions “would be a matter of canonical disobedience, and the priest would be subject to the Discipline Canon” in such a case, he said. “Some court or other would have to weigh whether it does constitute a ‘lawful and honest demand.” What it means is that “the bishop can only make demands that he or she is authorized by law to make.”

Mr. Perry said there is nothing in the church’s canons or constitution that prevents a diocese from going forward with same-sex blessings now that General Synod has said it would not be against core doctrine.

“The mechanism for the diocese as a whole to make such a decision would be a synod motion requesting the bishops to authorize such a liturgy,” he said. If a bishop decides to authorize such a liturgy, “then the deed is done,” he said.