Marriage Canon Redux

On Friday the General Synod considered second reading of a motion to amend Canon XXI, on Marriage in the Church. The rules for amending canons having to do with doctrine, discipline or worship (including Canon XXI) require that any amendment be adopted by a 2/3 majority in each of the three Orders (laity, clergy and bishops) at two successive sessions of the General Synod. The proposed amendment was adopted by the requisite majorities in 2016, and came back for second reading in 2019. This time it was defeated in the Order of Bishops.

There was much weeping and gnashing of teeth.

But what happened and what didn't happen?

This process started in 2013 with a motion requesting that amendments be brought to the 2016 General Synod to permit solemnization of marriage for same-sex couples. The underlying assumption was that, since we weren’t doing same-sex weddings at the time (at least not openly) then there must be something in the canon that prevented such weddings and those who brought forward the 2013 resolution wanted that changed. But the assumption was wrong.

As I noted in a previous post, I realized in 2005 that the Canon does not define marriage or prohibit same-sex marriage. No canon in the Anglican Church of Canada ever has. So what would the defeated motion have accomplished if not to give permission to solemnize same-sex marriages?

The resolution would have done three things:

1. it would have declared that the canon applies to same-sex marriage as well as opposite-sex marriage;
2. it would have replaced a couple of incidental gendered references to the couple with gender-neutral language;
3. it would have added a provision prohibiting solemnizing a marriage between a same-sex couple except where the bishop grants permission.

So what does the (narrow) defeat of this resolution mean?

It’s important to understand that defeating a motion is not the same as passing its opposite. So when we did not declare that the canon applies to same-sex marriages, it does not mean that we declared that the canon does not apply to same-sex marriages. Synod said no such thing.

It’s true that we didn’t change the couple of gendered references to the couple into gender-neutral references, but the vast majority of references are, and always have been, gender-neutral, using phrases such as “the parties to the marriage” and the word “persons”. And the gendered references do not imply any restrictions or a definition of marriage. They are completely incidental.

And, crucially, we did not add a prohibition on same-sex marriage. No such prohibition exists, and it has not been added.

Read that again: there never has been a prohibition on same-sex marriage in our canon and the Synod in defeating the resolution failed to introduce such a prohibition (and an exception where the bishop gives permission.)

Many thought that by defeating the motion they were defeating a mechanism to give permission for something was previously banned. In fact, they failed to introduce a mechanism to ban something that was not previously prohibited.

The three quarters who voted for this resolution were surely voting for equal marriage. Yes, three quarters of the members of General Synod were saying they support equal marriage. They were prepared to accept a local option to prohibit equal marriage in some dioceses to send the message to LGBTQ+ persons that they can marry in church if they so desire. That was the deal: say yes officially to equal marriage overall, in return for individual bishops having the authority to opt out in their own dioceses. By not adopting the motion due to the vagaries of our procedure, we have also not adopted that ability to say “no” locally.

Read the Memo: The Living Church and the Chancellor's memo on marriage

This week the Living Church published an article disagreeing with the Chancellor of General Synod regarding Canon XXI. The Chancellor produced a memorandum on the Canon in 2016, mainly dealing with the procedures for changing the Canon, but also pointing out the implications of not adopting a motion (any motion) and noting that the Canon does not currently prohibit solemnization of marriage between persons of the same sex. The key point is that not adopting a motion declaring the Canon applies to same-sex marriage is not the same thing as adopting a motion saying it doesn’t.

Apparently the Living Church has finally got round to reading the Chancellor's memo, and they disagree with his analysis. They're wrong.

The author of the Living Church article comes with some impressive credentials. The article notes that he holds a degree of Master of Laws (LLM) in Canon Law from Cardiff University. But with respect, he does not appear to have read Canon XXI very closely, at least not closely enough to bother actually quoting the Canon. And he misquotes the Chancellor’s memo as well. I know from experience that this is not the standard of research expected in the Cardiff Canon Law programme.

Back when I was completing my own LLM in Canon Law at Cardiff (2007) I wrote an essay on the evolution of Canada’s marriage canon. In the process I researched and carefully read every canon on marriage ever adopted in Canada, beginning with one adopted in 1880 by the Province of Canada, 13 years before the General Synod existed. It was suggested that I submit my essay for publication, and when I did the reviewers asked me to add a section on how Canada might make provision for some limited version of same-sex marriage. This was just a few months after the adoption of the Civil Marriage Act (2005) by Parliament making same-sex marriage available across Canada.

The funny thing was, as I re-read the Canon, I realized that it did not define marriage at all, and neither stated that marriage is limited to couples of the opposite sex, nor prohibited solemnization of marriage between same-sex couples. The Canon was, and is, entirely silent on the question. Eleven years later, the Chancellor of General Synod would come to the same conclusion.

As I wrote the new section of my paper, I suggested that if it were desirable to implement limited same-sex marriage, the first step would be to insert a clause in the Canon prohibiting same-sex marriage, then another providing for some exception. (I would not personally advocate this approach.) In some ways this would mirror what happened with re-marriage after divorce. Marriage by divorced persons was not prohibited by canon in Canada until the General Synod adopted a canon to that effect in 1905. It would later be permitted as an exception to the rule, with certain conditions, when the current Canon XXI was adopted in 1967. The general rule forbidding re-marriage is stated explicitly in section 9 of the Canon, with the exception provided for in parts III and IV.

It should not be surprising that Canon XXI is silent on the question of same-sex marriage, given that it was adopted in 1967, years before same-sex couples began pressing for the right to marry in Canada, and even before same-sex relations were decriminalized. The idea simply could not have occurred to the drafters of the Canon. Nor, apparently, did it occur to the drafters to include a definition of marriage in the Canon. In effect, the civil definition of marriage as set out by Parliament, is implied by the provision at section 5 that the requirements of civil law must be met. (At any rate, General Synod would not have the authority to exempt couples from the requirements of civil law!)

It is sometimes suggested that our Canon must in some way prohibit same-sex marriage because of a couple of gendered references to the couple. But in fact the vast majority of references to the couple are already gender-neutral. See, for example, sections 2, 3, 4, 6, 7, 8, and 9, which use terms such as “parties to the marriage”, and “persons” to refer to the couple. The two incidental gendered references to the couple may be oversights in the drafting process. But at any rate, nowhere does the Canon state that marriage is limited to couples of the opposite sex. (It doesn’t prohibit polygamy, either, though no Anglican I know of is advocating such a change, which would violate civil law anyway.)

Ah, say some, but what of the reference to the marriage of man and woman in the Preface to the Canon? Surely that counts? No, it doesn’t. The Preface is nothing more than a discussion of marriage prefatory to the actual Canon. Like the preamble to an Act of Parliament, it is of no legal force. And even the Preface doesn’t actually define marriage, it merely “affirms ... the goodness of the union of man and woman in marriage” (paragraph 2).

And the Chancellor’s memo? The Living Church claims that the Chancellor “suggests that the existing Canon XXI on Christian marriage deals only with the marriage of one man and one woman and as such, cannot be taken to prohibit same-sex marriage.” But that’s not what the memo says. Rather, the memo states that, as I have noted above, the canon was drafted at a time when same-sex marriage was impossible. It does not say that the the canon “deals only with the marriage of one man and one woman.” It says that the canon does not currently contain any prohibition of solemnization of a marriage between persons of the same sex. The memo also states that there is no definiton of marriage in the canon. You can read the memo in full here. (PDF) See especially paragraphs 31 and 32.

Second reading of an amendment to Canon XXI will be before the General Synod as it meets this week. The resolution as it stands does three things:

1. it declares that the canon applies to same-sex marriage as well as opposite-sex marriage;
2. it replaces the couple of gendered references to the couple with gender neutral language;
3. it adds a provision prohibiting solemnization of a marriage between a same-sex couple except where the bishop grants permission.

People of good will may, in good faith, disagree on whether the motion should or should not be adopted. But either way this will be an important debate in the life of our church. It would be preferable that the debate be well informed. The mischaracterization of the Chancellor’s memo in the Living Church article does nothing to inform the debate. Quite the opposite.