July 14, 2012

Taking a Constitutional

Prior to the recently ended session of the General Convention, a few fringe voices had been raised contesting the constitutionality of provisions of Title IV of the Canons. Since the Convention, similar, if not identical, voices have been raised questioning the constitutionality of the liturgy for the blessing of a same-sex covenanted relationship.

Let me address the latter first. The bulk of Article X refers to alterations of and additions to the Book of Common Prayer, and for authorization of trial use to that end. The explicit proviso at the end of the Article allows the Bishops to take order for other forms in accordance with the rubrics -- the principal of which is the rubric on page 13, which deals with the question of additional rites directly.

In addition to [the Daily Office and Holy Eucharist] and the other rites contained in this Book, other forms set forth by authority within this Church may be used.
This includes the Book of Occasional Services, Lesser Feasts and Fasts, and more recent supplementary liturgical material such as those in the Enriching our Worship series. It also includes the liturgy approved at this past Convention by an overwhelming majority in both Houses, for the blessing of a life-long covenant. This liturgy is not in conflict with the BCP, any more than a liturgy for the blessing of a battleship would be. The fact that the BCP does not refer to such blessings is not in itself a limiting factor, nor does this blessing liturgy in any way conflict with or alter the forms in the BCP. It is a supplemental rite making provision for something the BCP does not address -- which is the nature of a supplement. By Constitutional definition, the limit upon authorized rites is respected, and with the proviso of local episcopal approval, these rites may be used as of authority in this church, equally as much as the rites I have enumerated above. Some bishops will decline or refuse to permit the use of this new rite -- this is what renders it provisional, and they will be within their competence to act in this way.

Questions of constitutionality have been referred to the Standing Commission on Constitution and Canons. In the past they have been reluctant to rule on Constitutionality as beyond the ambit of their role, but in accordance with Canon I.1.2.n.3.v they have by resolution C116 been charged to take up the question. The opinions of canon lawyers (and others) on both sides will no doubt be considered in their deliberations.

Tobias Stanislas Haller BSG


Fr. Jonathan said...

I haven't spent a lot of time looking at it, but I suspect that you're right that the new liturgy is constitutional, so long as it is accepted that the liturgy is not marriage. Of course, that's a difficult sell, considering how many marriage-like elements it has. Nonetheless, I prefer to live with the anomaly for now since it gives folks like me a certain amount of cover. Provisional liturgies, whatever else they are, are not doctrine.

But a couple of questions come to mind. If this liturgy really was a blessing for same-sex marriage, do you believe it would require a prayer book change? If not, or perhaps in any event, would you favor a prayer book change? And would you personally prefer to see a separate rite for same-sex marriage, such as what we now have, or a gender neutral marriage rite of some kind?

Tobias Stanislas Haller BSG said...

Thanks, Fr. J. I think that as with all of the supplemental liturgies, no one is required to make use of them, so there is plenty of cover.

If the liturgy were a full-fledged marriage liturgy, I do not think it would "require" a BCP change, as it is provision for something that supplements the BCP --- that is, providing something the BCP does not provide. As a supplement it would still be in the same class as the Book of Occasional Services, for instance.

I am not a major proponent of change to the BCP itself. There are a few things I would like to see changed in the present marriage liturgy, but that primarily concerns the placement of the prayers for the couple, which I would like to see moved to before the exchange of marriage vows -- after the fashion of most of the other pastoral rites, i.e., baptism and ordination. (The provisional rite does do this, so I am pleased with that.) I would also like to see the couple themselves ask the assembly for their support, rather than have the officiant do so.

If we were to amend the BCP, I think pastoral flexibility, to provide a rite that could be used by any couple, would not be a bad thing, but as an addition rather than a replacement. I have noted that the draft rite of 1785 would be used for a same sex couple with the change of only two or three words. I'm not saying we should do this, but I would not be offended if we did. In the interest of those who might be offended, I would argue against replacement, and preserve, as with Rite I, an alternative traditional form.

Since the 12th century the substance of marriage has been held to lie in the consent of the couple. So long as that is preserved, I am content with the rite. That's not to say I don't have my druthers when it comes to liturgical shape, as noted above, -- but I regard that as the primary concern.

Deacon Charlie Perrin said...

While I think this supplemental rite is better than nothing, it does not address the need for something more in those jurisdictions, such as here in NY, where any two persons of the proper age can marry.

In my mind (and I don't really care what others in other states, countries, or faith communities may think) it would be good for us as a Church to modify (or to allow the modification of) the marriage rite so that it might be used for couples of the same gender.

It would be good for us to demonstrate to the world that not all Christians believe that the Church must act as the morality police and as the successors to the Pharisees.

Let the so-called fundamentalists and the self-proclaimed "orthodox" carry that mantle. Let us instead follow the Gospel: the Good News.

Tobias Stanislas Haller BSG said...

Deacon Charlie, the issue of providing a blessing for the civil marriages of same-sex couples is a related issue. As is the question of whether church officials can act to solemnize such marriages. It is a vexed question not easily settled. My preference is for pastoral toleration of the anomaly.

A. S. Haley said...

Fr. Haller, we agree on our interpretations of Article X, down to its referring us to the Rubrics in the case of bishops approving special rites within their own dioceses. (Note that when they do so, they do so as individuals, and not through both Houses of General Convention.)

We may disagree, however, on the meaning of the BCP's phrase "set forth by authority within this Church." Unless it is to be read tautologically, as referring back to a bishop's own inherent ecclesiastical authority, it must refer to authority which has been granted by the Constitution, which is the source of all authority "within the Church" (other than the inherent ecclesiastical powers of bishops, as previously mentioned).

Authority cannot spring out of nowhere. Under the Constitution, authority is when General Convention speaks through its power to promulgate and amend the Constitution, the BCP, and the Canons. Resolutions of General Convention are not binding on anyone but the staffs of the DFMS and 815, insofar as they set Church-wide policy.

Thus, for SSB's to have been properly authorized for Church-wide use, General Convention would have had to exercise its authority by amending either the BCP or the Canons. It did neither. Hence what it did approve (a mere resolution) is not a valid exercise of authority. Hence the appeal to the Rubrics to sanction that non-exercise of authority fails.

Tobias Stanislas Haller BSG said...

Dear AS Haley,
Thank you for this input. I think it must be taken as a strict construction rather than as the Constitution has been understood at least for the last century, dating back to the first "Book of Offices" which was not authorized as an alternative to the BCP, but a supplement, following on with Lesser Feasts and Fasts and the Book of Occasional Services, and in more recent times the Enriching our Worship series. All of these are instituted by the authority of General Convention, by resolution. Note that "trial use" for observances of saints added to the calendar are indeed held to that higher standard, since they actually amend a portion of the BCP.

The question of whether General Convention can adopt resolutions other than those amending the governing documents and the BCP is, I think, a matter of the leeway one gives to Article I.1's use of the words "legislation" and "acts." There does not appear to my eyes a restriction on General Convention's authority merely to amending the governing documents and BCP, and long-standing practice would appear to establish the contrary.

Ultimately, the rubric must be referring to items not covered under the opening sections of Article X (which reference alterations or additions to the BCP). This has long been understood to include the liturgical resources I've mentioned above, instituted on the authority of General Convention so to do, as well as liturgical resources authorized by Bishops in their own dioceses.

So while I take your point, I think it has to be measured against the standard of long practice.

A. S. Haley said...

Thank you, Fr. Haller, for that response. The "long-standing practice" of approving alternatives to the BCP liturgies, such as the Book of Occasional Services and Enriching our Worship, has actually always been done (up until now) in full compliance with the second paragraph of Article X. And it is done, under the authority conferred by that paragraph, not by amending the canons or the BCP, but by a resolution -- albeit one that has to pass with a supermajority in the HoB.

For more detail, see my post on that subject, and my earlier posts in that series.

A. S. Haley said...

In my first comment above, I forgot to list the resolution method for trial rites authorized by the second paragraph of Art. X in my methods available for approving occasional rites for Church-wide use. Sorry!

And the point this time around, is that the Resolution did not get the required supermajority in the HoB, so it did not qualify under that paragraph. The attempts to escape Art. X by changing the word "trial" to "provisional" were just so much semantics.

Tobias Stanislas Haller BSG said...

Councilor Haley, after examing the records at the archives, I'm afraid I have to note that you are at least in part in error. The original "Supplemental Liturgical Materials" with "Inclusive Language" were authorized "for trial use" -- because they were in fact "alternatives to" the Daily Office and the Holy Eucharist, and hence governed by the earlier parts of Article X concerning such alternate versions. They received the full procedure with vote by orders.

However, the Book of Occasional Services, and the later volumes of Enriching Our Worship have not been adopted for "trial use" but provisionally and at the discretion of the local bishop. These forms are neither additions to the BCP (they are published separately) nor alternatives (they do not replace any BCP rites but consist of rites not in the BCP). This has been true since 1916. Here is a passage from the Preface to the Book of Offices of that time:

At the General Convention in Richmond, in 1907, a Committee of the House of Bishops was appointed to consider the preparation of a Book of Offices for occasions not provided for in the Book of Common Prayer. The Bishops of Texas, Kansas, Newark, Springfield, and Fond du Lac constituted the Committee.

This Committee found the wish for such a Book so general that in Cincinnati in 1910 they presented a Book which was received by the Bishops and allowed to be distributed in the House.

Subsequently the Bishops retained the copies distributed and were asked to send further suggestions to the Committee, which was continued, to report in 1913.

The second Report of the Committee, presented in New York in 1913, was again referred back for further consideration.

At the General Convention in St. Louis, in 1916, a number of corrections and changes were presented by the Committee and the following Resolution was passed:

Resolved, That the Book of Offices for Occasions not Provided for in the Book of Common Prayer be published after the changes submitted with this report have been made, and is hereby set forth for use where the Bishop of the Diocese may authorize it.

After all due care and consideration the Book of Offices for Occasions not Provided for in the Book of Common Prayer is now authorized for use in the Church, subject to the discretion of each diocesan Bishop.

The "trial use" is only appropriate for alternatives and additions to the BCP. The current rite under discussion is neither. The framers of the current resolution erred in using the term "trial use" (a sloppy practice stemming from popular confusion of the legal distinctions) and it was corrected. This was not weasel-work, but proper form consistent with past practice.

Rick+ said...

Tobias, thank you. I had not thought of this issue before, but it's important. Occcasionally we use other sources including Enriching Our Worship. In the rare instance when questioned I simply refer to our rector being, according to canon, the "chief liturgical officer" who has the freedom to make such a call. I hadn't realized it was actually embedded in the BCP itself. Thanks for the education!

Brother David said...

Way to go Father T!!!! Post a point for the Home Team!!


Oh, right, this isn't a sporting event.

OK, carry on then.