There has been a good bit of reaction, besides my own, to the English House of Bishops Pastoral Guidance regarding marriage.
First, let me note a petition calling for its rescinding. I signed it yesterday and I urge others to do the same.
Second, I want to note that there has been some discussion concerning legalities, including whatever legal standing the Pastoral Guidance itself may, or may not, have.
My understanding of the episcopate is that bishops are essentially executives. That is, they are to carry out the legally agreed-to decisions of the church, to enforce the law of the church, not to act as potentates to order obeisance to their own whims. As Sister Clare Fitzgerald, SNDD, past president of the Roman Catholic League of Women Religious, once told me, in reference to a bishop of the highest authority, "The pope can order the nuns to wear their habit as a witness to their vows, because that is part of the rule of their order; but the pope can't demand that the nuns must eat spaghetti every Thursday."
In England, the bishops can charge clergy under the Clergy Discipline Measure. This gives them considerable scope, but only covers matters of discipline, not of doctrine. So the question seems to revolve to some extent on the meaning of "discipline" and "doctrine." Is a pastoral direction, or even a direct admonition not to do something which is legal under the law of the state and not expressly forbidden under the law of the church, a matter of "discipline?" Being an American I am not familiar with the intricacies of English law beyond knowing how intricate it is! So the questions are:
Does violation of the Pastoral Guidance or demands made in light of it constitute a breach of discipline under the CDM? The explanatory Code of Practice gives this much guidance:
26. These [acts or omissions contrary ecclesiastical la] are not defined in the Measure but reference has to be made to the many principles of ecclesiastical law, which can be found in Acts of Parliament, Measures and Canons of the Church of England, statutory instruments, custom, and case law.
27. There are many duties imposed upon the clergy under ecclesiastical law. Failing to comply with any of those duties or doing something that is forbidden by ecclesiastical law could be a ground for alleging misconduct.
This begs the question, Is there a canon or other actionable statement in place already forbidding a cleric entering a same-sex marriage?
The broader area under which discipline might conceivably be applied is that of "conduct unbecoming or inappropriate" to the clergy. Here the rules are more vague, and it should be noted that the Pastoral Guidance did pick up on some of this language — as the Code of Practice puts it:
29. The Measure does not define unbecoming or inappropriate conduct, but clergy in their conduct and everyday living are expected to be examples of what is acceptable in Christian behaviour. Members of the church and the wider community look towards the clergy to set, and conform to, appropriate standards of morality and behaviour.
30. In particular the clergy should live their lives in a way that is consistent with the Code of Canons (principally C26, C27 and C28). Canon C26 is particularly relevant. It requires the clergy to be diligent to frame and fashion their lives according to the doctrine of Christ, and to make themselves wholesome examples and patterns to the flock of Christ. Furthermore they are not to pursue unsuitable occupations, habits or recreations which do not befit their sacred calling, or which are detrimental to the performance of their duties or justifiably cause offence to others.
This would appear to allow more scope for action against clergy, but for the fact that the "conduct" of entering a marriage with a person of the same sex is not necessarily "unacceptable Christian behaviour" or a "justifiable cause for offence." Why? Because the Pastoral Guideline says that it is perfectly fine of lay Christian members of the church to enter into such a marriage. The P.G. appears to want to have it both ways by appealing to the notion of "higher standard," but surely that which is "acceptable" and gives no "offence" to the church. As the Pastoral Guidance itself states,
18. ...same sex couples who choose to marry should be welcomed into the life of the worshipping community and not be subjected to questioning about their lifestyle. Neither they nor any children they care for should be denied access to the sacraments.
Yet the Pastoral Guideline, in what appears to be a somewhat donatistical move, would restrict a cleric who presumes to enter such a marriage from celebrating the sacraments. This is part of the incoherency to which I referred.
There is also the matter of appeals to conscience. I cited Article XXXXII not as a "legal" point as I do not know the standing of the Articles in English church jurisprudence. (Though I'd be interested to know if they still have any application. After all, the P.G. cites the 1662 marriage liturgy.) This highlights the principle that from the time of the Article marriage was held to be a matter of conscience for individuals to frame their lives in a godly fashion. Since the Pastoral Guidance affirms (quoting the position taken prior to the adoption of civil marriage equality) that
“the proposition that same sex relationships can embody crucial social virtues is not in dispute. Same sex relationships often embody genuine mutuality and fidelity…., two of the virtues which the Book of Common Prayer uses to commend marriage. The Church of England seeks to see those virtues maximised in society.”
then it seems that the church means to penalize, or to declare or describe a relationship (when clergy are involved) as unwholesome merely on the lack one person of each sex. This is why I criticize the Pastoral Guidance for appearing to do just that: fixing virtue on the gender difference.
Getting back to Clergy Discipline, as I noted, that Measure is not to be used in cases of doctrine. Yet the Pastoral Guidance lays out the issue as a doctrinal one, having to do with the "doctrine of marriage" and the "teaching" both of Christ and of the church. At the same time, I note the absence of reference to marriage in the creeds and the [English] catechism, and the fact that Article XXV (on the Sacraments) holds marriage to be "an estate of life allowed in the Scripture." One could argue that same-sex marriage is not "allowed" by Scripture, in that it is nowhere mentioned. But the argument that it is expressly forbidden is not definitive, and to cite Article XX, only that which can be proven can be mandatory. In short, one can allow what cannot be proven, but only require what can be.
I'm sorry to bash away on the Articles, but it does seem to me we need a sort of Traditional Anglican Settlement to all of this, by allowing diversity and letting God sort out all the rest...
UPDATEEcclesiastical Law blog has some very fine (and professional!) analysis with references to case law as well as the canonical details.
Tobias Stanislas Haller BSG