Being and Doing: A Response to an Essay on Marriage

A few weeks ago, John Bauerschmidt, Zachary Guiliano, Wesley Hill, and Jordan Hylden published a response to the report of the Task Force on the Study of Marriage (TFSM), titled “Marriage in Creation and Covenant,” henceforth MCC. This essay appeared on the Anglican Theological Review website along with three responses from Scott MacDougall, Kathryn Tanner, and Daniel Joslyn-Siemiatkoski. The three responders took up some of the serious problems with MCC and I commend their essays to your attention.

As one of the authors of “Essay 1" (Biblical and Theological Framework) in the TFSM report, I had hoped for a better level of engagement than MCC demonstrates; it is largely and off-handedly dismissive, but also mistaken in some of its characterizations of content, leading me to the conclusion that the MCC authors do not actually understand the argument. I have long been an advocate of the position that one can only truly have a meaningful discussion when you can state your interlocutor’s position in language she can recognize and affirm. MCC fails that test, even to the slight extent it engages with Essay 1 at all — the authors spend most of their time disagreeing with the essay on history, and I leave it to the author of that essay to address their concerns.

MCC to a large extent follows the method of questioning motives and form rather than engaging deeply with the content of the TFSM report. Interestingly enough, this seems to me to reflect the deeper issue of what constitutes marriage: MCC expounds a thesis about the form of marriage as a male-female bond that serves as an icon of the relationship between Christ and the Church in a constructive sense (I hope I’ve understood and stated their thesis correctly); whereas the TFSM focuses on the content of the marriage relationship as expressed in the vows, and in the spouses’ living out the loving mutual self-offering inherent in those vows, as an iconic realization of the relationship between Christ and the Church. Some might say, What’s the difference? We are dealing, to some extent, with the old perceived conflict between being and doing. (It also likely reflects the distinction in the honor given to icons as dulia rather than latria. Some, it seems to me, want to exalt marriage to a place it does not belong. However, in the present context, this also reflects the old difference of opinion as to what constitutes marriage: consent or coitus.

Which gives me the opportunity to correct a misapprehension of MCC, one of the few observations about Essay 1. On page 4, in the context of bemoaning the lack of references to the literature, the authors state,

...Brundage's work makes a brief appearance in "Essay 1" (13), where an incorrect citation is provided, making unclear the reference to a definitive "papal ruling" on the significance of consent and consummation in marriage. Perhaps it refers to Alexander III's Veniens ad nos or Innocent III's Per tuas? It is hard to know; neither said quite what the essay states nor offered a final word.

First, the citation is only “incorrect” to the extent that it fails to include “ff” after the page indicated — the page which marks the beginning of a subsection of a chapter dealing with this issue. More importantly, however, is the coy, and erroneous, rejection of what Essay 1 says, which is, “The eventual papal ruling settled the debate (for Roman Catholics) by taking a middle ground: consent makes the marriage, but consummation seals it.” It is true that “seals” is my language for the more convoluted “renders indissoluble by any human power.” But this is the conclusion reached by Alexander III (not in a single decree but in a process of development through many rulings) and enshrined in the Roman canons to this day (see CCL 1141-42.) As George Hayward Joyce, S.J., put it, in a work written long before our current controversies,

Alexander III... settled the dispute between the Schools of Paris and Bologna about the essentials of marriage. He approved the teaching of the Paris doctors that marriage is effected by the consent of the parties..., rejecting that of the Bolognese canonists who held that until consummation the partners were not strictly speaking married. Yet he did not accept the Paris teaching in its entirety, but retained one important feature of the Bolognese system.... Alexander III, though pronouncing consent to be the effective cause of marriage, taught that until consummation the bond was capable of dissolution. (Christian Marriage: An Historical and Doctrinal Study, Second Edition. London: Sheed and Ward, 1948. pp 430-431.)

Now, this may seem trivial, but it appears to me to indicate a problem that the MCC authors, and many others, have when wrestling with the issues surrounding marriage — same-sex and otherwise. There is a reluctance to place the locus of marriage in the action of marriage, the exchange of vows that makes the marriage, as an act of self-dedication through the human faculties of will and love. Instead there is a repeated retreat — often rhapsodically articulated — to the formal biological reality of male and female. With Augustine, and many since, they emphasize that which is shared with the animal realm rather than that which is uniquely human. (The reponses to MCC detail a few of the other problems with their use of Augustine. I would add to that, their failure to distinguish between sacramental marriage as Augustine understands it, as only existing between Christians, and what is often called “natural marriage” — a point I think fatal to their thesis about the constitutional nature of male-female marriage in and of itself. But that is a point for another essay.)

Of course, the TFSM does not deny this formal reality. However, what we do attempt is to articulate the reasons for our emphasis on the vows rather than the “purposes” of marriage — recognizing that the Episcopal Church did without an articulation of these “purposes” in its marriage liturgy for almost 200 years. But even here MCC misunderstands. For instance, on page 18 they state,

The very idea that marriage is a social form with ends (or purposes, teloi) given by God is not grasped at all; rather, such ends are described as "extrinsic" (perhaps better put, heteronomous) and so run afoul of Kant's categorical imperative never to treat persons as means rather than ends (21, 24). By this argument, we are told that the marriage vows are what really count, as they represent the moral "commitment" that two make to one another, and that the opening exhortation describing the ends of marriage is extraneous to this deeper reality (20-25).

The last sentence approaches but misses an accurate grasp of our position, though why commitment is in scare-quotes escapes me. However, the first sentence here not only misstates the TSFM position, but presents a thesis Essay 1 explicitly rejects as mistaken. Here is what the report says about “extrinsic” and the way in which the TFSM proposes to balance the Kantian ethical concern with the role of the “ends” of marriage (page 23):

Procreation can become a problematical cause or purpose when it is understood primarily as an extrinsic end, rather than as the natural outgrowth of the loving couple treating each other as ends in themselves. It is acknowledged that as the end in this case is a human life, it has its own inestimable worth. It must also be noted that many, if not most couples, desire this end and work together toward its accomplishment; and that the generation of new life is a tangible expression of their mutual love.... Children are a gift and a grace and a hope — but ought not be understood as an extrinsic expectation or demand, in the absence of which a marriage is deemed to have failed in some intrinsic way. Moreover, the greater and more fully realized the love of a couple for each other, the more likely any child who becomes part of the growing family, by birth or adoption, will be nurtured and raised in a way that expresses the familial virtues.

What the TFSM essay does is attempt to give procreation in marriage its proper place and role as reflected in the Prologue to the marriage liturgy: as a positive good (when possible, and “when it is God's will” or as the older (1946) canon put it “if it may be”). This stands in opposition to the rhetoric advanced in some circles that it is an "essential element" of marriage. This has never been the teaching of the church. The confusion arises precisely when one drifts from the language of "goods" or "fruits" into “ends,” "causes," or "purposes." The issue is that the institution of marriage (as the Prologue puts it) may have purposes which never are realized in a particular marriage — and that should not be seen as a reduction in the value of that marriage. The traditional position — which the TFSM paper supports — is that procreation should take place within a loving marriage; not that any given marriage must lead to procreation in order to be a valid and loving marriage that reflects God’s love and generativity.

I hope I’ve adequately addressed these two problems with MCC. A more general concern is that they seem to think that the proposed canon change undercuts the church’s teaching on marriage, and I hope I’ve addressed that in the previous posts on the topic of that change. Obviously, the canon change will remove an obstacle (in some minds) to authorizing liturgies for solemnizing marriages of same-sex couples where it is permitted by civil law, but that in no way alters the teaching concerning the nature of marriage — merely refocuses it on the moral center of marriage, which the tradition holds lies in the couple’s mutual consent to live by the vows they make to each other; not on their capacity to fulfill a “purpose.” It is, in short, the content of marriage, not its form, that ought to be the focus of our canonical, liturgical, and theological attention.

Tobias Stanislas Haller BSG

Marriage Canon Q and A Part 2

...continued from Part 1.

Doesn't the canon change stand in conflict with the BCP? Since the BCP supersedes the Canons doesn't this set up a conflict?

As noted in the earlier round of questions, the proposed canon does not change the doctrine of the church on marriage, nor is that the point of the canon change. The issue isn't that "the BCP supersedes the Canons" -- but they are different documents governing different aspects of marriage. For example, the canons provide for remarriage after divorce -- something which is nowhere mentioned as possible in the BCP, which on the contrary (in the Catechism) describes marriage "as life-long." One could see this as a conflict, or recognize that the intent of the two authorities is different. The purpose of the canons is not to lay out a doctrine of marriage, but to describe procedures and rules and requirements for marriage. It is not about "what marriage is" but what the cleric and the couple must do in order to marry. If -- and it is an "if" -- the church continues to authorize liturgies for same-sex marriages, then the canons need to provide procedures that address that reality. The TFSM was charged with the task of addressing this pastoral reality in states where same-sex marriage is legal, and the proposal offers a response, removing the obstacle some feel the current canon presents.

Why do you propose removing the requirement to sign the Declaration of Intention from the Canon?

It's probably helpful to begin by understanding how this requirement to sign a document got into the canons in the first place, as that in part explains why it is no longer necessary in that form (a document is still required, but the content is changed).

The requirement that the couple sign a declaration was introduced to the canons in the late 1940s, as part of the gradual accommodation of the church to remarriage after divorce. As a common ground for divorce (or annulment) is "defective intent," having a couple sign a declaration of their "intent" was felt by many to be a safeguard against later claims on that ground. This language was originally in the canon on divorce, rather than the canon on marriage.

The other circumstance at that time was that the marriage liturgy in the 1928 Book of Common Prayer lacked any of the language now found in the prologue to the current (1979) marriage rite concerning the institution of marriage. So having this repeated in the canons is, to some extent, redundant, as these purposes are now spoken publicly in the sight of the congregation. Perhaps needless to say, the church had functioned quite well without any such statement of purposes for marriage in either the liturgy or the canons for over a century.

Still, to cover the legal ground, some form of declaration is still desired. The one remaining difficulty with the current declaration, as the Task Force essay on the canon notes, is that it is cast in a creedal format: the couple must attest that they "believe" certain statements about God's intention and will concerning the institution of marriage. This creates a practical problem in some circumstances, to which I can speak from personal experience. As a priest, I am regularly faced with having to instruct people about marriage. That includes addressing the allowance, under the canons and the rubric, for the marriage of a Christian to a non-Christian, who could be a Buddhist or an atheist. One can presume that the non-believing or other-believing partner is marrying in a Christian ceremony for the sake of the conscience or wishes of her spouse (or family). She may not believe in God or that "God" has "intentions" or a "will" for either the institution of marriage or her own particular marriage. Should she be required to sign a declaration stating belief in that which she does not believe? Should the cleric refuse to solemnize the marriage if she is unable to affirm "belief" in an arguably un-scriptural notion -- at least as some understand it? I would add that the BCP description of marriage is not even exactly the same as that of the Roman Church -- so should a RC spouse be forced to affirm a description of marriage that is not what her church teaches?

These are real questions and the Task Force has sought to remove this obstacle from the path of a couple in such a situation. Unlike in 1949, the causal language is part of the liturgy -- publicly stated as an exhortation -- but no one is required to subscribe to it as a statement of belief. As the official explanation in resolution A036 says, the current wording of this declaration

...is to some extent problematical when one member of the couple may not be a “believer” at all or may come from a tradition with a different theology of marriage. It should be sufficient that the couple be instructed in, and understand the rights, duties, and responsibilities of, marriage as expressed in the marriage vows; and attest to that understanding as well as to their legal competence to marry.

Finally, as already noted, this declaration forms one of the obstacles to conscience some have felt in extending the generous pastoral support to solemnizing marriages of same-sex couples in places where the bishop approves and the civil law allows. This is an obstacle the Task Force was explicitly asked to address in its charter, so that is an additional reason to remove a statement which some, in conscience, would find very difficult, if not impossible, to sign.

So what about "defective intent"?

As noted above, this remains a reality. So to meet the legal concern about defective intent, the couple is asked to sign a declaration that, in addition to covering all of the canonical requirements (including competency, formerly solely the responsibility of the cleric, and now offering the cleric some cover should the couple later be found to have presented inaccurate or false evidence of competence), states

Sec. 3. Prior to the solemnization, the Member of the Clergy shall determine, and shall require the couple to sign a declaration attesting

(a) that both parties have the right to marry according to the laws of the State and consent to do so freely, without fraud, coercion, mistake as to the identity of either, or mental reservation; and

(b) that at least one of the parties is baptized; and

(c) that both parties have been instructed by the Member of the Clergy, or a person known by the Member of the Clergy to be competent and responsible, in the rights, duties, and responsibilities of marriage as embodied in the marriage vows: that the covenant of marriage is unconditional, mutual, exclusive, faithful, and lifelong; and

(d) that both parties understand these duties and responsibilities, and engage to make the utmost effort, with the help of God and the support of the community, to accept and perform them.

I'm more than happy to answer any further questions that come up, so please post comments here if you have any other questions.

Tobias Stanislas Haller BSG

UPDATE: The questions continue...

Chaste Convention

This ember season, Brother Ed, the Minister Provincial of the BSG Province 2, set us the task of meditating on the Brotherhood's vow of chastity. It reads, in part,

Chastity is the decision to live with all in love, with respect for each person's integrity. ... in order to be free to love others without trying to possess or control."

This could not have come at a better time for me, in the run-up to General Convention, to which I am a Deputy from the Diocese of New York, and a member of the special Legislative Committee #20 on all resolutions touching on marriage. As I was also a member of the Task Force for the Study of Marriage, and worked on one of the proposals coming to the Convention, you might think I had a particular horse in this race.

And to some extent I do. All of the Task Force worked hard; and I am disappointed that the work we did has gotten so little close attention -- not to say it has not been responded to, but with vague and mistaken responses that seem to take little account of what the work actually proposes. But when all is said and done, I am resolved not to let whatever happens in Salt Lake City -- either in debate or in decision -- get me down or entangle me in "the desire to possess or control." I resolve to "speak the truth in love" and treat all with whom I disagree or agree with respect for their integrity, and to stand as a witness, not a prosecutor.

Tobias Stanislas Haller BSG

Marriage Canon Change Q&A (Part 1)

The A050 Task Force on the Study of Marriage has proposed (in resolution A036) that General Convention amend Canon I.18. The proposal has sparked some conversation and many questions. Some of the conversation is less about the proposed canon change and more about the theological and historical papers that accompany and inform it, and I will address some of those issues separately. But I would like to answer some of the questions, and correct some of the misapprehensions, concerning the proposed canon change, as best I can.

First, though, a disclaimer. Although I served as a member of the Task Force (and as its secretary) I am writing here solely on my own initiative, and other members of the Task Force may have opinions different to mine. But as I was one of the members most closely involved in the creation of the "Biblical and Theological Framework" and the wording of the canon, I think I can offer some perspective concerning matters of "original intent" whatever interpretation another may choose to give to any particular wording.

So, with that established, on to the questions. (And I will present what follows in dialogue format, which is much how it happened in the various threads, blogs, and listservs in which much of what follows originally appeared.

Does the proposed canon change alter the church's teaching on marriage?

The canon does not alter the teaching on marriage as it appears in the Book of Common Prayer. In fact, the proposed change removes the one clause in the present canon that does conflict with the Book of Common Prayer, that "Holy Matrimony is a physical and spiritual union ... entered into within the community of faith." The BCP maintains that marriage involves a "union... in heart, body, and mind," not "spirit" -- and traditional sacramental theology holds that spiritual union is engendered in Baptism and nourished in the Holy Eucharist. This is not to say that a Christian couple may not find their life -- as Christians -- enriched by their marriage, just as the witness of their marriage may inspire others to "find their lives strengthened and their loyalites confirmed." (BCP 430) But since both the BCP and the canons allow a marriage in which one of the spouses is not baptized (and, according to traditional sacramental theology, the particular marriage is therefore not sacramental) any reference to "spiritual union" or "community of faith" does not apply.

So what does the canon change accomplish?

One of the charges to the Task Force was to "consult with the Standing Commission on Constitution and Canons and the Standing Commission on Liturgy and Music to address the pastoral need for priests to officiate at a civil marriage of a same-sex couple in states that authorize such." Part of the consultation revealed a consensus that the present wording of the canon made it difficult to exercise this civil function; so an effort was made to remove the language that was perceived as an obstacle. However, nothing in the proposed canon in itself authorizes or requires clergy to officiate at same-sex civil marriages, or blessings of such relationships, unless and until the church provides liturgical texts that allow it. This has happened provisionally, and this provisional status will likely continue for some time.

This opportunity to reshape the canon also allowed for some clarification and more orderly description of the canonical process. The proposed change focuses on the procedures and performance required of the clergy and the couple, which is what canons are best suited to address. The focus, therefore, is not on expounding the "church's teaching," but on the responsibilities of the clergy and the couple, focusing in particular on the vows that the couple will make to each other, and the cleric's responsibility in assuring they understand the gravity and meaning of those vows, and that they not undertake them "unadvisedly or lightly, but reverently, deliberately, and in accordance with the purposes for which it was instituted by God."

Isn't one of those "purposes" procreation?"

"Purpose" is likely a poor choice of words in this context. The more traditional language speaks of procreation as a "good" -- recognizing both that procreation is a biological reality we share with the natural world, and that, as St Augustine put it (Of Marriage and Concupiscence, I.iv), it reaches its crown of goodness when children are "generated to be regenerated," that is, as the BCP stresses, not merely to be born, but to be nurtured "in the knowledge and love of the Lord."

In all of this, it is important to note that procreation is only a factor for a couple capable of it. The BCP uses the somewhat confusing wording "when it is God's will." Earlier liturgies, such as that of the 1549 BCP, simply recognized that there were circumstances, such as advanced age in a woman, that rendered procreation impossible, and that such circumstances were not a bar to marriage. (The Theological Framework essay explores this issue at greater length.)

Now on to some more practical questions, from a Facebook thread, in particular a series of questions from Craig Uffman,.

By your reading, does the proposal allow a priest to conduct a SS marriage rite even if his bishop disallows it in his diocese?

At present, the liturgies for celebration of a same-sex marriage are provisional, and require the permission of the bishop. The proposed canon change doe not alter that; it refers to liturgies authorized by the church, and that includes the form and extent to which they are authorized. The SCLM in proposed resolution A054 asks for authorization of continued use of the "I Will Bless You" liturgy, and for use of three new liturgies with the permission of the local bishop. It is not clear to me whether they intend no longer to require local permission for the IWBY liturgy. I believe that will be clarified in the course of the work of the legislative committee and General Convention sessions, and in my opinion I think the status quo of the proviso will remain.

Does it imagine the possibility of such a rite without mentioning procreation among the purposes of marriage, as the essay argues against?

Those of us old enough to remember the 1928 BCP do not have to imagine a marriage rite with no mention of procreation. The 1928 liturgy only mentions procreation in two optional prayers. The classical 1549 liturgy mentioned procreation in the prologue, but recognized there were circumstances in which it was impossible, and so provided for omission of the prayer for children when the woman was past the years of childbearing. So, yes, it is quite possible to have a marriage liturgy without mentioning procreation, as the Episcopal Church recognized from 1789 and until the 1979 BCP was created.

To what extent is the argument for allowing same sex marriages as a rite connected to a justification based on a civil rights concern? If it is in some way so based, how is it reasonable to have a conscientious objector clause? That is, can a person refuse to marry persons on the basis of the class (same sex marriages)? If yes, how is that exemption tolerable if such discrimination becomes illegal in this nation? Or does our theology exclude the civil rights claim and posit the addition of same sex marriages as a proposal under the doctrine of reception (and therefore in some way leaving space for conscientious objection)?

While some speak of marriage equality in terms of justice -- and I would be among the last to say, given the witness of the prophets in Holy Scripture, that justice is not an important issue! -- that is not the focus of the Biblical and Theological framework, or of the proposed canon change.

When discussing civil rights, it is important to note that marriage is not an "individual" right -- that is, no one has the "right" to marry anyone they choose. The consent of the other party is always needed. (This to some extent addresses the accusation that the move to marriage equality is based on some kind of "social atomism" and "individual rights"; aside from the point that even if it were, such views are not in themselves antithetical to Christian thinking.) Marriage equality is about allowing particular couples to marry who have, for legal reasons, been barred from doing so. The better analogy is with the debates surrounding anti-miscegenation laws, which held that an individual man or woman was in no way impeded from marriage to a person of the same race. (Some have supplied similar unconvincing rhetoric in the case of individual gay and lesbian people.) But marriage is not, as I note, an individual action; it is always social.

That being said, the canon preserves the right of a cleric to decline to solemnize (or, as extended, decline to bless) any given marriage. This could be on the basis of a particular issue (a feeling the couple is not prepared to take on the responsibility) or on the basis of a belief concerning a class of people. In fact, this language made its way into the canon in order to allow clergy to refuse to solemnize the marriage of any divorced person, if they did not believe such people should remarry.

This does appear to conflict with the "non-discrimination canon" (I.17.5) which describes "marital status" as a protected class, along with age, race, and sexual orientation, among other categories. However, the canon contains a specific proviso, "except as otherwise specified by Canons." So, for example, the canons can "discriminate" on the basis of age by setting minimum and maximum ages for service as a cleric. The proviso in the marriage canon was added specifically to allow discrimination on the basis of "marital status." So a cleric is able to refuse to marry or bless a same-sex couple -- or any other couple -- if she has an objection of any sort to that couple's marriage, including an objection to an entire class of marriages. As I note, the proposed canon change preserves and extends this "individual right" of the cleric.

I am happy to follow up on further questions, but I think this is good for now.

Tobias Stanislas Haller BSG

UPDATE: the conversation continues...

Web of Tragedy

I have been in Baltimore since Monday, to be met with the unrest following the tragic death of Freddy Gray. This strikes close to home, literally. My Baltimore neighborhood (Bolton Hill) shares the same zip code with the neighborhood in which Freddy Gray lived and was taken into custody, and in which much of the unrest and protest and violence has taken place. This was highlighted in a recent story on the PBS Newshour.

The helicopters have been a nightly accompaniment to lost sleep, and have led me to sundry thoughts, which I share with you in no particular order.

• The War on Drugs has had little effect on drugs but has impoverished and criminalized whole populations, here and abroad.
• Who says racism is a thing of the past?
• When looking police in the eye is a crime, who are the criminals?
• And when doesn't flight from police seem like a good idea?
• Abuse of suspects is a heinous crime, even when it doesn't result in serious injury or death. If the "rough ride" is the norm, is it any wonder people hate the police?
• Some in the BPD seem to believe in taking justice into their own vans.
• Time to reevaluate flight as probable cause for pursuit.
• When does what amounts to entrapment become the primary modality of law enforcement?
• “Resistance is futile” ought not be the motto of law enforcement.
• When does media coverage become the cause rather than the observer (cue Heisenberg... and I don't mean the meth king of Breaking Bad.) When does covering the news create the news?
• And speaking of media, since when does freedom of the press mean not obeying the law? There are more media than protestors out after the curfew. 
• I wish Elijah Cumming would run for President.
• How does the view from a helicopter differ from the view from a drone, and to what extent does it further dehumanize the populace. (Cue Harry Lime on moving dots from the top of the Ferris wheel in Vienna.)
• Who doesn't think reactions would be very different if Freddy Gray were white? Of course, were he white the whole situation would be different from the get go, so doesn't that tell us that the problem is systemic?
• Some kids need to be forcibly reminded that their grandmas now have no where to get their heart medicine.

That's the summary for now. God bless us all, and may sanity prevail.

Tobias Stanislas Haller BSG