May 18, 2015

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...

8 comments:

WSJM said...

I think it is vitally important that the right of a cleric to decline to solemnize or bless any given marriage (for any reason whatsoever) continue to be clearly protected in canon law. I assume that in most cases in which this issue arises, the cleric is acting out of legitimate pastoral concerns. I personally don't have much experience with this -- the only instance I can recall at the moment had to do with a couple, not members of the parish, who really just wanted to hire me and the church building as a wedding chapel. When I explained the nature of the church's ministry in holy matrimony, they were a little disappointed but moved on without further protest. However, what about a cleric who declines to preside at a wedding simply because the couple are of the same sex, or of different races, or of different social classes, or some other reason that would seem to many of us illegitimately discriminatory? Well, I'm sure that has happened in the past and will continue to happen in the future. Protection of rights sometimes means protecting rights being badly exercised (e.g., speech, religion, etc.) Abusus non tollit usus. It's the price we have to pay.

Tobias Haller said...

William, I agree entirely. I can think of a number of circumstances where I might decline to perform a marriage based on sexual orientation; for example, if a gay man were choosing to marry a woman as part of his "conversion therapy."

Tom Sramek, Jr. said...

One also, I think, needs to differentiate between a civil right to a civil marriage and an ecclesiastical right to ecclesiastical or sacramental marriage. In other words, a Justice of the Peace does not have the right to refuse to marry a couple without legal justification because, by definition, that civil ceremony belongs to ALL of the people and a couple would have little recourse if the state denied their right to marry. The church---and its ministers--should always have the right of refusing on any basis as they don't belong to the public and therefore are not required to act against their beliefs. Also, a couple would certainly have recourse if a priest declined to solemnize or bless their union--go to another priest! So one could legitimately affirm civil marriage equality while also retaining the right of any priest to decline to solemnize or bless any union.

Unknown said...

Regarding the phrase, "find another priest," that sounds reasonable but not all folks are reasonable. I can see the scenario of a couple making a priest's life a living hell by posting his/her refusal on Face Book, targeting the parish for protest events, finding out and posting any personal information, in other words, I can see an Indiana Pizza Palace scenario coming. There will indeed be a cost to paid for so-called "bad" exercise of religious rights.

Tobias Haller said...

Tom, I think that is an important distinction that often gets lost in the conversation. Personally I don't see church marriage as an inherent "right" and strongly support the right of clerics to deny to solemnize, since the clergy are not merely registrars, but charged with a pastoral role involving their own discernment of the couple's readiness to carry out the responsibilities they are about to engage. I'm not happy with the notion that some will decline on other grounds, but have no desire to "make windows" in that area. My strong sense is that just as I imagine there are today few (or fewer) clergy who would decline to solemnize an interracial marriage, so too a hundred years from now there will be few (or fewer) clergy disinclined to solemnize a same-sex marriage. And from my perspective civil marriage equality is much, much, more important than the church's blessing, which is not necessary to effect the marriage.

Tobias Haller said...

"Unknown" I came close to not posting your comment because it violates the blog guidelines. But I think the comment itself is worthy of being heard. Please observe the guidelines in the future.

FWIW, the difference to the Pizza case is that the customers have the civil law on their side. A couple seeking marriage will not. It is true there is nothing to prevent them publicizing the refusal of the cleric to solemnize their marriage, but so long as their comments to not constitute libel or slander, I don't see why the cleric should be reluctant to stand up for her decision.

Moreover, this could all happen now, since clergy already have this right, and many of us exercise it on a regular basis. (I receive several requests every year, usually in the spring, from couples saying they "want to get married in your church." Usually they've already chosen the date and it is too close for me to oblige (due to the canonical time limits) even were I so inclined.

I think clergy need to take responsibility for their decisions, and that most of them are willing to.

Bruce Bevans said...

Tobias, I hadn't't started my profile identity properly, I apologize. I am Unknown. I agree, and I am willing to take responsibility for my decisions regarding marriage. I am not sure the civil distinction you pointed out, although valid, will be recognized by all couples because the public rhetoric refers to marriages in general as a right, plus Canon 1.15 seems to support that view.

Tobias Haller said...

Thanks Bruce. No problem in the I.D., I only have that policy so as to be able to distinguish when more than one Anonymous commenter comments.

The Canon 1.17 (that's the number I think you mean) issue is a real one, and there has been a lot of discussion of the issue; however, since Canon I.17 contains the explicit proviso, "except as otherwise specified" in the Canons, someone making a protest would have trouble making a case. That's not to say they might not make a fuss, but I think the cleric is covered under both civil and canon law.

All the best and God bless...