...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...