June 10, 2015

One Last Question on the Canon Change

Continued from here

Bishops Benhase and McConnell have posted an essay concerning the proposals coming to the General Convention. They are very concerned about the proposed Canon change, and observe this:

We focus here on good order. Resolution A036 proposes that all clergy will henceforth conform to “these canons concerning the solemnization of marriage,” rather than to “the laws of this Church governing Holy Matrimony.” The manifest problem that this revision seeks to get around is that the Episcopal Church will continue to have contrary laws governing Holy Matrimony in the Book of Common Prayer, a constitutional document. There are constitutional provisions for revising the prayer book. Perhaps that is the conversation we really need to have, but it is hard to see how a canon that directs clergy to disobey the prayer book might help that discussion.

This represents an almost compete inversion of what the proposed canon change will do. Far from "directing clergy to disobey" the BCP, the canon change addresses the current situation, in which we have clergy, operating under "generous pastoral provision," solemnizing same-sex marriages in those states in which the civil law permits, in violation of the current canon, and, if you accept the logic of Benhase and McConnell, in conflict with the BCP as well. It is true that the canon change will do nothing to change the BCP -- or to authorize any other liturgy, for that matter -- but it will remove the problem of clergy being in violation of the canons. And it is only the canon we are proposing to change.

So if the bishops are interested in "good order" as they say, this is a step they should applaud. It introduces no new conflict with the BCP -- that conflict is already there, if you accept their logic -- but it does remove the canonical dissonance, which is actionable under Title IV, in spite of the wink and nod of "generous pastoral provision." That no one is going to take clergy to ecclesiastical court, in those dioceses in which the bishop has permitted use of provisional rites for solemnizing same-sex marriages, is a nice promise, but from a canonist's perspective it is disorderly. We desire good order rather than ambiguity.

For there is no need for such ambiguity. The canon change will not alter the BCP, or the status of the BCP, but it will remove a conscientious burden for those clergy, and some bishops. This was, after all, one of the explicit charges to the Task Force, and the proposal offers a canonical solution to a canonical problem. There will be plenty of time to consider amending or supplementing the BCP, including at this session of General Convention.

When it comes to that liturgical side, the proposed canon change restores language that was part of the canon during the last cycle of prayerbook revision (in 1973), precisely to provide for the use of the trial rites that were issued as part of that process (the earlier form of the canon limiting the rite to the one in the BCP.)

So this canon change actually advances the "good order" the bishops are calling for.

Tobias Stanislas Haller BSG


And, by the way, the BCP is not "constitutional." Only the Constitution is constitutional. The BCP is sometimes mistakenly called "constitutional" because its amendment process takes two conventions -- but unlike the Constitution itself, amendments to the BCP can be "tried out," as the Constitution describes. Amendments to the Constitution itself, however, are null until approved by two conventions, then they are the law.

This problem arises when people treat the BCP as a law-book instead of a liturgical book. (It has some legal standing where the rubrics are concerned.) Moreover, the BCP itself provides (on page 13) for other liturgies to be authorized. These liturgies would not be needed if they were not in some way different to the BCP, so to argue that such liturgies have to be congruent to the BCP doesn't stand. Besides that, the provisional liturgies for same-gender blessings do not "contradict" the BCP; they simply offer a liturgy for something the BCP did not conceive. The BCP is descriptive, not proscriptive, when it comes to marriage -- otherwise all second marriages (permitted by canon) would be ruled out because the BCP says marriages are "life-long."



Lionel Deimel said...

The Living Church essay complains about the General Convention’s being considered the ultimate constitutional authority in the church. Conservatives have long complained that the church does not have the equivalent of a Supreme Court. If not the General Convention, than who (or what) would have ultimate constitutional authority? Surely, we don’t want to give that authority to the Presiding Bishop.

Would you like to comment on this, Tobias?

Tobias Stanislas Haller BSG said...

Thanks, Lionel. I actually did address this issue in an earlier blog post The Authority for Worship Forms, noting that the GC is the supreme authority in TEC -- something the ACI folks are eager to deny at all costs (and while shedding tears over the supposed 'disorder' in the church!)

Marshall Scott said...

Seems to me it is a matter of "what your definition if is is." I have understood the BCP to be "constitutional" as opposed to "canonical" as its use is established in the Constitution. By the same token (and I understand there are some so-called "Originalists" who want to ignore what follows) our American Constitutional legal tradition includes not only what the US Constitution says, but also all the standing Federal Court decisions(Supreme and otherwise)that shape our experience under the Constitution.

Daniel Weir said...

As has, I think, been pointed in discussions of the hierarchical nature of the church, metropolitic authority is vested in the GC.