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Anglican Church of Canada Indicted for violating Marriage Canons without Due Process

Anglican Church of Canada Indicted for violating Marriage Canons without Due Process

By David W. Virtue, DD
January 12, 2021

The Anglican Church of Canada violated its Canons by affirming same-sex marriage without due process, say two authorities in a legal opinion by Mark Hill, endorsed by Norman Doe, commissioned by the Anglican Communion Alliance.

Professors Hill and Doe, based at Cardiff University, are leading international authorities on Canon Law.

In their legal opinion, they argue that ACofC Synod Chancellor David Jones's memo of 2016 is "seriously flawed" and makes "disingenuous assertions". They further arguing that to assert as Jones does that Canon XXI "does not contain...a definition of 'marriage'", it self-evidently does, clearly and in the express wording of the text of the Canon.

Whilst Provincial synods are entitled to agitate for a change in doctrine, they cannot act in defiance of, or contrary to the Church's current doctrine, they write.

They blasted the notion that a cleric can solemnize a same-sex marriage when in fact it violates the provisions of a Canon of General Synod [on discipline] even if a bishop approves a form of liturgy for such "marriages". They further argue that a bishop would be liable to disciplinary process as would any priest performing such a liturgy.

Only the General Synod of the Anglian Church of Canada has authority to define the doctrines of the Church. Neither a Provincial synod nor a diocesan bishop has the power to define doctrine, they say.

The Anglican Communion Alliance is a national organization representing orthodox Canadian Anglicans.

Dr. Ephraim Radner's response to the Hill/Doe Opinion

First, I need to say that I find the opinion convincing. I am not a canon lawyer, but I have some experience with canons and their place within the church's larger life and with their theological-pastoral functioning. The opinion's reasoning is consistent with not only common sense readings of the Canadian canons and constitution, but with the general way authority has functioned within Anglicanism historically and more broadly. I am, in other words, not surprised at the opinion; it strikes me as just right.

Second, it would appear from the opinion -- and I am not surprised by this conclusion -- that the traditional definition of marriage is simply embedded within the Anglican Church of Canada's very ordering -- Scripture, BCP, Solemn Declaration, Constitution, and so on. It isn't really possible to change this definition, without inventing a "new church". I have long argued this. And the conclusion from this is that those who want to formalize same-sex marriage ought logically -- canonically! -- simply to form another church that can do that. The ACC cannot.

Third, while this may be "logical", it isn't going to happen in the foreseeable future. The canons only have "force" when they are applied by those with the power to implement them in a disciplinary manner. This has always been the case. If enough people want to ignore canons or apply them illogically, they can do so without formal repercussions. That is where we are today on the matter of marriage. And thus, I don't actually think that the opinion will alter much in terms of positive practice.

Fourth, and that being said, there is formative and long-term value to stating the truth about something -- in this case the canonical, and more broadly, the theological-moral standards of the Anglican Church of Canada (whether they are applied or not). The opinion at least defines the space that traditionalists on marriage in the ACC hold: that is, the traditional view of marriage between a man and a woman is and remains (and will, as I indicated, always remain) the "official" teaching of the Church, in legal terms. Conversely, the opinion defines the place held by those who sanction same-sex marriage: they are in an "unofficial" and "non-canonical" space, one that has no legal standing in the Anglican church. This can now be taught, explained, and lived out without apology with respect to logic and law -- something that will have an effect upon those who think about such things.

But exactly what effect? It's hard to say now. But I would think in the end it will have a good effect: it will (slowly, probably) bring back into view questions of ecclesial lawfulness and lawlessness, and their Christian significance, questions that we need desperately to address within the church and larger society, and that many people are in fact interested in, whatever their position on marriage; it will provide fairly straight forward grounds for traditional clergy and congregations to pursue their teaching in a way that is (more) free from the arbitrary determinations and impositions of local adjudicatories; it will thereby (perhaps) provide space for the compelling character of Christian marriage, traditionally understood, to reassert itself in our midst, as I think it will.

Finally, all of the above does not constitute some radical turning back of the clock of ecclesial experience on the matter of marriage, and indeed assumes that the present and near future at least will continue to be confused and will mark a landscape of canonical and uncanonical actions unparsed by any clear discipline. Nonetheless, the opinion reminds us that the ensign of (what I would view as) truthful teaching about marriage remains fastened in the ground in the midst of our contested encounters. Christians have long lived within such contestation -- on matters of euthanasia, abortion, war, and other matters -- one in which deep truths are at stake, even as we allow room for their questioning and repudiation by others in some (we hope) provisional way. How one does this is a matter of prudence and is tied to a certain hopefulness and patience, a combination that sometimes totters. But acknowledging that this is where we are placed, both within our churches and in our larger society, is not thereby an act of "concession"; it is rather bound up with the grace of perseverance. ​

Dr. Ephraim Radner is a priest in the Episcopal Church and professor of historical theology at Wycliffe College, an Anglican seminary affiliated with the University of Toronto. He has taught there since 2007. Before then, he worked and pastored in various parts of the Anglican Communion. His doctorate from Yale University is in theology.

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