The Scope of the Marriage Canon: Against the Chancellor’s Memo

Part of a series leading up to the Anglican Church of Canada’s 2019 General Synod. Previous installments may be found here.

By Ajit John

The General Synod of the Anglican Church of Canada is entering the second round in its debate over a change to its marriage canon, making it gender neutral. Many readers will know that the first round took place three years ago in July 2016. David Jones, the Chancellor of General Synod, had earlier issued a memorandum outlining issues around Resolution A051, which would enable same-sex marriages.

In the three years since, the chancellor’s memo has generated much private discussion, and been relied upon in several dioceses that wished to permit same-sex marriages without a canon change. A consistent complaint from both sides of the current debate has been that the memo poses serious challenges for the way the Church understands the formation of doctrine and its own governance. The purpose of this article is to address three problems that have arisen as a result of the 2016 memo; the lack of public discussion, the scope of the marriage canon and the attempts to bypass the Church’s canons.

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Public Discussion

The chancellor’s memo has operated behind the scenes since 2016, generating essentially no public discussion, except perhaps for pointed comments in the House of Bishops. The memo, although addressed to all members of the General Synod, was not discussed on the floor of Synod or in a public airing of the important issues raised. Without a testing of its merits, bishops and synods in the intervening three years have proceeded to authorize rites that contravene stated doctrine as if discussion was unnecessary or irrelevant.

Scope of the Marriage Canon (XXI)

The most troubling part of the chancellor’s memo is its challenge to the scope and meaning of the marriage canon. The crux of the argument appears at paragraphs 31 and 32. It suggests that the existing Canon XXI on Christian marriage deals only with the marriage of one man and one woman and as such, cannot be taken to prohibit same-sex marriage.

“If the main motion [A051] is not passed by General Synod … this would not be equivalent to passing a motion to the opposite effect (such as a motion specifically prohibiting the solemnization of same-sex marriages). Not passing the motion simply means the motion was not passed” (chancellor’s memo, paragraph 31).

This approach raises serious questions about the interpretation of legislation and should be challenged. It puts forward an argument from silence that makes little sense to the average Anglican in the pew. Should, for example, legislation governing vehicles on a public highway simply be ignored by someone with a self-driving vehicle because ‘driverless’ vehicles are not mentioned specifically? Most people would say they do apply because autonomous driving is a subset of laws about vehicles on the road.

Of far greater significance, in my view, is that the memo has misrepresented the process by which Anglicans in Canada have tried to bring about or to resist the introduction of same-sex unions within the teaching on Christian marriage. For almost all Anglicans, the question all along has been whether to expand or not to expand the existing doctrine on marriage. Canadian Anglicans understand that the Church has already marked out the boundaries of Christian marriage in Canon XXI so that if the proposed change were not approved, same-sex marriage would continue to be prohibited.

All sides in the debate have understood Canon XXI to be the proper locus for change and the long debates over 30 years have been about expanding or not expanding it. For this reason, Resolution A051 in 2016 and its current version in 2019, asks the General Synod to recognize same-sex marriage as a subset of marriage, along with man/woman marriage.  If Resolution A051 had failed in 2016 everyone understood plainly, despite the chancellor’s memo, that same-sex marriage would remain prohibited.

Bad Governance

The chancellor’s memo specifically included a means of bypassing the marriage canon regardless of the outcome of General Synod voting. There was scope for doing this, it was alleged, in the authority given to provincial synods in the Church’s Constitution (subsection 7(b)viii of the Declaration of Principles). Provincial synods have the power to authorize special forms of prayers and services where no provision has been made by the General Synod or by the House of Bishops. For a provincial synod to use these provisions, though, it would first have to accept the chancellor’s argument that General Synod has not mapped out the boundaries of Christian marriage in Canon XXI, and thus has not ruled out same-sex marriage.

It was never the intention to grant provincial synods the power to authorize forms of prayer and services that specifically contradict the Church’s stated doctrines. Otherwise provincial synods could contradict doctrines collected in section 1 of the Declaration of Principles simply by approving a Eucharist for use by lay presidents, or a non-Trinitarian Creed for parishes in multi-faith neighbourhoods. Doctrines of the Church, whether mentioned in a canon or not, cannot be emptied of meaning by a provincial synod’s approval of special forms and services.

It is worth noting that this principle of non-violation of doctrine was specifically outlined in the magisterial work of the chancellors and legal advisers of the Anglican Communion entitled, The Principles of Canon Law Common to the Churches of the Anglican Communion. The work was organized by Professor Norman Doe of Cardiff University, the leading expert on Anglican canon law. He was assisted by the distinguished chancellor of the Diocese of Toronto, Robert Falby. The collection of principles serves the whole Communion by identifying what Professor Doe calls Anglican “common law.” The principles were meant to cause Anglicans to think about what it means to be an “ordered” Church, and “to keep faith with our Anglican heritage, doctrinally, liturgically and structurally” (Canon John Rees, in the Preface to the Principles).

If you study this work online you would find in principle #55, concerning liturgical revision, that a form of service cannot be contrary to the doctrine of the Church (section 5). More to the point, section 9 states: “a bishop or other ecclesiastical body may authorise [a form of service] for use in a diocese, for which no provision already exists … provided such services are not inconsistent with church doctrine” [emphasis added].

We are together in a boat struggling as we have for three decades to be guided first and foremost by Scripture but also by the church’s formularies and canons, a very large portion of which we share with other Provinces of the Anglican Communion. These can prove highly effective in guiding the boat tossing about in rough waters.

The delegates to General Synod 2019 should take the opportunity to review the chancellor’s memo because it affects both the Church’s doctrine and its governance. The longer the memo is left unchallenged the more often it will be relied upon and the swifter it will take on the force of law by default.

Fr. Ajit John is an Associate Priest at St. Paul’s L’Amoreaux, in the Diocese of Toronto. He holds a master of law degree in canon law from Cardiff University, and a master of sacred theology from Nashotah House.