Conservative group receives legal opinion on marriage

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Conservative group receives legal opinion on marriage
According to UK-based Anglican church law specialist Mark Hill, the Anglican Church of Canada's marriage canon includes a definition of marriage, and that definition is “predicated upon the concept of marriage being a union of one man and one woman.” Photo: Juergen Faelchle/Shutterstock

Church’s general secretary says opinion has ‘no legal standing in our canonical structures’

The Anglican Communion Alliance (ACA), a group of theologically conservative members of the Anglican Church of Canada, says it hopes to see the creation of a task force for discernment on marriage after receiving a legal opinion criticizing the church’s present approach to Canon XXI from a specialist on church law based in the U.K.

In a pair of letters to Anglican Church of Canada bishops, dated Jan. 4 and Jan. 6, and posted on the ACA’s website, ACA chair the Rev. David Smith wrote that the group had approached a legal scholar for an opinion because of its “concerns over recent canonical processes” in the Anglican Church of Canada. Of particular concern was a 2016 memo by Canon (lay) David Jones, chancellor of General Synod, which states that Canon XXI does not define marriage as between one man and one woman.

In 2016, General Synod voted in favour of amending the canon to allow same-sex marriages, but the resolution, which needed two successive votes at General Synod, failed in 2019. However, since 2016, some dioceses have been permitting same-sex marriage; Jones’s memo has been sometimes cited as justification for this decision.

The church law specialist who gave his opinion on the matter is Mark Hill, honorary professor of law at Cardiff University and chancellor of three Church of England dioceses. Norman Doe, director of the Centre for Law and Religion at Cardiff Law School and former consultant on canon law to primates of the Anglican Communion, also offered his “full support” of the opinion, the letter says.

In the 12-page written opinion, attached to the letters on the ACA website, Hill concludes that the canon includes a definition of marriage, and that that definition is “predicated upon the concept of marriage being a union of one man and one woman.” Hill also wrote that any priest performing a same-sex marriage, and any bishop authorizing liturgy for it, is liable to disciplinary action under church canons.

In his letter, Smith wrote that the ACA would like to see a new body in the Anglican Church of Canada similar to the Task Force on Communion Across Difference, mandated by the U.S.-based Episcopal Church in 2018 to “seek a lasting path forward for mutual flourishing” for church members on both sides of the same-sex marriage debate.

Smith wrote that the ACA also hopes the Anglican Church of Canada would, in the spirit of the legal opinion, “commit to its lawful ordering in accordance with its foundational documents” and “recognize that any change to the doctrine of marriage (in Canon XXI) requires further discernment with the Church and within the Anglican Communion.”

As provinces of the Anglican Communion are self-governing, the potential impact of this legal opinion remains unclear—outside of rekindling a protracted debate.

Archdeacon Alan Perry, general secretary of General Synod, told the Anglican Journal that the legal opinion published by the ACA “comes from outside the Anglican Church of Canada and represents one view among many. It has no legal standing in our canonical structures.”

Perry said jurisdiction over such matters lies with the Anglican Church of Canada’s General Synod. “In 2019 the General Synod adopted the affirmations of ‘A Word to the Church,’ which states that there is a range of views on marriage, and a range of understandings of Canon XXI. The affirmations go on to state a ‘commitment to presume good faith among those who hold diverse understandings and teachings,’ as well as a ‘commitment to walk together and to preserve communion.’”

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Tali Folkins
Tali Folkins has worked as a staff reporter for the <em>Law Times</em> and the <em>New Brunswick Telegraph-Journal</em>. His writing has appeared in <em>The Globe and Mail</em> and <em>The United Church Observer</em>.

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9 COMMENTS

  1. The response from Archdeacon Perry is misleading at best. To have, ‘…no legal standing in our canonical structures’ is like saying The Bill of Rights in the United States has no legal standing in Canada. Both are true statements legally, but morally and ethically both documents contain some very salient concepts that are very beneficial to those who care to study them. And for the Journal to discredit this legal opinion with such a cursory subheading is most disappointing. Whatever happened to truth-seeking journalism?
    I am also fairly certain that this opinion was not sought for the purpose of ‘…rekindling a protracted debate.’ referring to Canon XXI, but rather to call the Church to order under the rule of Canon law. Canon XXI was retained, at least for now, in 2019. If the Church chooses not to respond to the moral and ethical findings of this legal opinion, it is potentially also in breach of Canon XVIII, if not legally then certainly in the minds and hearts of many parishioners.
    We don’t need ‘affirmations’ to supersede the rule of Canon law, we need to abide by the Canons we have developed. If this is not so, could someone please show us where in our Constitution or Canons it states that an ‘affirmation’ can legally trump a Canon? Maybe that should have been the heading or subheading of this article.

  2. Ha ha ha. The example in the previous comment, that “The Bill of Rights in the United States has no legal standing in Canada” is what exactly came to my mind when I read this article, Indeed, the Bill of Rights in the United States has no legal standing in Canada… so no Canadian can say, I plead the 5th… or What about my Miranda rights?… or, The Second Amendment gives me the right to bear arms!. None of that is true. Ame4rican law is good… within America. Can in inform or shape judicial though internationally, yes and no. The article addresses a judicial a legal opinion of a Canon Lawyer who does not represent and is not schooled in Canadian Anglican Canon Law. Why not ask an American Episcopalian Canon Lawyer about the liturgical presence of prayers for the Royal Family?

    • Of course it has no legal or Canonical force in Canada, but that is not the point. The legal opinion addressed – rightly – egregious contradictions of Canadian Canon Law by those supposedly there to be led by it and enforce it.

      The document itself has no legal power, but that doesn’t mean a learned outside observer cannot look at the situation here and point out the blatant contradictions and total hands-over-eyes blindness that went on in the General Synods with respect to the Solemn Declarations and our own Canons.

  3. Theologically conservative clergy and lay ministers are doing their best to conserve what they think is right in God’s eyes. However, they are going against Jesus’ teachings on loving their neighbor. Theologically conservatives have a viewpoint that are much more sinful than those who were given an identity BY God. It seems to me that it’s not members of the LGBTQ2s community that have to repent from their “sin” it’s the theologically conservative members who think they are doing good, but in fact are being very sinful.

    • “For this is the love of God, that we keep his commandments: and his commandments are not grievous.” (1 John 5:3)

      Commandments, plural. Sorry, pal, The Beatles “Love, love, love” that’s not theology, that’s pop music.

      “And this is love, that we walk after his commandments. This is the commandment, That, as ye have heard from the beginning, ye should walk in it.” (2 John 1:6)

      “Ye shall walk after the LORD your God, and fear him, and keep his commandments, and obey his voice, and ye shall serve him, and cleave unto him.” (Deuteronomy 13:4)

      “Therefore thou shalt love the LORD thy God, and keep his charge, and his statutes, and his judgments, and his commandments, alway.” (Deuteronomy 11:1)

      It is an unfortunate thing, when purported Christians decides to pervert the scripture for political purposes. There is perhaps no better example of this than the “progressive” skullduggery involved in re-interpreting the meaning of “love” in the bible, as though this meant some prescriptural affective disposition (PSAD) that everyone, religious or not, understands, and that when God says, in Leviticus,

      “You shall not take vengeance or bear a grudge against the sons of your own people, but you shall love your neighbor as yourself,” (Leviticus 19:18)

      this means that there is a PSAD understanding of Love that God is commanding us to follow, that is, God is telling us to “be loving” and that this is love in a sense divorced from scripture.

      I’d rather be Happy than Sad myself.

  4. I echo Mark Fowke.The journalist should have obtained a wide range of views on the matter, not just stick to one critical opinion from the General Synod.
    I am favourable to the marriage canon change but don’t like it when those supporters ignore the other side or use questionable tactics to silence them.

  5. Allan Perry’s response is hilarious and sad in many ways. Hilarious because how easily, Perry discredited a legal opinion. Sad because Perry refused to listen to the pain, anguish of many Canadian Anglicans represented through a legal opinion. Regardless of the nationality of the authors, this opinion is on the Canons of ACoC and is worthy to be received with grace and be seen as part of ACoC jurisdiction. General Synod cannot use canons, question of jurisdiction etc to protect and suit their needs and goals.
    On one hand, Canons are interpreted and on the other hand ACA, body comprising of Canadian Anglicans, is put in their place as their opinion does not approve of fit in ‘canonical jurisdiction’. Authority and leadership is a privilege, burden and a promise to serve and minister to one another. I pray and hope that the hierarchy of the church will listen, dialogue and be respectful instead of being dismissive and insuring of the opposing viewpoint and opinion. Freedom of expression is a charter right of every Canadian and respecting the dignity of integrity of every person is an obligation of every baptised Anglican. This is an opportunity for the General Synod to become an agent of healing for Anglicans with different viewpoints.

  6. Canons are laws and rules established to safeguard not only the faith that is handed down from one generation to the next, but also to protect the souls of the faithful. If Christian leaders do not respect their own canons, they are by practicing lawlessness, faithlessness and treachery. There is a serious lack of integrity in this case. It is a grave injustice coming from leaders who are very quick to decry the injustice in our society.

    Imagine if anyone in Christian leadership were to violate rules safeguarding the protection of minors or vulnerable persons. Any such individual would be liable to the most strict disciplinary measures, even expulsion. It would be ludicrous to propose “various views” on the safeguarding of minors.

    Yet somehow it has entered the mind of our leadership that deviation from the faith once for all delivered, and deviation from our very canons, is not only acceptable, but benign–and they invent their own way without credible, legal processes. No consideration for how it tears at the fabric of the global communion.

    What is happening with the house of bishops here is a travesty. There is real harm being done by these unjust actions. Woe to those who call evil good and good evil.

  7. “THE word of Almightie GOD doth testifie and declare, whence the originall beginning of Matrimony commeth, and why it is ordained. It is instituted of GOD, to the intent that man and woman should liue lawfully in a perpetuall friendship, to bring foorth fruite, and to auoide Fornication.” (http://www.anglicanlibrary.org/homilies/bk2hom18.htm)

    “XXXV. Of the Homilies.

    The second Book of Homilies, the several titles whereof we have joined under this Article, doth contain a godly and wholesome Doctrine, and necessary for these times, as doth the former Book of Homilies, which were set forth in the time of Edward the Sixth; and therefore we judge them to be read in Churches by the Ministers, diligently and distinctly, that they may be understanded of the people.” (https://www.anglican.ca/about/beliefs/39-articles/)

    “And we are determined by the help of God to hold and maintain the Doctrine, Sacraments, and Discipline of Christ as the Lord hath commanded in his Holy Word, and as the Church of England hath received and set forth the same in ‘The Book of Common Prayer and Administration of the Sacraments and other Rites and Ceremonies of the Church, according to the use of the Church of England; together with the Psalter or Psalms of David, pointed as they are to be sung or said in Churches; and the Form and Manner of Making, Ordaining, and Consecrating of Bishops, Priests, and Deacons’; and in the Thirty-nine Articles of Religion; and to transmit the same unimpaired to our posterity.” (http://www.anglicanlibrary.org/homilies/bk2hom18.htm)

    “The night is far spent, the day is at hand: let us therefore cast off the works of darkness, and let us put on the armour of light. ” (Romans 13:12)

    I respectfully reject J. Stanley’s position: “However, they are going against Jesus’ teachings on loving their neighbor.”

    If Stanley wishes to ground this opinion in a cogent manner, he must give reasons, he cannot just say “in Canada, God’s love prevails, and I am so lucky I know what it is, but I cannot explain it to you…you’re either one of us or you’re not.”

    So, I have cited three sources: the solemn declaration, the 39 articles and a homily. The logical connection between these documents is quite clear. The solemn declaration is made by

    “We, the Bishops, together with the Delegates from the Clergy and Laity of the Church of England in the Dominion of Canada, now assembled in the first General Synod, hereby make the following Solemn Declaration”

    Bishops are in our law “corporations sole.” This means that even if we have Bishop John and Bishop Tom, they are one Bishop in law. John and Tom are natural persons who occupy the office (corporation sole) of Bishop. So, if the Bishop made a declaration 200 years ago, that declaration binds the current office holder. Bishop is in Old English biscop. Scop means poet or singer, and bi means deputy, that is, second. So a Bishop is a Deputy Scop.

    Or, I mean, this is the level of discourse we should be having, University level discourse. Am I right or wrong? I don’t know man, that’s what I’m trying to figure out.

    My concern is that Stanley seems to know he is right, but he cannot say why. I don’t know if I am right or wrong, but surely I have stated a case that deserves a response beyond “oh, you poor savage, you don’t know what love is…I do…but I can’t tell you…”

    So, for example, in the 1962 BCP revision, Psalm 58 was removed. It says that

    “The righteous shall rejoice when he seeth the vengeance: he shall wash his feet in the blood of the wicked.” (Psalm 58:10)

    So, I take it that Stanley and his like think that this is “not loving.”

    In Basilikon Doron, King James gives this advice to his heir:

    ““whole Scripture is dyted by Gods Spirit, thereby, as by his liuely word, to instruct and rule the whole Church militant to the end of the world: It is composed of two parts, the Olde and New Testament: The ground of the former is the Lawe, which sheweth our sinne, and containeth iustice: the ground of the other is Christ, who pardoning sinne containeth grace. The summe of the Law is the tenne Commandements, more largely delated in the bookes of Moses, interpreted and applied by the Prophets; and by the histories, are the examples shewed of obedience or disobedience thereto, and what praemium or paena was accordingly giuen by God: But because no man was able to keepe the Law, nor any part thereof, it pleased God of his infinite wisedome and goodnesse, to incarnate his only Sonne in our nature, for satisfaction of his iustice in his suffering for vs; that since we could not be saued by doing, we might at least, bee saued by beleeuing.” (James I, Basilikon Doron.)

    One can of course disagree with this, but, in my judgment, saying “God’s love god’s love god’s love” is not a persuasive refutation, so, I respectfully reject Stanley’s argument and anyone who offers a similar argument.

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