By Mark Michael

Norman Doe

Mark Hill

Two British experts in Anglican canon law harshly criticize a memorandum that many Canadian bishops have used to justify permitting same-sex marriages in a legal opinion solicited and released this week by the Anglican Communion Alliance, a group committed to “deepening Biblical faith in the Anglican Church of Canada”.

After failed attempts at the 2019 General Synod to amend the Canadian church’s Canon XXI, which defines marriage as being only between a man and a woman, many bishops (including the Most Rev. Linda Nicholls, the current primate) stated that they would still allow same-sex marriages. These bishops appealed to a 2016 memorandum by the church’s chancellor, David Jones, which claimed the marriage canon was sufficiently ambiguous to allow for “local option” on the practice.

“The Memorandum of Chancellor David Jones QC is inaccurate and misleading in a number of respects, but particularly in its assertion that Canon XXI does not contain a definition of marriage. It clearly does,” wrote Professor Mark Hill QC, in an opinion supported by Professor Norman Doe.

Linda Nicholls

David Jones

TLC contacted Jones and Nicholls, but they declined to comment on the opinion.

“Same-sex marriage remains contrary to the doctrine of the Anglican Church of Canada,” Hill wrote. Therefore, he argues, “Neither a Provincial Synod nor a diocesan bishop has power to authorize a liturgy to be used for the solemnization of same-sex marriage unless and until the church changes its doctrine through proper process as prescribed in its governing instruments.” Clergy who conduct same sex marriages and those who would authorize liturgies for the purpose, Hill says, would be liable to church discipline.

Hill and Doe are prominent Anglican canon lawyers. Both teach law at Cardiff University, have served as chancellors for Church of England dioceses, and have published numerous books and articles about Anglican ecclesiastical law. Doe was formerly a consultant on canon law to the primates of the Anglican Communion and part of the drafting teams for the Windsor Report and the Anglican Covenant. He addressed the 2008 Lambeth Conference on principles of canon law and covenant.

Sharon Dewey Hetke

Anglican Communion Alliance director Sharon Dewey Hetke said that the group decided to seek the legal opinion “because we felt strongly (and had heard from many Anglicans) that the way things have been handled in the last two General Synods has engendered distrust within the Church.  Healthy conversations and processes require trust, especially when dealing with contentious issues.”

“We sought the opinion because the chancellor’s 2016 memo was being relied on as authoritative for the life of the church,” she added. “Of course, we did not know what the opinion would contain, but see now that it can shed light on what has already happened, in order to inform how we move forward together.  This is especially crucial as the church is now moving into an examination of aspects of its governance, including the composition and role of the House of Bishops.”

“This legal opinion confirms for us that those bishops who have proceeded with same-sex marriage are in violation of the marriage canon (Canon XXI),” said the Rt. Rev. Joey Royal, suffragan bishop of the Diocese of the Arctic. Shortly after the July 2019 General Synod, Royal’s diocese declared itself to be in “impaired communion” with those dioceses of the church whose bishops decided to proceed with same-sex marriages on the basis of ‘local option’ allowed by Jones’ memorandum.

Joey Royal

“We are grateful that the vote to change the marriage canon failed but saving the marriage canon did not save the biblical understanding of marriage,” the Arctic bishops said then. “We are saddened that so many bishops have defied General Synod and have announced an independent decision to approve same-sex marriage.”

“We remain in impaired communion with them, Royal noted. “It’s important to say, however, that “impaired” communion isn’t broken communion; communion that is impaired is wounded, hindered, imperfect.”

“Is discipline likely in our current context? No.” he continued. “After all, the majority of Canadian bishops have publicly supported Chancellor David Jones’ opinion that Canon XXI implicitly permits same-sex marriage. Many of them have already permitted same-sex marriages in their dioceses. It’s hard to imagine what a restoration of discipline would look like in such an anarchic situation.”

The Rt. Rev. Michael Hawkins, Bishop of Saskatchewan, and, like Royal, a supporter of traditional marriage, said he was also concerned about the organizational and relational problems unearthed by the legal opinion.

Hawkins said, “This is an opinion in response to an opinion.  We should not be surprised that there are differences of opinion on questions of canonical changes, but differences of opinion become problematic when there is a lack of love and honesty and when hurt, mistrust and a lack of respect prevail.”

The Anglican Communion Alliance says the legal inconsistencies outlined in the opinion point to the need for a more thorough process of discernment, such as outlined by the Church of England in Living in Love and Faith. They also suggest establishing a group like the Episcopal Church’s Task Force on Communion Across Difference to determine how the church can best move forward in the face of such deep divisions.

The group does not support reopening the debate within the Canadian church about amending Canon XXI. Such a change would take the approval of two successive General Synods, and Hill and Doe say the formerly proposed amendments would not have been strong enough to change the church’s doctrine.

However, the alliance’s chair, the Rev. Dr. David Smith, wrote that the group does hope “that the ACoC commit to its lawful ordering, in accordance with its foundational documents, particularly the Declaration of Principles and Canons.” Documents not extensively discussed or approved by General Synod, like the 2016 chancellor’s memo, he wrote, “should be recognized for what they are.”

Royal suggested the only real solution was a deep change of heart among bishops who support same-sex marriage. “The only way to restore order to the Church is for disobedient bishops to repent and re-submit themselves to scriptural and canonical authority. It gives me no pleasure to say such a thing about my episcopal colleagues, but if the Doe/Hill opinion is correct (and I think it is) then that’s the logical conclusion.”

Hawkins pointed to the need for continued dialogue, saying, “We will not make our way out of this by rulings, by canons, by structures; but by building relationships with our brothers and sisters who disagree with us.”

Melissa Skelton

In addition to Jones and Nicholls, several current and retired bishops who had announced their decision to continue allowing same-sex marriage also declined to answer questions about the legal opinion. An exception was the Most Rev. Melissa Skelton, the Bishop of New Westminster, whose diocese opened the Canadian church’s conflict over same-sex marriage with its 2003 decision to authorize a blessing for same-sex unions.

In her role as metropolitan of the church’s Province of British Columbia and the Yukon since 2018, she works closely with bishops who hold a variety of opinions about same-sex marriage. “As long as I have been metropolitan here,” she said, “the bishops of the province have been focused on the pastoral needs of their respective dioceses, taking into account the full spectrum of theological views held by those to whom they minister.”

Skelton continued, “These pastoral needs, I would say, press upon us all now with even greater urgency in this time of pandemic. Likewise, all the bishops are very concerned about the people of the U.S. and the need for a peaceful transfer of power and for continuing work in the area of racial justice, work which, by the way, to which we are also recommitting ourselves at this time. These are the kinds of things that occupy our minds and prayers these days. I am sure these concerns will remain true and continue well past when I leave office after the 28th of February.”