Episcopal Overreach in Canada

By Ajit John

Since the publication of my article “The Scope of the Marriage Canon” in July, the ground has shifted in the debates about same-sex marriage. After six years of debate and two General Synods of voting, the resolution that would have removed gender-specific language from Canon XXI (the marriage canon) failed to pass. Despite this, several Canadian bishops made preparations to bypass the canon, regardless of the outcome of General Synod, and have now proceeded with same-sex marriage in their respective dioceses. They have claimed as support the memo written in 2016 by the chancellor, David Jones. Because this memo is still seen as providing justification for ignoring the recently preserved canon, it is worth having a closer look at it.

The chancellor raised two important issues in his memo; first, that the marriage canon is not definitional, and second, that the marriage canon has nothing to say on the subject of same-sex marriage because it does not specifically prohibit it. Everything is permitted by the canon, unless specifically prohibited.

The chancellor argued that the canon does not contain a definition of marriage. It is not clear what definitional language was sought. A straightforward reading of the first two sections of Canon XXI reveals the Canadian Church’s affirmation of the Lord’s teaching on marriage (section 1),  and that this is supported by the Church’s received liturgy (the Book of Common Prayer) for the solemnization of marriage. The canon lists in section 2 the Scriptures that affirm, among other things, the goodness of the union of man and woman in marriage as being part of God’s creation.

Furthermore, by referencing Ephesians 5:31, the canon affirms that in marriage a man and a woman become one flesh and that such a union is “exalted as a sign of the redeeming purpose of God to unite all things in Christ.” Such references provide a clear basis for believing that the marriage canon does indeed define Christian marriage as between one man and one woman.

Supporters of the Chancellor, on the other hand, have argued that the first nine sections of the canon, which contain the affirmations and Scripture references referenced above, cannot be relied upon because they appear under the heading “Preface” and thus carry little weight. They do not have “the force of law” it is said. Common sense tells us that a preface or preamble to a statute has value because it sheds light on the meaning of the whole statute. A heading reveals the legislator’s intention in the same way that records of the parliamentary debates do, at least in Canada. Prefaces, therefore, are not incidental.

More significantly, what the chancellor’s memo appears to have ignored is that Canon XXI describes itself as definitional in a section well beyond the preface and makes an important connection with the whole canon and with its preface in particular:

“Marriage, as defined by this Canon means that union described in the Preface of this Canon and further described in section 17 of this part. With respect to marriage so defined, a man and a woman may nevertheless [marry under specified circumstances].”

Canon XXI, section 16 (a). Emphasis added.

All this is to say that Canon XXI is very much definitional both in character and in scope. It proclaims Christian marriage to be the union of one man and one woman. In so doing, it follows closely language in the marriage canon of the Church of England. It’s hard to imagine anyone in the Church of England suggesting that its marriage canon B30 does not contain a definition of marriage. The English canon, as does its Canadian counterpart, affirms our Lord’s teaching and makes reference to the Church’s liturgy.

1. “The Church of England affirms ,according to our Lord’s teaching, that marriage is in its nature a union permanent and life long, for better for worse, till death them do part, of one man with one woman, to the exclusion of all others on either side, for the procreation and nurture of children, ….

2. The teaching of our Lord affirmed by the Church of England is expressed and maintained in the Form of Solemnization of Matrimony contained in the Book of Common Prayer….

[Canon B30 ‘Of Holy Matrimony’, Church of England]

Canadian Anglicans should be confident in reading Canon XXI as definitional in essence. Its function is doctrinal, that is to say, it marks out the acceptable boundaries of Christian marriage within the landscape of human sexual relations, excluding all other heterodox arrangements that seek a place within the realm of marriage.

The second major issue raised in the chancellor’s memo was that the canon, being silent about other forms of marriage, needed a specific prohibition to prohibit same-sex marriage. There has already been much comment about the difficulties inherent in such an argument from silence. The absence of prohibition does not change the express meaning of the canon especially when it contains a clear definition. A marriage between a man and an animal is not prohibited. But that does not make it a marriage within the meaning of the canon. One might have argued for a specific prohibition if the canon was proscriptive rather than definitional.

But Canon XXI isn’t proscriptive in the same way as Canada’s criminal code, which by its nature is designed to proscribe certain human acts as beyond what is socially accepted, rather than to positively set forth a vision of the good life. The marriage canon, unlike the criminal law, defines what is good about Christian marriage first and foremost. Only after defining the nature and purpose of marriage does it set forth the impediments or prerequisites. But the canon itself is essentially definitional.

In the Anglican Church of Canada, people on both sides of the debate saw the move to change Canon XXI as an attempt to include same-sex marriage within the definition of marriage. The result, as anyone knows who was following the General Synod in July 2019, was that the canon survived unchanged. The Canadian Church, including many of its bishops, have had considerable difficulty admitting that. More to the point, they prepared an end-run around the canon.

Several members of the House of Bishops decided they would exercise their inherent jurisdiction, set out in section 9 of the Church’s constitution (Declaration of Principles), and authorized rites for same-sex marriage. How such jurisdiction gives any particular bishop power to override a canon of the whole Church remains unclear. With the support of their respective local (provincial) synods they pointed to the power delegated to them by the General Synod, to authorize special forms of prayers and ceremonies in cases where none had been authorized by the General Synod. I made the argument in the earlier essay that this is a clear violation of the Church’s ordered life, referencing the Principles of Canon Law in the Anglican Communion (2006) for support. Under no circumstances could powers delegated to provincial synods be used to violate a church doctrine, especially one that was so recently re-affirmed. This is episcopal overreach of a different order.

After the 2019 General Synod some bishops have signaled their intention to invoke “local option” to override Canon XXI, arguing that a diocesan bishop can take his or her diocese out of the ambit of the canon. They make no apology for doing this. There is no hint that discernment is ongoing in the Communion or that we might or should wait for a much wider consensus when such an important teaching about marriage and family and procreation is at stake. The situation must be confusing for anyone watching. We say our life is ordered by canons, carefully thought out and rooted in Scripture and upon the long and prayerful discernment of the Church. If all this can be put aside, so easily we should be not just worried but embarrassed.

In practical terms a serious blow has been struck against the idea that a Church can order its life with wisdom and faith.

The sad reality in Canada after the General Synod of 2019 is that in those dioceses where local option has been implemented, a minority holding to the historic teaching of Canon XXI are under pressure to “get with the program.”  All this, when local option was not voted upon by the General Synod, nor did it receive the endorsement of the whole House of Bishops. Members who abide by the Church’s faith and order as expressed in the Canon are being pressured to silence their witness to the historic teaching.

In the midst of such confusion, a great deal of credit must be given to those diocesan bishops who, knowing the tenuous position of local option, and wishing to hold differences together with grace, are trying to find workable arrangements similar to those already approved by the American Church under what is known as delegated episcopal pastoral oversight and what is known in Canada as supplemental episcopal oversight. If we are to live together despite our differences, structural provisions must be found for those who hold to the historic teaching on Christian marriage. Such a structure, and not just the goodwill of a current bishop, must be found in order for that witness to flourish, not simply be tolerated or accommodated.

So what do we do with the de facto collapse of the ordered life in the Canadian Church? I offer three suggestions:

1. We would do well to acknowledge that the unchanged Canon XXI preserves the priority of the received doctrine of marriage even as we offer pastoral care and a listening heart to our brothers and sisters whose understanding or life situation are not aligned with the canon.
2. Dioceses which have chosen local option in the face of a preserved Canon XXI should exercise a “preferential option” for those who are committed to the historic teaching. As the Church turns to other important issues, serious consideration should be given to provide creative structures to allow a flourishing of that historic position, vibrant as it is in the whole Anglican Communion
3. To support an ordered life in the whole Anglican Communion our bishops should join with their sisters and brothers at Lambeth 2020 to adopt the Principles of Canon Law in the Anglican Communion as guidelines for an ordered ecclesial life. The Principles were drawn together in the early 2000’s by a team of legal advisers from across the Anglican Communion, among them a distinguished Canadian chancellor. It was at one point suggested that this body of work could serve as another Instrument of Communion. If the Principles had been given a serious reading, it might have kept the Canadian Church from the lamentable disarray that now marks its common life.

Whatever happens in one part of the Anglican Communion, will have an impact on the whole Communion. The preservation of the historic teaching on an important doctrine and the defiant response to it will no doubt send a confusing message to the Communion. The Canadian Church has yet to find a way of preserving that teaching in an ordered way and still extending a pastoral heart to those who struggle. Such is the reality of God’s mission in the world.

The forthcoming Lambeth Conference will set the stage for a deeper mission together with all branches of the Church of God. How we order our life in our individual provinces will matter. We have an opportunity to strengthen our collective witness in the way we handle the doctrines once received. There is always hope.

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.