2/16/2015

On the matter of discretion re marriage: Radner's question



I follow the ongoing discussions about marriage in Episcopal land with great interest.I have been married now for some 48 years, have officiated at a great many weddings, and have been actively engaged in the movement for the marriage of persons of the same sex, both on a civil and a religious level. So it is with some interest that I note that The Task Force on Marriage has published its report. You can read the Task Force Report HERE.

Now, of course, the cards and letters are coming in.

Ephraim Radner, over on the Anglican Communion Insititute, has written a paper reprinted in part by The Living Church. Unlike Bishop Dan Martins, I don't think Radner's response to the Task Force on Marriage is all that good, but still, read Radner's article in its full - HERE.

I'm somewhat amused by the name, Anglican Communion Institute, which leads me to imagine it being some sort of recognized Anglican Communion entity. I imagine it with impressive buildings and research facilities with ivy covered walls and so forth. It is not. It is mostly four Anglican scholars working from wherever they are located and an advisory committee of pretty heavy lifting conservative Episcopal / Anglican worthies. But amusement is just that, amusement. The content of what these folk write has stand - alone worth, sometimes quite valuable, sometimes not so much.

Radner raises many issues about the several sections of the first resolution proposed by the Task Force, but one stands out for me as an issue that need to be addressed.

The matter of discretion to decline.

This concerns the clause in both the existing and proposed marriage canon, (with an addition by the Task Force indicated by underlining):

"Sec. 4 (renumbered as Sec. 6.) It shall be within the discretion of any Member of the Clergy of this Church to decline to solemnize or bless any marriage."

Radner writes,

"given that one conscience clause allowing priests to refuse to marry a couple on the basis of their individual views of the matter is left in “tension” with another existing canon that forbids discrimination on the basis of sexuality, the canonical change also opens the door to disciplinary and perhaps legal challenge to individual clergy who maintain classical views about Christian marriage. "

Well, first, it is not a canonical change so much as a repositioning of an existing subsection to the marriage canon. So the criticism is not only about the revised canon, but the existing one. It is the change in the rest of the canon that brings the issue to the fore.

Neither the original nor the revised reading makes any reference to refusing "to marry a couple on the basis of their individual views of the matter," the "their" being clergy and "the matter" one supposes that the couple are both of the same sex. The canon only mentions "discretion..to decline." The proposed canon does include "to bless" as well as to "solemnize" which is an indication that the writers wanted to extend the discretion to include blessing separated from the solemnizing that is involved with legal marriage.

But given that, Radner's point still remains. A member of the clergy can decline to solemnize or bless, supposedly without giving reason to anyone. But suppose I were to consistently decline to solemnize or bless persons who had been married before, no matter the circumstances, or declined always when the couple was of different races (however defined),or because one was of one nationality and the other of a second? I believe we would consider this discrimination, prohibited by canon.

What about declining when the two persons were both men, or both women? Is this, if done on a consistent basis, discrimination or not?

As Radner points out there is a canon that forbids discrimination on the basis of sexuality. He is referencing, I believe, Canon I 17:5 -

"No one shall be denied rights, status or access to an equal place in the life, worship, and governance of this Church because of race, color, ethnic origin, national origin, marital status, sex, sexual orientation, gender identity and expression, disabilities or age, except as otherwise specified by Canons."

The question is, does the marriage canon, in its current or revised form provide a specific exception to Canon I 17:5?

There is no indication in the revised canon of such an exception.

Is there a "tension" between the two canons, made all the more evident by the "matter" of marriage of two persons of the same sex? Are those holding "classical" views subject to possible canonical or legal challenge?

I think the answer is, "yes."

From the standpoint of Canon I 17:5 discrimination against a class of people, by virtue of the class alone, is prohibited. Clergy can refuse case by case as a matter of discretion. But to refuse all of a class over time would be indication of prohibited discrimination. There is no indication in the marriage canon that discretion can be applied to a class of persons, as a matter of general principle.

So what is a "classically" informed clergy person (by that Radner means a clergy person who believes that marriage is only possible, as far as the church is concerned, between a man and a woman) to do? Refusing either by announcement or actual practice to solemnize or bless any same sex marriages is prohibited discrimination against a class of persons. At the same time the "classically" informed clergy person would supposedly hold that solemnizing or blessing any such marriage is a against conscience, and therefore prohibited by conscience.

Such clergy persons are indeed in a tense situation.

I believe these worthies must then either decline to officiate at any marriage, believing that any other course places them in danger charges of specific discrimination or in personal moral jeopardy, or act as conscience dictates, and live in the tension arising from such action, or leave this Church and finding another context for ministry.

Of these possibilities I would hope such clergy would decline to officiate at any marriage, or act as conscience dictates, living in the tension of that fact. I fear that some clergy might indeed take the third option, feeling that the church is no longer a safe place. What might make it be a safe place? Or barring that, what would make it at least a place where there was clarity?

Safety is hard to come by. But I believe we need to be clearer as to what the canonical change will mean, by clarifying the extent to which a clergy person can decline to solemnize or bless a marriage as a matter of general principle.

In all candor, I think the real problem is not on the level of the individual clergy exercise of discretion. It is much more important on a diocesan level. If a bishop refuses to allow his clergy to officiate at such services the bishop has clearly made a judgment concerning the exercise of "clergy discretion" that is about a class, not about a particular case. That, it seems to me, would be grounds for a charge of discrimination.

The question for me in the proposed canon is this: If there is to be an exemption clause for those who in good conscience will not marry persons of the same sex, what will it look like, and if there will not be an exemption clause, how will we relate to, work with, support or even argue with those who are thereby exposed to possible charges of conflict with the non-discrimination canon?

There are various times when the church is not "safe" for some of its own clergy. Over the years I have had close friends loose position and even orders because of their actions. Some have been people whose actions I agreed with, some not. Some have involved matters of conscience, some not. It turns out that safety is not one of the guarantees that comes with ordination.

It is helpful to friends we agree with and those we don't to at least be as clear as we can. So, what does the canon mean, can a clergy person be charged with discrimination for consistently refusing to marry persons of the same sex or not? As long as we are changing the canon at all, why not be clear about its application?

4 comments:

  1. Thank you, Reverend Father, for giving us a very clear understanding of the new movement in TEC to further the cause of justice in the Church, by allowing for the Blessing of monogamous same-sex relationships - either in Marriage or the blessing of Civil Partnerships.

    Some of us in other parts of the Anglican Communion look to TEC for leadership on this important issue; so we look with interest on the outcome of the current process.

    Blessings, Fr. Ron Smith, ACANZP

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  2. I realise that the legal situation is different here in England and Wales where the law until recently gave couples an absolute right to hold their first marriage in a church, but what it did was to give a parish priest the freedom to refuse to officiate at a marriage as long as he made the church available for another to record the marriage.
    The issue here is the recording, the theology remains the same, the couple do the marrying, the State requires there to be a lawful record from a person authorised to make the entry in the record book, all Anglican clergy by virtue of their ordination are so authorised. Here in England and Wales weddings may only take place in buildings authorised for that purpose, the exception is by licence in extremis at a hospital.
    Might a canon try to make this option available?
    Though its important to remember that parish priests here can refuse to record and refuse to allow their church to be used to record the marriage if someone who has been divorced. The idea that couples should be allowed to marry in church is still "exceptional".

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  3. I think that to keep the church from further splitting, we need to include in any change to our marriage canons the specific assurance that refusing to marry same-sex couples for biblical or theological reasons will not constitute prohibited discrimination. That's the only way to solve the problem that Fr. Radner has pointed out. I would also favor explicitly allowing bishops to forbid same-sex marriages in their dioceses.

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  4. Mark, there is no tension because the "non discrimination" canon includes the proviso, "except as otherwise specified by Canons." So the "decline to solemnize" canon is one of the exceptions -- and as with age it can apply to whole classes (for instance, all divorced persons).

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