Benediction

A couple of people have asked me to give details of the service of Benediction which can be used in the Scottish Episcopal Church where a couple conduct a marriage which is a legal marriage but one which is irregular under canon law.

The form of service that we are talking about is this one:

A FORM OF BENEDICTION OF MARRIED PERSONS

The canon that governs marriage in the Scottish Episcopal Church includes this clause:

5. A cleric may use the form of Benediction provided in the Scottish Book of Common Prayer (1929) to meet the case of those who ask for the benediction of the Church after an irregular marriage has been contracted or after a civil marriage has been legally entered into, provided only that the cleric be satisfied that the marriage is not contrary to Sections 3 and 4 of this Canon.

Here’s the whole thing if you want chapter and verse.

Now, the reason this is interesting at the moment is that the Scottish Government is keen to introduce the possibility of marriage for same-sex couples. I’m very much in favour and hope that the Scottish Episcopal Church enjoys a fruitful discussion about these matters over the next months and hope that the result of those discussions is that we can opt into whatever means the government chooses in order the enable those marriages to happen.  Now, obviously, one matter that will need some attention is the marriage liturgy. There will need to be some work put in to ensure that it can be used for all marriages. This won’t be too much trouble though as we’ve plenty of experience of rewriting liturgies in inclusive language. (Not least the fairly recent rewrite of the ordinal to ensure that it did not use male pronouns all the way through the liturgy for making someone a bishop).

One little detail which seems to have passed most people by is that the Canon which governs marriage in the Scottish Episcopal Church explicitly authorises an old form of words, the Service of Benediction from the Scottish Prayer Book for use for a couple whose marriage is legal but cannot for some reason be regarded as having been regularly conducted according to the canons of the Scottish Episcopal Church. For a long time, this was the mechanism by which divorced people could have a blessed (ie a benediction) in church after a civil marriage.

Nowadays, most couples where one person or other has been divorced can have a marriage in church anyway, by going through a pastoral procedure involving the bishop.

However, the clause permitting Benediction still exists. Its only stipulation (and it uses the word “only” quite explicitly) is that the marriage is a legitimate one and that the couple have not been refused a marriage by a bishop if they have gone through the pastoral process pertaining to divorce.

The consequence of all this is that once the Scottish Government legalises marriage for same-sex couples, the Scottish Episcopal Church has on its hands a piece of Canon Law which permits those couples to be blessed in church using an authorised liturgy.

The liturgy itself would need some very minor modifications to be modified for inclusive language of course, but clergy do that all the time.

Here are two versions of the text to show how easily that can be done:

A FORM OF BENEDICTION OF MARRIED PERSONS for gay men

A FORM OF BENEDICTION OF MARRIED PERSONS for lesbians

Now, someone might want to argue that section 1 of Canon 31 (which is a doctrinal statement) prohibits this. But the point it, Canon 31 has a number of clauses which all have the same validity. Section 5 was explicitly put into the canon to deal with situations where a couple’s marriage did not fit within the boundaries of Section 1.

Anyone attempting to argue that Section 5 does not apply if a couple’s marriage falls outwith the doctrinal boundary of Section 1 risks casting a slur upon those divorced persons blessed in church under the canon thus far. Such an argument would undermine the position of the Faith and Order Board’s recent first submission to the Scottish Government. It would also undermine the Grosvenor Essay produced last year by the Doctrine Committee. (You can’t argue that Section 1 of the canon means what it literally says amidst fast changing circumstances without also applying the same standards to Section 5).

Without taking any actions, the Scottish Episcopal Church is going to find itself in the interesting position of having a service, albeit an archaic one, of blessing for gay couples authorised because of the actions of the Scottish Parliament.

Now, wouldn’t it be much more sensible for us to have some discussions about this in the synod instead to ensure that there are appropriate resources for everyone who is engaged in ministry with engaged couples in our church?

Comments

  1. Thanks for posting this – interesting and instructive! I have a couple of questions though. On my reading of the Canon, it looks to me like it would need revised before this would be watertight.

    First, since the doctrinal definition of marriage in 31(1) would no longer accord with the legal one, wouldn’t the new legislation create ambiguity in the Canon regarding what “marriage” means in 31(5)? I suppose the use of lowercase “m” in 31(5) as opposed to uppercase “M” in 31(1) could be argued as a let out clause… but I’m not convinced.

    Second, you said that 31(5) was explicitly put in to deal with marriages that don’t fall within 31(1). But still, it does deal with “marriages”. On its own terms don’t same sex relationships fall outwith what can constitute marrriage per Canon 31(1), since they don’t accord with Canon’s definition of the term? “Irregular” marriages seem impliedly to refer (per Marriage (S) Act 1977, s21) to marriage by cohabitation with habit and repute and a class of marriages contracted before a date in 1940.

    • Well, Diana – that’s a perfectly acceptable argument but only so far as you are prepared to discount the lives of those who are divorced and remarried. Their second (or third) marriages don’t sit easily with the definition in Canon 31(1). Is it your position that they are not in fact married in some way?

      The trouble is, the definition of marriage in section 1 do not currently accord with a legal definition of marriage which allows for divorce and remarriage. I think that someone once said to me that marriage in Scots Law does not actually have the concept of lifelong permanancy though I know far too little about that to know for certain. (Though it is the case that one can be married in the Scottish Episcopal Church without promising that it is for life, which is certainly interesting).

      It had not occurred to me that Clause 5 was to do with cohabitation with habit and repute, however I think this is very easily dismissed. The church has never offered a service of Benediction to anyone whose marriage might or might not have been recognised as a legal one and I’m pretty sure that is not what it being referred to here. The whole point of habit and repute is that they were a class of marriage which was explicitly not contracted by legal formulation on a particular date and time. No?

      Are you trying to argue that Benediction might have been offered to a couple where one had died and the other had proved a will by determining that they had been married by habit and repute – a fairly common use of such marital recognition. It seems to me unlikely and the rite itself seems to expect both parties to be very much alive.

      I think you could possibly make more of a case for suggesting that in fact “irregular” marriages were simply those not conducted in church but by civil procedings. That would make sense. However, I wasn’t around at the time the clause was written.

      Habit and repute seems to me to be a red herring here.

      I very much favour your suggestion that the canon needs to be revised, obviously!

      • Actually, no, looking again, the canon provides for Benediction in 2 cases, doesn’t it – firstly irregular marriage and secondly after a civil marriage.

        The civil marriage business is the relevant part here.

      • I don’t read 31(1) as inherently incompatible with remarriage. I read “one man” and “one woman” as excluding polygamy. And although I can see the argument, I don’t think the use of “lifelong” is inherently problematic for remarriage because of the clarification given in 31(4). I don’t think 31(5) gives comparable clarification.

        My guess is that 31(5) may originally have been inserted precisely to deal with both cases where Court of Session declarator of cohabitation with habit and repute (dchr) was sought, and civil marriages. While dchr was quite rare, it wasn’t always sought for excutry purposes. But anyway, I think it was abolished in the Family Law (S) Act 2006. So in a few decades time that part of 31(5) provision will fall into complete desuetude.

        On “civil marriage” – well, if/when same sex marriage falls under that definition, I’m back to where I started: lack of clarity of the definition of marriage in 31(1) and law. So the Canon would need clarified, and until it was, someone celebrating the rite would risk landing themselves in the soup. Quelle joie!

        • Well, there we have it. I don’t think that there is any great soup-risk for most people as the principle of providing blessings for gay couples in church at certain points in their lives has already been conceded by the bishops. The question really is whether one could claim with any sense of certainty that the SEC did not have an authorised rite for doing so.

          The church doesn’t have such a rite right now. Once same-sex couples can enter marriage in Scotland, 31(4) does at the very least undermine an absolute assertion that the church has no such rite.

          The truth is, the Canon needs revision.

          It is interested that you are of the view that the “one man and one woman” clause is there to exclude polygamy. Our church has submitted at least one submission to government claiming that it means something else entirely.

  2. Ah well, I live and learn! And hope the Canon revision won’t be too painful to sit through..!

  3. Canon Law revision is always exciting.

    (Well, mostly).

    The Canons are your friends.

  4. It was interesting to read the discussion between Diana and Kelvin about this post. And to read that the Scottish government is “keen to introduce the possibility of marriage for same-sex couples”. In Australia, we have a PM who is personally opposed to same-sex marriage and an Opposition Leader (very likely to be next PM) who will not allow his party a conscience vote on the issue. Very disheartening!

  5. Rosemary Hannah says:

    I would think, historically, the ‘one man, one woman, clause WAS to exclude polygamy and bigamy, because both of these were live issues. Moreover in an era of highly expensive and virtually unobtainable divorce, bigamy was a very live issue. I suspect, too, that HISTORICALLY one man one woman was designed to prevent remarriage – and understood as ‘you may only have one shot at marriage and if you leave spouse number one and have another shot at happiness with partner number two, we will hold you are married to two partners at the same time.’

    (Additional silver bullets may be bespoke)

  6. Augur Pearce says:

    I find myself in line with Diana’s thinking on the meaning of the canon.

    First, on divorce. Assuming A marries B, who later divorces him and wants to marry C:

    31(1) says that the union between A and B is lifelong. 31(3) says that the Marriage Service can be performed for B and C provided a Certificate of Authorisation is obtained. But that Certificate is explained differently in Sections (3) and (4). According to (4), the certificate is simply one ‘authorising and approving that cleric’s officiating at the Solemnisation of Holy Matrimony of the parties concerned according to the Rites and Ceremonies and Canons of the Scottish Episcopal Church’.
    But according to (3), it is a Certificate given ‘on the grounds that there is no ecclesiastical impediment to the marriage’. (The words ‘in terms of Section 4′ are merely about procedure. They must refer to the issue of the certificate rather than the possible impediments, since Section 4 does not define any impediments.)

    Thus Section (4) if it stood alone would leave the bishop a free discretion, but section (3) suggests that he/she has a judicial task to perform, ruling whether (objectively) an ecclesiastical impediment exists or not. In the case of B and C, I should have thought, an impediment will always exist in the shape of B’s marriage to A, which by 31(1) is lifelong, unless, of course, the bishop is prepared to indulge in the same exercise as Roman Catholic diocesan tribunals, discovering canonical grounds whereby a perfectly straightforward marriage ended by divorce can be claimed to have been no marriage in the first place.

    Kelvin calls the procedure involving the bishop a ‘pastoral’ one, enabling ‘most’ remarrying couples to do so in church. Having no experience of the ECS on the ground, I can’t say whether this is because bishops are indeed acting like RC tribunals, or because they are reading canon 31.4 without 31.3 and assuming an unfettered discretion.

    So while I myself (not being a Scottish – or any sort of – Episcopalian) don’t ‘discount the lives of those who are divorced and remarried’, I think that canon 31, read as a whole, probably does. In which case, a fortiori, Diana would be right to read 31.1 into 31.5 and say that the Benediction service covers only marriages (a) ‘irregular’ by the law of Scotland but canonically ‘regular’ in the sense of compliance with 31.1 or (b) marriages contracted ‘civilly’ in accordance with M(S)A 1977 s.8(1)(b) but canonically ‘regular’ in the sense of compliance with 31.1.

    I’m not sure when the Canon was made. If it was before 1940 there would have been a wide variety of types of ‘irregular’ marriage in Scots law; from 1940 to 2006 the canon would have covered cohabitation with habit and repute, and from 2006 to the present a small residuary category of such cases would be covered (which clause 18 of the new Bill seeks to end).

    The Canon has, I notice, fallen into the trap of using the term ‘civil marriage’ in different senses. 31(2) uses the term to mean ‘marriages valid by the law of Scotland’, whereas 31(5) uses it to mean ‘marriages solemnised before an authorised registrar’. If this latter sense (which is the sense in which M(S)A 1977 uses ‘civil marriage’) were applicable in 31(2) as well, then 31(2) would be nonsense, preventing any solemnisation in the ECS at all: since solemnisation cannot simultaneously be ‘in accordance with the … law … in force in relation to civil marriages’ and compliant with preliminaries ‘for the solemnising of religious marriages’.

    So, yes, the Canon badly needs attention. And I’m all for the changes Kelvin advocates. But if I were a cleric of the ECS I shouldn’t want to be the test case.

    Have you noticed, by the way, that in the Scottish legislation marriages are ‘solemnised’ while under the English legislation they are ‘solemnized’?

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