What is in Kelvin's Head?

Canon Law

23/08/2012

We had such a good evening discussing Canon Law at the Cathedral’s gay group on Monday evening. Presumably all churches have evenings like this.

Canon Law is more often talked about than referred to. In this case, we were looking at Canon 31 which is the canon about marriage.

There are quite a few interesting things that we talked about in relation to the canon, but first, here is the Canon itself.

CANON THIRTY-ONE
OF THE SOLEMNISATION OF HOLY MATRIMONY

1. The Doctrine of this Church is that Marriage is a physical, spiritual and mystical union of one man and one woman created by their mutual consent of heart, mind and will thereto, and is a holy and lifelong estate instituted of God.

2. No cleric of this Church shall solemnise Matrimony except in accordance with the civil law of Scotland for the time being in force in relation to civil marriages and unless satisfied that compliance has been made with such preliminaries as are therein required for the Solemnising of Religious Marriages.

3. No cleric shall perform the Marriage Service, nor permit it to be performed in Church, for parties who are within the forbidden degrees, as specified in Appendix No.26. No cleric shall perform the Marriage Service, nor permit it to be performed in Church for parties, for one or both of whom a decree of Nullity of Marriage Ab Initio has been pronounced by a Civil Court, nor for parties, either of whom has had a previous marriage dissolved quoad civilia in a Civil
Court, so long as the other spouse in the marriage so dissolved remains alive, unless that cleric shall have been given a Certificate of Authorisation on the grounds that there is no ecclesiastical impediment to the marriage in terms of Section 4.

4. In cases where a decree of Nullity of Marriage Ab Initio has been pronounced by a Civil Court, or in any case where either or both parties to a proposed marriage has, or have had, a previous marriage dissolved quoad civilia in a Civil Court, but the other spouse to that marriage remains alive, any cleric to whom an approach is made by or on behalf of either party with a view to the solemnising of such proposed marriage shall refer the matter to the Diocesan Bishop. Upon receiving such reference, the Diocesan Bishop shall make such enquiries into the circumstances of the case, and take such pastoral and legal advice, as shall seem appropriate, and thereafter may issue, or decline to issue, to an officiating cleric, a Certificate of Authorisation in terms of Appendix No.27 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. No Bishop shall entertain an application which has already been before another Diocesan Bishop of the Scottish Episcopal Church without the agreement of the Bishop of that other Diocese and the Episcopal Synod.

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.

6. The solemnisation of Marriage shall take place in Church except with the written sanction of the Bishop.

We were, obviously, looking at the Canon in the light of the knowledge that the Scottish Government is planning to change marriage law to allow same-sex couples to get married.

I’m still not entirely convinced that the parliamentary process is going to be quite as easy as the politicians thing. They appear to me to be planning on building new discrimination into new law and that might well unravel. For example, they talk about “protecting” any cleric who belongs to a denomination which has opted in to doing same-sex weddings where the celebrant in question doesn’t want to do them but they don’t propose doing anything about the cleric who wants to perform a same-sex wedding when their denomination has not opted in. That is clear and obvious discrimination and I’m not sure that it will (or should) pass muster when it comes to legislation.

It is worth noting that this business of providing “protection” to those who don’t want to do same-sex weddings is a nonsense and a red herring. No-one can be forced to conduct any wedding at the moment. No additional legislation is needed. No-one, if you think about it, can be forced to pray or perform any religious act that they don’t believe in. It is absurd to think that any court in Europe is going to start to force people to perform religious ceremonies they don’t want to. That’s because celebrants already have rights – the same rights which mean that one can’t be forced to perform religious acts. We already have freedom of concience in Western Europe. Same-sex weddings are no threat to this at all. The more you hear from the SNP Government about providing “protection” in this area, the more you know they are trying to pull the wool over someone’s eyes or trying to delay the process. It just isn’t necessary. Not a jot or a tittle of the law needs changing, as Someone might well once have said.

Now, when it comes to that Canon there are a couple of interesting things to note. Firstly, note the definition of marriage as being, “a physical, spiritual and mystical union of one man and one woman created by their mutual consent of heart, mind and will thereto, and is a holy and lifelong estate instituted of God.”

Opinion has been expressed in the church recently by those with some power and influence in this area, that the church wouldn’t be able to marry same-sex couples whilst this statement is in Canon law. However, the church manages to marry couples whose lives have not reflected this standard all the time. If we marry divorced people, then our relationship with this doctrinal statement must at least be nuanced.

I was very interested to see an old copy of the Canons recently – I think it came from the 1920s. I looked up Canon 31 and found that this doctrinal statement was simply not there. I think (and I’d be happy to be corrected if I’m wrong) that it was inserted precisely when we did start to recognise divorce.

Section 5 of the Canon is rather interesting. It suggests that it is legitimate to perform the service of Benediction (ie perform a blessing) for couples whose marriages have been contracted irregularly (ie not within the other terms of the Canon) so long as they have not had a marriage refused for reasons connected with a divorce. (It is extremely rare for our bishops to refuse marriages in this area).

It seems to me, that should the state allow same-sex couples to marry, Canon Law is at least nodding towards the possibility of giving the couple a blessing in church, even without changing a word of the Canons.

Clearly there is a time of discussion and reflection needed with regard to the way Canon Law intersects with Scottish Law. If the state allowed same-sex marriage but the church didn’t, it seems to me to be very likely that some clergy would start to refuse to marry straight couples and simply suggest that for reasons of equality everyone goes to get married in the registry office and an appropriate church service can follow immediately afterwards. That seems not only very likely but only a couple of years away.

Alternatively, the church will allow everyone to live according to their conscience on this matter. Allowing those who wish to conduct such marriages to do so and allowing those who wish to refuse to do so too. This is how we deal with divorced couples wanting to get married, so there is clear precidence for this path. It seems to me that this would be wisest and the path forward which least distracted us from other mission inititives.

Incidently, if we do start to unpick the definition of marriage that we have in Canon 31, don’t expect it to be easy. It currently says,

The Doctrine of this Church is that Marriage is a physical, spiritual and mystical union of one man and one woman created by their mutual consent of heart, mind and will thereto, and is a holy and lifelong estate instituted of God.

I’d be happy with it if it said,

The Doctrine of this Church is that Marriage is a physical, spiritual and mystical union of two people created by their mutual consent of heart, mind and will thereto, and is a holy and lifelong estate instituted of God.

There are others who would find it much easier to reconcile their own experience with the church if it said,

The Doctrine of this Church is that Marriage is a physical, spiritual and mystical union of created by their mutual consent of heart, mind and will thereto, and is a holy estate instituted of God.

And I’ve recently heard a bishop questioning the last clause who would really prefer –

The Doctrine of this Church is that Marriage is a physical, spiritual and mystical union of one man and one woman created by their mutual consent of heart, mind and will thereto, and is a holy and lifelong estate.

Ho hum.

All of this is, of couse, about the canonical definition of marriage and takes no account of the liturgical formularies, which are different and diverse. I’ll perhaps look at them in another post.

Suffice it to say that the biggest change that the Scottish Episcopal Church has ever made in relation to marriage was in producing a new marriage liturgy which regards the two persons contracting the marriage as equals.

That seems to me to be a far greater change to our ecclesiastical views on marriage than allowing same-sex couples to marry. Indeed, it is one of the foundations upon which the case for same-sex marriage can be built.

Canon 31, canon law, equal marriage, LGBT, marriage

10 responses to “Where does the Church of Scotland stand?”

Robin

21/05/2013

I understand your sentiments, but both on this issue and on the ordination of women in the Church of England the weary words of Mrs Boyle in Sean O’Casey’s ‘Juno and the Paycock’ in reply to her son, who scorns the Irish Free State and wants an Irish Republic or nothing, are inclined to come to mind:

“To be sure, to be sure — no bread’s a lot better than half a loaf.”

Reply
Nick Brindley

21/05/2013

I think you’re right to think this is a disastrously wrong-headed attempt to avoid having to think the issue through, although we may not agree on what would be involved in such thinking (almost nobody agrees with me!)

I think we need to revisit some pretty fundamental problems on the nature of the moral authority of the Bible, the meaning of “salvation” and what ministry is to make any real progress with this issue and there appears to be depressingly little appetite to do this in a spirit of mutual trust and of trust in the leading of the Spirit guiding our interpretation of scripture

http://loveswork.wordpress.com/2013/05/21/failing-to-be-biblical-reflections-on-church-of-scotland-sexuality-debates/

Reply
Frank keefe

21/05/2013

This is what happens when you water down Gods truth so the secular world will think what a progressive church you are.When a small secular wedge is pushed under a church door you can bet a larger one will be pushed under it in the not to distant future.I believe a liberal minded church like the Church of Scotland is more dangerous to the Christian faith than atheists like Richard Dawkins and his followers. Jesus found it hard to convince the Pharisees of their misguided beliefs if He walked our earth today He would find those modern day Pharisees in the Church of Scotland even harder to convince.

Reply
1. Rosemary Hannah
  
  21/05/2013
  
  Well, there you go – I think the exact opposite – that Jesus, who plucked corn, and healed, on the Sabbath, would be out partying tonight with all sorts of disreputable people. The Pharisees were the people who stuck rigidly to the law, breaking it even as they kept it. Jesus was the one who re-interpreted it.
  
  Reply
  1. Frank keefe
    
    21/05/2013
    
    I find it amazing how those who look for sin to be accepted would try and use Jesus to back them up.First Jesus said the Sabbath was made for man not man for the Sabbath.The Pharisees abused Gods law with their legalism.Its why He said about the rescue of a sheep on that day.He didnt re-interpret it He was showing them how it SHOULD BE KEPT as God ALWAYS intended it.Its the church who is doing the interpretation and Jesus certainly wouldnt be “out partying” such disrespect of our Lords holiness is often the way with liberal ” Christians” Instead of the church being a light to the world that worlds darkness is putting out that light.
    
    Reply
    1. kelvin
      
      21/05/2013
      
      Bless you for your faith, Frank. May it bring you happiness and joy.
      
      Reply
Graeme Cowie

21/05/2013

It’s a fudge, no doubt. And one which, far from preserving the “traditional” Kirk actually serves to undermine it in a number of ways, particularly concerning the status of “doctrine” and who gets to determine what it is, or at least what practical meaning it is for something to be “doctrine” rather than merely a personal religious sentiment. Explicitly to permit complete deviation from “doctrine” by congregations is not very Presbyterian, and the “traditionalists” either didn’t seem to realise that, or they care about preserving substantial doctrines at the expense of, well, what makes the Kirk the Kirk.

To an extent, though, you could see it coming. I think the traditionalist wing sensed they would lose if it was a straight choice (unfortunate phrase) between 2A and 2B, and so tried to push for something that retains a symbolic attachment to historical doctrine whilst letting liberals have the lion’s share of the cake they want, which is to be able to ordain those in committed same-sex relationships and to be done with it. I know for a fact that a fair whack of liberal commissioners were swayed by 2D (not including my parents, who are CofS ministers who voted with option 2A), many seeing it as a way of letting the traditionalists have some sort of phyric victory whilst in fact enabling ministers to be in civil partnerships without any lasting problems. It is much more likely that 2D will make it through Barrier Act procedure now that it’s got the traditionalists’ name on it, and notwithstanding the extra year it’s going to take to turn it into a proper overture, I think the consensus of the Kirk is that they really want to stop talking about this.

The new system ought to be fairly robust once the Legal Questions Committee have had their teeth dug into it. The clear intention was conceded by the movers that they did not intend for Presbyteries to be able to discipline or annul decisions made by Kirk Sessions seeking to be allowed to appoint ministers in civil partnerships, and for a lot of liberals (and actually, a lot of those on the conservative wing too) this will be seen as a critical part of the compromise if it is to be laid to rest. My only real concern is that if the traditionalists are for any reason unhappy with the implementation by LQC it could lead to the whole debate re-opening in GA 2014.

It’s clearly not enough for many liberal ministers, elders and members of the Church of Scotland, for whom this still presents a partial sense of “separate not equal” for congregation and minister alike, and it probably makes it more difficult for the theological position of the kirk formally to be moved away from same sex relationships being sinful, now that the “practical harms” are in a significant sense out of the way, but by Church of Scotland standards, it’s a major step forward for a very broad church, and one which has probably saved it from a major schism (though a handful of churches may still leave over and above The Tron and Gilc South). For those of us in the Kirk 5 years ago, this would have been virtually unthinkable, and momentum has picked up since the Rennie case 4 years ago. The good fight goes on, and hurdles remain, but if it gets through Barrier Act procedure I think the practical objectives, in a Kirk which already offers substantial liberty of personal opinion in matters of doctrine which do not enter into the substance of faith, have largely been met, albeit in a roundabout way.

For more of my thoughts on this matter, see:

http://www.predictableparadox.co.uk/2013/05/church-of-scotland-religious-progress.html

and

http://www.predictableparadox.co.uk/2013/05/presbyterianism-cracking-at-seems-cost.html

Reply
Margaret of the Sea of Galilee

22/05/2013

And it still does not properly address how LGBTQ people (single or in civil partnerships) will be dealt with (dealt to?) when they offer themselves to Presbyteries as feeling called to the Ministry of Word and Sacrament. Will they be asked about their orientation? Questioned? Interrogated? What responses will allow them to or prevent them from pursuing that call?

Who is this Albert Bogle anyway – is he about to become the first to be beatified by the Kirk and for what exactly? By-passing (even disregarding) Kirk “Order”, convincing his important friends to let him bulldoze ahead and his less important friends to print off 700 and something copies of a Deliverance which is incoherent and unimplementable.
Off to read Revelation for other signs of The End Times…
.

Reply
Peter W Nimmo

25/05/2013

Kelvin, you make lots of good points in your post. But just to clarify- what is the doctrine and practice of the Scottish Episcopal Church on this issue? Does your doctrine approve of persons in civil partnerships being clergy, and is that put into practice?

Reply
1. kelvin
  
  25/05/2013
  
  Yes – there are quite a number of clergy in civil partnerships. In England, Anglican clergy in civil partnerships are supposed to declare that they are “celibate”. That isn’t the case in Scotland.
  
  The pension scheme in Scotland recognises Civil Partnerships by giving such partners the same benefits as wives or husbands in marriages. Civil Partners also are treated in the same way with regard to housing as a straight spouse if a relationship breaks down.
  
  Any candidate for ordination who is in a Civil Partnership is expected to be honest about that at selection.
  
  The bishops of the church announced a few years ago that they would not consecrate anyone as bishop who was in a Civil Partnership. They were clear at the time that this was a moratorium. However it is not clear to me whether that moratorium still stands. I do expect there to be questions about that at the coming Synod.
  
  Reply