If you are a member of the Anglican Church of Canada, you probably know that there is a meeting of the General Synod this July in Richmond Hill, Ontario. You are probably also aware that one of the motions to be presented is a request to change the Canon on Marriage to empower bishops to allow their clergy to preside at same-sex marriages. This would only be the First Reading – because it deals with a change to doctrine and worship it requires being passed at two consecutive General Synods, and with a 2/3rds majority in the “houses” of laity, clergy, and bishops; thus, it would not only have to be passed at this General Synod, but at the next one in 2019 (and even then, according to the draft motion, it would only come into effect on January 1, 2020).  In February of this year (2016) the House of Bishops met and communicated to the Council of General Synod that they did not believe that the House of Bishops had the necessary 2/3rds majority.

It does look bleak, eh? 2/3rds is pretty high bar, and while the guessing is that the motion would pass in the two “lower” houses, the message from the bishops to those who want to change the canon is “Don’t get your hopes up.” That said, lobbying has begun. A Facebook group with over 1400 members has started to gather advocates for the change (and somehow I got named as one of the admins). Its members have sent to every bishop copies of Michael Coren’s book on how he changed his mind on the issue. There will be a booth at General Synod 2016. Most importantly, written letters have been sent to bishops asking them to consider voting in favour of the change, and frequently these letters have spoken of personal experiences of how the Anglican Church of Canada has excluded them.

If I were offering odds I would give the motion a one in three chance of passing. I’ve argued elsewhere that we might still get the 2/3rds in the House of Bishops but it will be close. I would not be surprised it it failed, but gratified if it passes. And if it fails, that would seem to be the end of it, right? Because, after all,  General Synod has jurisdiction over doctrine, worship, and discipline. The liturgies we use (BCP 1962 and BAS 1985) were developed and authorized by General Synod. The Marriage Canon was written and amended by General Synod. And the discipline canon, as well as the canon on the relinquishment of ordained ministry, was written and authorized by General Synod. So it would appear that General Synod is the place to change things if one wants to have same-sex marriages, and if it doesn’t then we’re hooped.

Except, . . . . maybe not. Pace the delegated powers of General Synod over doctrine and worship, and the great deference people give it, that may not be the end of it. There are other options.

If a bishop wanted to empower his or her clergy to marry same-sex couples here’s what they could do.
First, ask the chancellor to review the marriage canon to come up with a legal opinion on the following questions:
1) Is there anything in the Marriage Canon of the General Synod explicitly forbidding same-sex marriage?
2) Does the ius liturgicum of the Ordinary permit the bishop to authorise rites that are not otherwise addressed by the General Synod?
Then, assuming the answer of the chancellor is respectively “no” and “yes”, the bishop might then authorise such a rite. Even better, the bishop might confer with other like minded colleagues in the House, and agree to act together. Given the importance of bishops working synodically, laity and clergy in the diocese(s) concerned should be consulted, perhaps in a synod, but certainly through the various structures and committees of the diocese.

As an armchair canon lawyer I would argue that a case can be made that there is no prohibition in the Marriage Canon against same-sex marriage. The canon obviously presumes that different-sex marriage is the norm – male and female – but it never actually addresses same-sex marriage. There are things that it does prohibit, and they are identified: In section I.3. the prohibitions based on consanguinity and adoption are in place; and in I.4 the marriage of anyone who is under the age of sixteen is forbidden. I.10 states that “No minister shall solemnize matrimony between two persons neither of whom has been baptized.” I.9 used to prohibit the remarriage of anyone who was divorced while their former partner was still living, but this was changed in 1967 to read “9. Certain Marriage Forbidden   Except as provided in part III or part IV of this Canon, no minister shall solemnize the marriage of two persons one of whom has been a party to a ceremony of marriage with a third person now living.” Parts III and IV deal with how divorced persons whose former partners are living can nevertheless be married according to the rites of the church.

An old principle of English civil law is that “everything which is not forbidden is allowed”.  This principle was defended as being applicable to church issues by the theologian Richard Hooker in the reign of Elizabeth I, in that while scripture contained all things necessary to salvation, it did not rule on all aspects of human behaviour.  Hooker’s opponents, the Puritans, wanted to abolish things in the Church of England which were not expressly supported by scripture – and so they opposed the office of bishops, the use of the sign of the cross in baptism, rings in marriage, and baptism by laity. James I and his bishops at the Hampton Court Conference of 1604 adopted the late Hooker’s approach, and the Puritan agenda was frustrated for a generation.

That principle is still at work today. Whether we are conservative, liberal, evangelical, charismatic, high church or low church, Anglo-Catholic, we are doing things that are not covered by the express warrant of scripture, the rubrics of the prayer books, or the canons of the church. A “children’s time” on a Sunday morning is not allowed in any of the authorities I know, and yet it is a common practice. Balloons on Pentecost likewise are common, but are not addressed by our formularies. So it is worthwhile to ask whether this general principle applies to the Marriage Canon.

The second question for a chancellor refers to what is known as ius liturgicum, or the liturgical jurisdiction of the Diocesan Bishop (who in technical church language is known as the Ordinary). If you ever use a liturgy that is not in the BCP or the BAS or has not been expressly authorised by General Synod, but has been authorised by the local bishop, then you are operating under her or his ius liturgicum. In the Diocese of British Columbia we use Iona liturgies and Liturgy for the Islands, with the permission of the Bishop. I have written a Eucharistic Prayer and I have the permission of the bishop to use it in my parish. All of this is legal and canonical. So I would expect that the answer to this question is “yes”.

So, what I am suggesting is that even if the vote fails at General Synod 2016, bishops of the Anglican Church of Canada would  be on solid canonical ground to authorise the marriage of same-sex couples.

However, even if no bishops authorise same-sex marriages, there will still be same-sex marriages in the Anglican Church of Canada, for the simple reason that they have already happened. I know of two documented cases, and I am aware of others that were “under the radar”. In the documented cases the two officiants – one a cathedral dean and the other a retired archbishop – had their provincial licenses to officiate at weddings suspended for a time. Both are still active in their dioceses, preaching and presiding.

I expect that this kind of thing will become more common. In a recent article in the Anglican Journal the Primate notes that some bishops are already concerned about “the possibility that some priests may go ahead and marry gay couples in the event that a resolution changing the marriage canon to allow same-gender marriages is rejected”.  The Primate then raises the possibility of discipline. Discipline, I expect, would vary from diocese to diocese. In some cases, after a clear, documented order by a bishop to the clergy that same-sex marriages are forbidden, it could result in suspension or dismissal. In others it may result, as in the two previous cases, in suspension of the provincial marriage license for a time. It may mean a verbal admonishment from the bishop and a written letter in the personnel file. The cleric concerned could demand an ecclesiastical trial, with all the attendant publicity and cost. It also creates a problem for the bishop, in that if she or he removes a priest, they then have to find a replacement, and also deal with a furious parish. If half a dozen or more clergy in a diocese all act together then the Bishop is faced with finding numerous replacements in a large number of parishes – and the parishes will really not welcome these new priests-in-charge. This would be a nightmare for all concerned, but it is not impossible.

I am urging all bishops and delegates at General Synod 2016 to vote in favour of changing the Marriage Canon. However, if it does not pass, I fully expect that we will soon have same-sex marriages in parts of the Anglican Church of Canada, and perhaps sooner than the January 1, 2020 date that an orderly amendment of the canon would project. From what I know of the issue and the Anglican Church of Canada, it’s not a question of “if”, but “when”.