A guest post by Professor Mark Hill QC.
The Twittersphere has been much exercised in recent days by a passage in the Lambeth Call on Human Dignity, upon which those bishops who have chosen to attend this year’s Lambeth Conference in Canterbury will be invited to vote. The term ‘resolution’ is not used, but these Calls seem to be resolutions in all but name. The sentence which has animated particular concern, and in many quarters hurt, reads as follows:
“It is the mind of the Anglican Communion as a whole that same-gender marriage is not permissible.”
Somewhat disturbingly, Bishop Kevin Robertson, a member of the Human Dignity Call drafting group, has stated on social media:
“I never agreed to this Call in its current form. At no point in our meetings did we discuss the reaffirmation of Lambeth [1998 resolution] 1.10 at the Conference, and it never appeared in any of the early drafts of our work together. I can confidently say that the Human Dignity Call in its current form does not represent the mind of the drafting group, and I distance myself from the reaffirmation of Lambeth 1.10 in the strongest possible ways. I also unequivocally reject the phrase within the Call, ‘It is the mind of the Anglican Communion as a whole that same-gender marriage is not permissible’. This statement is simply not true.”
Those organizing the Lambeth Conference have carried out a reverse ferret in double quick time. A revised text will be prepared, and a third option to the electronic voting allowing participating bishops to indicate that ‘the Call does not speak for me’. The fact that it had originally been planned not to have a ‘no’ button, gives an insight into the mind of the organizers, neither inviting nor permitting dissent. The change can only be welcomed.
But this post is not about same-sex unions and their compatibility with Christian doctrine. Others are far better placed to write on that. Rather it seeks to expose the legal and ecclesiological illiteracy of the Call in general, and the above-quoted passage in particular. The bishops who attend this year’s Lambeth Conference cannot possibly make statements declaratory of the mind of the Anglican Communion. At best they can declare the majority mind of the 2022 Lambeth Conference but nothing more. They are not representatives of the dioceses or provinces from which they come. They attend in their personal capacities. They each speak for themselves and no one else.
The Lambeth Conference has no legislative competence. Its resolutions are expressive of the opinions of those present and voting, but have no binding force in any component Church unless and until expressly adopted by the competent law-making authority within that Church. Resolution 1.10 has never been incorporated by adoption into the canon law or other governing instruments of the Church of England. The attempt to affirm resolution 1.10 in the wording of the Human Dignity Call (which was kept secret from at least one member of its drafting group) has all the appearance of an attempt to weaponize it against devout and sincere gay and lesbian Christians.
Each Church of the Anglican Communion is autonomous, bound by its own canons, constitutions and other governing instruments. The Anglican Communion has no common mind, nor any institution with the legal competence to declare it. The Communion is held together by bonds of affection through four so-called instruments of communion (formerly instruments of unity), namely the Archbishop of Canterbury, the Primates Meeting, the Anglican Consultative Council and the Lambeth Conference.
Although the mind of the Anglican Communion cannot be measured or expressed, it can, however, be revealed through a comparative analysis of the laws of each legally autonomous Church. Canon law has been described as ‘applied ecclesiology’: the manner in which a church self-identifies is authoritatively declared by its laws. Establishing which particular laws are shared across all the Churches of the Communion allows common principles to be discerned and articulated. The laborious task of analyzing the laws of all such Churches was undertaken by the Anglican Communion Legal Advisers Network and led to the launch at the Lambeth Conference 2008 of The Principles of Canon Law Common to the Churches of the Anglican Communion.
A recent exercise carried out under the auspices of the Ecclesiastical Law Society and the Centre for Law and Religion at Cardiff University, with the participation of working groups in various parts of the Communion, revisited all the principles and produced a second edition which is to be launched on 5 August 2022 at this year’s Lambeth Conference. Significantly, the only matter on which it was unable to find a common principle concerned the nature and definition of marriage. Accordingly, the preamble to Part VI includes the following:
“The working groups operating under the auspices of the Ecclesiastical Law Society, as part of the revision process worldwide for this second iteration of the Principles, reported significant changes in some church laws with regard to whether two persons of the same sex may marry. As a result, there are now differences between the laws of the churches of the Communion on this point. Some churches provide only for marriage between one man and one woman. Some churches also provide for marriage between people of the same sex. Mindful of this difference, and of the principle of autonomy, it has not been possible to discern a common principle of canon law on who may marry whom.”
This is further expressed in the text of Principle 70 which declares that it was impossible to discern a common principle of canon law in this regard.
“As stated in the preamble to Part VI, the working groups operating under the auspices of the Ecclesiastical Law Society, as part of the revision process worldwide for this second iteration of the principles, reported significant changes in some church laws with regard to whether two persons of the same sex may marry. As a result, there are now differences between the laws of the churches of the Communion on this point. Some churches provide only for marriage between one man and one woman. Some churches also provide for marriage between people of the same sex.
Mindful of this difference, and of the principle of autonomy, it has not been possible to discern a common principle of canon law on who may marry whom.”
Since no common principle of canon law is discernible within the laws of each component Church in the Anglican Communion, no bishop, properly advised, can in conscience support a Call which purports to state that it is ‘the mind of the Anglican Communion’ that same-gender marriage is not permissible. It is a matter of indisputable fact that several Churches of the Anglican Communion have clearly and unambiguously revised their laws either to permit same-sex marriage, or to authorize liturgies of blessing for gay couples who have married or entered into civil unions, or have allowed individual dioceses to make such provision should they wish. The Churches in the USA, Canada, Scotland, Wales, Australia, and New Zealand provide various examples of such provision.
Sometimes the charism of unity is best displayed in recognizing the reality of the existence of two contradictory views.
Cite this article as: Mark Hill, ” Principles of Canon Law and the Mind of the Anglican Communion” in Law & Religion UK, 26 July 2022.
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