August 8, 2011

An Imperfect Union

One of the issues facing clergy in New York State — joining a handful of other American jurisdictions — is the role they may play in the marriage of same-sex couples. The issue is open to a broad range of interpretation, as both the canons and the Book of Common Prayer are silent on the subject. The range of interpretation is well represented by the bishops of the various dioceses into which the Episcopal Church in the state of New York is divided. Differences of opinions between the bishops is particularly exacerbated in New York City because its five boroughs are distributed into two different dioceses: Manhattan, the Bronx and Staten Island are in the Diocese of New York, while Brooklyn and Queens are part of Long Island. Bishop Provenzano of Long Island has taken the position that clergy may perform same-sex marriages, while Bishop Sisk of New York has taken the position that they may bless civil marriages but not exercise the civil function in the solemnization of marriage for a same-sex couple.

This would not be a problem — or less of a problem — if we lived under Napoleonic law, in which only civil functionaries can perform the civil function of solemnizing marriage. In France a couple must take part in a civil marriage if they are to be considered married in the eyes of the state (and if they are Roman Catholic they must also have a church wedding in order to be considered married under the Roman Catholic canons.)

But here in New York, as in much of the rest of the United States, clergy are granted the faculty of performing civil marriage on the basis of their being ordained and authorized to celebrate marriages by their churches. The irony, and the misunderstanding (on the part of the civil authorities) is that according to the theology of marriage in place in the West for quite some time, the actual ministers of marriage are the couple — not the clergy. That is, the couple minister marriage to each other. The role of the church, and in particular the clergy, is to record, witness and above all to bless the marriage. But the marriage is made by the couple. So in allowing clergy the civil faculty to “perform” a marriage there was already a significant misunderstanding at play.

Ultimately this bleeds over into the current dilemma. Since blessing the marriage is all that clergy do strictly as clergy, what logic is there in forbidding them to perform the civil act of solemnization which is only theirs by gift of the state? (Except that the state only gives it because it misunderstands what the church is doing in marriage! Oh, what a mess this is...)

Canons to the right of me

The confusion is further exacerbated when we look closely at canonical rules. The first section of Canon I.18 states:

Sec. 1. Every Member of the Clergy of this Church shall conform to the laws of the State governing the creation of the civil status of marriage, and also to the laws of this Church governing the solemnization of Holy Matrimony.

We are off to a bad start with the artificial distinction between “creation of the civil status” and “solemnization.” But let that pass. The primary issue here is the mandatory conformity enjoined upon members of the clergy with the laws of the state concerning civil marriage. Several states and jurisdictions now have laws governing the civil status of marriage which permit marriage to same-sex couples. At present the “laws of this Church” do not address the question of same-sex marriage at all, either to forbid or allow. The laws of the church are designed solely to govern marriage between a man and a woman, primarily to assure that capacity to marry and consent obtain. This is how section 2 describes it:

Sec. 2. Before solemnizing a marriage the Member of the Clergy shall have ascertained:
(a) That both parties have the right to contract a marriage according to the laws of the State.
(b) That both parties understand that Holy Matrimony is a physical and spiritual union of a man and a woman, entered into within the community of faith, by mutual consent of heart, mind, and will, and with intent that it be lifelong.
(c) That both parties freely and knowingly consent to such marriage, without fraud, coercion, mistake as to identity of a partner, or mental reservation.
(d) That at least one of the parties has received Holy Baptism.
(e) That both parties have been instructed as to the nature, meaning, and purpose of Holy Matrimony by the Member of the Clergy, or that they have both received such instruction from persons known by the Member of the Clergy to be competent and responsible.

Clause (b) is a problem on a number of levels1 but not primarily as a restriction on same-sex marriage. For the “understanding” that holy matrimony involves a man and a woman falls upon the couple rather than the clergy, as does the similar language in the “declaration of intent” that the couple are somewhat redundantly2 obliged to sign. The crucial thing to observe is that none of this has any impact on the civil faculty of clergy to solemnize marriage, nor on the ecclesiastical faculty of blessing the marriage (which, as I note above, is the primary clergy task from a strictly ecclesiastical point of view.)

Rite of Way

A further level of complexity concerns the lack of a nationally authorized liturgy for the marriage of same-sex couples. This is where the “generous pastoral response” of the 2009 GC Resolution C056 comes in. This Resolution, which was adopted by overwhelming majorities in both the House of Bishops and House of Deputies, states, among other things:

That bishops, particularly those in dioceses within civil jurisdictions where same-gender marriage, civil unions or domestic partnerships are legal, may provide generous pastoral response to meet the needs of members of this Church...
Taking advantage of the bishops’ constitutional prerogative (Article X, and BCP page 13), to authorize special forms of liturgy for occasions not already provided for in the BCP, it is well within a bishop’s scope of action to do as some have done in allowing use of experimental liturgies such as have already been developed for same-sex marriages.

In Conclusion

It seems to me that it is fully appropriate for a bishop to authorize clergy of a diocese in which the civil law allows the solemnization of same-sex marriage to perform both the civil function of solemnization and the ecclesiastical function of witnessing, registering, and blessing the marriage, using forms authorized by the bishop to that end.

__________

1. The main problem lies in the word “spiritual” — since the tradition, and the liturgy, do not define marriage as a “spiritual union” in the Western tradition, which holds that marriage ends at death. This biblical point of view (cf. Luke 20:35, 1 Cor 7:39) is not accepted in the East, which is one of the reasons the Eastern Orthodox are not sanguine about second marriages even in widowhood.

The secondary problem concerns the marriage being “entered into within the community of faith” since as the canon states (repeating a BCP rubric) only one of the parties need to be baptized and there is no requirement at all that the witnesses be baptized.

It would probably be best to delete this whole section “b” as superfluous.

2. The Declaration of Consent contained in I.18.3.e-g repeats the language of the BCP. That a couple should have to sign this declaration prior to making the declaration as part of the marriage liturgy seems a completely unnecessary requirement, rather like requiring an ordinand to sign the Oath of Conformity before signing the Oath of Conformity in the ordination liturgy.

Tobias Stanislas Haller BSG


17 comments:

JCF said...

Outstanding post, Tobias. (i.e., I know this is one I'm going to have to dig into, at length!)

Marshall Scott said...

Tobias, I find myself wondering whether it is time (perhaps time again) to move a change of Canons so that in the Episcopal Church we bless civil marriages and no longer celebrate holy matrimony; or use the term only for the religious celebration. We might authorize for Holy Matrimony (religious blessing a civil marriage) the Prayer Book liturgy for Holy Matrimony; the liturgy for Blessing of a Civil Marriage, otherwise incorporated into a Eucharist; or a liturgy authorized for trial use appropriate for blessing any couple, whether gay or straight (which is what I hope, at least at this point, our next General Convention will do). I know that would be for many a step too far; but it would accomplish separating us from that sometimes troublesome civil responsibility.

Tobias Stanislas Haller said...

Thanks, JCF. And Marshall, too.

We in the US are experiencing the primary result of our English colonial heritage in this, as it was in England that the Erastian notion of marriage flourished (until the reforms allowing for the registry office, only C of E marriages were fully "legal" in England, hence the flourishing of "common law" marriage.) But the point is that the right to perform civil marriage is not something the church claims -- it is something the civil authority grants: which is why the canon has the proviso about the civil law and our being bound by it.

The other side of the problem is an unwillingness to recognize that marriage is first and foremost a civil matter, not a religious one. The whole very confused and uneven (through time and in space) "theology" of "Christian" marriage is testimony to the many discontinuities that arise when attempting to create a theology from something that is essentially a human reality that existed long before any religion tried to lay claim to it! Luther had the courage to acknowledge this, and the Anglican Reformers were not far short of it when they referred to "an estate allowed," but too many Christians have come to see marriage primarily as a "churchy" matter, and I think this, not the civil issue, is the real source of confusion.

R said...

Tobias,

Thanks for a most helpful post illustrating the headache and potential remedies!

I tend to agree with Marshall, as well, though it would be a tough sell. A number of our churches depend heavily on weddings as a source of revenue, and unless the state withdrew its licensing of clergy (fat chance, esp. given late day austerity), we can probably expect widespread opposition to the notion!

Clergy wear too many hats in this matter. I have actually found helpful the pastoral directive of our bishop in California, who invites us to set aside the civil authority when presiding at church weddings, asking couples to either provide their own deputized legal authority at weddings, or obtain a civil marriage first. Making the distinction is not only helpful in clearing up the current muddle, but has proven very helpful to me to treat same- and mixed-gendered couples equally, and in helping couples more fully understand the structure of our marriage rite and the various roles of legal and moral responsibilities in the marriage.

Tobias Stanislas Haller said...

Thanks R (E!)
The irony, of course, is that what has many in NY "steamed" (aside from the summer weather --- which I understand from the Onion scientists have found to be linked to a massive star at the heart of the solar system) is the current inability to do the "civil" bit! So even in this the pressure is uneven and the various constituencies are not in agreement.

Ultimately the problem all goes back to the fact that the officiant, whether civil or sacred, is actually not the one doing the marriage; "solemnizing" doesn't make the marriage a marriage. The Quakers have, of course, the most ingenious solution in dispensing with an officiant altogether!!

Anyone who says the issue of marriage is simple is daft. Sadly, there is no easy way out of the complex mess into which we have gotten ourselves, unless a Gordian solution is in the offing...

Fr. J said...

This is an interesting post which, though it is primarily spurred by the question of same-sex unions, raises some of the difficult questions that we have not been able to work through in society or in the Church about the role of the state, the role of the Church, and how the two are meant to overlap.

It is interesting to me that you interpret the canons as not effectively prohibiting same sex marriage. I find that there are a number of problems with Section 2b, not least being the idea that a marriage is only "with the intent to be lifelong," as if it is by nature temporary and only becomes permanent through our best hopes for it.

Despite that, though, I would think that the fact that the canons and the BCP define marriage as being between a man and a woman would effectively rule out calling any other type of union a marriage licitly. It has been my assumption--perhaps wrongly--that the liberal position on this has simply been that the canons and the BCP are wrong, or at least incomplete, and that blessings of same sex unions up until now have been conscious acts of ecclesiastical disobedience. In a way, I find that easier to respect, even though I think it is incorrect, as it shows that liberals place what they believe to be the essential truth above the law.

Interestingly enough, though, I would not want the canons to say something like "Same sex marriage is not real marriage," as I find the practice of defining something by its negative, while perhaps sometimes necessary, to be generally unhelpful.

Marshall Scott said...

Fr. J, I have long thought that, recognizing Tobias' concern, that we in the Church (and in this case I'm thinking about all bodies of the Church Catholic, and not simply the Episcopal Church) should avoid the term "marriage," and insist on "holy matrimony." While we would wish all couples to desire and seek the blessing in the Church for their marriages, we would not call them "unmarried" if they had a civil marriage and not the Church's blessing. No, I don't it to happen (even though I make some effort to speak this way myself); but I think it would clarify the point that social purposes of marriage (a legally exclusive relationship, sharing of property, securing status for children, etc.) are independent of those of the Church, if not contrary.

Erika Baker said...

R,
I don't think the church would necessarily lose out financially.
In Germany, too, you can only have a church wedding after you have been married in a civil registry office and people simply consider both to be different processes. We don’t believe the church only blesses the marriage the registrars have legalised but that the they constitute the actual marriage before God.
So those who now opt for a church wedding in Britain and the US would simply go down the register office with 2 witnesses on the Friday and then, legal bit done, have their actual “wedding” in church on the Saturday.
The only marriages the church loses out on are those of non-Christians and of those couples it chooses not to welcome. No change from the status quo.

Allison Elaine said...

There are Episcopal (TEC) churches all over the world. Surely, such churches in France must follow the civil law there, which would require having a civil marriage performed before a church service.

Slightly off topic:

A great many things happened at the Last Supper; various churches have enshrined Holy Communion and footwashing as sacraments. Considering that Jesus told his disciples that he was now calling them friends (John 15:9-17) it would not be surprising if we had a sacrament or rite recognizing and blessing friendship.

Bishop Whalen (Convocation of Episcopal Churches in Europe) wrote a paper addressing the theology of same-sex relationships in which he addressed, among other things, the theology of friendship. If I understand him correctly, just as marriage is said to represent the bond between Christ and his Church, friendship may be said to represent the relationship among the members of the Trinity in their eternal dance. (I hope he will forgive me if I have misunderstood this.)

His paper (Notes for a Theology of Same-sex RelationshipsZ) may be found at
http://web.mac.com/pwhalon/Bp_Pierre_Site/Interviews,_%26c.html

as a .pdf file.

As I have not read your book (hangs head in shame) I don't know if you have addrssed this topic there. But I found it interesting.

Allison

Tobias Stanislas Haller said...

Fr. J., you raise some good points. I completely agree with you on the use of "intent" in 2(b), adding to the list of problems with that clause. We would be better off without it -- or at least clearer.

I disagree with your assessment that the Canons or the BCP "define" marriage. Rather they "describe" it as it was understood, and in legal effect, at the time of writing (the 1970s in both cases.) Neither source offers a full "definition" of course. Missing are the standard provisos concerning degree of blood relationship, prior marriages (addressed separately in Canon I.19), and fertility and potency (the latter being a requirement in RC canon law).

My point is that all of these requirements, most of which had a place in earlier versions of the canons, which had blossomed beyond proper husbandry in the years between 1868 and 1973, are now folded into the requirement that the marriage be in accord with civil law. We have, effectively, handed much of the responsibility for "defining" marriage to the state.

For example, the marriage of first cousins -- permitted (and even mandated!) by Scripture, and allowed under the old "Table of Affinity" and legal in England, is illegal in a number of US jurisdictions, and so -- in accord with the canonical requirement -- an Episcopal cleric may not solemnize such a marriage. (I assume nothing would prevent a cleric from blessing such a marriage that took place in another state, and that the current state has to recognize the couple as married, though I'm not sure about the latter.)

So the issue is not that the BCP and Canons are "wrong" -- at least not absolutely so. It is just that they are now out of date in keeping up with the changes in civil law. (I will add that the "blessing of a same-sex union" is not a violation of anything canonical, and therefore not an act of ecclesiastical disobedience.)

The current dilemma lies in the crucial word "and" -- that I.18.1. requires conformity to civil _and_ church law -- which at present are at some degree of tension. This is why I respect Bishop Sisk's cautious approach, though I think he would be within the canonical framework in providing a rite which the BCP doesn't provide.

Law is law, and has to be understood very precisely as such -- and as you closing clause correctly notes, absent some further change to the canon to forbid it, the present canon simply does not address the question at hand.

Marshall, the problem is that there is no universal agreement on Matrimony among the various Christian traditions. The church didn't invent marriage, it adopted it -- at different times and in different ways in different parts of Christendom, and those differences remain. Certainly a separation of the civil and ecclesiastical would help clarify this.

Erika, I tend to agree. I do not think we would lose out on weddings --- people who want a church wedding want a church wedding, whether for the "Bridal Industry" reasons or from religious conviction that only the blessing of God "seals" the marriage. It is a risk I think we could well take.

WSJM said...

I think we should try to clarify who has what dog in this hunt. It seems to be that the state's interest is in the registration of the civil relationship of marriage, which carries with it certain legal rights and responsibilities. The state does NOT have (or ought not to have) any interest in wedding ceremonies, and should neither provide nor require them. Just sign the contract.

I find it interesting that in Italian or Austrian operas, typically set in presumably Roman Catholic societies -- for instance Mozart and Rossini -- a marriage ceremony consists of signing the contract in the presence of a notary. Then have a party. For Christians the party appropriately begins with the Eucharist and the nuptial blessing.

My understanding is that what a justice of the peace or a magistrate does when presiding at a civil marriage is much shorter and simpler than the closing when one buys a house. (There's a message in there somewhere.) Go to the courthouse, apply for a marriage license, sign it, return it (in some states three days later), and it's done. If you want to have a Solemn Nuptial Mass, or a silent Quaker meeting, or a party in the park, that's not the state's concern.

My understanding of the purpose of Section 2(a) has always been that the Church may not bless a marriage that is contrary to and would not be recognized by the laws of the state, because that would be complicity in fraud.

I'd like for us to get out of the business of acting as civil functionaries in this matter.

Tobias Stanislas Haller said...

Thanks WS. You are correct that the state, as we say in NY, "could care less" about whether a couple has a church wedding or not. As I noted above, it is the state that allows, but does not force, clergy to solemnize marriage.

Theologically speaking, however, there are problems with this effort to tease apart civil and sacred when it comes to the marriage itself, because the church in fact teaches that the ministers of marriage are the couple, and when they pledge themselves to each other, joining hands and with or without rings or other symbols, they are married. Whether this happens in front of a judge or a priest doesn't matter; marriage is marriage. (This is the Episcopal position: the Orthodox require the ecclesiastical blessing, and the RCs require the presence of the church, at least since Trent. The Episcopal position is further confused by the provision for deacons (where allowed to solemnize by civil law) to officiate but not to bless -- thereby forcing the question of what it is precisely they are doing of an ecclesiastical mode.)

The church did not provide a marriage liturgy for the first several hundred years of its life. The first liturgy in the West was prayer of blessing over the bride for preservation through childbirth. Later came the blessing of the marriage bed in the home. Then a public proclamation on the church steps with a very brief prayer. Only in the Middle Ages did the church lay claim to marriage, and only in the post-Reformation (in Rome and England) to a peculiar competence in it. The 19th century changed all that in most of Europe (Lutherans already having a jump on things), though the rest of the church doggedly stuck to its prerogatives.

The fact is that marriage, like confirmation, is a rite in search of a theology, and it has floundered about for centuries in many different directions in that quest. Keeping it simple -- as a blessing of the couple -- is to my mind the best way forward.

Going with Mozart and the Code Napoléon would, as I say, help to clarify what the church is actually doing. Otherwise, as the Emperor said of Mozart, "There are too many theologies!"

Richard Edward said...

Erika,

I agree. Just to clarify:

My only point is if The Episcopal Church acted unilaterally at this time to prohibit our clergy from acting as agents of the state, my hunch is that many couples would, for simplicity's sake, merely seek out other churches where clergy could still take care of the legal side. Hence the potential loss of revenue for Episcopal parishes and cathedrals that host a great many weddings.

The separation works as you outline in many parts of Europe because no clergy in any denomination may act as state agent.

IT said...

I agree in separation of civil and religious though I don't think it will ever happen--they are too conflated in the minds of the public.

There are various ways to do this, of course. The signed piece of paper from the JP and then the Big Church Wedding is one. And one that most people (those who drop by that cute-little-church, oh-wouldn't-it-be-darling-for-a-wedding) would prefer.

But I also endorse the more "intentional" format.

My wife and I were married in 2008 when it was briefly legal in CA. We had a dear friend deputized for the day, wrote our own vows, and had a wonderful celebration with family and friends.

Two years later, my wife became an Episcopalian. Later in 2010, the diocese approved blessings of same sex couples. So we arranged a small service to bless our civil marriage and renew our vows, with members our new church family, no big party, very low key. It was serene and, well, spiritual.

I think there's a lot to be said for separating the grand party from the church's blessing. Though it wouldn't be very good for the coffers.

Tobias Stanislas Haller said...

RE and IT,
Just to clarify, I am not arguing for a separation of the civil and sacred, but an integrated understanding that the solemnization of marriage, by whoever it is undertaken, is just that: it does not "make" the marriage, but formally and with ceremony recognizes and records that the couple have married each other.

That doesn't mean I think the Napoleonic decision is wrong -- but what it does is deprive the church of the right to "solemnize" and limit it only to blessing and recording. I think the church has as much right to "solemnize" as the state -- and as I note, in our heritage from England it was the only power to do so from the Reformation to the mid-19th c., when the registry office came into being.

I do, however, find that the separation is a bit confusing unless one is absolutely clear about the reasons for separation (such as a desire to keep the church out of the "marriage business") and holds fast to the understanding that it is the couple who marry, and the state or church only add formality and ceremony, but no substance.

Grandmère Mimi said...

I'd like for us to get out of the business of acting as civil functionaries in this matter.

Amen, WSJM.

A civil functionary (not clergy) recognizes the marriage of which the couple are themselves the agents, with the church blessing a separate matter altogether.

Leaving aside the matter of the revenues....

Tobias Stanislas Haller said...

Allison,
Sorry for the delay in posting your comment... it was lost in the aether and just popped up.

You are of course completely correct about the status of civil marriage in Europe (or anywhere else) Episcopal clergy do marriages in relation to the civil law -- which in some places they are not authorized to do.

As to friendship and the Trinity, although I admire Bp Whalon's writing, I'm cautious about bringing the Trinity into almost anything. In this case, the danger is in seeing the Persons more as People. There is, of course, great value in celebrating friendship as part of the spousal relationship (as I always do in my prenuptial counseling!) and it is important enough in that sense as part of the nature of love.