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 meThe 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 WayA 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 ConclusionIt 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