Appellate Tribunal backs legality of Wangaratta, Newcastle moves in 5-1 decision
By Muriel Porter and Mark Brolly
16 November 2020
By a five to one majority, the Appellate Tribunal, the Australian Anglican Church’s highest court, has effectively cleared the way for the liturgical blessing of same-sex civil marriages.
In a decision handed down after more than a year’s deliberation, the Tribunal said that blessings approved by the dioceses of Wangaratta and Newcastle last year are not inconsistent with the Fundamental Declarations and Ruling Principles of the Church’s Constitution, nor with the General Synod Canon Concerning Services 1992. The Tribunal has made clear that the blessing services do not “entail the solemnisation of marriage”.
The decision is expected to ignite controversy with conservative sections of the Anglican Church of Australia, which strongly oppose same-sex relationships. The majority members of the Tribunal have alluded to this, noting that “the Tribunal has been confronted with deciding on behalf of a divided church strictly legal matters that will affect authoritatively the future choices for prayerful further action by synods, bishops, clergy and lay people”.
Melbourne’s Archbishop Philip Freier said he had heard a range of opinions from bishops about the wider implications of the decision.
“At the very least, I take the decision to mean that a Synod can validly authorise a service like Wangaratta’s,” Dr Freier wrote in an Ad Clerum (“To the clergy”) on 13 November. “The national house of bishops met yesterday and has appointed a small drafting group to prepare a response. There will undoubtedly be opportunities for further discussion at the General Synod Standing Committee meeting tomorrow, the National Bishops’ Conference next year and at the General Synod scheduled for June 2021.
“You will be aware that the 2019 Melbourne Synod passed a motion expressing sorrow over the Wangaratta decision.
“I propose to seek advice from the members of Archbishop in Council on the best way to respond to this news and to seek their advice as to the kind of processes that may be helpful for Melbourne Diocese as we enter the next phase of these discussions.”
The first reference to the Tribunal concerned a prescribed liturgy for blessing civil unions overwhelmingly approved by Wangaratta Synod in August last year. The regulation to approve the liturgy does not specifically refer to same-sex marriages, but provides for “persons married according to the Marriage Act 1961”, the Australian Parliament’s marriage legislation amended in 2017 to provide for same-sex marriages. The regulation does not compel clergy to conduct a marriage blessing “if to do so would offend their conscience”. If they refuse, they are not compelled to refer couples to another minister.
The planned blessing of the civil marriage of two male Wangaratta clergy in a long-term partnership, scheduled to take place two weeks after the Synod vote, did not proceed after Dr Freier, then the Primate, referred the matter to the Appellate Tribunal. He asked that the liturgy not be used while the Tribunal deliberated.
The Bishop of Wangaratta at the time the Synod passed the regulation, Bishop John Parkes, now retired, told TMA that he is delighted “but not surprised that the Appellate Tribunal by majority of 5-1 decided that what we had proposed in terms of a rite of blessing for persons married according to the law of the Commonwealth was lawful”.
“Had I thought otherwise I would not have proceeded,” Bishop Parkes said. “I hope that this sends a clear message to LGBTIQ people at least in this part of the world that they are loved by God and affirmed and welcomed by God’s church.”
Bishop Parkes’ successor in Wangaratta, Bishop Clarence Bester, said it was important that the Tribunal had stated that the Diocese of Wangaratta had not gone against the teaching of the Church on any question of faith.
“We remain faithful adherents of the teachings of Christ and committed members of the Anglican Church,” Bishop Bester said. “It also reiterated that this is not a service of marriage, but of blessing for those married under the Marriage Act as amended.
“This, in summary, means that the regulation which came into effect last year can now be used for its intended purpose. What I need to state is that this provides for all those who are married under the Commonwealth Marriage Act as amended.
“In this opinion and determination, I do not believe that we have any winners or losers. This matter will continue to be a bone of contention within the Anglican Church, as certainly within our Diocese, as some do not hold the same position.
“When this regulation came before the Synod of the Diocese of Wangaratta last year, it was explicitly stated by the former Bishop that no clergy person should feel compelled to do anything against their own belief and I would want to emphasise that again. What I do hope is that all viewpoints will be respected and that we will hold together as members of the Anglican Church even when we do not agree.
“Even as we are able to start using the service, as the Diocese’s representative to the national Church, I will continue in conversations within and beyond the Diocese, taking time to rejoice with those who are rejoicing and attend to all those who are hurting in any way.”
But in a sign of divisions over the issue, prominent Sydney layman, Dr Robert Tong, warned in an article on the Moore College website on 11 November that if same-sex liturgical blessings became part of the life of a diocese, “the unity of the Anglican Church of Australia will be on paper only”. Dr Tong, a member of the Standing Committee of General Synod, asked whether the Tribunal’s decision was a line in the sand for a split in the Anglican Church of Australia as had occurred in New Zealand, Canada and the United States.
And in his Presidential Address to Tasmania’s Synod less than two weeks before the decision was handed down, Bishop Richard Condie said any move to bless or endorse same-sex marriage within in the Church was contrary to the teaching of scripture and to Anglican formularies, adding that the debate “puts a lot of pressure on our bonds of fellowship in the national church”.
The Primate, Archbishop Geoff Smith of Adelaide, said the Tribunal’s decision was an important contribution to the continuing conversation within the Church about how to respond to issues of human sexuality while reflecting God’s love for all people.
Archbishop Smith noted that the General Synod in 2017 passed a motion recognising that the doctrine of the Church “is that marriage is an exclusive and lifelong union of a man and a woman” and the opinion of the Appellate Tribunal did not authorise Anglican clergy to officiate at weddings other than those between a man and a woman.
“The people of the Church hold a wide variety of opinions on these issues, considering historical teaching of the church and changes in society, and some will welcome the Appellate Tribunal’s opinion, while it will cause significant concern to others,” he said.
“The Church is a broad community made up of a great variety of people, young and old all over the country. And, this is an issue in which there’s a range of opinions.
“We believe God loves all people including those in the LGBTI+ community and those in same-sex relationships. We are committed to reflecting God’s love for them.
“It is important to note that there is significant goodwill among leaders of the church to work together on these difficult issues. We do so in good faith and faith in God’s love for all humankind.”
In October last year, the synod of the Diocese of Newcastle passed a similar regulation to Wangaratta, including the same form of service for the blessing as approved by the Victorian diocese. The synod also amended its clergy discipline ordinance so that clergy “cannot be charged with an offence by choosing to participate or not participate in the blessing of a legally solemnised marriage of two persons of the same sex”. It also provides that “the legal marriage of a member of the clergy to a person of the same sex, is not grounds for a charge of offence”. These decisions were also referred to the Appellate Tribunal.
The Tribunal decision says that the diocese has authority “to amend its own diocesan clergy discipline regime in relation to clergy who bless or are party to a same-sex marriage”. But it warns that this “would not affect the constitutional jurisdiction of diocesan tribunals to determine charges for offences created by the Constitution of the Anglican Church of Australia or by any Canon of the General Synod that is in force in the Diocese”.
Dr Tong’s article said there was “a profound sense of disappointment” in reading the lengthy majority opinion and that while considered reflection was required on the legal reasoning and the treatment of Scripture by Tribunal members, the conclusion was “clear and disturbing”.
“A presenting question is: who can articulate ‘doctrine’ in the Anglican Church of Australia? A contest between General Synod and the Appellate Tribunal is inevitable,” he wrote.
“What might flow from these Opinions? Anybody familiar with the long and tortured gestation of the Constitution will recognise that the hard-won unity of the Church, as expressed in the opening sections of the Constitution is under threat. The ordination of women created a state of impaired communion putting pressure on unity. If same sex liturgical blessings become part of the life of a diocese the unity of the Anglican Church of Australia will be on paper only.
“At ground level, some congregations in dioceses which adopt the innovation may want episcopal oversight from another bishop. Others may see that diocese as ripe for church planting.
“Looking more widely, do these Opinions mark the line in the sand which was crossed in New Zealand, Canada, the United States and the United Kingdom?”
The Tribunal membership includes Melbourne’s diocesan Chancellor, Professor Clyde Croft, and Bishop Garry Weatherill of Ballarat. Its president is former Sydney judge, Keith Mason, with former Canberra judge Richard Refshauge as deputy president. The Archbishop of Brisbane, Dr Phillip Aspinall, a former Primate, is also a member. These five members agreed in the majority decision, with the dissenting member Ms Gillian Davidson, a Sydney lawyer and Sydney representative on General Synod.
Both the majority and Ms Davidson alluded to the difficulties of division over the matter. In a section headed “Our colleague’s dissent”, the five majority members wrote: “In this matter and the associated Newcastle Reference, Ms Davidson has written separately and in painful dissent. We too have found this whole exercise particularly taxing for a number of reasons. It may be hoped that those who are unhappy with the Opinion and/or the reasons of the majority or the minority will accept that each member of the Tribunal has done his or her best according to his or her informed conscience.”
Ms Davidson wrote: “I have had the advantage of carefully considering the significant draft majority opinion that has been prepared, reviewed and discussed by the members of the Appellate Tribunal … I know that this separate opinion will cause unease and pain to some, particularly to those who have felt saddened, denied or malnourished by their experience of the church. I lament any pain in the same way I lament having to break the news of a hard or difficult truth to someone I love. And yet I do so trusting that the word of God is for our good, and mindful that God is a merciful God who delights to bless his people graciously and faithfully and the opinions of this Tribunal will not alter that fact.”
