Australian Church Tribunal Opinion on Diaconal Administration: An Inconsistent Ruling?
We've already reported on the recent Tribunal ruling on this matter. The 2008 Sydney Synod motion which recognises that there is no legal barrier to diaconal or lay administration of the Lord's Supper was ruled as illegal by the Tribunal. Well, technically, they gave their opinion.
The detailed ruling is interesting reading. Available now online [pdf] it is well worth working through. Not least because the Tribunal appears to have switched their reasoning when compared to another recent high-profile case.
First, the opinion sets out the main argument:
28. The submission is that it is legal for deacons to administer the Holy Communion within the Anglican Church of Australia where they have been made deacon under the 1985 Canon which authorises deacons to assist the priest in administering both sacraments.
29. Dr Davies fleshes out that submission by saying:-
(1) This Tribunal has ruled that diaconal administration of the Holy Communion is consistent with the Constitution;
(2) This Tribunal has ruled that a General Synod Canon authorising such practice would be required before any diocese could make provision for diaconal administration of Holy Communion;
(3) The 1985 Canon contained a new service for the Ordination of Deacons, which was a radical revision of the Ordinal of the Book of Common Prayer (BCP), alternative to the conservative revision that was published in An Australian Prayer Book (AAPB) in 1978.
(4) The 1985 service departed from the text of both AAPB and BCP with expanded functions for the deacon, notably with respect to preaching and the administration of baptism and Holy Communion.
(5) Unlike the Ordinal of BCP, the deacon's responsibilities were not delineated separately with respect to each sacrament (baptise infants in the absence of the priest; help the priest in the distribution of the Holy Communion), but were coupled together in the expression "to assist in the administration of his holy sacraments", without any further qualification concerning the presence or absence of the priest.
(6) The function of the deacon was thereby expanded to allow the deacon to baptise not only infants, but candidates of any age (regardless of the absence of the priest), although such baptisms would only be conducted under the aegis of the priest, whom the deacon was to assist.
(7) The function of the deacon was also expanded to allow the deacon to administer Holy Communion with the same authority the deacon had to administer baptism, likewise in an assisting capacity under delegation from the priest.
(8) There are occasions when canons have valid legal effects which are not recognised until some time later, as was the case with the change in definition of canonical fitness for bishops in the Constitution. The fact that
the 1985 Canon was not previously recognised as authorising deacons to assist the priest in administering Holy Communion does not override the plain reading of the text of the service, in accordance with the principles of statutory interpretation.
(9) The 1985 Canon satisfies the conditions of the Appellate Tribunal to permit diaconal administration in any diocese which ordains deacons in accordance with the service in the 1985 Canon.
(10) Therefore the Ordination Service for Deacons Canon 1985 of General Synod constitutes an alteration in the ritual or ceremonial of this Church for the purposes of s71(1) of the Constitution of the Anglican Church of Australia in conformity with which a synod of a diocese may make an alteration in the ritual or ceremonial of the Church so as to permit, authorise or make provision for a deacon to preside at, administer or celebrate the Holy Communion.
Trust all that makes sense. The ordination service says that the deacon is the assist in the administration of the sacraments. That has always been understood to include baptism, so why not the Lord's Supper? There is, the argument goes, no distinction made in the canons.
Now, this is how the opposing argument is described by the Tribunal's ruling:
36. ...the Supporting Parties put that, not only are there no words in the new service expressly authorising a deacon to preside at the Eucharist, what there is suggests that the new deacon is to take his or her place in the service of Holy Communion. The Supporting Parties suggest that that means the traditional place of the deacon. We agree.
37. The Applicants also do not agree that the 1985 Canon should be construed as expanding the liturgical function of deacons in a radical way as contended by Dr Davies.
The logic is that, the argument from Sydney notwithstanding, the understanding in the Church always was that only a priest would administer Communion. To suggest otherwise would be a "radical expansion".
Further, the Tribunal gets really picky about the meanings of words…
57. The Supporting Parties say that it is significant that the words used are “assist in”. Whilst it may be that one can assist X by doing Y when X is not present, this cannot be the case where what is required is that Z assist X in what X is doing. This submission is logically correct.
58. In their reply, the Supporting Parties make the further valid point that there is a real difference between “assist by” and “assist in”. They note that a child may assist his or her father in washing the car, but it is a different matter to say the child assisted by washing the car. In the present context the deacon is to assist in the administration.
59. The Applicants say that one sees the proper sense of the word when one compares the wording of the service for making deacons with the wording of the service for ordaining priests. They say that the clear distinction is made between the priest who is to administer the sacrament in the sense of presiding, consecrating and celebrating and the deacon who is to play a subsidiary role.
60. We cannot see any answer to this submission.
Again, note the argument being made here. As the Tribunal picks through the various legislation and liturgies they are concerning themselves with what they think was originally intended, not with what the legislation might be generously allowed to include, even if not the original intention.
And "fair enough" we might say. They must, after all, have a consistent and sustainable way of working this issue through.
But here comes the rub. In September of 2007 the Tribunal issued an opinion on whether women could be consecrated as Bishops. The full report may be read here [pdf]. Again, it is fascinating reading, especially given the argument we have seen from the Tribunal above.
First, it is noted that previously there was a clear gender requirement…
33. Phillimore deals with the ordination of priests and deacons in a separate chapter from his discussion about bishops. It is here that he states the wellknown propositions about the incapacity of unbaptized persons and women to be ordained. It is pertinent to set out the first two paragraphs of a lengthy passage (p93):
There are only two classes of persons absolutely incapable of ordination; namely, unbaptized persons and women. Ordination of such persons is wholly inoperative. The former, because baptism is the condition of belonging to the church at all. The latter, because by nature, Holy Scripture and catholic usage they are disqualified.
Though an absolute incapacity be confined to these two classes, yet the canon law, having regard to the great importance of the subject, has been careful to prescribe the qualifications, and to set forth the disqualifications of candidates for holy orders. The law enjoins that the candidate be of sufficient age and learning, and of good reputation. That he be not afflicted by any corporal infirmity which would impede the exercise of his spiritual functions, and tend to repel and alienate the laity. That he be born in lawful wedlock. That he be not engaged in secular occupations inconsistent with devotion to the spiritual calling. Disqualifications of this kind constitute what, since the twelfth century, have been canonically termed irregularitates, and may upon sufficient grounds be removed by the dispensation of the bishop. There are irregularitates ex defectu and ex delicto.
34. The context and language of this passage and of the two pages of text that follow show that the author was addressing ordination to the diaconate or priesthood. But, in so observing, I am not suggesting that the various personal disqualifications were inapplicable to the episcopate as a matter of canon law. The contrary is the case because (as Cripps noted) “every bishop prior to his ordination is already an ecclesiastical person” (see also Phillimore p22). I observe below that a gender restriction was an aspect of canonical fitness and that the majority of the Tribunal held in 1991 that the inherited canon law of the Australian dioceses as at 1962 included a prohibition upon a woman being consecrated. (my emphasis)
However, there were subsequent canons (just as there were with respect to the ordination of Deacons). Here is how the opinion takes up these "changes"...
50. The Canon and Bill [of 1995] explicitly altered the Constitution as regards canonical fitness: see their long and short titles and compare the terms of the old and new definitions. Like its predecessor, the current definition purports to be exclusive in its effect (“Canonical fitness means” etc). The language chosen is gender-neutral (“as regards a person”). It is used with reference to a bishop-elect who will doubtless be in priest’s orders. The terms “bishop” and “priest” in the Constitution do not convey any implicit gender tag (see below).
Again, note the flow of the argument. Previously, it was assumed by everyone that bishops could only be male and the canons backed it up. But, now the canons are non-gender-specific.
But hang on, isn't this exactly the argument put forward by Bishops Davies above? That the new canons opened up the possibility of a different understanding of Deacons "administering" Communion? On that occasion the Tribunal knocked him back because, remember, even though the language was now looser the original intent was never that Deacons would administer Communion.
So, surely, in this prior ruling the Tribunal will go the same way? Granted, the canonical language is looser, but the original intent in this matter was always that bishops should be men and only men. Sure bet, you would think. Well, put your wallet away - you don't want to waste your money.
64. Those who prepare or promote legislation (or any other formal instrument) have the opportunity to frame it in their own terms, but they have no additional control over its interpretation. After all, they are not the lawmakers.
69. The Tribunal has also held that the words bishops, priests and deacons in s3 of the Constitution do not import the masculine gender so as to engage some implied prohibition deriving from s74(6) (see Reports of 1980 and 1981; Opinion and Reasons relating to the Ordination of Women (1985); Report and Opinion of the Tribunal on eleven questions (1991)).
Question 1: Is there anything in the Constitution which would now prevent the consecration of a woman in priests’ orders as a bishop in this Church in a diocese which by ordinance has adopted the Law of the Church of England Clarification Canon 1992?
Answer: As regards diocesan bishops: No, provided that the woman has been duly elected as the diocesan bishop and has had her election duly confirmed in accordance with the criteria for canonical fitness set out in s74(1) of the Constitution.
As regards assistant bishops: There is nothing in the Constitution itself that would preclude the consecration of a woman appointed in accordance with the law applicable in the diocese concerned.
However, such consecration could not take place in a diocese in which the Assistant Bishops’ Canon 1966 is in force so long as it remains in force in that diocese in its present form.
And there you have it. In the matter of Diaconal administration the Tribunal argues original intent against the new looser canons. In Consecration of Women it argued against original intent since the new canons were looser.
But, of course, on each occasion it took the position proposed by the more theologically-liberal side of the Australian Anglican Church against the Biblically-conservative Sydney Diocese.
General Synod is coming up in September and I will be attending. Sydney Diocesan Synod follows in October. Should be a lot of fun. Watch this space.
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