CANON LAW

SUB-QRDINATIONCOLIN FONG and JULIA BAIRD examine the NSW and Western Australian judgments in

Scandrett v Dowling and Scandrett v Camley and indicate possible avenues of reform for Anglicanwomen to be admitted into the order of priesthood.

Until 15 years ago, women were non­existent in the official ministry of the Anglican Church, whilst comprising the majority of the parishioners. Mel­bourne Synod led the way for the world-wide Anglican Communion when it gave women the right to vote for male parish Synod representatives in 1913. It also pioneered the right of women to be elected to synod itself in 1924, but only after considerable strug­gle. Women were not allowed to be members of parish council in Mel­bourne until 1956 (after a forty year struggle), members of Synod In the dioceses of NSW until the 1970s and church wardens in Sydney until 1978. Every tiny new step has been bitterly fought, with considerable debate, and fervent opposition, particularly from the diocese of Sydney. At every stage, the same arguments have been used to prevent women from holding certain positions in the church.

In 1983 a group in Sydney, brought together by Dr Patricia Brennan, for­mally constituted itself as the Move­ment for the Ordination fo Women (Sydney). There had been precursors - Anglican Women Concerned (Sydney); Action Group for Women's Ordination (Melbourne) and Women in Holy Or­ders (Adelaide). The Movement for the Ordination of Women (MOW) quickly grew to a national body; the first national conference and commit­tee met in 1985. Each MOW group has lobbied its own synod and has brought the issue to public attention via the media. The national body has done likewise at General Synod. The con­certed and persistent actions of MOW have raised the matter to a critical state

in diocesan and General Synods, as they work at changing the nature of church practices and beliefs which have sustained discrimination in the church. Ordination is the focus of their movement even though there were, and are, much broader issues involv­ing church structure, hierarchy and patriarchy.

“Every tiny new step has been bitterly fought, with considerable debate, and

fervent opposition...”

In 1985 General Synod passed a canon allowing the ordination of women to be deacons (ie one step away from being priests). The first women deacons were ordained in February 1986 in Melbourne. Readers should note that the term deaconess is not the female equivalent of deacon. A deaconess is a lay order whereas a deacon is a priestly order. There are three major functions a priest can per­form which a deacon cannot: absolve people of their sins, give blessings and bless the communion and wine. Only priests may be consecrated as bishops and only priests may attend and par­ticipate in meetings of the House of Clergy within the Church. There are now approximately 150 women deacons in Australia, some in charge of their own parishes. The question facing the church today is whether it is

theologically and constitutionally sound for these women to be ordained as priests (with the support of two- thirds of Australian Anglicans), and the issue has now been taken to the courts by opponents to female ordina­tion to the priesthood.

Brief Chronological Background:1970 - present. Numerous verbal and

written debates on the ordination of women in the Anglican church. Debate within individual dioceses and at local and General Synod. See fur­ther reading.

December 1990. Bishop Owen Dowl­ing of the Canberra-Goulburn Diocese announced his intention to ordain six women into the priesthood on 24th February 1991. The proposed ordina­tions were deferred pending a decision from the Appellate Tribunal.

December 1991. The Appellate Tribunal handed down its decision re women's ordination and was incon­clusive. The voting was 4:3 against, but according to the rules of the tribunal, for a definite answer to be given on certain matters there have to be at least two bishops and two lay members voting one way so that there would be a proper balance between bishop-theologians and lawyers. The matter was then referred to the next General Synod meeting in July 1992.

24-25 December 1991. Bishop Dowl­ing announced his intention to ordain eleven women and six men into the priesthood at Goulbum Cathedral on 2 February 1992. In the following week

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correspondence was entered between the Archbishop of Sydney Donald Robinson (with special responsibility in NSW) and Dowling over the latter's proposal to ordain the eleven women. Archbishop Robinson advised Dowl­ing not to proceed.

16 January 1992. Dr Lawrence Scandrett of Sydney, two Anglican priests, David Robarts of Melbourne and Dalba Prima of Bega filed a sum­mons in the NSW Supreme Court re­questing an injunction to stop Dowling's plan to ordain the eleven women. Reference was made to sec­tion 53 of the Constitution of the Anglican Church of Australia concern­ing the need for General Synod to pass a canon on the matter.

23-24 January 1992. The case was heard over two days before Justice Andrew Rogers. During Robinson's evidence, the latter claimed the issue of women's ordination was divisive and the unity of the Anglican Church would be at risk.

28 January 1992. Rogers CJ, CommD, declined to issue an injunction and felt it was inappropriate for civil courts to meddle in internal church affairs. He also added in passing that the court should not be an instrument for sanctioning sex discrimination, if the injunction were allowed. Immediately the plaintiffs appealed and the Court of Appeal heard argument on the 30th of January. As an omen, after Rogers' decision, one of the female ordinands was quoted as saying "I'll believe it when the Bishop places his hand on my head." (The Australian, 29 January 1992)

31 January 1992. The Court of Ap­peal, consisting of Gleeson CJ, Samuels JA and Meagher JA, declined to dis­cuss the issue of women's ordination and allowed the appeal. Thus the or­dination of the eleven women could not proceed. The Court hinted at the 'main proceedings' yet to be brought before the Court which would resolve

SOME DEFINITIONSAppellate Tribunal: the Anglican church's 'High Court', consisting of lawyers and bishops.

Canon: a church decree/law.

Deacon:person ordained with a view to becoming a priest.

Deaconess: a lay order not lead­ing to priesthood.

Dioceses: districts consisting of parishes under the care of bishops.

General Synod: national assem­bly of clergy,, lay persons and bish­ops. For a canon to be passed it requires 75% support in each of the houses of laity, clergy and bishops. It meets every four years.

Ordination: service whereby churches recognise the person's call­ing by God.

Synod: assembly of clergy, lay per­sons and bishops. It usually meets annually and includes elected rep­resentatives from each parish (i.e. church).

questions about the Church's Constitu­tion, ie, powers of bishops, diocesan synod powers, etc.

2 February 1992. The six men were ordained. The eleven women were af­firmed when Dowling asked the pack­ed cathedral: "Is it your wish that these women be priested?" The response was an overwhelming. "Yes".

5 February 1992. The Anglican Primate Archbishop Keith Rayner wrote a letter (reprinted in The Australian, 6 February 1992) to bishops, priest and laypersons advocating a truce on the court proceedings and a moratorium of the ordination of women until at least the General

Synod in July 1992. One quotable sen­tence read: "We aren't discussing abstract principles but real people..."

6 March 1992. Mr Justice Kerry White of the West Australian Supreme Court refused to grant an injunction blocking the ordination of 10 women.

7 March 1992. The Archbishop of Perth the Right Reverend Peter Camley ordained the 10 women; the first female priests ordained in the Anglican Church in Australia.

Analysis of the NSW and WA Judgments

Rogers CJ, CommD, Supreme Court of NSW 28/1/92

Rogers CJ CommD in his judgment outlined the history of the present case. In it he pointed out the plaintiff's anxieties as expressed in paragraph 13 of Scandrett's affidavit, which in part read: "I fear... that if the defendant acts upon his proposal to ordain women in the absence of a canon of the General Synod authorising such an ordination, the unity of the Church will be sub­stantially undermined." (p6). This view was maintained by Robinson in his evidence. Rogers CJ CommD claimed "...secular courts are con­cerned with mundane matters within the ambit of a civil court, being more to do with the continued health and unity of the Church; in my view they (ie minority in the General Synod) are not entitled to invoke the coercive powers of the secular courts to enforce their theological beliefs" (pl3). Rogers CJ CommD also discussed Dowling's evidence that "it had been foreshadowed that even if a canon were passed, legal challenge to it would be mounted" (transcript p64) (pl6). Robinson himself has said, "My own view, as set out in my 'reasons' (in the Appellate Tribunal Opinion) is the General Synod is precluded by the Fundamental Declarations as well as by the Ruling Principles of the Con­stitution from legislating for women

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priests." (Southern Cross, Feb 1992, plO).

“The Congregational Church (now part of the Uniting Church since

1977) has been ordaining women since 1927...”

Rogers CJ CommD also discussed the harm that would be done if the ordina­tions did not go ahead. Dowling gave evidence to the effect that "it is incon­venient, offensive and particularly damaging for deacons in charge of parishes and in chaplaincy positions and their congregations to have to bring in male clergy for the full celebration of the Holy Communion" (pl4), that "failure by the church to end discrimination and thereby to be faithful to the gospel has to my knowledge caused many women and some men to leave the Church or to withdraw support" (pl4) and that "an injunction would cause very consider­able hardship and disappointment to the candidates and their congregations who have indicated that they wish to have the spiritual benefits of a priest". Hence the sense of urgency surround­ing the matter.

Court of Appeal, NSW, 31/1/92The Court of Appeal declined to

decide on the question of whether women should be ordained as priests, but rather saw it as a dispute as to the government of the Church, and as to the decision-making powers of various authorities within the church. They in­dicated that the question to arise in "the main proceedings" is whether a court of law should involve itself in is­sues as to the Government of the Anglican Church; involving argument as to the meaning and effect of the Anglican Church of Australia Act 1961

(NSW) and the Constitution of the Church. Contrary to Rogers CJ CommD, the Court of Appeal con­cluded that the balance of convenience lay in favour of granting interim relief. The reasons for this were: the antiq­uity of the view that women are not eligible for ordination (compared to the relatively short delay that those seeking ordination would experience if the main proceedings were decided in their favour, the promise of the appel­lants that if the General Synod were to pass a canon making women eligible for ordination, that would bring an end to the main proceedings (contrary to the evidence of Dowling that a legal challenge would still be mounted), the impossibility of 'un-ordaining7 women, and that the inconvenience concerning the ceremony was essen­tially part of the risk taken by Dowl­ing.

When considering the issue of jus­ticiability, the court held that the es­sence of the dispute was as to power of government in the church, principally as to the respective powers of the General Synod and the diocesan synods, and that those appellants who were members of the General Synod were defending their legal right to ex­ercise their constitutional powers. The court held that sex discrimination was not a justifiable consideration in this dispute, and that public policy con­cerning the church had been declared by parliament in exempting the church from the relevant Acts. Thus the in­junction was granted.

Would the New South Wales cases have been decided differently if:

1. Rogers CJ CommD had reserved his judgment until 31 January 1992? Would not this judicial discretion have allowed the ordinations to occur on 2 February?

2. There were a different composition of the Court of Appeal? Would Kirby P have made a difference? After all, he was recently presented with the

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Australian Human Rights Medal on 24 November 1991 for the promotion ob­servance and understanding of human rights.

3. There had been attempts at alterna­tive dispute resolution? ADR usually works when the parties can agree. In this instance feelings ran high ind as much as Archbishop Rayner and others would prefer ADR, the matter may only be settled by crash o* crash through. Would an emergency meet­ing of General Synod have helped?

“Don't be surprised if you hear talk of a split or

secession...”

4. The ordinations had occurred with minimal publicity? The Goulbum eleven could have been equated with the Philadelphia eleven of the US Epis­copal Church who were "irregularly ordained" in 1978 then later "regularly ordained". Some critics have already suggested the Perth ten were irregular­ly ordained.

White J, Supreme Court of \1A, 6/3/1992

On 6 March 1992, the West Australian Supreme Court refised to grant an injunction blocking the or­dination of 10 women. The court con­cluded that the NSW Court of Appeal had approached the issue with the wrong question. White J said that it was not a question of whether the General Synod had express}/ ap­proved of ordination proposals but whether it expressly prohibitec them or had rules or laws inconsistert with them. He said he had been invted by those seeking the injunction to adopt the safe course and maintain the status quo; "But it is not my job to adopt the safe course; my duty is to disperse jus-

tice." (SMH 7/3/92 p 11) White J maintained that the evidence and cir­cumstances before him were different to those in NSW, one of the reasons being that the Diocese of Perth passed an Ordinance in 1989, allowing for or­dination of women priests; it had remained unchallenged until Camley expressed his intention to go ahead.

The injunction was sought by four plaintiffs, three of whom were party to the successful NSW case. Following the judgement in which White J refused the the plaintiffs application for an injuction, the plaintiffs sought time to appeal. This application was refused. A Melbourne-based legal ad­viser to the opponents, Dr Ian Spry QC, said that the court had not ruled that the ordination of priests was legal; the court had simply refused to grant an injunction. Dr Spry insisted that the legality of ordainig women was being determined in separate court proceed­ings in NSW and it was possible the Perth ordinations might be held to be illegal. Although Dr Scandrett said it was unlikely the womens' ordinations would be reversed if they were judged later to be invalid, Dr Spry (Radio Na­tional 13/3/92) insisted that the or­dinations were completely void and that the best hope for the women con­cerned is that they could be re-or­dained if General Synod passes a canon authorising it.

Archbishop Camley said after the decision was handed down thsat the Court had in fact ended 'twenty years of very hard battle.' We believe, how­ever, that the battle has just begun.

The main proceedings have just com­menced in NSW. The judgement is ex­pected to be handed down in June. The General Synod will consider the ques­tion in July. Will the plaintiffs abide by the judgements if they are in favour of the ordination of women? We don't think so. Don't be surprised if you hear talk of a split or secession.

The Anglican Five: women deacons awaiting ordination. photo: Peter Rae/SMH.

Camley has come under criticism from colleagues such as the Most Reverend Peter Hollingworth for having ordained 10 women priests before the issue had been considered by the General Synod in July, arguing that it was a risky strategy and not in the interests of national solidarity.

Tangential and Related Issues

The Church of England/Anglican Church/Episcopal Church in the USA,

Canada, New Zealand, the Philippines, Brazil, Uganda, Kenya, Mexico and Hong Kong have had female priests for a number of years. The Congrega­tional Church (now part of the Uniting Church since 1977) has been ordaining women since 1927. The Uniting Church in Australia has approximately 140-150 female priests. In 1977, at the time of the union of the three churches - Presbyterian, Methodist, Congrega­tional - it had 36 female priests. From 1975-1991 the Australian Presbyterian Church allowed female ministers then

reversed its decision at last September* * * * 5 6 7 s General Assembly.

The question of the ordination of women to the Anglican priesthood has been discussed since the 1920s when the Lambeth Conference (the interna­tional 10 yearly meeting of Anglican bishops in Lambeth (UK) declared that women's ministry in the church had been undervalued. In 1968 Lambeth asked that all member churches in the Anglican community study the issue of the ordination of women to the min­istry. In 1988 the Lambeth Conference voted in favour of unity in diversity re­ordination of women yet not one has been priested in the UK with a waiting list of over one thousand women deacons. The Archbishop of Canter­bury, George Carey, has indicated that there will be a vote on women priests at the Synod in November, 1992.

Light at the End of the Tunnel?1. Some proponents of women's or­

dination suggested Dowling should have ordained the eleven women on 2 February 1992 and thereby broken the law. The proponents argued that out­rage would ensue, if the Bishop was jailed.

2. A number of Bishops have an­nounced their intention to ordain women before the end of 1992, ir­respective of General Synod's ruling in July 1992. Many dioceses are not under the same constitutional restric­tions as Dowling was.

3. The Rayner proposal: "I propose that the General Synod should specifi­cally pass legislation to commit to diocesan synods the authority to decide on the ordination of women within their own diocese. This would lead to certain anomalies but they would be contained within the framework of the constitution..." (The Australian, 6 February 1992).

4. The Palmer proposal: "As asafeguard the ordination of women

could be put forward on the basis that a parish must produce a majority of parishioners in favour and there must also be a majority of parishioners in favour and there must also be a majority of parishes in the diocese in favour of the ordination of women." (SMH, letters to the Editor, K J Palmer 10 February 1992).

“The court should not be an instrument for sanctioning sex

discrimination...”

Personally we feel this proposal hasthe strongest merit. In reality mostparishes get to choose their priest. No one is suggesting imposing women priests on those who don't want them.In any case, if General Synod were to approve a canon allowing for the or­dination of women, it remains up to each individual diocese to approve it and apply it to themselves.

5. Federal and state discrimination legislation exempting religious bodies from their ambit, could be repealed, so that discriminatory practices would be outlawed, eg: Sex Discrimination Act (Cth) 1984 s37; Anti-Discrimination Act (NSW) 1977 s56; Equal Opportunity Act (Vic) 1984 s38.

Great care is needed over this as it may offend the sensitivities of Roman Catholics, Muslims etc.

6. The biblical verses propounded pro and anti are numerous. As a radi­cal step we would suggest a different if possibly radical lateral approach. It is written in Luke Chapter 6 verses 7-11:"And the scribes and the Pharisees were watching him closely, to see if he healed on the Sabbath, in order that

they might find reason to accuse Him". But he knew what they were thinking, and he said to the man with the withered hand, "Arise and come forward!" And he rose and came for­ward. And Jesus said to them, "I ask you, is it lawful on the Sabbath to do good, or to do evil, to save life, or to destroy it?" And after looking around at them all, He said to him "Stretch out your hand! And he did so; and his hand was completely restored. But they themselves were filled with rage, and discussed together what they might do to Jesus. (New American Standard Bible)

The above has nothing directly to do with women's ordination, but the pas­sage does highlight vividly the dif­ference in approach between legal literalism and discovering the spirit of the law; and freedom and life in Christ. Is not the latter approach sanctioned in the various federal and state inter­pretation legislation eg Acts Interpreta­tion Act (Cth) s 15 AB; Interpretation Act 1987 (NSW) s 34?

The issues are, however, not as clear- cut as the media may have portrayed them. There are genuine, committed and concerned people on both sides of the debate. It is essentially a theologi­cal issue, and many people of the Anglican Church (for it is they who are the church) have expressed frustration that a resort to the courts has been made. What a waste of resources! Could not the funds used in the court cases, probably in excess of $100,000, been better used for the extension of the Kingdom of God?

Nonetheless, for many, the time for drastic measures has come, and as Archbishop Rayner has emphasised, we are dealing with real people and not just abstract ideas. And, after all, "what is the essential matter here; the gender of the priest or the sacramental gifts the priest makes available to all believers?" (SMH editorial 9 March 1992) B

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