Bentley v Anglican Synod of the Diocese of New Westminster: The Might of Religious Doctrine
In the late 1990s, the New Westminster diocese (“territory”) of the Anglican Church of Canada (“ACC”) convened a synod (“council”) in order to consider the question of whether clergy ought to bless same-sex unions. In 1998, the Diocese decided to permit, though not require, clergy to perform liturgical blessings for same-sex couples. In 2002, the practice came into effect.
The blessings are distinct from performing the sacrament of marriage, which remains out of reach of same-sex couples anywhere within the ACC. Despite the distinction, the practice of the blessings remained controversial, with Rowan Williams, the Archbishop of Canterbury and head of the Church of England, describing the decision by some Anglican dioceses to perform the blessings as representing a “schismatic division” within the Church.
The core issue in Bentley v Anglican Synod of the Diocese of New Westminster, 2010 BCCA 506 [Bentley] was the decision by four parishes to remove themselves from the New Westminster diocese as a sign of their disapproval of the doctrinal change allowing the blessings. The plaintiffs in the case – the trustees and clergy of the four parishes – sought a variety of declarations and orders that, essentially, claimed that the property used in the parishes was held in trust for purposes consistent with “historic, orthodox” Anglican doctrine, and since the actions of the diocese were no longer consistent with that doctrine, they therefore requested a cy-pres order that would amend the trust so as to grant the breakaway parishes control over the trust. A secondary issue dealt with the authority of the Bishop to remove the trustees of the break-away parishes from their boards, but I will not discuss that here.
The judge of first instance concluded that since s. 7 of the Diocese’s own Act requires consent from the Bishop before any incorporation of a parish, a parish does not have the authority to unilaterally leave. Therefore, said the judge, even though the parishes may have title to the real property in question, they could not use it in a manner for which they did not have approval from the Bishop and Executive Committee of the Diocese. Considering this sufficient to decide the issue, the trial judge nonetheless considered in the alternative the question relating the religious trust, finding that if a charitable purpose trust existed it was for the purposes as defined by the ACC, not individual parishes. The plaintiffs appealed.
The Court of Appeal approached the core concerns by asking whether the properties were held on trust and if so what were the purposes of this trust? Newbury JA., writing for a unanimous court, concluded that the historical and statutory background of the ACC suggested that it held properties on trust. The second question was more complicated. The court agreed with the plaintiffs that the purpose of the trust was, in general terms, for the purposes of Anglican ministry. This however raised the troubling proposition of the court having to determine doctrinal issues internal the Church, in terms of determining appropriate “Anglican ministry.” The court concluded that there was little authority to suggest that a cy-pres remedy was appropriate in cases of internal disagreement over doctrine – in other words, so long as there was a functioning Anglican church, it was difficult to suggest that the purposes were not being met and therefore court intervention was required. Since the ACC was an autonomous body within worldwide Anglicanism, the relevance of global disagreement over blessing same-sex unions was of little relevance. Thus, while the plaintiffs were correct that the properties were held on trust for the purposes of Anglican ministry, the content of that ministry was legitimately determined by the ACC, and once the plaintiffs had “remove[d] themselves from the bishop’s oversight and diocesan structure” they could not legitimately also claim a right to use the ACC’s properties (para 76).
The four parishes have not yet sought leave to appeal to the Supreme Court of Canada, though public statements have indicated they are considering it as an option. If they choose to do so, the Court will face an interesting question regarding the oversight of religious bodies in Canada. While the Court of Appeal indicated deference to internal doctrinal evolution was the preferable approach, it is possible the Supreme Court of Canada will choose to hear a Bentley appeal in order to make a definitive statement on the matter. Given the possibility of a case regarding the constitutionality of polygamy laws (see the amici curiae post of my colleagues, Chris and Ivy, here) as they relate to religious groups also ending up on the Supreme Court of Canada’s docket in the next few years, the Court may have an eye on how the principles adopted in Bentley will play out in other areas that deal with the interaction between secular courts and religious doctrine.