Last year, the General Assembly of the Presbyterian Church USA appointed a Special Committee to Study Issues of Civil Union and Christian Marriage. The committee was given two years to study how the theology and practice of marriage have developed in the Reformed tradition and the place of covenanted same-gender partnerships in the Christian community.

This adult education course tries to do something similar over an eight-week period for St. Andrew Presbyterian in Iowa City. Throughout this discussion, we hope to hear from class participants’ personal experiences and questions concerning sexuality and the Presbyterian faith.

For questions or comments, contact Jeff Charis-Carlson at

Saturday, September 26, 2009

Legal brief for Session (May 29)

TO: Session, St Andrew Presbyterian Church (USA)
FROM: Dell A. Richard, Attorney at Law
RE: Same Sex Marriage at St Andrew
DATE: May 29, 2009

Dear members of Session:

Interim pastor Bob David has asked me to prepare an advisory opinion to Session regarding the Book of Order implications of performing a same sex marriage ceremony at St. Andrew. This matter is coming before the Session, in part, as a result of the recent Varnum vs Brian decision of the Iowa Supreme Court declaring Iowa's Defense of Marriage Act (DOMA) a violation of the Iowa Constitution. Specifically, two members of St. Andrew have submitted the following request to Session:

Members of Session,

We have spoken to Pastors Bob and Kyle and it has been recommended that we write to you to request the use of the church for our wedding. We have been longstanding members and involved in numerous programs at St. Andrew.

Michelle Norman and our children have been baptized here. We contribute financially and have been on mission trips sponsored by St. Andrew. Quite simply, we love God and we love St. Andrew. It is our hope to have this ceremony at our church. Thank you for your consideration.


Michelle Wikner

Michelle Norman

Pastor David has provided session with citations to several authorities that discuss the underlying ecclesiastical issues of homosexuality in the church. This memo will focus solely on the constitutional status of same sex marriage within the PCUSA.

For the record, I am personally supportive of the request and would like the PCUSA to change its interpretation of scripture on several GLBT issues.


The current state of the law inside the PCUSA can be best summarized by referencing four documents:

  • 1991 Authoritative Interpretation of the Book of Order (BOA) W-4.9001.
  • 2000 GA Permanent Judicial Commission (GA PJC) remedial decision in Benton, et al. v. Presbytery of Hudson River
  • 2008 GA Permanent Judicial Commission disciplinary decision in Spahr v. Pby of Redwoods
  • 2008 vote by the General Assembly Committee on Church Polity to reject a proposed overture that would have changed the constitutional definition of marriage from a man and a woman to "two people."

(For those of you not steeped in church polity, a remedial case typically seeks to undo an action of a church body such as a session or presbytery, and a disciplinary case is always against an individual person who is alleged to have done something wrong).

The Presbyterian Church (USA) view of marriage.

The Constitution

The Constitution of the Presbyterian Church (U.S.A.) defines Christian marriage in W-4.9001 as follows:

"Marriage is a gift God has given to all humankind for the well-being of the entire human family. Marriage is a civil contract between a woman and a man. For Christians marriage is a covenant through which a man and a woman are called to live out together before God their lives of discipleship. In a service of Christian marriage a lifelong commitment is made by a woman and a man to each other, publicly witnessed and acknowledged by the community of faith."

The 1991 Authoritative Interpretation (AI) of W-4.9001 reads as follows:

There is no mention in the Book of Order of same sex unions (ceremonies). If a same sex ceremony were considered to be the equivalent of a marriage ceremony between two persons of the same sex, it would not be sanctioned under the Book of Order. In section W-4.9001, Christian marriage is specifically defined as:[A] covenant through which a man and a woman are called to live out together before God their lives of discipleship. In a service of Christian marriage[,] a lifelong commitment is made by a woman and a man to each other, publicly witnessed and acknowledged by the community of faith.

Inasmuch as the session is responsible and accountable for determination of the appropriate use of the church building and facilities (G-10.0102n), it should not allow the use of the church facilities for a same sex union ceremony that the session determines to be the same as a marriage ceremony.

Likewise, since a Christian marriage performed in accordance with the Directory for Worship can only involve a covenant between a woman and a man, it would not be proper for a minister of the Word and Sacrament to perform a same sex union ceremony that the minister determines to be the same as a marriage ceremony. (Minutes, 1991, pp. 55, 57, 395)

This Authoritative Interpretation makes it clear that at least since 1991, it has not been proper:

1) for a PCUSA minister to perform a same sex union ceremony that the minister determines to be the same as a marriage ceremony; or,

2) for a PCUSA session to allow the use of church facilities for a same sex union ceremony that the session determines to be the same as a marriage ceremony.

The Cases

In 1998, a same-sex holy union service was performed at a Presbyterian Church in New York. After questions were raised about the propriety of the service, the Presbytery adopted the following resolution in support of the session’s and pastor’s actions:

. . . that the Presbytery affirm the freedom of any session to allow its ministers to perform ceremonies of holy union (within or outside the confines of the church sanctuary) between persons of the same gender, reflecting our understanding at this time that these ceremonies do not constitute marriage as defined in the Book of Order.

The pastor of another church in the presbytery objected to presbytery’s action, resulting in the GA PJC remedial case decision of Benton, et al. v. Presbytery of Hudson River, in which the GA PJC concluded that ceremonies of “union” between persons of the same sex are governed by the General Assembly’s AI of 1991 cited above.

Under the third specification of error, the Benton decision stated that the 1991 Authoritative Interpretation assumes that some same-sex ceremonies could be the equivalent of a marriage ceremony, and therefore, would contravene the Book of Order, and some might not. A determinative distinction between a permissible same-sex ceremony and a marriage ceremony is that the latter confers a new status whereas the former blesses an existing relationship. The Book of Order makes this theological distinction concerning marriage in W-4.9004: “In the name of the triune God the minister shall declare publicly that the woman and the man are now joined in marriage.” This and similar pronouncements declaring a new status are to be reserved for services of marriage. (Emphasis added).

The Benton court went on to make it clear that a liturgical distinction should also be made in services blessing a same-sex relationship. According to the court, the 1991 General Assembly Authoritative Interpretation leaves to the judgment of individual ministers and sessions (if church property is to be utilized) whether to conduct same-sex ceremonies. In exercising this judgment, however, ministers and sessions should take special care to avoid any confusion of such services with services of Christian marriage. Ministers should not appropriate specific liturgical forms from services of Christian marriage or services recognizing civil marriage in the conduct of such ceremonies. They should also instruct same-sex couples that the service to be conducted does not constitute a marriage ceremony and should not be held out as such. (my emphasis).

In 2004 and 2005, Presbyterian pastor Jane Spahr acknowledged that she had performed same sex ceremonies and that she also had signed a “Certificate of Marriage” for each of the ceremonies which were the subject of the case. When charges were filed in a disciplinary case against her, the matter of Spahr v. Presbytery of Redwoods began its way to the GA PJC. In her trial, Spahr testified that her ministry had been a “ministry of marriage equality.” and that she had officiated at ceremonies between same gender couples whether the couple described the ceremony as a “union,” a “marriage” or in other terms. Spahr provided heterosexual and same sex couples the same counseling and preparation work before performing any ceremony.

The court noted that Spahr was charged with and found guilty of violating W-4.9001 and the 1991 AI by performing “wedding service[s] in the marriage of” two same sex couples. The S[ynod]PJC determined that Spahr was guilty based on her actions in performing “wedding” services for two same sex couples.

In concluding that Spahr had not violated the Constitution, the court stated:

The ceremonies that are the subject of this case were not marriages as the term is defined by W-4.9001. These were ceremonies between women, not between a man and a woman. Both parties acknowledged the ceremonies in question were not marriages as defined by the Book of Order. It is not improper for ministers of the Word and Sacrament to perform same sex ceremonies. At least four times, the larger church has rejected overtures that would prohibit blessing the unions of same sex couples. By the definition in W-4.9001, a same sex ceremony can never be a marriage. The SPJC found Spahr guilty of doing that which by definition cannot be done. One cannot characterize same sex ceremonies as marriages forthe purpose of disciplining a minister of the Word and Sacrament and at the same time declare that such ceremonies are not marriages for legal or ecclesiastical purposes.


In holding that Spahr was not guilty as charged, this Commission does not hold that there are no differences between same sex ceremonies and marriage ceremonies. We do hold that the liturgy should be kept distinct for the two types of services. We further hold that officers of the PCUSA authorized to perform marriages shall not state, imply, or represent that a same sex ceremony is a marriage. Under W-4.9001, a same sex ceremony is not and cannot be a marriage.

In response to the Spahr decision, the Presbytery of the Redwoods (the Presbytery that had brought the charges against Ms Spahr) included the following recommendations in an Advisory Opinion to its members interpreting for them the meaning of the Benton and Spahr decisions:

The General Assembly PJC, in both Benton and Spahr, recognized the necessity for ministers to be sure not to permit confusion regarding the difference between same sex unions, performed in the course of pastoral care and marriage ceremonies, described in our Directory for Worship.

These authoritative interpretations offer ministers and sessions the following guidance:

They should not utilize liturgies for Christian marriage or liturgies for the recognition of civil marriage in ceremonies for same sex couples.

They may not perform a ceremony that they consider or represent to be the same as a marriage ceremony nor may they permit their facilities to be utilized for any such ceremony.

They may provide pastoral care in the form of worship services that "celebrate a loving, caring, and committed relationship" such as civil unions for same sex couples, but they must also advise such couples that such a service does not constitute a marriage and may not be held out as such.

This means that ministers and sessions continue to be responsible to make appropriate decisions concerning pastoral care for members, all the members of the church.

Inasmuch as the session is responsible and accountable for determination of the appropriate use of the church building and facilities (G-10.0102n), it should not allow the use of the church facilities for a same sex union ceremony that the session determines to be the same as a marriage ceremony. (my emphasis)

The General Assembly

The 2008 General Assembly soundly defeated a resolution that would have allowed same sex marriage ceremonies under W-4.9001 and appointed a committee to study the issue. The committee’s next meeting is scheduled for June 2009.

Where we are Today

Although the Iowa Supreme Court was careful to point out that the Varnum decision did not in any way affect church practice, the case may have a significant impact on how churches in Iowa deal with requests such as the one before Session. Prior to Varnum, a same sex ceremony could not be a legal marriage in Iowa, and consequently everyone could easily argue that neither the officiating pastor, nor the participating church would be violating W-4.9001 for the reasons discussed in Spahr. So long as the event could not be legal a marriage ceremony in Iowa, under Spahr, the participants had what we call in the tax law “a safe harbor” that allowed a clear definition of what was, and was not, allowed in the PCUSA. So long as everyone followed the Spahr rules, the participants could have an appropriate ceremony presided over by a PCUSA pastor in a PCUSA church, without violating the “no same sex marriage” PCUSA constitutional provisions.

However, now that same sex civil marriage is legal in Iowa and the Session has specifically been asked in writing for permission to conduct a “real” same sex legal marriage ceremony at St Andrew, the safe harbor of “it is not really a marriage” no longer provides an automatic shield against a charge of W-4.9001 violation for either the pastor, the session or the Presbytery. Since the same sex couple really can be legally married in Iowa and the pastor would have the civil legal authority to perform the ceremony, greater care will be needed to insulate the pastor and session from a charge that they have conducted a “marriage” ceremony.

Conclusions and Recommendations

Under W-4.9001 and the 1991 AI, neither a PCUSA pastor, nor a PCUSA session can authorize what they know to be a legal marriage ceremony without inviting sanctions. If the applicants are willing to get married somewhere else by someone not a PCUSA pastor, neither the officiating PCUSA pastor that celebrates the relationship, nor the accommodating session, are likely to be sanctioned by the GA PJC, so long as the Spahr “safe harbor” rules are followed and everyone involved denies that a marriage is being conducted. That, of course, does not mean that members of the PCUSA could not bring charges, only that they are not likely to be sustained on appeal.

Given the state of Iowa law and the nature of the submitted request, if Session is inclined to honor the request, it will be a significant challenge for Session to construct and maintain a process that will not be subject to a court attack as being outside the safe harbor rule of Benton and Spahr. A decision to go forward with the request as submitted would probably contemplate performance of a legal “marriage” in the church, and as such would likely be considered to be a direct affront to W-4.9001 and the 1991 Authoritative Interpretation that says “no same sex Presbyterian marriages”.

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