Update on legal brief (Sept. 26)

MEMORANDUM
TO: Jeff Charis-Carlson, St Andrew Presbyterian Church (USA)
FROM: Dell A. Richard,
RE: Same Sex Marriage at St Andrew
DATE: September 26, 2009

Dear Adult Ed Class:

The attached Memorandum to Session was prepared in May of this year and delivered to Session on May 29, 2009. Since that Memo was prepared, the courts of the PCUSA have continued to render decisions that affect the state of the law in the Presbyterian Church(USA). Most notably, our Synod handed down a decision involving the Presbytery of the Twin Cities Area that gives us some guidance about how our Synod PJC might handle a similar case. In addition, the Presbytery of Boston refused to sanction a pastor that performed a legal marriage under Massachusetts law in a Presbyterian church.

In Bierschwale, et al vs Twin Cities, Remedial Case 2008-1, the PJC of the Synod of Lakes and Prairies was asked to address a rather esoteric aspect of our Book of Order that allows a Pastor to “raise a principled objection or scruple” to his ordination vows. The pastor at issue advised the Twin Cities Presbytery that he “cannot affirm G-6.0106b [part of the BOO that requires a pastor to be celibate or in a man/woman relationship]. Nor can I affirm the position of the Presbyterian Church (U.S.A.) on the question of the morality of homosexual relationships.”

During the Presbytery Committee on Ministry questioning period, the pastor stated: “Even if I could look in a crystal ball and know that I would have no future sexual relationships, I would still refuse to be in compliance with the Book of Order as it now stands."

When asked in reference to G-6.0106b, whether he would refrain from intimate sexual activity outside the bounds of marriage between a man and a woman, he responded: “I refuse to take a vow of celibacy.”

The Presbytery approved his call and a member of the Presbytery brought an action in the church courts challenging the decision to approve the call.

The legal issue as framed by the majority opinion of the Synod PJC was that it was up to the Presbytery to determine if the pastor’s “departure” from the book of Order was of significant enough magnitude to considered a violation of the constitution. By a preponderance of the evidence presented, the PJC found that the pastor’s stated departure did not rise to the level of “infring[ing] on the rights and views of others, and d[id] not obstruct the constitutional governance of the church.”

As to the matter of serious departure from these standards, G-6.0108b states, in part, “The decision as to whether a person has departed from essentials of Reformed faith and polity is made initially by the individual concerned but ultimately becomes the responsibility of the governing body in which he or she serves", namely the Presbytery of the Twin Cities Area in this case. The Presbytery took extraordinary care to make it clear that their decision applied only to the current expression of departure and was not making policy or setting precedent and the Complainants have not contested that claim by the Respondent.

The Synod PJC found that the action of the Presbytery was not irregular and refused to set aside the Presbytery’s action in approving the pastor’s call.

Concerning the claim that Presbytery had waived the “fidelity and chastity” requirement of G-6.0106b, the PJC found that the Presbytery clearly stated in its acceptance of the pastor’s call that it was not waiving any requirements of the Book of Order, and therefore did not set policy to be applied to any future departures.

The dissent took the majority to task on several fronts. Pointing out that the majority opinion did not specifically examine the constitutionality of the pastor’s alleged “departure”, the dissent argued that the majority simply accepted the Presbytery’s determination that the pastor had not “departed from essentials of Reformed faith and polity” without considering G-9.0103 that states that “the jurisdiction of each governing body is limited by the express provisions of the Constitution, with powers not mentioned being reserved to the presbyteries, and with the acts of each subject to review by the next higher governing body."

Chiding the majority for avoiding its constitutional responsibilities, the dissent went on to argue that it is impossible for the Synod PJC to rule on the constitutionality of a particular action of Presbytery when it gives Presbytery ultimate authority to make the decision. The dissent points out that it is the very constitutionality of the Presbytery’s action that was being called into question in this case and just because Presbytery says it acted correctly should not preclude a challenge before Synod PJC based on Presbytery’s self reported alleged compliance with the constitution. The dissent argues that it was the majority’s responsibility to determine if the pastor’s “departure” was a failure to adhere to the requirements of the Book of Order. The majority decision was based on the circular argument that the pastor’s departure was not a failure to adhere to the requirement of the Book of Order because the Presbytery determined that it was not a failure to adhere to the requirements of

the Book of Order. But whether the Presbytery’s determination was correct is precisely what the majority was asked to review.

The dissent further questioned the wisdom of the majority by arguing the absurd results that could come from the reasoning of the majority in accepting at face value the claim by Presbytery that it did not set policy to be applied to any future departure and therefore did not “waive” the “fidelity and chastity” requirement of G-6.0106b. By definition, a “departure” creates the basis for an exemption to the standard. The pastor presented the departure and the Presbytery accepted his departure. It seems reasonable that if an individual exercises freedom of conscience to depart from a particular standard that the individual is no longer bound by the language of the standard.

Therefore, by accepting the pastor’s departure from the standard, Presbytery may not have overtly “waived” the “fidelity and chastity” requirement, but it has exempted the pastor from future compliance with a constitutional requirement and insulated him from any possible disciplinary action. This action therefore appears to have the same effect as waiving the requirement.

In Presbytery of Boston vs Jean K. Southward, charges were brought against a pastor for performing a legal marriage under Massachusetts law (similar to Iowa). The facts were not in dispute, and the charges against the pastor claimed that the pastor had conducted the marriage in the sanctuary of a Presbyterian Church that (a) appropriated the liturgical forms for Christian marriage to celebrate the marriage of two women sanctioned by civil law and purporting to be consistent with the Christian understanding of marriage under the Constitution of the Presbyterian Church (U.S.A.); (b) declared that as a result of the marriage ceremony she performed, the two women were then joined in Christian marriage, declaring a new status that is reserved to the marriage of one man with one woman under the Constitution of the Presbyterian Church (U.S.A.); and (c) failed to differentiate between the marriage celebrated between the two women and a Christian marriage between one man and one woman. (All of the things set out in my memo to Session outlining the previous decisions of the General Assembly PJC - DAR). By so participating and directing the worship service, the prosecuting committee claimed that the pastor had disregarded the Directory for Worship W-4.9000, in particular W-4.9001, which expressly defines our biblical and constitutional understanding of Christian marriage.

The Boston Presbytery PJC found that the Prosecuting Committee has not proven beyond reasonable doubt that W-4.9000 contains mandatory language that would prohibit a Minister of Word and Sacrament from performing a same-gender marriage.

The PJC found that since the Preface to the Directory of Worship (clause b) states that the Directory uses language that is “simply descriptive”, this Commission takes this to mean that the definition of Christian marriage in W-4.9001 is merely descriptive; there is no mandatory language in this article. Where mandatory language is used in subsequent articles (e.g., W-4.9004), it is taken to refer to mandatory action, not limiting the gender of the couple to be married. In addition, there is no mandatory language in the Constitution, nor in any Authoritative Interpretation, prohibiting Ministers of Word and Sacrament from performing same-gender marriages in states where this is allowed by law.

The Authoritative Interpretation of 1991 (Request 91-23), written by the Advisory Committee on the Constitution, again contains no mandatory language. Also, it addresses the distinction between mixed-gender marriage and same-gender unions, not same-gender marriages (as no states allowed same-gender marriage at the time), and is therefore not applicable to this case.

In the Spahr case the GAPJC ruled that the decision in the Benton case was not applicable. Benton was a remedial case, rather than a disciplinary case and involved the policies of a session. Moreover, its subject matter was same-gender civil unions, not same-gender marriage. It is not applicable to this case. The decision in the Spahr case does not contain a clear prohibition that is applicable to this case, while it also cannot serve as precedent to the present case, as precedent cannot be applied retroactively.

Mirroring the arguments that will be made if the matter comes up in Iowa, the dissent argues that in rendering this decision, the majority has taken the liberty of legislating change in the Constitution through the judicial process. W-4.9001 definitely does define marriage as being between a man and a woman. Since 2004 in the Commonwealth of Massachusetts, the civil act of marriage between same gender couples is a possibility, making this case different from the context of the Spahr decision. Thus, the rationale from the Spahr decision does not fit, wherein the General Assembly PJC argued that a same gender ceremony can never be a marriage. In the Commonwealth of Massachusetts, a same gender ceremony can definitely be a civil marriage. Benton does set a rational standard for deriving the difference between a blessing of a same-sex union and the celebration of a Christian marriage. However, this case does not elucidate the facts of this case, as Benton assumed the impossibility of a civil marriage between same gender participants. Further, the issues of fact of this case were stipulated – both the Prosecuting Committee and the Accused provided and accepted evidence that this was intentionally a Christian marriage.

Because of this changed legal state in the Commonwealth of Massachusetts, the importance of the definitions within the Constitution of the Presbyterian Church (U.S.A.) become more important, not less so. Further, the argument that the definition of marriage being between a man and a woman is only descriptive and reflects the ideals and mores of a bygone age cannot be sustained. The claim stands without proof, and can only be maintained through dependence on the argument from silence. This sets a dangerous precedent, that any part of the Constitution that has not recently been sustained by legislative action can be assumed to have lost validity. In the absence of that legislative action, the majority has substituted its judgment for the clear words of definition. This makes a mockery of the prescriptive language of W-4.9004, wherein the Directory for Worship orders that “The man and the woman shall declare their intention to enter into Christian marriage and shall exchange vows of love and faithfulness.”; and “In the name of the triune God the minister shall declare publicly that the woman and the man are now joined in marriage.”