I typically do not chase presbytery PJC rulings but rather wait until there has been a review by either a Synod PJC or the GA PJC so that they have had a chance to be digested a bit by another commission. However, a recent case is, as the decision notes, “…a question of first impression in this Presbytery and to the knowledge of this Commission in the PC(USA).” So here we go.
The case heard by the Permanent Judicial Commission of Salem Presbytery is Thomas E. Morgan – Complainant v. Session, First Presbyterian Church, Asheboro (North Carolina) – Respondent. My thanks to the Layman Online for making the full text available.
The circumstances of the case are rather straight-forward — A remedial complaint was filed against FPC Asheboro regarding a policy their session put in place that says, in part:
The Session will exercise due discretion in affirming marriage service requests, but affirms that all marriage services conducted at First Presbyterian Church shall reflect the understanding that Christian marriage is a covenant between a man and a woman.
The complaint alleges that this conflicts with the Book of Order section F-1.0403 which says, in part:
The Presbyterian Church (U.S.A.) shall guarantee full participation and representation in
its worship, governance, and emerging life to all persons or groups within its membership.
No member shall be denied participation or representation for any reason other than
those stated in this Constitution.
With that in mind, the case boils down to the new language regarding marriage, W-4.9, and the placement of the final section (W-4.9006) that says:
Nothing herein shall compel a teaching elder to perform nor compel a session to authorize the use of church property for a marriage service that the teaching elder or the session believes is contrary to the teaching elder’s or the session’s discernment of the Holy Spirit and their understanding of the Word of God.
The question before the Commission was whether this language would permit a session to take a categorical stand in a church policy. The PJC said it does not and that section W-4.9 represents a process that must be followed and requests for marriage services must be handled on a case-by-case basis. More specifically, the decision says that the earlier sections of W-4.9, those involving meeting with the teaching elder and counseling, must happen first before a decision is made about the appropriateness of the marriage. They point out that this is a “shall” phrase in the Constitution where it says that following their request the couple “shall receive instruction from the teaching elder.”
The decision’s decisive paragraph says:
A categorical decision by the session not to permit any marriage by a couple of the same sex on church property without consideration of their commitment to each other, their understanding of the nature of the marriage covenant and their commitment to living their lives together according to its values is inconsistent with the process required by W-4.9001-9006. There is absolutely no question that W-4.9006 authorizes a session to prohibit any marriage on church property contrary to its discernment of the Holy Spirit and understanding of the Word of God. However, that authority is granted in the context of a process that requires the teaching elder to counsel with every couple seeking Christian marriage whether they are of the same sex or not. With regard to each such couple, the teaching elder may seek the counsel of the session and the session is authorized to determine whether that couple may be married on church property. By adopting and publishing a policy that categorically excludes any same sex couple from being married on church property, the session has contradicted the policy requiring inquiry and counselling [sic] for any couple seeking a Christian marriage, including same sex couples. The logical effect of this policy will be to discourage any same sex couple desiring Christian marriage to seek counsel from the teaching elder called by the congregation or to seek permission to be married on church property regardless of any other circumstances. A categorical prohibition of same sex marriage on the property constitutes a categorical discrimination against same sex couples who present themselves for consideration for marriage in the congregation.
In one of the more interesting parts of the commission’s discussion they let the session off the hook a bit by pointing out guidance, but not authoritative language, in two document ( here is one of them) from the Office of the General Assembly does specifically say that sessions can make a categorical prohibition. The commission goes on to say that the statement is not a General Assembly decision and is not pertinent to the decision they rendered.
It is worth reiterating at this point that this decision is from a presbytery PJC and has limited application. If appealed and upheld it would gain authoritative status.
There are no concurring or dissenting opinions filed with the decision.
This decision is reminiscent of the remedial cases regarding ordination standards and the various GAPJC rulings that there could be no categorical standards or explicit lists of essential tenants but each candidate must be considered on an individual basis. From a polity point of view this decision falls right in line with that.
What the session’s policy has fallen into is a typical polity trap of the apparent intent of the new language, as evidenced by the FAQ of the General Assembly Stated Clerk, versus how the actual authoritative language has been read by the commission. It is easy to see how they saw this as a process and, based on the precedent of the ordination standards decisions, decided that this too must be a case-by-case process.
A number of possibilities come to mind to clarify or reverse this thinking and return to what seems to be acknowledged as the intent of the 221st General Assembly. One is of course to have it reversed on appeal to the GAPJC but there is no assurance they would read intent into it either. Another would be to have the 222nd General Assembly issue an Authoritative Interpretation, possibly using business item 14-01 that asks for changes in W-4.9 as a vehicle for this while not necessarily granting the direct request of that overture. But judicial commissions might not agree and are under no obligation to uphold a GA AI, as we have seen in previous cases of “polity ping-pong.” Or, maybe we will see this in an overture to the 223rd General Assembly that asks for W-4.9006 to become W-4.9003 and current sections W-4.9003-5 be renumbered. Or maybe the GAPJC will agree with the presbytery PJC and the implications of that are left as an exercise for the reader.
Let me end with this thought — Part of section F-3.03 reads:
Provisions of any part of this Constitution are to be interpreted in light of the whole Constitution. No provision of the Book of Order can of itself invalidate any other. Where there are tensions and ambiguities between provisions, it is the task of councils and judicial commissions to resolve them in such a way as to give effect to all provisions.
By interpreting the W-4.9 as a process for which W-4.9006 is the culmination of the process, is this using one provision in the Book of Order to invalidate another rather than taking the last section as a conscience clause that stands alone? But it can also be viewed that taken as a whole W-4.9006 stands in tension with F-1.0403 and it should be subject to the protection of the equality clause.
Finally, I do have to acknowledge that it is disconcerting that the PJC decision is contrary to clear guidance given by the Stated Clerk’s office following passage of the new language. Furthermore, the clerk’s guidance reflects the intent of the Assembly regarding conscience as section W-4.9006 was not in the original overture or process language of the section but was added by the committee and the Assembly. (Hence its position at the end of the section.) Furthermore, the statement by the committee seeks a proactive process of reconciliation on this matter.
And for one added complexity, there is another tie-in to the 222nd General Assembly here — One of the Co-Moderator Candidates, Ruling Elder David Parker, is from Salem Presbytery. Not a sure thing we will see this come into play at the Assembly, but something to watch for.
These are a lot of words for a topic that has a long way to run. No word on an appeal yet and uncertain if, or how, it will arise at the upcoming General Assembly. All I can say is… Stay Tuned!