Category Archives: same-sex unions

New PC(USA) GAPJC Decision — The Southard Decision

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Yesterday the General Assembly Permanent Judicial Commission of the Presbyterian Church (U.S.A.) released their decision in disciplinary case 220-102:

Southard v. PC(USA) through Presbytery of Boston


If you are looking for a sound-bite length summary of the whole case you will not find one.  The Commission has given us a multi-layered decision, but has done us the favor of helping to define the layers.

The facts of the case are agreed by both sides: That on March 1, 2008, the Rev. Jean Southard officiated at a marriage ceremony between two women in Waltham, Massachusetts.  The ceremony was characterized by the participants as a “Christian Marriage.”  Further details are enumerated in the history section of the opinion to show that this same-sex ceremony was represented as a marriage ceremony.

Two additional legal details are important to keep in mind here:

  1. At the time of this ceremony same-sex civil marriage was legal in the state of Massachusetts.
  2. The decision in disciplinary case 218-12, Spahr v. PC(USA) through Presbytery of Redwoods, was decided on April 28, 2008, about two months after this ceremony was preformed.

In the Presbytery Permanent Judicial Commission trial the Commission acquitted the Rev. Southard saying in part:

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.
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.

This was overturned on appeal by the Presbytery to the PJC of the Synod of the Northeast.  The Rev. Southard appealed that decision to the GAPJC.

First layer: The specific actions of Rev. Southard
The GAPJC wrote this regarding the charges related to the ceremony preformed by Rev. Southard:

This Commission concluded in Spahr that prior authoritative interpretations lacked mandatory language. Southard conducted this ceremony two months prior to Spahr. Sensitive to the authoritative interpretation in Spahr, this Commission agrees with the SPJC that Spahr cannot be applied retroactively to the facts of this case. Therefore, Southard did not violate the Book of Order or her ordination vows by erring in her constitutional interpretation. She did not commit an offense because the applicable authoritative interpretation (Spahr) had not yet been promulgated.

So, a definite line has been drawn in PC(USA) polity at April 28, 2008, when the GAPJC decision in the Spahr case provided an authoritative interpretation that the language in the Directory for Worship is mandatory.

Based on this conclusion the charges against the Rev. Southard are not valid and she is acquitted of violating the constitutional requirements of the PC(USA).  The first two specifications of error in the appeal, the ones dealing with the specific charges, are sustained.

Second layer: Constitutional Interpretation
Here is the “but” that the GAPJC seems to be putting in the decision.  The third specification of error deals not with the specifics of the ceremony preformed by with more general constitutional interpretation:

The SPJC erred in constitutional interpretation by determining that a minister of the Word and Sacrament who performs (participating in and directing) a same-gender marriage as a Christian marriage commits an offense prohibited by the Constitution of the Presbyterian Church (U.S.A.), Authoritative Interpretations and violates his or her ordination vows.

This specification of error was not sustained.  The decision essentially says that the status quo, the current prohibition made mandatory in the Spahr decision, is in effect.  The new polity twist in this case was the fact that same-sex marriage is legal in some states, but the GAPJC says that when it comes to Christian Marriage in the PC(USA) that does not matter:

The question before this Commission, then, is whether the Massachusetts law defining this relationship as a legal marriage changes the impact of the definitions in W-4.9001. This Commission holds that it does not. While the PCUSA is free to amend its definition of marriage, a change in state law does not amend the Book of Order. It is the responsibility of the church, following the processes provided in the Constitution for amendment, to define what the PCUSA recognizes as a “Christian marriage.” Consequently, Spahr’s holding, “By the definition in W-4.9001, a same sex ceremony can never be a marriage,” remains in effect.

This Commission further held in Spahr, for prospective application, “that the liturgy should be kept distinct for the two types of services.” In light of the change in the laws of some states, this Commission reiterates that officers of the PCUSA who are authorized to perform marriages, when performing a ceremony for a same-gender couple, shall not state, imply, or represent that the same-gender ceremony is an ecclesiastical marriage ceremony as defined by PCUSA polity, whether or not the civil jurisdiction allows same-gender civil marriages.

So, it was not an offense back in March of 2008, and it might not be prohibited at some future point, but the Commission reasserts that it is prohibited now in the church, even if civil same-sex marriage is permitted by the state.  This also seems to imply that while the officiating pastor may not be guilty of an offense, if the Spahr decision is extended to this one, no marriage ceremony was actually preformed since “a same sex ceremony can never be a marriage.”

Technical details
There are four more specifications of error which were decided on procedural grounds.  In the case of specifications 4 and 5 they were not sustained because they “do not accurately reflect the holding of the SPJC as to the matters involved.”  In the case of specifications 6 and 7, the errors were sustained.  These dealt with the decision of the SPJC which reversed the PPJC’s decision when it should have remanded the case back to the PPJC for a new trial and in doing so did not provide specificity on one of the charges.  With the dismissal of the charges these are rendered moot.

Concurring Opinions
There are three concurring opinions attached to this decision.

1) This opinion, signed by five commissioners, expresses the sentiment that this is at its core a human rights issue and in light of that urges the PC(USA) to “amend the constitution to allow for the marriage of same sex couples in the PCUSA, and otherwise welcome gay, lesbian, and bisexual people into the full fellowship of the church.”

2) This is the longest concurring opinion, running a full page in narrative, signed by six commissioners.  Four of these six also signed the first concurring opinion. As the authors say, “[Our] concern is whether W-4.9001 provides an effective and unambiguous definition of Christian marriage.”  To the point they write later on:

To claim that this paragraph is primarily and intentionally legal in nature places a strain upon its obvious narrative purpose. As a fourfold theological outline of Christian marriage in narrative form, it is arguable that it propose
s either regulatory imperative or legal intention. Certainly, it does not have the kind of language or format that the church has come to expect in definitional statements, for the language in this paragraph is not obviously legislative, in the sense of providing regulatory lines that define boundaries or proscribe behavior.

and

Thus, W-4.9001 has become contested regarding whether it can bear the interpretive weight that judicial process and decision has put upon it. The church needs a sharper degree of clarification and guidance that precisely defines how it understands marriage, especially in light of the high financial and personal burden involved.

For all the polity wonks out there, I recommend having a look at this concurring opinion — you may or may not agree with it, but they have done a good job of clearly stating where there might be problems when theological narrative is applied as polity for judicial process.  (And now I am going to have a look at nFOG and see how it would stand up to this test.)

3) I will let the opening paragraph of the third concurring opinion, signed by three commissioners, speak for itself:

We concur with the Decision of the Commission, and with the holding that Spahr is not applicable as precedent because the actions taken by Southard took place before the Spahr Decision was rendered. However, it is disingenuous of Southard to claim that no guidance was available from the larger church on the advisability of performing a same-gender marriage.

Their point is that the Spahr Decision is not the first one and enough guidance is present in the 1991 Authoritative Interpretation and the 2000 Benton Decision to have discouraged this ceremony from happening.  The opinion concludes “While Southard may be commended for her desire to provide compassionate pastoral care, a failure to seek out the guidance of the larger Church would raise a concern about Southard’s willingness to ‘be governed by our church’s polity, and to abide its discipline.'”

Personal Comments
Having served on the PC(USA) Special Committee on Civil Union and Christian Marriage I want to add just a brief comment about the polity situation the PC(USA) now finds itself in.

As the second concurring opinion points out so clearly, section W-4.9001 of the Book of Order provides a theological definition of marriage where even the civil dimension is part of God’s order.  Our committee was painfully aware that there are on-going changes in the civil realm that those of us of faith can speak to, but the church as an institution can not control.  This means that the second point of the four-fold definition of marriage is something we as a church can not specify and yet we have it in our constitution.  While some of us would have liked to have seen something done, with the theological diversity on the committee the exact nature of the adjustment was not immediately clear.  The discussion was however moot since our charge from the General Assembly was to make our report a social witness document and the charge excluded from our purview constitutional changes.  As you are probably aware, the 219th General Assembly accepted our report for study and took no further action on constitutional changes.

Looking Forward
If you are following these issues in the PC(USA) then you are no doubt aware that another, similar case is working its way through the judicial process.  Back in August there was a new trial for the Rev. Jane Adams Spahr where she was charged with, and found guilty of, conducting same-sex marriages.  The circumstances are similar because such marriages were permitted under California law at the time they were preformed.  She has filed an appeal to the Synod PJC and there is every expectation that whatever the decision is there an appeal to the GA PJC will be heard at some point in the next year or so.

As you might expect this case comes with an additional twist of its own.  The presbytery sustained the charge that Rev. Spahr had “persisted in a pattern or practice of
disobedience concerning the aforementioned authoritative interpretation
of the Book of Order.”

At first glance, it appears that the GAPJC has now clearly set the legal tests for hearing this case.  The PPJC seems to have thought so in finding her guilty but expressing their personal disagreement with the outcome.  But as we know, there is still the appeal to be heard by the Synod PJC and there may be other procedural issues that arise.  We will see how the process plays out.

Well, I think you see why I described this decision as defying simple sound bites.  On the one hand, this case is over and the defendant has been found not guilty.  On the other hand, the PC(USA) constitutional standard – as currently understood by judicial commission interpretation – has been reiterated, including the understanding that earlier same-sex marriage ceremonies could not, by definition, actually be marriage ceremonies in the PC(USA).  Stay tuned to see where this legal standard takes us in the future…

Presbytery PJC Decision In Redwoods v. Spahr (2010)

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The last three days the Permanent Judicial Commission of Redwoods Presbytery has been hearing arguments in the disciplinary case of Redwoods Presbytery v. Jane Adams Spahr.  The Rev. Spahr is accused of conducting ceremonies for same-sex couples that are prohibited by the Constitution of the Presbyterian Church (U.S.A.) but were legal civil marriages under the laws of the State of California at the time.  If this sounds familiar it is — this is a variant on the case filed against Rev. Spahr in 2004 that lead to General Assembly PJC Decision 218-12 that gave us the, shall we say interesting, decision that the Rev. Spahr could not have been guilty of conducting same-sex marriages because “The SPJC found Spahr guilty of doing that which by definition cannot be done. One cannot characterize same sex ceremonies as marriages for the 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.”  It may be a unique legal decision, but it is the prevailing interpretation on this subject and figures in the Commission decision.

This Commission sustained three of the four charges against Rev. Spahr, all related to the authority of the Book of Order and her persisting in preforming these ceremonies after the previous GAPJC decision.  But the Commission also weighed in with their judgment about the current polity situation in the the PC(USA).

Before I get to a discussion of the decision, I want to make a couple of observations about the trial itself.

One aspect of this trial is that it was probably the first one with significant real-time commentary on Twitter.  You can find most of the tweets under @revjanespahr and #revjanie.

It was interesting to follow the trial play-by-play, but as with most things on Twitter these days it also came with the attendant amount of snark, such as: “Oh God, she just mentioned the ‘silent majority.'” and “Blackstone: Same old same old — GAPJC.”  I would also note that virtually all of the tweets I saw were from Rev. Spahr’s supporters with none, that I saw, from anyone clearly supporting the prosecution.  Maybe I just didn’t find the hashtag.

A couple of items came across in the tweets that I wanted to comment on.
1) The argument that the Directory for Worship is descriptive and that it contains no “shalls.”  This was the argument that carried the day in a Presbytery PJC decision that acquitted the Rev. Jean Southard in a similar case in Boston Presbytery.  However, on appeal the Synod PJC found that the Presbytery PJC was in error in this reasoning and we await a General Assembly PJC case to clarify this.  But I will also say that after serving on the Special Committee on Civil Unions and Religious Marriage I came away with the understanding that W-4.9001 was the equivalent of a “shall” section and that is why I wanted to recommend to the General Assembly wording to make the civil marriage section of the definition more flexible.

2) Also related to the Special Committee and the definition, I think several of us on the Committee, myself included, came away from the study wondering if the church should be acting as the agent of the state in executing marriage licenses.  In my own experience I know that in such diverse settings as Mexico and Germany the civil marriage and the religious marriage are two distinct events with the religious ceremony possibly happening minutes or years after the civil ceremony.  This concept came up in this trial, based on the tweets, with arguments by the defense that the two are linked in the Book of Order and by the prosecution that they are not.  At least that is what I gathered from two 140 character messages.

Anyway, with that as preface, and with the understanding that this case probably has two appeals to go before it is settled, what did Redwoods Presbytery PJC give us this time?

Charge 1 was that Rev. Spahr solemnized a marriage “in direct violation of the Constitution of the Presbyterian Church (U.S.A.) (GAPJC) in its Decision and Order in Disciplinary Case 218-12.”  This effectively says that W-4.0991 is a constitutionally binding requirement of the Book of Order.

Charge 2 was that Rev. Spahr “persisted in a pattern or practice of disobedience concerning the aforementioned authoritative interpretation of the Book of Order.”  In other words, since the previous GAPJC decision she had conducted multiple same-gender marriages.

Charge 3 was that Rev. Spahr “By intentionally and repeatedly acting in violation of the above-referenced authoritative interpretation of the Book of Order as set forth in Disciplinary Case 218-12, you, JANE ADAMS SPAHR, failed to be governed by polity of the Presbyterian Church (U.S.A.), in violation of your ordination vows (W-4.4003e).”

These three charges were sustained by the Commission on a 4-2 vote.

The fourth charge was unanimously not sustained: By publicly, intentionally and repeatedly acting in violation of the Book of Order, you, JANE ADAMS SPAHR, have failed to further the peace, unity, and purity of the church (W-4.4003g).

OK, that is the verdict.  Expect an appeal and another trip to the GAPJC. (And expect mainstream media reports to miss the nuances of the polity.)

What is most interesting about the decision is the second page with the commentary by the Commission.  They begin:

The Permanent Judicial Commission, in sustaining the first three charges, recognizes that while the Rev. Dr. Jane Spahr has indeed performed these marriages, which were and continue to be legal marriages, she did so acting with faithful compassion in accord with W7.3004. These marriages were legal in the State of California, being civil contracts (W4.9001), and are different from same sex ceremonies. The testimonies of those at court clearly demonstrated this difference.

We commend Dr. Spahr and give thanks for her prophetic ministry that for 35 years has extended support to “people who seek the dignity, freedom and respect that they have been denied” (W7.4002c), and has sought to redress “wrongs against individuals, groups, and peoples in the church, in this nation, and in the world” (W7.4002h).

But their commentary goes on as a word for the whole church:

In addition, we call upon the church to reexamine our own fear and ignorance that continues to reject the inclusiveness of the Gospel of Jesus Christ.(G3.0401c) We say this believing that we have in our own Book of Order conflicting and even contradictory rules and regulations that are against the Gospel.

But the decision concludes with these words:

Notwithstanding the foregoing, we are constrained to accept that the following language in GAPJC Disciplinary Case 218-12 is authoritative and should be followed until and unless modified: “We further hold that the officers of the PCUSA authorized to perform marriages shall not state, imply or represent that a same sex ceremony is a marriage. Under W4.9001, a same sex ceremony is not and cannot be a marriage.”

and

We implore the Synod and General Assembly levels of our church to listen to these testimonies, which are now part of this record, to take them to heart, and to do what needs to be done to move us as a church forward on this journey of reconciliation.

The penalty imposed is censure with rebuke (D-12.0102) and she is “enjoined to avoid such offenses in the future.”  If the decision is appealed the censure is held until the completion of the process if this decision is upheld.  Censure with rebuke is the lightest option available to the Commission and is effectively a formal declaration that what she did went against the constitution of the PC(USA).

Addendum:  A couple of additional words of commentary on this decision.  I waited a few hours to add this both to give me time to think about it and because I thought the decision pretty much spoke for itself. But to cast this in light of our polity the members of the PJC walked the fine line between “God alone is Lord of the conscience” [G-1.0301a] and “It is necessary to the integrity and health of the church that the persons who serve in it as officers shall adhere to the essentials of the Reformed faith and polity as expressed in The Book of Confessions and the Form of Government.” [G-6.0108a]  Their commentary clearly, to me at least, reflects their personal frustration that while they agree with the pastoral care Rev. Spahr has carried out and disagree with the applicable sections of the Constitution and the current interpretations, the majority none-the-less recognized their obligation to abide by the current standards enacted by the majority.  One can object to the strength or extent to which the PJC majority expressed their personal beliefs, but one must admire and appreciate their faithfulness to the PC(USA) process and connectionalism.  So yes, they effectively said “These are the rules, you have broken the rules, we think the rules are wrong but we must still find you guilty.”  This was further expressed in the penalty, which is the lightest that can be imposed and is effectively saying “Go and sin no more.”

Also in contemplating this decision the question keeps coming round of what specifications of error could be cited as grounds for appeal?  Since the defense seems to have focused on the idea that W-4.9001 is descriptive and prescriptive, that is that there is no “shall” language in there, that is certain to be one of the points.  This has been discussed for a while now and it will be useful if the GAPJC does provide guidance on what it means for the Directory for Worship to be descriptive.  From what I have seen and heard I don’t think I can pick out any procedural points that would be grounds for appeal but I did not follow extremely closely.  I don’t think that either personal conscience or the difference between civil and ecclesiastical definitions of marriage would be strong points of appeal.

Expecting an appeal, or possibly a decision in the Southard case that could impact this one, it is far too early to say this is the final word on this decision and this issue.  However, it does highlight where the PC(USA) is right now with different understandings on marriage and the fact that there needs to be a recognition that same-gender marriages are legally recognized in some jurisdictions and countries.  As the Special Committee report said…

We can not agree

but

By the grace of the Lord Jesus Christ, with the love of God, and in the communion of the Holy Spirit, we covenant together to:

• Honor the truth that Christ has called and God works through each member;

• Listen to one another with openness and respect;

• Support and pray for each other and for one another’s ministries;

• Earnestly seek and carefully listen to each person’s discernment of God’s will found in Scripture;

• Struggle together with perseverance to find God’s will for us even when the way is difficult;

• Love one another even when we disagree, and to commit ourselves to the reconciliation of any broken relationships we have with one another;

• Honor who we are as Presbyterians by respecting the fallible discernment of the body, bearing in mind that individual conscience, held captive to the word of God, cannot be thus bound.

PC(USA) Committees And Task Forces Getting Ready For GA

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With nine months before the 219th General Assembly of the Presbyterian Church (U.S.A.) the pace of work is picking up and reports, preliminary and final, are being issued.

In particular, the PC(USA) has several special committees and task forces working on various tasks from the 218th GA or the General Assembly Mission Council.

Recent press releases about the various groups and their progress include:

At this time one committee, the New Revised Form of Government Task Force, has reported out in final form for the input of the denomination.  Their full report is posted and commended to the church for study ahead of the Assembly.  I have begun studying the 2009 version relative to the 2008 version and will have comments on the revisions in the near future.

But I have not gotten very far into that yet since I have been otherwise occupied, because…

The Special Committee to Study Issues of Civil Union and Christian Marriage met last week and has released their preliminary report for review and input by the church.  Input can be sent to civilunion.marriage@pcusa.org.  It should be 1000 words or less and received by Nov. 15.

The report begins:

As members of Christ’s church, we differ profoundly; but can we also see that those who disagree with us are seeking to love one another with God’s grace, advance the radical inclusiveness of the gospel, and promote biblical faithfulness? Though we reach very different conclusions, can we rejoice that our church is willing to wrestle together prayerfully with the question: How do we extend the grace of God to all, calling all persons—regardless of sexual orientation—to repentance and conversion, so that all will experience God’s gracious intention for humanity?

And the concluding section says:

What is the place of covenanted same-gender partnerships in the Christian community? The Presbyterian Church (U.S.A.) cannot agree. But the Presbyterian Church (U.S.A.) is not ours. It is Christ’s. We did not choose Christ; Christ has chosen us, and appointed us—each and every one—to go and bear fruit that will last in this part of Christ’s vineyard. We have no right to destroy what is not ours. Knowing this, we believe that it is our Christ-given duty to stay at the table, especially when we disagree.

At the present time the report contains no recommendations to the Assembly — The committee will decide on those at their final meeting in January.

Now, I am going to take a step back and make some personal comments:  As many of you are aware I am a member of that Special Committee.  I have no comments about the content of the report — the committee worked very hard on it, was unanimous in support of the draft version, and that is our word to the PC(USA) at this time.  We have made our comment as a committee, we now welcome your comments back.

What I do want to say is that it was a privilege to work with the other 12 members of the committee.  I had to laugh yesterday when Peter Smith of the Louisville Courier-Journal referred to us as a “blue-ribbon” committee.  It has always felt more like I was a lowly sinner in need of God’s grace, mercy and salvation in the midst of a group of fellow sinners.  Yet, though we are all sinners, the members of the committee are a wonderful bunch of passionate, gifted, intelligent, thoughtful brothers and sisters in the faith.  And I would emphasize that Bruce Reyes-Chow did a great job of making the committee theologically diverse.  But despite our different viewpoints, when we speak in the report of “seeking to love one another with God’s grace,” we really do mean that.

I also want to commend the report to you because a lot of very hard work went into it.  Writing teams worked all summer, we read more than a thousand items of input that individuals sent in, and the four day meeting was a marathon.  (Sometimes revisions were posted to our collaborative software at 3 AM.)  In one of her good summaries of the meeting Leslie Scanlon of the Presbyterian Outlook picked up my comment about “the month of the last two days”.  (Leslie has a second article about the meeting as well.)  We did not sleep much, and when I did sleep it was not very soundly.  (Although I understand I was not alone in that regard.)  I can honestly say it was the most intense four days I can remember, even more intense than being a commissioner to GA.  And based on my notes, I would point out that in those four days every sentence in that report was reviewed by the full committee, page-by-page, and most of the sentences in there were modified in some way in the course of that review.  As I said, the full committee owns the full document.

I also want to thank the church for their input over the summer.  More than a thousand comments came in and we read them all.  Several of them were very moving – thank you for sharing your passions and hurts with us and I will carry those comments with me for a long time to come.

So read the report, let us know what you think.  And when you do there are a few things to keep in mind:

  • The landscape we are trying to describe was constantly changing as this report was written.
  • The content of the report reflects the
    mandate the 218th GA gave us    .  Don’t expect stuff that isn’t there.
  • That mandate includes the provision that we can not recommend modifying W-4.9001, the definition of Christian marriage.
  • And we have to do it in 10,000 words or less.     (It is like the standing joke in academics about reviewers of journal articles asking that you discuss this, that, and the other thing in more detail, and by the way, make the paper 10% shorter.

Thanks.

Presbytery Judicial Decision In A Same-sex Marriage Case

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Two weeks ago, on August 22, the Permanent Judicial Commission of the Presbytery of Boston Presbyterian Church (U.S.A.) heard the disciplinary case of Presbytery of Boston versus Jean K. Southard.  The Rev. Southard was charged with 1) conducting a public worship service that was effectively a marriage ceremony for a same-sex couple and 2) by doing so violating her ordination vows.

The decision of the PJC was that the charges were not sustained and the Rev. Southard was found not guilty.  (Thanks to Church and World, aka PresbyWeb, for publishing the decision.)

The reasoning of the majority was expressed as follows:

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.
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.

And continues

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.

Note carefully the wording — The decision was not about whether a same-sex marriage was preformed, but given that it was preformed is that prohibited by the constitution and therefore cause for discipline?

There is a Dissenting Dpinion that begins:

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.

Later says

Because of this changed legal state in the Commonwealth of Massachusetts (The General Laws of Massachusetts, Chapter 207), 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 commission 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.”

And concludes:

We disagree with the commission decision and do not join in it. While we find that Rev. Southard found herself in a difficult position given the request of two valued elders of her church, we do not find that tension to be sufficient reason to grant release from the strictures of the discipline of the Constitution. Her action of social justice came at the cost of her obedience to her ordination vows, (W-4.4003e), and created a situation that worked against the peace, unity and purity of the Church.

Three other important points in this case:  1) According to the Dissenting Opinion the facts of the case were not contested.  Both sides stipulated and “provided and accepted evidence that this was intentionally a Christian marriage.”  2)  Note that the participants in this ceremony are both described as elders in that church, leading to…  3) This was a disciplinary case against the pastor.  While there is no indication that additional cases are contemplated, disciplinary cases against the two elders who were married and a remedial case against the session would be possible, but unlikely, especially in light of the decision in this case.

OK, that presents a summary of what I see as the key points of the decision.  If you are not a GA Junkie, you can probably stop reading now.  However, as a GA Junkie, I want to dissect this decision a bit and make some comments.

There seem to be two distinctives to this case that distinguish it from previous cases.  One of these is that the worship service was held in the church sanctuary and, as the charge implies, had all the distinctions of a wedding ceremony.  The second is that this is the first case brought to trial where a same-sex marriage was preformed in a state that allows civil same-sex marriage.  (But I would point out that one of the withdrawn charges in the Spahr case (218-12) was a same-sex marriage preformed in Ontario, Canada, where civil marriage is legal.)

Now I will acknowledge from the onset that the PC(USA) has a problem right now with its definition of marriage.  This case hinged on that section of the Directory for Worship (W-4.9001):

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.

Clearly now with a few states permitting civil same-sex marriages the part that reads “a civil contract between a woman and a man” has certain problems.  That will have to be addressed by the next General Assembly.

That problematic phrase was the main point that the PJC appears to have focused on, and they did so in two ways.

Their first argument was that unless the Directory for Worship uses language making something mandatory, like the wording of vows or formulae for sacraments, then the Directory is “descriptive.”

That the Directory is in a sense descriptive is certainly true, and as they point out it says so in the Preface.  Section b reads:

b. In addition to the terms defined in the Preface to the Book of Order, this directory also uses language about worship which is simply descriptive.

But what does it mean to be descriptive?  Look at the preceding section a, which says in part:

A Directory for Worship is not a service book with fixed orders of worship, a collection of prayers and rituals, or a program guide. Rather it describes the theology that underlies Reformed worship and outlines appropriate forms for that worship. This directory suggests possibilities for worship, invites development in worship, and encourages continuing reform of worship. It sets standards and presents norms for the conduct of worship in the life of congregations and the governing bodies of the Presbyterian Church (U.S.A.). As the constitutional document ordering the worship of the Presbyterian Church (U.S.A.), this Directory for Worship shall be authoritative for this church.

Note some of the things that the Directory does:  “describes the theology that underlies Reformed worship,” “sets standards,” “presents norms,” and “shall be authoritative for thi
s church.”  The majority decision seems to equate “descriptive” with “optional.”  The first few lines I quoted would seem to equate “descriptive” with “not a service book with fixed orders of worship, a collection of prayers and rituals, or a program guide.”  In fact, a widely used book on Presbyterian polity co-authored by Joan Gray (former GA Moderator) and Joyce Tucker says “The Directory for Worship contains our standards relating to worship…” (Presbyterian Polity for Church Officers, p. 7) and later “…it has now become part of the standards of our church.” (p. 172)  I read and understand the Directory for Worship to be “flexible” not “optional.”  And that flexibility would be in form but not in function.

In the Dissenting Opinion section I quote above there is also a clear argument for the applicability and mandatory nature of W-4.9001 when the refer to W-4.9004 and the prescriptive nature of that section which does use the “shall” language and refers to “the man and the woman.”

Finally, the prescriptive nature of W-4.9001 is reinforce by the Spahr decision which regularly, including in the Headnotes, says that “Marriage is defined” by this section.  As this present decision points out there are certain procedural issues with leaning on the Spahr decision too heavily, but the Spahr decision presents this definition not as their conclusion, but as a given, the accepted starting point from which they draw the conclusion that in light of this definition there can be no such thing as same-sex Christian marriage.

The second part of the majority’s argument was that not only was it not mandatory to begin with, but since conditions in the civil sphere were not in alignment with one part of the section then the whole section could be safely ignored.  Furthermore, they argued that the situation in this case was different enough that the conclusion in the Spahr decision was not applicable.  This strikes me as saying that civil law will determine theology and doctrine.

The signatories to the dissenting opinion strongly disagreed with this assertion.  However, I think they overlook an important additional argument.  In response to the majority argument that the laws of the State of Massachusetts have rendered this section of the Directory for Worship moot, they say:

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 commission has substituted its judgment for the clear words of definition. (emphasis mine)

I would argue that the definition of Christian marriage being between a man and a women was upheld twice by the most recent General Assembly, even after Massachusetts had adopted civil marriage.  In response to an overture from the Presbytery of Baltimore the assembly voted 540-161 not to change “a man and a woman” in W-4.9001 to “two people.”  And again, in the action that created the Special Committee on Civil Unions and Christian Marriage the Assembly added the sentence “This overtures advocates for equal rights and does not seek to redefine the nature of Christian marriage.”  To me this is strong evidence that even with the presence of same-sex civil marriage there was Assembly endorsement of the man and woman language for Christian marriage.  In light of that I have trouble accepting the argument that if one clause does not apply then none of it applies.

Regarding the Spahr decision, it is clear that in a legal sense it can not serve as precedent in this present case.  In the present case the alleged actions took place on March 1, 2008, which was almost two months before the GAPJC ruled in the Spahr case.  In addition, as both the majority and minority decisions point out, application of the Benton decision (212-11) to this case is tricky because this is a disciplinary case and Benton was remedial.

In my mind there are clear grounds for appeal on the basis of an error in constitutional interpretation.  However, I also recognize that the circumstances of civil marriages make the Directory definition a problem that the next General Assembly will have to address.  Therefore it may be advisable to simply let this constitutional issue be addressed legislatively rather than have a legislative and judicial interpretation proceeding in parallel.

I think that does it.  Those are my thoughts on this case.  Your mileage may vary.

Presbyterians Do Things Differently

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Love it or hate it Presbyterians are big on committees.  That is how we do things as a Covenant Community.  That is how we hold ourselves accountable.  And it allows the church to discern together God’s will as we listen to each other and are guided by the Holy Spirit.  And the PC(USA) has an open meetings policy.

And you probably know that back in February the Moderator of the General Assembly of the PC(USA) named a Special Committee to study civil unions and Christian marriage.  It met back in March and will meet again in two weeks.

Being on that Special Committee myself I had to laugh when I read this news about the Episcopal Church today:

The House of Bishops Theology Committee is refusing to release the
names of members of a sub-committee it has appointed to study same-sex
relationships. The existence of the panel was first reported in the Blue Book,
which contains information relevant to General Convention, 2009.
However, the Rt. Rev. Henry Parsley of Alabama, chair of the Theology
Committee has refused several requests to disclose the names of its
members.

Thanks to The Lead for this information.  It seems that since it is a sub-committee of the Theology Committee the possible members of the sub-committee are known.  Still, an interesting way to do business.  The LGBT advocacy group Integrity responded, in part, with this:

“If this isn’t the height of absurdity and insult I don’t know what
is,” said the Reverend Susan Russell, President of Integrity USA, the
LGBT advocacy group within the Episcopal Church. “It sends a horrific
message to gay and lesbian people – both inside and outside the church.
The very concept of “secret studies” elicits painful memories of secret
studies done on other minority groups in the past and is utterly
contrary to our baptismal promise to respect the dignity of every human
being. There is absolutely nothing dignified about a secret study of a
group already being discriminated against. It is suspect, disingenuous
and dishonest.”

This has “gone viral” on the Episcopal and Anglican blogs:  The Friends of Jake, Preludium, Telling Secrets, Thinking Anglicans, are ones I have seen so far and I am sure there are many more to come.

I will update as news develops.

Update – 6/4/09:
There has been a response from the chair of the Theology Committee, the Rt. Rev. Henry N. Parsley, Jr. The official statement says, in part:

…I wish to assure those concerned that the panel very intentionally
represents a robust range of views on the subject and includes gay and
lesbian persons.

and

This project has been designed in full communication with the House of
Bishops. It has always been the committee’s intention to publish the
names of the panel when the work has reached the appropriate stage. We
believe that for a season the work can best be accomplished by allowing
the panel to work in confidence. This supports the full collegiality
and academic freedom of the theologians and provides the space they
need for the deep dialogue and reflection that is taking place among
them.

And the church has issued a press release referring to this statement.

The response from within the Episcopal Church continues and outside the Anglican circles a few others, besides myself, who have commented include more media-oriented blogs BibleBeltBlogger, Desert’s Child, and Daily Religious.

Update – 6/6/09
There are now reports that the Episcopal Church web site which previously promised transparency in their operations has removed that claim.  The story from BibleBeltBlogger and a response from Preludium.

And a little humor from The Lead about selecting the members of the secret committee.

Pittsburgh PJC Decision Appears To Be Based on Spahr v Redwoods

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(See the evening update at the end of the post)

Word is being relayed on the internet that in the Pittsburgh Presbytery PJC case, where the Rev. Janet Edwards was being tried for conducting a same-sex wedding, the PJC unanimously acquitted her.  (More Light Presbyterians, Pittsburgh Post-Gazette) While the full decision is not available yet the early indications are that this decision was based upon the confusing decision in the Spahr v. Redwoods case and I have trouble seeing how anyone can claim a real victory in this case.  (If you want the background check out my post from August on the topic.)

To quote the Pittsburgh Post-Gazette’s early report:

The court, meeting on the North Side in the second day of a trial for
the Rev. Janet Edwards, ruled that the constitutions of the church and
the state of Pennsylvania define marriage as an act between a man and a
woman. Therefore, judges said, the minister could not have done what
she was accused of doing.

This appears to be based on the decision rendered in the GA PJC Spahr v. Redwoods case that no minister in the Presbyterian Church can be found guilty of conducting a same-sex wedding ceremony because no such thing exists.  A wedding is between a man and a woman so a same-sex wedding is a contradiction in terms.  As you can probably guess this legal reasoning did not really satisfy anyone.

It seems reasonable to me that the lower Presbytery PJC relied on this legal decision, a reasonable thing to do even if it is not a particularly satisfying decision.  Hence, my feeling that there are no real winners in this case.  No new legal territory is broken and the situation is none the clearer.  From a personal perspective, the Rev. Edwards was cleared of the charges.  From a polity/legal point of view, the ceremony she openly admits conducting was not a wedding according to the PJC.  So guess what, we have to wait for another appeal, maybe not in this case though, to make its way to the top.

The Rev. Edwards, in her defense brief, said that she would invoke the Spahr v. Redwoods case, but certain of the other parts of the decision.  Be careful what you ask for because it looks like she got a clear decision that there are no same-sex weddings.

Finally, I see this case in the light of the previous GAPJC decisions.  Clearly the news media has not seen that yet and a lot of the “people in the pews” won’t see the connection either.  Because it lines up so closely with Spahr v. Redwoods I see this as pretty much a “non-decision” in terms of the big picture of resolving this issue.  But most of the Presbyterian world will not see the nuances in here.  Hold on tight for the stormy seas.

UPDATE – 8:30 PM:  The verdict has been posted by More Light Presbyterians and pretty much holds to my inference above with one significant exception:  The verdict makes it clear that the prosecution, with whom the burden of proof lies, did not prove their case.  The verdict does rely heavily on Spahr v. Redwoods and the says, in part:

“The Prosecuting Committee has failed to meet the burden of proof that the accused carried out a marriage ceremony at all.”

Pennsylvania
civil law defines marriage as male-female, so a marriage between two
women cannot be a marriage regardless of what occurred in the ceremony.
Because the Book of Order does not recognize a same-sex marriage, it cannot be an offense to attempt to do the impossible.

Therefore,
the commission does not find that the accused committed an offense by
performing a ceremony between two people of the same gender.

Also,
there is no evidence that the accused held out the ceremony as a
marriage. It could be inferred from the order of service, but it has
not been proved. The accused’s belief about whether the ceremony was a
marriage has not been proved, either.

The decision in Spahr
states that “one cannot construe same-sex ceremonies as marriages for
the purpose of disciplining someone, but not as marriages for ecclesial
purposes.”

It does leave open the question of whether this PJC would have convicted if better evidence had been presented, even though “it cannot be an offense to attempt to do the impossible.”

From reading this over if the evidence is not there I’m not sure that there are procedural grounds to appeal.  We will see if the prosecution thinks otherwise.

Watching the Pittsburgh PJC Trial and Inaccurate Media Headlines

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There is way too much to watch at the moment with the GA of the PCANZ and Presbyfest in the news at the moment, but the Pittsburgh Presbytery trial, or re-trial, of the Rev. Janet Edwards got underway yesterday and it is reasonable to expect a decision today.  (If you want background on this you can check out my previous post on the case.)

I’ll keep watching for a decision, but while watching I noticed that several news outlets have gotten good stories out, such as the Pittsburgh Post-Gazette and KDKA, among others.  But I must take issue with the news story, particularly the headline, in the Pittsburgh Tribune-Review.  The headline is:

State Court Backs Presbyterian Minister

If you read the article you find that this is not even close to the truth.  The real story is that a former State Superior Court judge, Justin M. Johnson, testified in the Rev. Edwards’ defense that the Presbyterian Church (U.S.A.) Constitution does not prohibit same-sex weddings.  That, to me, is a far cry from a state court intervening in a church trial.  To the article’s credit it does quote PC(USA) Stated Clerk Gradye Parsons as saying that the constitution does prohibit ministers from preforming same-sex weddings.

Anyway, just watching and waiting to see how the Presbytery PJC rules.

Closely Watched Judicial Cases Affecting the PC(USA) Scheduled For October

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We got news this week that two closely watched judicial cases with implications for the Presbyterian Church (USA) will be heard by their appropriate judicial bodies this coming October.

The first of these will be the trial of the Rev. Janet Edwards by the Permanent Judicial Commission of the Presbytery of Pittsburgh on October 1.

This hit the news last week with a news release by the Presbyterian News Service about the case.  I am at a bit of a loss to explain the release of this news item at this time unless a) it was a slow news day or b) the trial date was announced.  I’ve been looking for documents related to the trial on line and not finding any so all I can say is that I suspect, but can not confirm, option b.

A quick recap of this case:  The Rev. Janet Edwards preformed a same-sex ceremony for a lesbian couple back in June, 2005, and everyone involved with the ceremony is describing it as a “wedding.”  A complaint was made, an investigating committee formed, and the investigating committee filed charges.  One little problem… The charges were filed four days past the deadline that investigating committee had to meet so the Presbytery PJC dismissed the charges.  A new complaint was made, a new investigating commission went to work and filed five charges, in a timely manner, and back in June the PJC reviewed the charges and dismissed three of the five.  Among the new charges was the accusation that parts of the ceremony were not Christian, but contained Buddhist elements related to the beliefs of one of the partners.  That was part of what was dismissed on the theory that if a ceremony is prohibited in the first place you can’t specify how it should be done properly and what is improper.  (If that theory sounds familiar hold the thought, I’ll get back to it in a minute.) (Story on the dismissal from Pittsburgh Post-Gazette.)

A few notes and comments on the story so far:  In researching this I have seen several references (like this article) to the original dismissal as being for “statute of limitations.”  While I am not a lawyer I understand the statute of limitations to relate to the offending action not to the judicial process itself.  Since the investigating committee missed a deadline this would be an administrative problem.  And since the charges were brought up again clearly it is still within the time limit on the alleged infraction.  Related to the charges being brought up again, this new hearing has also been referred to as “double-jeopardy.”  Again, the first case did not actually go to a “guilty/not guilty” decision, therefore it is not double jeopardy in my understanding of the process.

It is interesting to consider the outcome of this case.  It would have been within the realm of possibility, based on the current legal precedent, that all the charges against the Rev. Edwards were dismissed back in June since that hearing was after the Spahr v. Redwoods Decision in April.  That decision said “By the definition in W-4.9001, a same sex ceremony can never be a marriage.”  It went on to conclude that since it can’t be a marriage the minister can not be guilty of preforming a same-sex marriage.  All the Presbytery PJC had to do was cite this precedent and “game over.”  But this result would have been about as unsatisfying as the GAPJC decision.  And the dismissal of three of the charges does have that similar ring of legal reasoning.  (I am not a church lawyer so if I missed a critical point in our polity here related to the hearing or dismissing the case please let me know.)

So it appears that the PJC sees a point in hearing this case.  It could be that Edwards will be acquitted based on the Spahr decision.  It could be that she will be acquitted or found guilty on the merits, rather than the definitions, of this case alone.  If it is decided on its own merits I would expect this to make its way up the judicial ladder and it could be the case for a more satisfying decision by the GAPJC.  The GAPJC has eight new members elected at the last GA so the balance or dynamics of the body may change.  We will have to see.

In the latest Presbyterian News Service article Rev. Edwards is quoted as saying “I’m sure that we will press the parts of the Spahr decision that
supports my presiding at the wedding and calling Brenda and Nancy’s
relationship a marriage. We see a lot of positive
things in the Spahr decision.”  I would say to be careful what you ask for because by the Spahr decision says that by definition the relationship can not be a marriage.  The Rev. Edwards has a web site with information about the case called “A Time To Embrace” on which she has posted a statement in her defense.  The brief makes specific reference to W-4.9001.  After the GAPJC made clear in the Spahr decision that this is the definition of marriage and anything that deviates from this is not a marriage, Rev. Edwards now argues (p. 31) “[W-4.9001] is definitional in nature only, and contains none of the language that the Book of Order instructs must be present to set forth a mandate or a prohibition.”  The brief goes on to argue that there is no prohibition on same-gender marriage ceremonies, seeming to ignore that the fact that one of the decisions they cite says there are no such thing as same-gender marriage ceremonies based upon the Book of Order passage Edwards’ cites.  While Edwards’ brief does briefly mention the definition in the Spahr, it puts much more emphasis that an acquittal is in order because the charges are vague and not defensible.

There is one additional point in the brief that I find interesting.  It makes note of the action by the 218th General Assembly to vacate previous Authoritative Interpretations regarding the ordination of self-acknowledged practicing homosexuals, and it discusses the GAPJC’s divided interpretation of W-4.9001 as to its applicibility as a prohibition against future same-gender marriage ceremonies.  The brief does not mention that the 218th General Assembly, by a wide margin (I got it right that time), voted not to propose changes to W-4.9001.

Well, that was more of a point-by-point analysis than I had planned.  OK, on to the second case…

Regarding the second judicial case, I was notified two days ago that trial is now set to begin on the “Episcopal Church Cases” before the California Supreme Court on October 8.  Don’t let the “Episcopal” distract you; there are amicus curiae briefs for this case filed by Clifton Kirkpatrick and the national office, the Synod of Southern California and Hawaii, and the Presbyterian Lay Committee.

This case is a test case on church property in California and comes from three linked cases out of Los Angeles and Orange Counties where three Episcopal Churches tried to realign with other Anglican communions outside the US and the Dioceses went to court to keep the property.  The case is highlighted by the fact that in this particular case the Appellate Court decision used the “highest government” legal theory, which favored the hierarchical church and ruled against the particular churches in their bid to hold onto property, while other Appellate Court decisions have used the “neutral-principles analysis” which would favor the particular congregation.  With both on the books the Supreme Court took the case and will decide on the proper legal theory for our state.

I probably don’t need to remind any regular readers that there is a lot riding on this state Supreme Court decision.  Along the length of the State of California there are Presbyterian, as well as Episcopal, churches trying to get out with their property and there are rumblings of more waiting in the wings for this decision.  I don’t know how the decision in this case could influence other places in the country, but it could have a major influence on the denominational map in California.  Then again, we could go with the “Graceful Seperation” that General Assembly endorsed.  Again, time will tell.

The PC(USA) General Assembly — Tuesday Afternoon Update

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A quick update on where some committee items stand at this moment

The nFOG committee has decided that the substitute motion will be the main motion.  While the recommendation is not finalized, and there are some interesting polity issues embedded in it, as pointed out by the ACC representative, the committee wants the PC(USA) to send to churches and presbyteries the nFOG report and form a new task force to consider the responses and revise the FOG revision for the 219th GA.

The Mission Coordination and Budget Committee spent much of the day on item 08-21 about allowing the GAC to have some control over designated funds at the Foundation.  It is not resolved yet, but the sense of the committee is that they will recommend a proposal to have GAC and Foundation work out their differences.  It has gone back to the writing committee and they will consider a new/final version at the end of their docket.

Finally, last I checked PC-biz, the Committee on Polity was debating 04-08, the Baltimore overture to change the definition of marriage from between a man and a woman to between two people.  There is a substitute motion to comment and keep the current wording.  Results as they become available.

PC(USA) GA PJC Decision in Spahr v. Redwoods Presbytery: Reaction and Analysis

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The publication Tuesday of the decision in the General Assembly Permanent Judicial Commission case 218-12, Jane Adams Spahr v. Presbyterian Church (U.S.A.) through the Presbytery of Redwoods has had a variety of reactions.  Early popular media articles, like this Reuters article or this WHAM-TV piece, basically picked up the story that the Rev. Spahr was cleared of the charges against her.

However, as the day went on the sophistication of the popular media reporting increased and is catching up with the discerning comments of Presbyterians familiar with the issues.  Among the first out with a story was the Presbyterian News Service whose article referred to the decision as “complicated.”  In a statement about the decision the Acting Executive Presbyter/Stated Clerk of Redwood Presbytery, the Rev. Robert Conover, refers to the decision as “nuanced and lengthy.”  In her own statement, the Rev. Spahr expresses her gratitude for the GA PJC upholding the original decision by the Presbytery PJC.  Later articles, such as one by the San Francisco Chronicle, began to recognize that Rev. Spahr’s acquittal is only the easy part of the story and there is still more there. The Chronicle writes “The ambivalent ruling –
affirming the rights of gays and lesbians to have their relationships
sanctioned by the church but not considering them equal to those of
heterosexual couples – is likely to disappoint both sides in the debate.”  And on the KGO-TV web site they write “Tuesday’s ruling is a complicated, split decision. It essentially
clears Reverend Spahr of disciplinary charges, saying she can’t be
found guilty of doing that, which by definition, cannot be done — the
marriage of gay couples. However, they say no one should try it again.”

As for official reaction, the Office of the Stated Clerk on Tuesday updated the Advisory Opinion 7 on Ceremonies Blessing Same-Sex Relationships to reflect this new decision.

Reaction from the web and blogosphere is still developing.  Most progressive web sites that have posted something, like That All May Freely Serve and JustPresbys, are pretty much linking to or quoting other statements or reports.  In the next few days we are likely to see more official statements from these groups.  On his blog the Rev. Ray Bagnuolo recognizes this as a victory, but only a beginning for the cause of equality for LGBT individuals.  Finally, the Rev. John Shuck and the Rev. David Fischler on each of their respective blogs from very different ends of the theological spectrum call this an “odd” and “bazaar” decision.

After reading it through a few times I must agree with them.  After putting together the available pieces, it seems to me that this was a divided PJC and they made the effort to put together a central kernel that they could all affirm and then five of the twelve commission members put together a dissent to the other significant part of the decision.  In addition, there are three other concurring decisions that comment on other parts of the decision.

The real focal point of this decision is Specification of Error No. 1 and No. 2.  Error 1 is that the Synod PJC should not have concluded that same sex marriages are prohibited by Presbyterian polity and Error 2 is that Rev. Spahr committed a disciplinary offense.  The GA PJC recognized that the Book of Order in W-4.9001 and the 1991 Authoritative Interpretation (see Advisory Opinion 7) prohibit ceremonies that represent marriages between persons of the same sex but other commitment or blessing ceremonies are not prohibited.  They also cited that marriage is between a man and a women as stated in W-4.9001.  It would then appear that all of the members of the PJC agreed on the following statements:

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.

The SPJC found Spahr guilty of doing that which by definition cannot be done. One cannot characterize same sex ceremonies as marriages for the 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.

The PPJC was correct in finding that by performing the two ceremonies at issue, Spahr did not commit an offense as charged. Therefore, the SPJC erred in determining that Spahr was guilty of violating W-4.9001 or the 1991 AI.

And at the end of the section the decision says:

In summary, Specification of Error No. 1 is not sustained because by definition, “marriage is . . . between a man and a woman.” (W-4.9001) Specification of Error No. 1 and Specification of Error No. 2 are sustained because W-4.9001 does not state a mandatory prohibition on performing a same sex ceremony. The charge was for performing a marriage ceremony, which by definition cannot be performed.

So, if I read this correctly the question is not whether you intend to conduct a ceremony that you are calling a marriage or view as being equivalent.  The question is whether you did conduct a marriage ceremony.  Since same-sex couples, by definition of W-4.9001, can not be in a relationship called marriage, it is impossible to conduct such a ceremony and therefor no charges can be filed.  (And it appears that by this logic can never be filed.) So “poof,” under PC(USA) polity there is now no such thing as same-sex marriage.

As I look at this decision, this seems to be the mental gymnastics that were necessary to get a unanimous decision.  In addition, the sentence “Both parties acknowledged the ceremonies in question were not marriages as defined by the Book of Order” appears to be carefully constructed to be conditional on the Book of Order definition because it is made clear in the history of the case that Rev. Spahr intended these to be marriages and the evidence includes the fact that she signed a “Certificate of Marriage” in each case.  Even now, in her statement following the decision, she consistently uses the term “marriage” to describe her ministry.

But if you look at the substantive parts quoted above the real emphasis is on Book of Order W-4.9001.  The dissenting opinion by five of the members of the commission takes issue with the additional verbiage in this section that tries to expand on W-4.9001 using the 1991 AI or a previous PJC decision.  W-4.9001 talks about marriage and always refers to it being between a man and a woman.  There is no reference to the ceremony itself in this section or to any other ceremonies that may be for same-sex couples.  Strictly the constitution does not prohibit or regulate same-sex ceremonies except to say they are not marriages.   The 1991 AI and the previous Benton decision do make reference to the ceremony, that it should not be the same as a marriage ceremony and that it would be improper to use the church for such a ceremony.  This decision in the Spahr case extends this by saying:

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.

The five members of the commission who signed the dissent take issue with this extension.  They argue:

In rendering its decision, the majority has taken the liberty of legislating in the guise of interpreting inconsistencies between W-4.9001 on the one hand, and the 1991 Al and this Commission’s decision in Benton v. Presbytery of Hudson River, Remedial Case 212-11 (2000), on the other hand. For the reasons stated herein, we respectfully concur in the result of the majority, but disagree with the decision of the majority to the extent that it rests on the 1991 AI or Benton.

This seems to hearken back to the recent GA PJC decisions on the 2006 AI concerning declarations of exceptions in ordinations.  The idea is that the constitution is primary and AI’s and PJC decisions should not be used to extend the reach of the constitution.

On the other side, three commissioners in a concurring opinion write, in total:

We join in the foregoing Decision and Order (Decision). We understand the Decision to be an authoritative interpretation of W-4.9001, to mea
n that officers of the PCUSA who are authorized to perform marriages shall not hereafter perform a same sex union ceremony in which or with respect to which such officer states, implies or represents to be a marriage or the equivalent thereof. While the Commission did not find Spahr guilty as charged herein, in part because her conduct occurred under prior authoritative interpretations, we understand that future noncompliance with the authoritative interpretation of the Decision will be considered to be a disciplinable offense.

So, now that it is in the books, you have been warned and don’t do it again.

For the polity wonks, an interesting polity point is that the GA PJC dismissed arguments base on Benton right from the start of the decision in the Preliminary Statement pointing out that Benton resulted from a remedial case and this was a disciplinary case so it was not relevant case law.  With the exception of reference to it in the dissent I have not found other reference to Benton in the rest of the decision section.

In the reasoning on Errors 1 and 2 the main opinion continues on for roughly another page discussing Rev. Spahr’s ministry and the part of marriage ceremonies in it.  It acknowledges her sense of call to “participate in a caring and compassionate ministry to persons who have been marginalized, who are faithful Christians, and who wish to be accepted in every way as full members of the body of Christ.”  It also says that the Rev. Spahr may consider herself acting in the role of a prophet to the church, and points out that the role of a prophet contains risks and carries consequences.  The decision goes on to say “It is the burden of a church officer to accept the consequences of his or her actions that are the ecclesiastical equivalent of civil disobedience.”  The third of the concurring opinions expands on this and the Book of Order basis for it, even further.

The rest of the decision is fairly routine, procedural, and straight-forward.  Most errors were rendered irrelevant once Rev. Spahr was cleared in the first section.  It was noted that for Error 3 there was no disciplinary action to be taken, but originally the Synod PJC was out of place imposing a punishment and it should have remanded the case back to the Presbytery PJC for the consequences.  And it noted that while Rev. Spahr on appeal had referred to the 2006 AI, that was irrelevant because that applied only to conscience issues related to ordination standards.  Error 6 also refers back to conscience but the decision replys “Submission to the current standards of the church may not always be comfortable, but it is not optional.”  Finally, Error 7 was about a member of the Presbytery PJC and whether they should have been disqualified from serving on the case.  The decision says it was correct to let them go ahead and serve but a concurring opinion says that while it may be procedurally correct, for the appearance of a fair decision disqualification would have been wise.

So that is the decision, but where does that leave us?  As one statement said, this seems to imply a “separate but equal” structure in the PC(USA).  The ceremonies just can not look the same.  Rev. Spahr says that she will continue conducting “marriages.”  It also seems like muddled case law that neither side in the debate will be comfortable with.  It seems ripe for clarification and expansion by a future GA PJC.  And the similar case of the Rev. Janet Edwards in Pittsburgh Presbytery is awaiting a trial date.  It will be interesting to see how this as case law influences that decision.