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

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…