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.