The Polity Crisis Around Same-Gender Marriage
~ Tricia Dykers Koenig
Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, the District of Columbia, New York, Washington, Maine, Maryland. According to the Human Rights Campaign, over 15% of Americans currently live in jurisdictions with marriage equality. Many expect California, Illinois, and Rhode Island to follow rapidly. As reflected in courts, legislatures, popular votes, and polls, more and more Americans are recognizing the fundamental unfairness of denying all the rights of marriage to committed couples willing to take on the responsibilities of marriage, based on their gender and sexual orientation.
With the spread of marriage equality, more and more Presbyterian ministers are being asked to perform for their LGBTQ congregants the same ministry that they provide with joy to their heterosexual congregants – to officiate at the services of worship in which couples commit their lives to one another in marriage. And yet, Presbyterian ministers are not free to exercise their own judgment in deciding whether or not to conduct such services. Recent decisions by the General Assembly Permanent Judicial Commission (GAPJC), and the refusal of the 220th General Assembly to vote on the overtures that would have provided relief, have left the PC(USA) in an untenable position:
- Teaching elders who routinely, yet profoundly, proclaim the grace and love of God for all people are forced to question whether they can live out their faith commitment without risking prosecution in Presbyterian courts – required to choose between their promise to “be governed by our church’s polity, and… abide by its discipline,” and their promises to “seek to follow the Lord Jesus Christ, love your neighbors, and work for the reconciliation of the world,” to “pray for and seek to serve the people with energy, intelligence, imagination, and love” and to “car[e] for people… and try to show the love and justice of Jesus Christ.”
- Sessions are asked to choose between providing compassionate pastoral care to all families, and the threat of expensive litigation draining time, energy, and money away from their ministry and mission.
- Couples are burdened with the choice between forgoing the joy of celebrating their covenant in the presence of their community of faith, and potentially embroiling that community of faith and its leaders in PCUSA disciplinary process.
This contributes to mission and evangelism how? And how did the Church get into this situation?
A Brief History:
- In 1991 – well before same-gender marriage was legal in any U.S. jurisdiction – the 203rd General Assembly issued an Authoritative Interpretation (AI) that allowed for the blessing of same-gender relationships as long as those ceremonies were not considered to be the same as marriages. At the time, since there was no possibility of performing a same-gender marriage according to civil law, the effect of the AI was to require accuracy in the way same-gender blessings were characterized.
- Building upon that AI, and still prior to the first state legalizing same-gender marriage, the GAPJC in 2000 (Benton v. Hudson River, Remedial Case 212-11) continued to distinguish between permissible and impermissible same-sex ceremonies, declaring that “A determinative distinction between a permissible same-sex ceremony and a marriage ceremony is that the latter confers a new status whereas the former blesses an existing relationship.” The nature of the “new status” was not made explicit – but what could that have meant, other than the legal status achieved when the minister signs a marriage license?
- In 2008, the GAPJC heard a case (Spahr v. Redwoods, Disciplinary Case 218-12) in which the Rev. Janie Spahr had been charged with an offense for conducting same-gender blessings that were not legal marriages; the Commission found that she “did not commit a sanctionable offense as charged,” since “[t]he charge was for performing a marriage ceremony, which by definition cannot be performed,” but also that “officers of the PCUSA authorized to perform marriages shall not state, imply, or represent that a same sex ceremony is a marriage.” In addition, they wrote:
Christians are called to do justice. The language of W-7.3000 and W-7.4000 is replete with admonitions that are inconsistent with imposing censure on a minister of the Word and Sacrament for reaching out to a marginalized and oppressed segment of the body. Moreover, “the Christian community offers pastoral care to its members in their personal and communal life.” (W-6.3001) The church should provide ministries of pastoral care to people in recognizing and celebrating times of transition and commitment. (W-6.3010) “The worship of God in the Christian community is the foundation and context for the ministry of pastoral care as well as for the ministry of nurture in faith.” (W-6.4000)
Despite the Commission’s recognition of the importance of justice and pastoral care, it was this decision, rather than the Book of Order itself, that made it an offense for a Presbyterian minister to conduct a legal same-sex marriage. In a Concurring Opinion, three members of the GAPJC put it this way:
We understand the Decision to be an authoritative interpretation of W-4.9001, to mean 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.
Five members of the Commission objected that “the majority has taken the liberty of legislating… We dissent because the majority fails to point out the fallacies of Benton, and then converts admonitions in Benton into prohibitions.”
- The first case addressing the actions of a minister who conducted a service in which the couple was legally married was decided in 2011. That decision, acquitting the Rev. Jean Southard (Southard v. Boston, Disciplinary Case 220-02), explicitly reaffirmed that it was the GAPJC itself that created an offense where none had existed:
The Commission concluded in Spahr that prior authoritative interpretations lacked mandatory language. Southard conducted the 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.
- In 2012, the GAPJC’s Spahr 2 decision agreed with the conclusions of lower courts that Janie Spahr had committed an offense in violating their previous AI when she conducted legal marriages for couples in California (Spahr v. Redwoods, Disciplinary Case 220-08). A substantial portion of the GAPJC issued strenuous dissent:
The majority judges this case primarily in relation to the decisions in Spahr (2008) and Southard (2011) in a conviction that, behind its judicial interpretation, there is in the Constitution an explicit basis against officiating in a same-sex marriage. In fact, this conviction rests upon an assumption rather than explicit constitutional rule. It is grounded principally upon one section, even one sentence, in the Directory of Worship, that is claimed to have clear and obvious legal status. The Commission assumes here and in earlier cases that W-4.9001 presents a legal basis for denying the permissibility and validity of same-sex marriage because it presents a “definition” of marriage as exclusively between a man and a woman. This assumption is flawed. This provision in the Directory of Worship cannot serve effectively as a judicial criterion.
There are several reasons why W-4.9001 is incapable of bearing the legal significance and weight that the Commission has placed upon it. First, this paragraph emerged decades ago, in a very different time and context. In its language and descriptions, it reflects conventions of a time when same-sex unions presented little, if any, cultural concern or attention…
Secondly, W-4.9001 is an introductory narrative for a distinctive, introductory section on marriage, outlining its biblical and theological characteristics as background to provisions of pastoral practice and nurture… To claim that this paragraph is primarily and intentionally legal in nature forces an artificial warp upon its evident narrative purpose. As a fourfold theological outline of Christian marriage in narrative form, in no way is it clear or obvious that it proposes regulatory imperative or legal intention. Certainly, it does not have the kind of language or format that the church has come to expect in definitive juridical statements, the kind of “shall” language that is common to our order in providing regulatory lines for boundaries of action or proscribed behavior.
Further, recent definitional arguments have devolved from ancillary elements in the text that seem to take priority over the primary focus of its sentences… For many, the secondary gendered example has become more central that [sic] the primary definitional clause that denotes the covenantal nature of marriage…
Thus, W-4.9001 cannot bear the interpretive weight that judicial process and decision has put upon it…
In this case and the other recent decisions, my principal concern is that this Commission has forged a standard upon an extremely fragile provision, employing a strained interpretation that does not provide the necessary legal foundation for resolution of our dilemma or foster pastoral guidance in the life of the church. By relying so heavily on W-4.9001, the Commission has ruled upon convention rather than law. The definitive clarity that the church deserves and expects in this continuing and vexatious dispute awaits deeper foundational judgment as well as more precise legislation.
In other words, the supposed prohibition on Presbyterian ministers conducting legal same-gender marriages was created by decisions issued by the GAPJC. General Assemblies in 2010 and 2012 had the opportunity to issue an authoritative interpretation that would have clarified that there is no offense inherent in not following to the letter the description of marriage in the Directory for Worship – essentially, agreeing with the GAPJC minority; however, both times the GA allowed parliamentary maneuvering to prevent them from voting these overtures up or down.
In effect, teaching elders seeking faithfully to exercise their ministries have been constrained by a few rulings by slight majorities of the GAPJC, resting on constitutional language of dubious applicability for disciplinary cases.
The current description of marriage in the Book of Order is simply no longer entirely accurate, for example in its unqualified declaration that “Marriage is a civil contract between a woman and a man.” (W-4.9001) Nor was it intended to form the basis for “discipline” that might deprive a minister of his or her ordination for making a pastoral decision not to discriminate against some of God’s children.
In its decision agreeing that the Rev. Laurie McNeill was not guilty of an offense for being married to her wife, in a service not conducted in a Presbyterian church (Newark v. McNeill, Disciplinary Case 221-02), the GAPJC yet again pleaded with the PCUSA to address the problem:
This case illustrates the tortuous place in which the PC(U.S.A.) finds itself on the matter of same-gender marriage. Previous cases, which dealt with teaching elders officiating at such services, state that unions between same-gender couples, whether legally recognized or not, cannot be declared to be marriages under the current interpretation of W-4.9001. Our Constitution, specifically this section of the Directory for Worship, did not anticipate the range of issues facing the church today surrounding same-gender relationships. In light of the number of cases coming before this Commission and the convoluted grounds upon which cases are brought and decided, it would be beneficial for the church to provide a definitive position regarding participation of officers in same-gender ceremonies whether civil or religious.
The Presbytery of Newark Permanent Judicial Commission (PPJC), in acquitting McNeill of the charges against her, had declared:
If, as the Prosecution contended, W-4.9001 set mandatory standards which any PCUSA ordained officer or member must follow in order for his or her marriage to be a marriage in the eyes of the PCUSA, then any “marriage” which is contrary to any of the provisions of W-4.9001 (and its companion provisions W-4.9002 – 4.9005), even as between heterosexuals, would be an offense. In particular, the third and fourth sentences would have to be read to require not only that the marriage is between a man and a woman but that it is also between two Christians and that it be acknowledged by the “community of faith.” If the “woman and man” language is mandatory, then the “for Christians” and “publicly witnessed and acknowledged by the community of faith” provisions also must be mandatory. There is nothing in the text which makes one mandatory and one not mandatory.
Although the McNeill case was about a Presbyterian minister being married rather than performing a marriage service, the Newark PPJC makes an important point: The Book of Order has particular language to “signify practice that is mandated”: “SHALL and IS TO BE/ARE TO BE.” The Preface to the Directory for Worship states that “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” – that is, not mandated. What justifies failure to conform to one aspect of the description becoming grounds for discipline, when lack of slavish conformity to other aspects has not?
The inevitable trajectory toward marriage equality is assumed by those who support it, and even by those who do not. Both civil law and the Book of Order have always granted ministers discretion to refuse to perform a marriage against their better judgment or convictions; there is no danger that Presbyterians who disapprove of same-gender marriage will be forced to participate in such a service contrary to their conscience. There would be no crisis in the PCUSA if some Presbyterians were not intent upon imposing their convictions on others through the church’s judicial system. Ironically, it is those who have insisted on challenging others’ pastoral choices who are increasing the pressure for constitutional change.
The Directory for Worship acknowledges that “the worship of God in Christian community is the foundation and context for the ministry of pastoral care as well as for the ministry of nurture in the faith” (W-6.4000). It is a travesty that the Presbyterian Church (USA) has hung an “UNWELCOME” sign that drives away from the church both its own members and those who are seeking Christ in community. This situation will collapse of its own contradictions sooner or later; for the sake of the health and integrity of the church, sooner is better.
Tricia Dykers Koenig is national organizer of the Covenant Network of Presbyterians. She can be reached at [email protected]. This article is a more comprehensive version of an analysis originally posted at ecclesio.com.