Why the Church Needs a New AI Clarifying that Officiating Ecclesiastical Marriage Services for Same-Gender Couples is Not an Offense
By Tim Cahn
A new authoritative interpretation (“AI”) of the PCUSA Constitution is needed to ensure that teaching elders have discretion to officiate same-gender marriages in states where legal. Without a new AI, teaching elders who perform ecclesiastical marriage services for same-gender couples may continue to be vulnerable to disciplinary proceedings under the prevailing interpretations of the Book of Order. These disciplinary proceedings come at a high institutional and personal cost, including the hundreds of hours spent by many persons over several years to resolve these cases, the emotional toll on all parties concerned, and the often harsh public attention that such church trials can fix on the Church.
I have witnessed this toll firsthand. For nearly ten years I have worked pro bono as an attorney for teaching elders accused of violating the Constitution on matters that have divided Presbyterians. My work began when former Covenant Network Executive Director Pam Byers invited me to help defend teaching elders who had been accused based on their participation in the ordination of a lesbian candidate for ministry. Over time, disciplinary cases about LGBT ordination yielded to those challenging teaching elders’ officiating of same-gender marriages. This decade-long experience has taught me that, despite the finest intentions of all parties concerned, such disciplinary proceedings are not well-suited for resolving the constitutional issues that can divide us as Presbyterians. To understand why, a little background on the PCUSA’s disciplinary process is necessary.
The goal in a disciplinary case is to determine whether or not an accused member or officer has committed an ‘offense,’ which is an ‘act or omission … that is contrary to the Scriptures or the Constitution of the PCUSA.’ An accused may only be found guilty of an offense if two-thirds of the members of the Permanent Judicial Commission (“PJC”) hearing the case “find that the pertinent facts within [the] charge have been proven beyond a reasonable doubt.” A disciplinary proceeding before a PJC therefore is essentially a fact-finding process aimed at determining whether an officer or member has violated clear standards.
Disciplinary proceedings are simple to initiate: any member of the PCUSA can accuse a teaching elder by sending a letter or email to the stated clerk of the pastor’s presbytery. Once begun, disciplinary proceedings usually require two years or more to work their way through investigation, mediation, prosecution, pretrial proceedings, trial, and appeal. From start to finish, these proceedings require many hundreds of hours of investment by members of an Investigating Committee (typically, 5 to 9 persons), a Prosecuting Committee (typically, 3 members), the Stated Clerk, the trial PJC (typically about 9 persons), and the higher Commissions who may hear the appeal(s) – not to mention the years committed by the accused and his or her defense counsel. In addition, such proceedings can take a significant emotional toll on the accused and his or her family, as well as cause extreme inconvenience to his or her ministry. In one case, a client I represented had his transfer to a new Presbytery delayed by over three years by the pendency of a disciplinary proceeding challenging his marriage to his husband, from which he was ultimately acquitted.
Such extraordinary effort and cost might well be justified – as it is in ordinary cases involving alleged misconduct – if there were a corresponding benefit to the whole Church. But there rarely is in these cases due to the narrow, fact-centered focus of disciplinary process. Disciplinary process is aimed at carefully determining facts and drawing conclusions under undisputed church standards and is not well-suited as an exercise in determining what the Constitution means when it is silent, as is the case with same-gender marriage. In the typical disciplinary proceeding that challenges some aspect of a same-gender marriage, there are no facts in dispute. Everyone will have agreed that a wedding took place, and the disagreement will center on how to interpret a Constitution that itself fails to address the conduct expressly. As a result, cases challenging same-gender marriages or marriage services, even those cases that have proceeded all the way to the General Assembly PJC, usually have ended in acquittals decided on narrow grounds particular to the individual accused, while nonetheless leaving intact the 1991 General Assembly AI that same-gender marriage services are not sanctioned.
For its part, the General Assembly PJC has heard more than its fill of appeals from such disciplinary cases. In one recent case challenging a pastor’s marriage to her same-gender partner, Presbytery of Newark v. Laurie McNeill, the GAPJC observed that the case “illustrates the tortuous place in which the PC(U.S.A.) finds itself on the matter of same-gender marriage.” “Our Constitution,” acknowledged the McNeill Commission, “did not anticipate the range of issues facing the church today surrounding same-gender relationships.” As though addressing itself directly to the 221st General Assembly, the McNeill Commission concluded that “[i]n 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.”
A new authoritative interpretation clarifying that the Constitution does not authorize discipline against teaching elders who officiate same-gender ecclesiastical marriage services would be “beneficial for the church” indeed. Such action would ensure that costly disciplinary proceedings will not continue to plague presbyteries and their members who exercise discretion to officiate same-gender ecclesiastical marriage services.
Tim Cahn is an attorney, a ruling elder, and a member of the Board of Directors of the Covenant Network of Presbyterians.