Marriage Equality in the PCUSA
The Rev. Dr. Daniel M. Saperstein
Covenant Network Regional ConferenceDenver, COJanuary 27, 2013
Slide presentationI am delighted to be here today[1] to share with you some insights into the biblical, theological, and constitutional issues regarding marriage equality in the PCUSA. I have to admit that I was somewhat surprised and daunted to see the topic assigned to me on the fliers for this event. Biblical! Theological! Constitutional! In 30 minutes!I think that topic would take more like 30 hours – not thirty minutes – to cover adequately. I will make some reference to the Bible and theology, but the bulk of my presentation today will be focused on what I know best, which is Presbyterian polity.[2] Most of you know me as the Executive Presbyter of the Presbytery of Plains and Peaks, the presbytery immediately to the north of Denver Presbytery.[3] But I have experience in the world of polity, too, having served on both the GAPJC and the Advisory Committee on the Constitution which I rotated off just last year.[4]One of the reasons why marriage equality has been such a controversial topic in our denomination is undoubtedly due to the complexity of the topic. Not only does marriage touch on the most intimate relationships and activities of our lives, but any discussion of marriage must engage a multitude of disciplines and concerns:[5]
- The Bible, in which we encounter a strange world of marital laws and practices[6]
- Theology – including ecclesiology, liturgics, social ethics, and anthropological theology[7]
- Liturgy proper, the language of worship[8]
- Polity, of course[9]
- History – not only church history but the history of marriage in wider society as well[10]
- Social justice and LGBT issues in particular[11]
- Community – how to live peaceably with one another in Christian fellowship[12]
- Sociology and Politics[13]
- The particular traditions of the church and their continuing impact on change[14]
- And the interface of church and state in the practice of ministry.[15]
I’m sure we could add to that list if wanted to.My friend and colleague Mark Achtemeier has laid out quite capably a biblical and theological vision for marriage equality in presentations available on the Covenant Network website. I do not intend to rehearse his discussion of these topics, and I commend the articles to your study. I do have a small quibble with Mark, however. While Mark lays out a vision for a biblical theology of marriage equality, I don’t think he adequately critiques the dominant understanding of what is often called “the biblical model of marriage.”Certainly, any effort to reframe our polity to accommodate marriage equality in the PCUSA must at some point – whether at the Assembly or in the presbyteries – confront the beast in the room, namely, the naïve assumption that the dominant model of marriage as understood by our members is in fact THE “biblical” model of marriage.You can recite the qualities of this dominant model. Not only is the assumed biblical model a heterosexual coupling of two virgins, but it is also monogamous, and sexually exclusive. In previous generations, and in some circles, even today, the model embraced other characteristics, which were accepted uncritically as well: for example, patriarchy, procreativity, and permanence.We know this model all too well.[16] You might call it the “Father Knows Best” vision of marriage. Those who oppose marriage equality go to great lengths to defend this model biblically, disregarding not only that the model is no longer normative for our society, but that it wasn’t even normative for the ancient Hebrews or New Testament church.[17]You can find a good summary of the biblical arguments in the 2010 Minority Report of the Special Committee to Study Issues of Civil Union and Christian Marriage. They talk about biblical marriage being grounded in the creation of the man and the woman, in the complementarity of male and female found in natural law, and characterized by the image of God as the faithful husband of Israel articulated by the prophets, most notably, Hosea.They tend to disregard that the biblical expressions of marriage do not conform to this model. The institution of marriage in Biblical times looked more like this.It is not my intent to disparage marriage or the Bible, but merely to point out that one cannot take an uncritical leap from the ancient world to today.[18] As William Countryman has noted in his classic text on New Testament sexual ethics, Dirt, Greed, and Sex, the ethos of relationships in the NT world was heavily influenced by sociological categories of purity, property, and patriarchy.[19]For example, the Law of Moses regarded rape and adultery as property crimes against the father/husband (that is, the functional owner) of the woman. In cases involving the rape of a virgin, the rapist must pay the father a fine and "purchase" the bride in marriage. In cases of adultery, rape "in the city," or failure to issue proof of virginity at marriage, the woman was subject to death by stoning (Deut. 22:13-30).[20]Polygamy and Polyamory were signs of male wealth and prestige. David had at least seven wives and unnumbered concubines. Solomon boasted 700 wives and 300 concubines.These categories of purity, property, and patriarchy have defined “biblical” marriage more or less continuously even up to the 20th century. Laws forbidding interracial marriage (a violation of social “purity” codes) were not ruled unconstitutional until 1972. Marital rape (derived from the assumption that women were the property of their husbands) was not considered a crime in some states as late as the 1990s.But Countryman looks at the witness of Jesus in the gospels and sees the foundation for a different understanding of “biblical” marriage. Indeed, viewed through the lens of purity, property, and patriarchal lenses, the ministry and teaching of Jesus is a systematic dismantling of the dominant model, and a reconstruction based on inward rather than outward models of purity, mutuality and gender equality. This was carried forth in the early church to extend to the full inclusion of those who had been marginalized and excluded from temple Judaism because of sexual conditions that rendered them ritually unclean (Acts 8:26-40).The point here is that even Jesus didn’t believe in the so called “biblical” models of patriarchy, property, and purity that shaped the institution of marriage.[21]Legal historian John Witte has traced the institution of marriage as a legal and religious construct from the ancient world to today. He notes that the Western norms and ideals of marriage are shaped more by ancient Greek and Roman constructs than by ancient Jewish or Christian ones. Even within Western Christendom, the model has morphed over the last 700 years:[22]
- The medieval Catholic tradition viewed marriage as a sacrament, conferring an indelible grace which once conferred cannot be retracted or dissolved.
- Lutheran Protestants emphasized the social nature of marriage as an institution regulated by the state and only secondarily blessed by the church.
- Reformed Protestants emphasized marriage as a covenant incorporating a civil, ecclesiastical, and divine partnership.
- Anglicans saw marriage as a commonwealth, a miniature model of the monarchy in which the pater familias was the divinely appointed king.
- And, in modern post-Enlightenment times, marriage has increasingly been viewed as a contract between two parties.
We encounter these differences all the time with little thought to the malleability of the institution in the various traditions. As Presbyterians, we reject the Catholic view of marriage as sacrament, of marital sex being principally procreative in purpose, in the indissolubility of the marital bond, and in the moral preference of celibacy, especially for clergy. Despite these fundamental differences, we do not regard Catholic marriages as somehow unchristian or abhorrent to God.We also encounter purely secular, contractual understandings of marriage. We have come to accept the reality of divorce, readily embrace practitioners of serial monogamy. When persons who have been wed by a justice of the peace join our churches, we do not require them to be remarried in the eyes of God.[23]So, "traditional" or "biblical" marriage are malleable terms that have historically been adapted to changes in society and social mores. The pastoral enforcement of what has been normative has similarly accommodated social realities and compassionate regard for persons involved.[24],[25]So let’s look at what our Book of Order says about marriage.[26] The definition is found in the Directory for Worship, section 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.[27]
The four sentences of this section have been parsed various ways. Ongoing constitutional questions concern the relationship and function of these statements. If marriage is a civil contract, does that mean when civil law changes, our definition of marriage changes? Is the declaration that marriage is “between a man and a woman” descriptive or prescriptive in its intent? Is this legal language at all or merely prolegomena for the rubrics which follow? How essential are the definitions, and what latitude for conscience or pastoral discretion is there? And, how are they informed by biblical and confessional texts?[28]The recent constitutional history of same sex unions and weddings in the PCUSA is the history of the interpretation of this passage. Indeed, there are few passages in the Book of Order which carry as heavy freight as this does in the life of the church.The issue of homosexuality in the Church which has dominated church life for a generation began with the action of the 188th General Assembly of the UPCUSA in 1976 to appoint a Task Force “to study Christian approaches to homosexuality with special reference to the ordination of avowed practicing homosexuals.” The Task Force reported in 1978 with a majority report advocating tolerance and local discretion in the ordination of “self-affirmed practicing homosexuals” but a minority report issuing “definitive guidance” rejecting their ordination was adopted in its place. The minority report largely adopted the position of the majority report in regards to activity in the civil arena, however. No mention is made in either report of the topic of same-sex marriage – they dealt with more pressing topics of decriminalizing private consensual activity, abolishing discrimination in housing and employment, and other civil rights. Nevertheless, even the minority report affirmed, "There is no legal, social, or moral justification for denying homosexual persons access to the basic requirements of human existence...,” and "vigilance must be exercised to oppose federal, state, and local legislation that discriminates against persons on the basis of sexual orientation...."[29]The topic of same-sex marriage seems first to have come to the attention of the General Assembly when a few states began to extend legal rights to homosexual partners through same-sex civil unions in the early 1990s. The landmark study on human sexuality, “Keeping Body and Soul Together,” submitted to the 1991 Assembly in my opinion still stands as one of the best church documents ever written on sexual ethics, despite its having been disapproved by a vote of 534 to 31, although it was “received for study.” It was the first denominational document to endorse same-sex marriage, saying,
Marriages exhibiting generosity and grace demonstrate the moral substance of justice-love.... The moral quality of these covenants are not a function of age, gender, race, or culture, but are rather dependent on the maturity and integrity of the partners, as well as the sustaining grace of God…. For this reason, the right to participate in and receive church, community, and legal support for an enduring, publicly validated partnership in justice-love should be available to same-sex couples as well as to heterosexual couples....[30]
At that same Assembly, the liturgical and pastoral issues raised by same-sex union ceremonies were addressed by an authoritative interpretation of W-4.9001 that laid the foundation for the various judicial cases that were to come. It said that the definition of marriage in the Directory for Worship did not permit same-sex marriages. While the AI seemed to permit same-sex union ceremonies, it stated that sessions should not permit use of facilities for same-sex unions deemed same as a marriage, and ministers should not perform such. All subsequent attempts to amend or further interpret W-4.9001 have been either rejected by the Assembly or defeated by the presbyteries.Even the Special Committee to Study the Issues of Civil Union and Same Sex Marriage, appointed by the 2008 Assembly reported, "our interpretations of Scripture lead us to different conclusions regarding homosexual behavior and same-gender partnerships." Our denomination is deeply divided and increasingly entrenched on the issue of same-sex marriage.[31]Since the 1991 Authoritative Interpretation at least five subsequent cases related to the topic of same-sex marriage have been decided by the General Assembly Permanent Judicial Commission, on which I served during six of those years.In 2000, in the case of Benton v. the Presbytery of Hudson River, the GAPJC reaffirmed the 1991 AI, and clarified the distinction between same sex unions and same sex weddings. Same sex unions bless an existing relationship, whereas a same-sex wedding includes the "declaration of a new status." The former are permitted, it said, while the latter are not sanctioned by the Constitution. While in the specific case, it ruled in favor of the appellants who were opposed to same sex weddings, in its advice to the church the GAPJC refused to dictate the conduct of pastoral care, saying only that such ceremonies “should not” be held out as marriages.[32]In three subsequent decisions, known colloquially as “Spahr 1,” “Southard,” and “Spahr 2,” the court seemed to adopt a more settled position that "officers of the PCUSA... 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" (Southard v. Presbytery of Boston).In October of last year, the first appearance of a softening of that position emerged in the disciplinary case of Presbytery of Newark v. Laurie McNeill. First, the court rejected the use of the Benton decision and others as a basis for its decision since they addressed remedial cases not disciplinary cases. Second, they relaxed the common application of Benton by saying that the prohibition on participating in same-sex weddings does not apply to those being wed, so long as they do not represent the wedding as having been recognized by the church.It remains to be seen if this present court will go further in revising the authoritative interpretation of W-4.9001 in a remedial case, although there is every indication that it is willing to do so.[33]Any judicial ruling is likely to be the source of multiple overtures to the ensuing General Assembly.[34] Although both wings of the church seem to say that the adoption of Amendment 10-A and the dismissal of some of our most strident anti-gay churches to other denominations seems to have taken some of the proverbial fight out of the dogs on the national scene, it is clear from the experiences of presbyteries like mine that there is still a deep divide in the church that threatens to further damage the peace and unity of our denomination should the push for change not take into consideration the pragmatics of our politics. A legislative overreach is both unlikely to succeed, but would reinforce the suspicions of the far right and push the moderate right into schism.[35]The people in this room do not need to be reminded of the strong case and pressing need for marriage equality in the church. Changes in civil law have increased pressure on pastors who are asked why the state can bless the loving union of faithful Christians but the church cannot; why our talk of inclusion is not met by our walk (down the aisle, as it were).[36] We know that there is no moral equivalence between the suffering of the marginalized and the experience of discomfort felt by the privileged when they must adapt to just change.[37] We know that “justice delayed is justice denied.”[38] And we even know that the historical principles of our polity affirm that we are to exercise mutual forbearance in non-essential matters where there is theological disagreement.[39]But we should keep in mind that justice and love are two sides of the same coin. And that loving our enemies – if they be such – is the signature virtue of the Christian. If my presbytery is any indication, the PCUSA is like a house with a gas leak. We might strike a match to light the candle of justice and at the same time destroy the house and many of its occupants. Conversations in my presbytery tell me that the issue of marriage is a far more volatile issue even than ordination.[40] Several pastors who have held their churches in the fold have said to me, “We can live with the local option provisions of 10-A, but if the Assembly ever votes to change the definition of marriage, we are out the door.”[41] I do not minimize the pain and suffering caused by the exclusion and oppression of the LGBT community in our church. But just as scripture calls us to extend justice to the oppressed, it also calls us to honor the conscience of our brother or sister with whom we have legitimate differences in the interpretation of scripture.[42]Does this mean that we should not press for change, that we should not seek justice? Of course it doesn’t. But it does mean that we should be exercising wisdom and care as to how, when, and where we strike the match to light that candle.[43]So how do we move forward? What constitutional options are available?Fourteen different overtures regarding marriage were presented to the 220th General Assembly last year. All of them were answered by the resolution that “in a desire to promote the peace, unity, and purity of the church… the whole Presbyterian Church U.S.A. enter into a season of serious study and discernment concerning its meaning of Christian marriage” during this present biennium. Nevertheless, we can look to the eleven overtures seeking some form of progressive change and categorize them into three groups.[44]The first group sought to amend the definition of marriage found in W-4.9001. This is surely the most direct method of addressing the constitutional impediments to same-sex marriage. Most commonly, the method is to change the language defining marriage as between “a man and a woman” to the more inclusive “two people.”[45]The second group sought to obtain authoritative interpretations of W-4.9001 that would supplant the current set of AIs to permit the performance of same-sex weddings. These included variations of three different approaches: the first variation appealed to the primacy of civil law in the language of W-4.9001 as the basis for pastoral response. Ministers serve as agents of both the church and the state, and where there is a conflict, it should be left to the pastor’s discretion how to act, these argued.The second variation appealed to our long history of protecting freedom of the individual conscience where the scriptures are unclear, or where the issue is not a necessary or essential article of faith or practice. It sought a declaration that the issue of same-sex marriages did not rise to such an article of faith or practice and that freedom of individual conscience in the matter should be protected.A third variation, slightly different from the second, was actually the most common. These overtures appealed to the history of discretion in the provision of pastoral care in the church. The Benton decision laid out the tension between the church’s desire for order and its need for flexibility. These overtures asked the assembly to rule that where civil law permitted, the historic discretion accorded pastors should be allowed to prevail in individual circumstances.These approaches have their advantages and disadvantages.The advantage of the amendment route is that it is straightforward and economical. It also puts the vote ultimately in the hands of the whole church. The disadvantage is that such a vote is likely to fail, at least the first time, and if it passes, effectively pushes a large segment of the denomination out the door. In any case, many presbyteries do not have the stomach for a showdown on the definition of marriage.The advantage of the authoritative interpretation route is that it avoids the messiness of presbytery votes. There is a catch here, though, in that the level of distrust is so high towards the General Assembly among many of our churches that anything that smacks of changing the definition of marriage through an end run of the presbyteries is just as likely to trigger schism.[46]So how do we overcome the political, theological, and strategic obstacles to marriage equality?Politically, we must acknowledge that the definition of marriage found in W-4.9001 is a “third rail” topic. Changing it is unlikely to pass the Assembly, much less the presbyteries, anytime soon. It is therefore necessary to affirm the definition as NORMATIVE but not BINDING. We can leave unchallenged the theological assumptions of the right regarding natural law, gender complementarity, and creation while creating space for accommodation of other relationships within the broad scope of divine grace and compassion.Theologically, as the 2008 Special Committee noted, we are deeply divided on the topic of marriage equality. There is no consensus on the biblical witness, and hammering on a wedge only splits the wood more deeply. If there is to be a way forward, we must reframe the debate from the definition of marriage and the remediation of injustice to a debate on which there is broad and historic consensus, such as the historic right of pastors to exercise discretion in the conduct of pastoral care.Strategically, we need to learn from the history of Amendment B in the 1990s that even the threat of passing an unpopular authoritative interpretation could very well create a backlash through constitutional amendment. Instead, we should learn from the success of Amendment 10-A by focusing on amendments that appeal to our historic middle way of creating space for difference while not mandating specific actions. Just as 10-A focused on the process of examination rather than the acceptability of sexually active gay and lesbian candidates for ministry, so a successful strategy will address the processes by which we live together rather than theological declarations.[47]So here is my humble attempt at a way forward that overcomes these obstacles while preserving essential powers of sessions and presbyteries.Do not seek to amend W-4.9001 on the definition of marriage. Rather amend W-1.4005a on rights of the pastor as worship leader by adding the following (or similar) provision:
Teaching elders, and ruling elders commissioned to pastoral service, shall have the freedom to exercise discretion regarding the conduct of worship as pastoral care except where explicitly proscribed in this Constitution. The exercise of this freedom may not infringe on the session’s responsibility to control the use of church facilities and to authorize the celebration of the sacraments, or the presbytery’s responsibility to validate and oversee the ministry of the Word and sacrament.
Do you see the words “same-sex” or even “marriage” in this overture? No. It is not about that, although it would create a space in most presbyteries to allow same-sex marriages to be performed under the protections it guarantees. There is careful language that I have vetted with some of my colleagues that would overturn existing AIs from 1991 and after. It does preserve the right of a session to refuse to allow its facilities to be used for purposes with which it disagrees, but that is properly their right anyway. It also preserves the rights of presbyteries that want to be obstructive to address the conduct of individual ministers under their jurisdiction, but it would take an enormous investment of time and money to try multiple cases. The overture means that obstruction can only happen on a case-by-case basis or by adopting specific amendments to take away pastoral freedoms, which will be a hard sell in my opinion.Is it a perfect solution? Certainly not. Is it achievable? I think so. And these are times in which radical change will result in radical reactions, and end in a Pyrrhic victory at best. Politics is the art of the possible, and I commend this to you as the best possibility for change in the cause of marriage equality.[48]Thank you for your courtesy and consideration in allowing me this opportunity to share with you today.
