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Dual Assembly Mandates Complicate PC(USA) Response to Hawaii's


From PCUSA.NEWS@ecunet.org
Date 09 Nov 1996 00:23:56

Same-sex 16-October-1996 
 
 
 
96409   Dual Assembly Mandates Complicate PC(USA) Response 
               to Hawaii's Same-sex Marriage Debate 
 
                          by Alexa Smith 
 
LOUISVILLE, Ky.--Despite urging from six Presbyterian congregations on the 
island of Hawaii who oppose legalization of same-sex unions, the Office of 
the General Assembly (OGA) of the Presbyterian Church (U.S.A.) will not 
file an amicus curiae brief there -- at least for now -- in a highly 
publicized court case that will determine whether marriage may be legally 
defined to include same-sex couples. 
 
     Baehr v. Lewin went to trial in early September, after the Supreme 
Court of the state of Hawaii ordered the state to prove "compelling state 
interest" -- and the constitutionality of -- a Hawaii statute that limits 
marriage to heterosexual couples. 
 
     But it has been hard for the PC(USA) to respond to either side of the 
debate. 
 
     That's because it is somewhat hamstrung by dual -- and some would say, 
virtually contradictory -- actions of past Assemblies, delineated most 
sharply by the work of the 208th General Assembly.  The Albuquerque 
Assembly voted to continue to define marriage as strictly heterosexual, 
just as the church has done for the past 20 years, and simultaneously to 
urge the OGA to file amicus briefs and to support legislation to uphold 
civil rights not just for gays and lesbians, as it has done historically, 
but specifically for same-sex partners. 
 
     "[Baehr v. Lewin] doesn't fit with the Assembly's resolution ... it 
doesn't talk about civil rights," said the Rev. Mark Tammen, an attorney 
who manages polity guidance training for the OGA and who staffs the 
Assembly's Advisory Committee on Litigation (ACL).  Tammen is quick to 
admit that language drawn from the past Assembly's dual mandates requires 
any interpretation to be carefully nuanced.   
 
     "There was a very narrow focus for this Assembly.  We're supposed to 
support and promote civil rights for gay and lesbian persons -- the kinds 
of rights that arise out of a marriage contract," said Tammen, giving 
examples such as power of attorney in case of illness, inheritance rights 
when a partner dies and pension benefits.  "Those are the things we support 
-- complete civil rights, the things married couples take for granted. 
 
     "But we never call it  marriage.'  In fact, the official PC(USA) 
position would not recognize same-sex relationships as marriages," said 
Tammen, who described the Hawaii case as focused, for now, on the right of 
two men to secure a civil license for a union this church does not, 
constitutionally, perform or acknowledge. 
 
     So the PC(USA) is staying quiet for now -- unless arguments in Baehr 
v. Lewin, take a decidedly and specifically civil rights turn.  And that 
makes good sense to ACL chair and Salt Lake City attorney Elizabeth 
Dunning, who believes the Assembly's two mandates deal with separate more 
than contradictory aspects of a highly emotional issue.  One aspect -- in 
which the church is unwilling to concede to the state any authority -- is 
church rites and the second is civil rights. 
 
     "The state can't tell us what marriage is.  The church defines 
marriage for itself," said Dunning, who argues that filing in the state's 
behalf -- even though the church and the state of Hawaii share similar 
definitions of marriage -- faintly implies that the church is somehow bound 
by the state's decision.  "We see a difference between what [constitutes] 
the civil rights of domestic partners and our religious definition of 
marriage.  And we certainly do not concede the state of Hawaii the right to 
tell Presbyterians what marriage is." 
 
     Just as the Roman Catholic Church still refuses to sanction divorce, 
even though it is legal in every state, according to Dunning, Presbyterian 
ministers will not be affected by a state's decision to legalize same-sex 
marriage unless the denomination's polity changes.   
 
     "But benefits are not related to a religious definition of marriage," 
said Dunning.  "Same-sex partners have civil rights like heterosexual 
couples." And she added that the PC(USA) may file an amicus brief in the 
case if the current debates shifts to what is more clearly the Assembly's 
policy. 
 
      But perhaps the most uncanny ecclesiastical twist in this debate is 
that advocates for and opponents of church-sanctioned same-sex unions seem 
to agree that it would be a mistake -- given the mandates involved -- for 
the OGA to enter the debate now. 
 
     The session of the Mililani Presbyterian Church, located in the center 
of the island of Hawaii, drafted the resolution  requesting the stated 
clerk to "enter the public legal debate" and in doing so "preserve and 
defend the Constitution of the PC(USA)" back in February.  Six of the 
island's seven Presbyterian congregations signed on. 
 
     The Rev. James A. Tweedie, pastor of the Mililani Church, describes 
himself as  baffled by the inconsistencies of the two mandates and agrees 
that the OGA is caught between them in the Hawaii case. 
 
     "How can the denomination, on the one hand, say that sexual activity 
between same-sex couples is sin ...?  It is sin and we will not [perform 
marriages] ourselves.  But in society we wish to encourage and promote it 
under the law," said Tweedie, who attended the Albuquerque Assembly and 
believes the commissioners voted without carefully examining just what 
legal privledges are conferred by civil courts through marriage and what 
conferring those privledges upon same-sex couples might mean. 
 
     "[The action] came from the heart and not the head," Tweedie told the 
Presbyterian News Service, emphasizing that he is well aware that if Hawaii 
amends its statute to legalize same-sex marriage, it will not impact what 
he will and will not do as a minister.  But it will, he said, give him more 
occasion to interpret what the denomination teaches on these matters. 
 
     Scott Anderson of Sacramento, who co-moderates Presbyterians for 
Lesbian & Gay Concerns (PLGC), interprets what appear to be contradictions 
between the Assembly's statements as the Assembly's attempt to deal 
compassionately with the ambiguities and uncertainties that are part of the 
tension created as the culture begins to directly address same-sex 
relationships. 
 
     "We're sort of on a tightrope here, walking," said Anderson, who 
believes that the Assembly was trying to preserve traditional understanding 
of marriage -- a term many gay and lesbian couples reject anyway as 
heterosexist -- and still find a way to give benefits to same-sex couples 
who've made a long-term commitment.   
 
     "Can two gay people get married in the Presbyterian Church?  The 
church has pretty clearly said no at this point," said Anderson. 
 
     "But [people] understand same-sex couples are forming lasting 
relationships," he added. "And they don't want to deny them the benefits 
married couples take for granted. ... That's my biggest interest," he said, 
adding that he agrees it would be a mistake for the denomination to speak 
now given what the Assembly has consistently said about marriage.  "The 
larger theological question is going to be debated for decades." 
 
     Tammen said the OGA has recently filed amicus briefs in two court 
cases that involve the civil rights of gays and lesbians -- one in 
Colorado, the other in Ohio.  He said the OGA has done no prior work to 
support state legislation under debate. 
 
     Though the details are fuzzy right now, Tammen said that if Hawaii 
legalizes same-sex marriages, the impact could be felt in other states only 
in terms of legal judgments that might arise out of the marriages of gay 
couples, such as enforcement of property settlements, child custody 
arrangements, etc.  Sister states are obliged to enforce court orders under 
the full faith and credit clause of the U.S. Constitution.    

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