wfn.org | PC(USA)'s highest court hears appeals on three gay rights-related

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Note #5906 from PCUSA NEWS to PRESBYNEWS:

cases
20-May-2000
00203

	PC(USA)'s highest court hears appeals on three gay rights-related cases

	Decisions are expected within a week 

	by Alexa Smith

BALTIMORE, Md.--The usually empty visitors' gallery of the General Assembly
Permanent Judicial Commission (PJC) was full May 19 as the 16-member panel
heard appeals on three cases about the roles gays and lesbians may play in
the Presbyterian Church (U.S.A.).

	The high court's rulings will not be public before mid-week.  All three
cases involve decisions by the PJC of the Synod of the Northeast.

	Two of the three cases are what special interest groups are terming "test
cases," illustrating how a constitutional provision governing the sexual
behavior required of church officers will be interpreted in ecclesiastical
court and applied in the presbyteries.  Added to the "Book of Order" in
1997, G-6.0106b requires chastity in singleness and fidelity in marriage and
mandates all officers to repent of any self-acknowledged sin that is listed
in the church's "Book of Confessions."

	One case -- from the Presbytery of Northern New England -- challenges how
free a church or presbytery is to dissent from a constitutional mandate,
namely G-6.0106b.

	The other -- from West Jersey Presbytery -- questions whether G-6.0106b
applies to candidates for ordination to the ministry prior to their actually
seeking ordination.

	While not directly related to G-6.0106b, the third case -- from the
Presbytery of Hudson River -- challenges whether PC(USA) ministers are
allowed to perform same-sex unions.  The "Book of Order" is silent on the
specific issue of same sex unions, though it defines marriage as between a
man and a woman.

	Current General Assembly policy, dating to 1991 and upheld by lower courts,
holds that because same-sex union ceremonies are not explicitly forbidden in
the constitution, clergy have discretion to perform same-sex union
ceremonies as long they do not equate them with marriage ceremonies.

		        Freedom of Conscience Versus Constitutional Authority

	The question of how far freedom of conscience extends in church governance
turned into polite wrangling about the rights of local congregations to
elect their own leadership and what exactly constitutes defiance of
ecclesiastical authority.

	Attorney Peter Oddleifson of Rochester, N.Y., pressed the argument that
forcing Northern New England Presbytery to require a 70-member More Light
church to comply "literally" with constitutional amendment G-0106b, risks
destroying a congregation while what he calls "unresolved" issues and
contradictions in the "Book of Order" remain.

	He said a literal interpretation of G-6.0106b -- once known as Amendment B
-- turns the church's back on a theological and constitutional heritage that
has protected the freedom of the individual conscience and the right of
members to ordain church leaders of their own choosing -- also tenets in the
constitution, he said, that G-0106.b alone does not abrogate.

	The case got underway when five sessions and 18 individuals filed a
complaint against the presbytery for rescinding an order that initially told
Christ Presbyterian Church of Burlington, Vt., that it had to conform to
G-6.0106b, something the church's session has refused to do.  The synod PJC
upheld the complaint and told the presbytery to "work pastorally" to bring
Christ church in Burlington, Vt., into compliance and also to register its
disapproval of churches who take irregular actions.

	The presbytery, Oddleifson insisted, is not being defiant, but has
discovered that Christ Church has a "valid and sacred" ministry to the gay
community.  "Inconsistencies in the ‘Book of Order' do exist; so this is an
unresolved issue," Oddleifson said, noting that Northern New England has
overtured the upcoming General Assembly to delete G-0106b from the
constitution. "It is irresponsible to damage or destroy a congregation ....
while a presbytery is struggling with how to deal with the problem.

	"On Dec. 5, 1998, when the presbytery rescinded its action; the presbytery
didn't know what to do.  It was hopelessly confused.  And that is why the
issue needs to be resolved today."

	Opposing counsel Gordon Fish of Montclair, N.J., saw no confusion.  "The
principle that governs the case is clear and we've stated it over and over
again," he said, stressing a judicial track record that says presbyteries do
not have the right to the free exercise of their own judgement when it
contradicts constitutional standards.

	Fish said freedom of conscience does not mean that churches are "free to do
as they please," and that positions of leadership are not a right of every
member.  Further, he said, the plaintiffs are asking to the PJC to change
confessional standards, which -- though "audacious" --  is not within the
judicial commission's authority.

	 Under questioning, Oddleifson pushed for what is euphemistically known as
"local option" when it comes to ordaining church leaders -- something
G.0106b prevents by effectively categorically banning sexually active gays
and lesbians from office.  Fish countered that flexible standards undercut
the connectionalism that is part and parcel of what it means to be
Presbyterian, where some denomination-wide uniformity is necessary.

	In response to a question from PJC member the Rev. Catherine Borchert,
Oddleifson said the practical effect of ruling for Northern New England
Presbytery would be to allow "sessions and presbyteries to continue the
solemn responsibility, as in the past, to select candidates for ordained
office ... [not] boxed in by requiring them to exclude whole categories of
people regardless of their qualifications."  Further, he said "a priori
rules" diminish the flexibility of sessions and presbyteries to elect
leaders on the basis of individual merit.

	PJC member Patricia Norris pushed Fish on whether "intent" in terms of
defying the constitution is the same as actually taking an illegal action. 
He replied that the remedy is different in each case: illegal acts require a
disciplinary action that removes an individual, while defiant statements
"tear apart the fabric of the denomination ....

	"I say [we can] disagree.  But work for change responsibly ...We don't say,
‘I'll stop obeying the law until we get it changed.'"

				Candidacy Status Or Not

	The synod PJC's decision to uphold West Jersey's Presbytery's acceptance of
an openly gay candidate was challenged by counsel Gary Griffith of Ocean
City, N.J., on behalf 11 ministers and six churches who want the candidate's
name, Graham Van Keuren, stricken from the register and the presbytery's
Committee Preparation for Ministry ordered to comply with the constitution.

	"In a general sense, the issue to be determined is whether the
constitutional standards of the church are going to be applied equally to
all persons seeking office within the church without exception," Griffith
told the PJC, stressing that the candidate told the committee he does not
intend to remain celibate -- which is contrary to church law for ordained
officers.

	The synod PJC maintained that candidacy status is not the same as ordained
office and so is not subject to G-0106.b.

	Presbytery Counsel John Reisner of Haddonfield, N.J., insisted that the
presbytery acted properly, made no exceptions and intends to use the time to
help the candidate discern his particular ministry, since, he -- as a gay
man who intends to be sexually active -- cannot be ordained within the
PC(USA).  "The Book of Order," he told the PJC, "is very clear.  Being a
candidate is not a promise to be ordained.  There are different outcomes ...
a candidate can be dismissed, transferred or [resign] ...

	"As he presents himself, he cannot be ordained in the PC(USA).  He knows
that.  The presbytery knows that.  However, candidacy is a process and this
candidate has some hard decisions to make," Reisner said.  "This is
well-qualified candidate for ministry in all respects but one.  We still
have to deal with the issue that brings us here today."

	 He stressed precedent for the candidacy by citing the LeTourneau case, in
which the PJC upheld Twin Cities Presbytery's decision to accept a lesbian
candidate while fully disclosing the PC(USA)'s prohibition against the
ordination of homosexuals.

	PJC member Leon Fanniel questioned why the man was shifted from "inquirer"
status, an earlier phase of the discernment process, to candidacy when
inquirers get presbytery oversight as well.  The Rev. Wendy Boer, chair of
West Jersey's Committee on Preparation for Ministry, said the move seemed
logical since the only bar to his ordination, she said, is his lack of
compliance with G-0106.b.  His seminary training and his exams are
completed.

	Griffith countered that the issue in this case is less homosexuality than
fairness.  "The question is ... everybody is not getting treated equally. 
This candidate has said, ‘I can't meet the standards.  Not only, ‘I can't,'
but ‘I'm not going to.'  Let him make those decisions as an inquirer," he
said, warning that upholding the synod PJC tells other candidates and
presbyteries that the rules are superfluous.  "If everybody set up their own
standard for what is righteous or not, that's anarchy and we can't have it."

	                               Same-Sex Ceremonies Versus Marriage

	Calling the synod PJC ruling that same-sex unions do not constitute
marriage and are, therefore, not forbidden by the "Book of Order," a "case
of semantic hair-splitting" and "a sham," Fish, arguing his second case of
the day, urged the 16 jurists to overturn it.

	Referring to a 1998 ceremony at the South Presbyterian Church in Dobbs
Ferry, N.Y., Fish insisted that the two gay men did not propose holy union
to each other, but marriage.  "They didn't talk about being holy-unioned,
but about being married.  They didn't order a holy union cake, but a wedding
cake," he said, adding that even one of the officiating ministers testified
that the difference between the two ceremonies was not clear to him.

	Fish called it a "shell-game" that he said neither Hudson River Presbytery
nor the synod PJC were willing to stop and urged the high court to do so.

	Fish insisted that there is a single standard for sexual behavior: marriage
between a man and a woman or chastity in singleness.  Blessing what the
church has historically considered to be sin, Frank said, is
unconstitutional -- a view, he said, that is supported by both the
scriptures and the confessions.

	Hudson River Presbytery's attorney Sharon Davison of New York City argued
that the presbytery simply abided by existing denominational policy set by
the 1991 General Assembly on the counsel of its Advisory Committee on the
Constitution that allows pastors and sessions to decide whether such a
ritual is appropriate -- since a same-sex union ceremony is not the same as
Christian marriage, which only unites a man and a woman.

	"It is clear what Christian marriage is and what it is not," she said,
noting that the presbytery understood the ritual as pastoral nurture to the
congregation, a way of  "recognizing the transitions which bring joy and
sorrow into human life."

	Hudson River representatives told the judicial commission that the
presbytery had not developed criteria for pastors to help differentiate
between same-sex unions and marriages.  After lengthy questioning about
alternative rituals, Hudson River member the Rev.William Wersenbach said
that every same-sex union that he had conducted was different, including
only some components of the traditional marriage service.

	Seven ministers and eight churches filed the complaint against Hudson River
Presbytery.  The synod PJC's ruling advised those wishing to prohibit
same-sex unions to do so legislatively, not by judicial process.

	At least three presbyteries -- Tampa Bay, Charlotte and San Joaquin -- have
filed overtures to this year's General Assembly seeking to amend the
constitution to prohibit same-sex unions.

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