Presbytery of Hudson River

This is a remedial case of original jurisdiction brought before the Permanent Judicial Commission of the Synod of the Northeast. This case involves an action of the Presbytery of Hudson River adopting a motion (R1 pg 3) as follows:

"...that the Presbytery affirm the freedom of any session to allow its ministers to perform ceremonies of holy union [within or outside the confines of the church sanctuary between persons of the same gender, reflecting our understanding at this time that these ceremonies do not constitute marriage as defined in the Book of Order.

PROCEDURAL HISTORY

The Complainants filed their complaint dated April 13, 1999. Respondent filed an answer with various attachments dated May 10, 1999. The Moderator and Clerk of the Permanent Judicial Commission determined that the Synod had jurisdiction, that the Complainants with the exception of Alvin Gunther had standing¹, that the complaint was timely filed and that the complaint stated a claim upon which relief can be granted.

The PJC received various correspondence concerning a request that certain information be supplied from South Presbyterian Church, Dobbs Ferry, (Benton letter - 5/20/99; Hunter letter - 7/8/99; Poppinga letter - 7/27/99). Thereafter, Complainants' counsel requested that a citation for certain witnesses be issued requiring them to appear for a pre-trial deposition. Pursuant to a meeting of the commission's executive committee, the clerk of the commission sent the parties a response dated August l3, 1999 denying the request and requiring a party requesting the citation of a witness to provide a showing of the relevance of the requested witness's testimony. 0n August 23, 1999, counsel for complainant submitted a formal request for the Pretrial Citations with a document alleging the relevance of the testirnony sought. The Executive Committee denied this request in a letter dated 9/18/89 and the Commission affirmed the Executive Committee decision at their meeting held On October 7, 1999 with a decision dated October 11, 1999.

Complainants filed a Notice of Application for a Written Request for Reference pursuant to Book of Order D-4.0100 and for an adjournment of all pending proceedings on October 14, 1999. The Clerk of the Commission notified the parties of the executive committee's negative recommendation concerning the request in a letter dated October l9, 1999. Respondent filed a response dated October 25, 1999. The Commission met by conference call on October 27, 1999, denied the request, and communicated this decision to the parties by fax on October 28, 1999.

The trial on this matter was held on November 4, 1999 in Newark, New Jersey. Complainants requested trial citations for the pastors of South Presbyterian Church at the end of Complainants' case and again at the end of Respondent's case, each of which requests were denied by the Commission.

FINDINGS OF FACT

Following the publication of an article in the August 9, 1998 edition of the Rockland Journal News (C-1 or 2) concerning a same sex holy union service that had taken place at South Presbyterian Church, Dobbs Ferry, the Session of the Bethlehem Presbyterian Church wrote a letter to the Stated Clerk of the Presbytery of Hudson River (C3). This letter requested that Presbytery take action to investigate, counsel, and as necessary discipline the Pastors and Session of South Presbyterian Church; and to preclude any further such ceremonies taking place there. At its October 1998 meeting, the Presbytery Council appointed a Special Administrative Review Committee to gather information and then report back their finds regarding the aforementioned letter's concerns. At the Council's January 5, 1999 meeting they did so informing that they had met with both churches of concern. The report (C-13) was received, heard, including comments from the members of the committee as well as representatives from both churches. After a time spent asking questions and discussing the issue, Council's conclusion, and their recommendation was that a careful dialogue continue concerning the churches differences in accordance with a Report of the Council dated January 5, 1999 (C-4), the Council states: "In addition, in order to provide clarity and leadership at this critical point in the ongoing dialogue they passed the following motion:

"...that the Presbytery affirm the freedom of any session to allow its ministers to perform ceremonies of holy union [within or outside the confines of the church sanctuary] between persons of the same gender, reflecting our understanding at this time that these ceremonies do not constitute marriage as defined in the Book of Order."

At the regular stated meeting of the Presbytery of Hudson River held on January 30, 1999 at the White Plains Presbyterian Church, the Moderator of Council presented the report of the Special Administrative Review Committee and moved approval of Council's recommendation. The Presbytery's minutes read in part as follows:

Much discussion followed with presbyters speaking for and against the motion. A motion to lay the motion on the table was defeated. The mover changed the wording to read to postpone indefinitely until such time as more conversations have taken place. Debate. This motion was also defeated. A motion was presented to postpone until the next stated meeting on March 9, 1999 was presented. This [motion] was defeated. The original motion was then voted on by ballot and was approved with 105 yes, 35 no, and 2 abstentions. (R-1)

The Rev. Allen Kemp then presented a protest that meeting in accordance with G-90304 of the Book of Order (C-11)

Complainants presented evidence that advocacy groups on opposite sides both characterize the motion adopted by Respondent Presbytery as authorizing marriages or weddings between persons of the same sex. We find the evidence presented by Respondent Presbytery as to the intention of the motion to he more persuasive than interpretations offered by those who either did not participate in the decision, or voted against the action. Accordingly, we find that the motion in question does not authorize marriages or weddings between persons of the same sex.

DISCUSSION

This Commission is charged with the responsibility to determine whether or not the action of the Presbytery of Hudson River in adopting the motion is an irregularity pursuant to D-2.0202.

Complainants have asked us to interpret the Constitution of the Presbyterian Church (USA) to prohibit particular ceremonies that the Constitution does not address, permanent Judicial Commissions are not legislative bodies. The proper method for amending the Constitution requires the General Assembly to submit a proposed amendment to the presbyteries for their affirmative or negative votes. Approval of the proposed amendment by a majority of the presbyteries would result in its passage at the next General Assembly. (see G-18.0300) This Commission is not able to enact a law which the General Assembly and presbyteries have not approved.

The complainants have presented numerous arguments to extend existing statements in the constitution to prohibit ceremonies of same-sex union. Because the plain language of the motion adopted by Respondent Presbytery states that it is not authorizing marriage ceremonies between persons of the same sex, we find these arguments offered by the complainants unpersuasive.

The complainants argue that W-4.9001 states a constitutional priority that the Christian understanding of marriage is not to be diminished. The cited constitutional principle addresses additions to the marriage ceremony and does not apply to ceremonies of same-sex union.

Similarly we do not find persuasive the following claims by Complainants that services which sessions might authorize under the action of Respondent presbytery impermissibly simulate Christian marriage, or are advised against by the interpretation of W-4.9001 in Polity Reflections Notes 18 and l9 (issued by the Office of the Stated Clerk of the General Assembly), or create a new and intolerable situation in the church. Sessions might improperly approve acts of worship that are contrary to the Constitution, but if they do so, it is not with the permission of Respondent Presbytery. Complainants have not carried their burden of proof that; the Presbytery would not or could not express its disapproval of such hypothetical session actions.

Complainants allege that the motion adopted by the presbytery aids and abets violations of the Constitution by sessions and pastors, This issue is not before the Commission. A remedial case against one governing body does not create an appropriate forum for adjudicating alleged irregularities by another governing body, nor far inquiring into allegations of offenses by individuals.

Complainants have advanced arguments that church property should not be used contrary to the PCUSA Constitution. Our previous observation that the Constitution does not prohibit same sex unions that are not the same as marriage disposes of this argument.

CONCLUSION

The Commission determines that the motion adopted by the Hudson River Presbytery was not an irregularity for the reasons set forth in the discussion above,

ORDER

The complaint is dismissed.

The Stated Clerk of the Presbytery of Hudson River shall report this decision to the presbytery at its next stated meeting, shall spread this decision on the minutes, and shall provide the Stated Clerk of the Synod with an extract from the minutes showing the full report of this decision.

ABSENCES AND NON-PARTICIPATION

Commissioners Margaret Santos (New York City) and Susan DeGeorge (Hudson River) were absent from the trial and did not participate in the decision of this case.

¹ The parties stipulated the lack of standing of Alvin Gunther at trial.

Dissenting Opinion for Remedial Case 99-6

While inferences may be drawn that Same-Sex Holy Union ceremonies are equivalent to Marriage ceremonies from general culture and even within the Gay and Lesbian Community that is a part of the Presbyterian Church(U.S.A.) the Book of 0rder is silent in regards to this kind of service. Lack of such an explicit reference should not be interpreted os an endorsement of these ceremonies.

It is the position the Presbyterian Church (U.S.A.) that based on Scripture and the Confessions (which are a reliable exposition of what we believe and do) that homosexual practice is sin (as distinguished from orientation - Report of Assembly Committee on ordination and Human Sexuality, 208^th General Assembly Minutes, 1996. p.79 and what has become known as the denomination's "Definitive Guidance" of 1978-79 reprinted in 1986 minutes p.1025.). What is implicit in our church's Constitution has become explicit in the church's policy statements.

The Advisory Committee on the Constitution noted (in reference to an overture that was passed by tbs General Assembly in 1994 to be sent to presbyteries for vote that contained explicit language prohibiting ministers from participating in the blessing of any same-sex unions - 1994 186,488) that this proposed provision would add nothing new to the constitution. Because a same-sex union is a form of homosexual practice and homosexual practice is sin, the blessing of such an activity by a Minister of Word and Sacrament would unconstitutional and against the policies of the Presbyterian Church (U.S.A.).

It has been argued that a lack of an explicit prohibition against the blessing of same-sex unions puts this court in a position to legislate rather than adjudicate. It is my opinion that the Constitution of the Presbyterian Church (U.S.A.) is made clear by the explicit policy statements and definitive guidance noted above. As a result the Presbytery s guidance to its church' s was contrary to that of the denomination's stated policies and constitution. Therefore such an action was erroneous and the complaint should have been sustained.

Respectfully,

Rev. Dr. D. Dean Weaver.

Rev. Craig C. Kerewich

Dissenting Opinion

The official position of the denomination is that homosexual orientation is not sin and that homosexual practice is sin (Report of Assembly Committee on Ordination and Human Sexuality as adopted by the 208^th General Assembly; Minutes, 1996, page 79) Same gender holy unions are a manifestation of homosexual practice. Because Presbytery's action sanctions this sinful activity, it is erroneous.

Complainants have met their burden of proof by showing that the Presbytery approved thecontested action and by presenting unrebutted evidence that homosexual practice is sin.

Therefore. the irregularity specified in the complaint should be sustained.

My conclusion is independent of the issue of whether a holy union is the same as a marriage.

Fred L Denson