Jean Southard same-sex wedding conviction overturned

The church’s highest court ruled without dissent on Feb. 7 that Jean Southard, who is now retired, did not violate the denomination’s constitution when she married two women in March 2008 in the sanctuary of First Presbyterian Church in Waltham, Mass., the congregation she then served.

That decision reverses in part the decision of the Synod of the Northeast Permanent Judicial Commission, which in June 2010 determined that Southard had violated the denomination’s constitution by performing the wedding, which she characterized as a “Christian marriage” as well as a legal civil marriage.

But the ruling from the GAPJC also has limits. Southard performed the wedding before the GAPJC ruled in April 2008 in a California case, involving the minister Janie Adams Spahr, that Presbyterian ministers cannot perform same-gender weddings.

Because the Spahr ruling came later, the GAPJC ruled that it could not apply to Southard’s case, although the findings of the Spahr case remain in force.

Even though the GAPJC’s Southard decision was unanimous, three concurring opinions, each with different reasoning, make it clear how contentious the issue of same-gender marriage continues to be in the PC(USA).

In its decision in the Spahr case in 2008, the GAPJC noted that the PC(USA)’s constitution defines Christian marriage as between one woman and one man. Because of that definition, the commission ruled, “a same sex ceremony can never be a marriage.”

It instructed Spahr not to perform same-sex ceremonies designated as marriages, and said that PC(USA) ministers should keep the liturgies distinct between same-sex union ceremonies and marriage ceremonies.

The Southard ruling invokes that standard from the Spahr ruling. It says Presbyterian ministers shall not “state, imply or represent that the same-gender ceremony is an ecclesiastical marriage ceremony as defined by PC(USA) polity, whether or not the civil jurisdiction allows same-gender civil marriages.”

This new ruling makes it clear that those standards remain in force, even though it says Southard should not be held to the requirements of the Spahr decision, since she married Jennifer Duhamel and Sara Herwig about a month before the Spahr ruling was issued. The authoritative interpretation from the Spahr ruling cannot be applied retroactively, the commission ruled.

The women Southard married were active members of her congregation, and she had the session’s approval to perform the wedding. But a disciplinary case was brought against her before the Presbytery of Boston Permanent Judicial Commission, which ruled in Southard’s favor.

The synod Permanent Judicial Commission overturned the presbytery panel’s ruling last June and instructed the presbytery panel to determine to what degree, if any, Southard should be censured. Southard appealed that decision – and the GAPJC decision upheld some parts and reversed other parts of the synod panel’s ruling.

The GAPJC’s ruling in the Southard case also states that Massachusetts did not change the PC(USA)’s definition of Christian marriage when it legalized same-gender marriage.

“While the PC(USA) is free to amend its definition of marriage,” the court ruled, “a change in state law does not amend the Book of Order.”

Following the GAPJC ruling in her case, Spahr continued to perform same-gender weddings in California in 2008, until California stopped allowing same-gender marriages.

The California Supreme court had overturned the state’s ban on same-gender marriages in May 2008, but in November of that year voters approved Proposition 8, which amended the state’s constitution to limit marriages to those between one man and one woman.

In August 2010, the Permanent Judicial Commission of Redwoods Presbytery ruled that Spahr had “persisted in a pattern or practice of disobedience” by performing 15 same-gender marriage ceremonies in California between June and November 2008.

Spahr has appealed that decision to the Permanent Judicial Commission of the Synod of the Pacific.

The 20-member commission’s opinion in the Southard case was unsigned, but several members signed concurring opinions. There were three of these opinions, each following a different line of reasoning.

First concurrence. In the first concurrence, five members of the GAPJC panel who voted with the majority stated, “we are intensely troubled by the underlying issue — the marginalization of gay, lesbian and bisexual people by the constitution of the Presbyterian Church (U.S.A.). This issue is larger than the PC(USA). It is a human rights issue.”

Their opinion says the denomination’s constitution “is contradictory in its language” regarding the acceptance of gays and lesbians into full fellowship. “We urge the General Assembly to amend the constitution to allow for the marriage of same sex couples in the PC(USA), and otherwise welcome gay, lesbian and bisexual people into the full fellowship of the church,” it states.

That concurring opinion was signed by GAPJC members Jeana Lungwitz, Barbara Bundick, A. Bates Butler III, Michael Lukens and Rebecca New.

Second concurrence. A second concurring opinion was signed by six members of the GAPJC panel — Lungwitz, Butler, Lukens and New, along with H. Clifford Looney and Yun Jin Kim.

It questions whether section W-4.9001 of the PC(USA) Book of Order “provides an effective and unambiguous definition of Christian marriage,” as has been assumed in recent judicial cases. Language in that section includes the statement that “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.”

The six members who signed the opinion raise several concerns regarding that language. They contend the passage has an “obvious narrative purpose” and theological meaning in the Book of Order, rather than being intended as a legal or regulatory description.

They also state that “the church needs a sharper degree of clarification and guidance that precisely defines how it understands marriage, especially in light of the high financial and personal burden involved. Given the contention regarding the nature and practice of Christian marriage in our time, it would be important and valuable for the Church to state its definition in clearer and more precise legislation.”

Third concurrence. Three panel members wrote that while the Spahr decision could not apply to the Southard case, “it is disingenuous for Southard to claim that no guidance was available from the larger church on the advisability of performing a same-gender marriage.”

A 1991 General Assembly authoritative interpretation stated that “it would not be proper for a minister of the Word and Sacrament to perform a same sex union ceremony that the minister determines to be the same as a marriage ceremony.” That language was upheld by a GAPJC decision in 2000.

That being the case, “it would logically seem to be ‘improper’ for a minister to perform a ceremony that was, in actuality, a legally-sanctioned marriage service,” the concurrence states.

“While Southard may be commended for her desire to provide compassionate pastoral care, a failure to seek out the guidance of the larger church would raise a concern about Southard’s willingness to `be governed by our church’s polity, and to abide its discipline,’” the concurrence states.

This third concurring opinion was signed by panel members Meta Shoup Cramer, Bradley C. Copeland and William Scheu.

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