Dismissal of challenge to gay elder may have impact on future cases

And some say the standards the Wier case sets for filing complaints potentially could chill the filing of future challenges to the ordination of gays and lesbians. As Wier’s lawyer, Claire Cubbin, put it: “I think it has tremendous impact.”

Here are some people it has already affected.

Katie Morrison is a lesbian who is very public both about her sexual orientation and the fact that she lives in a committed, sexually active relationship with her partner. (“My partner says I don’t need to practice anymore. I’ve made it!” Morrison was quoted as saying in a San Francisco newspaper last year — referring to language the Presbyterian Church has used to say it wouldn’t ordain “self-affirming, practicing homosexuals.”)

In October 2001, Morrison was ordained in San Anselmo, Calif., as a minister of the PC(USA), which promptly brought a series of challenges in the church courts contending that her ordination was irregular. Based on her public comments, some contend that her ordination would violate standards in the PC(USA) Constitution that restrict ordination to those who practice fidelity if they are married or chastity if they are single.

Morrison contends that “chastity” is not the same thing as “celibacy.” She seems prepared to argue that she can live in a committed relationship with a lesbian partner and still be in compliance with “fidelity and chastity.” Citing the Wier ruling, however, the Pacific Synod’s Permanent Judicial Commission in May dismissed the complaints involving her ordination, stating that the kind of detailed self-acknowledgment of sin required by the Wier ruling wasn’t presented in the complaints involving Morrison (even though those complaints were filed before the General Assembly PJC ruled in the Wier case). That synod ruling is being appealed.

Across the country, Keith Barber is the elder whose installation was challenged as irregular by Ronald Wier. While his case was cited as precedent in the Morrison ruling, the facts of their cases are not the same.

Barber is gay, but says he prefers to keep his private life private. He lives alone. In December 1997 he was asked to serve a third term on the session at Second church, Fort Lauderdale. Barber said that he was asked — as were all the candidates considered for the session at that time in his congregation — if there was any reason, based on the section of the Constitution including the “fidelity and chastity” standard, that he could not be installed on the session. Barber said he answered that there was no reason he couldn’t be, and he says he meant by that answer that he would remain celibate while serving on the session.

Despite his answer — and the PC(USA) Constitution does allow gays and lesbians to serve as deacons, elders or ministers if they are not sexually active — Barber’s installation was challenged by Wier, a member of his congregation who happened to live across the street from Barber and who claimed that Barber is a “practicing homosexual.” Wier pursued the case all the way to the church’s highest court, the General Assembly Permanent Judicial Commission.

In April the PJC dismissed Wier’s case, ruling that the kind of blanket accusation that Wier made against Barber is not permissible — that a complaint must be much more specific in its allegations of what transpired in order to be valid.

What’s important about that ruling, beyond the implications for the congregation in Fort Lauderdale, is that the Wier decision can be cited as precedent in other church court decisions, and some observers contend that it significantly changes the rules under which challenges can be made to the ordinations of gays, lesbians and other unmarried people.

Specifically, the ruling states that when complaints are brought alleging violations of a constitutional standard that might have “extreme consequences to a person’s reputation, career or friendships,” such complaints “must assert factual allegations of how, when, where and under what circumstances the person was self-acknowledging a practice which the confessions call a sin.” And the ruling states that “self-acknowledgment must be plain, palpable and obvious and details of this must be alleged in the complaint.”

Lawyers who track such cases say that language is significant, and likely will make it harder to bring successful challenges to candidates. “I think it’s a very important case,” said Peter Oddleifson, a lawyer from Rochester, N.Y. “It raises the bar” in terms of what kind of information must be presented when challenges are made involving a candidate’s personal life.

The Wier ruling, the language of which leaves some room for interpretation, also is raising questions about what’s permissible inquiry when a candidate for ordination or installation is being considered, and what is not.

Among those questions:

• What exactly is meant when the ruling says that a complaint must assert factual allegations of “how, when, where and under what circumstances the person was self-acknowledging a practice which the Confessions call a sin”? Does this refer to statements a person might make about sexual orientation — some kind of public affirmation that “I am gay” or “I am a lesbian”?

• Or is it referring to some kind of discussion of sexual practice? Would it be enough for the unmarried person to say, “I live in a committed relationship with a partner”? Or does there have to be actual discussion of sexual activity — not just an acknowledgment, say, that two people are living together? What if the person doesn’t make any public statements, but sits in the same pew every Sunday with an unmarried friend, sometimes holding hands? What constitutes “plain, palpable and obvious” self-acknowledgment?

• Taking it further, who decides what falls into the category of “what the confessions call a sin”? Can it be things other than sexual activity? And is someone “refusing to repent” if they honestly don’t believe the behavior is sinful to start with?

• What obligations do governing bodies have to inquire? In an earlier General Assembly Permanent Judicial Commission ruling, the LeTourneau v. Twin Cities case, which involved the candidacy of a lesbian, the PJC ruled that “sexual orientation and practice is relevant to a candidate’s qualifications for ordination” and must be investigated when “the candidate has taken the initiative in declaring his or her sexual orientation.” Some contend that the Wier case echoes that language in its ruling, when it states that “if the governing body has reasonable cause for inquiry based on its knowledge of the life and character of the candidate, it has the positive obligation to make due inquiry and uphold all the standards for ordination and installation.” But what constitutes a “reasonable cause for inquiry”?

• And could it be, as some contend, that the Wier ruling diminishes or even negates the impact of the LeTourneau ruling, meaning that unless a candidate for ordination makes “plain, palpable and obvious” public statements about his or her sexual activity, that other questioning on such matters should be considered out-of-bounds?

Cubbin, Ronald Wier’s attorney, is among those who have reached that conclusion. The ruling in her case “absolutely guts the ruling” in LeTourneau, she contends. “It makes it much more difficult to use LeTourneau as a reason to ask questions. It’s almost as if they have adopted a ‘Don’t ask, don’t tell’ position.”

With Katie Morrison, “there’s no question she’s self-affirming, she’s in the press talking about it,” said Bob Davis of the Presbyterian Forum, a group that supports the current ordination standards. To him, that’s exactly the type of case that seems to call for inquiry by the presbytery as to whether she meets the “fidelity and chastity” standards. Morrison has made public disclosures; that opens the door for questions, Davis said, adding that “I am not interested in pursuing witch hunts into people’s bedrooms.”

But how far to push an inquiry isn’t entirely clear. The Wier ruling also states that “the ordaining and installing governing body is in the best position to determine whether self-acknowledgment is plain, palpable and obvious, based on its knowledge of the life and character of the candidate” — seemingly giving some discretion to sessions and presbyteries in determining how to proceed. Davis, who’s a lawyer, said LeTourneau indicates that if a person makes public statements about sexual orientation, the governing body has an obligation to ask about practice — “not to conduct an investigation,” he said, “but to ask questions” about whether the person can comply with the “fidelity and chastity” rule. “The standard is a good one,” he said. “Requiring behavioral evidence or some sort of affirmative statement of behavior is significant. [Sexual o]rientation is not the thing driving any of this.”

Michael Adee, a field organizer for More Light Presbyterians, said he applauds the language in Wier that would limit harmful accusations based on rumor or supposition rather than actual knowledge. For example, Adee said he once heard concerns raised because a man and a woman were listed as sharing the same address in the church directory. Someone asked whether there was a problem with their living together outside of wedlock. Actually, he said, they were married, but had different last names — something people who knew them realized, but the person who raised the questions did not. According to the Wier ruling, “we’re not going to allow hearsay, we’re not going to allow third-party information,” Adee said. “Where we’re going to put the responsibility is back on the person” who is a candidate to lead a sexually responsible life.

Doug Nave, a lawyer who’s been involved in the fight to remove the “fidelity and chastity” language from the Constitution, argues that the Wier case requires self-acknowledgment of sinful behavior, not just of sexual orientation, as the standard for a governing body to inquire. The candidate “must actually talk about the practice” — for example, sexual relations outside of marriage — not just about sexual orientation, Nave believes.

Nave also argues that celibacy is not the same as chastity, one of the issues that’s emerged in the Morrison case. “Our confessions say even married people have to be chaste. So chastity can’t mean the same thing as celibacy,” Nave said, but he argues that chastity could be interpreted to mean sexual activity within a committed, monogamous relationship.

But Daniel D. Pursell, a retired criminal lawyer from California who’s working on the appeal of the ruling in Morrison’s case, reads the Wier case as requiring governing bodies to inquire about compliance when they have knowledge that someone is gay or lesbian or is involved in sexual activity outside of marriage. He views the self-acknowledgment as involving sexual orientation, not just sexual activity.

But the Wier case itself illustrates how tricky that kind of inquiry can be.

In a recent interview, Wier said he was prepared to present witnesses who would testify both that Barber was gay and that he had been sexually active, but never got a chance to, because the case was dismissed, erroneously he contends, by the moderator of the Permanent Judicial Commission of Tropical Florida Presbytery.

Wier also points out that his case was filed not as a disciplinary case against Barber, but as a remedial case alleging irregular action by the session of Second church. (This is the second action involving an ordination Wier has brought against the session of his church. An earlier case also was appealed up to the GA PJC and often is referred to as Wier I.)

Wier said he initiated the cases because of his concern that congregations must follow the denomination’s Constitution if the PC(USA) is to remain a connectional church. “I’m not out to get anybody,” said Wier, a retired naval officer and real estate broker who’s in his 60s. “But I’m really interested in seeing the discipline enforced. Without it, we break down the entire Presbyterian system.”

But Barber, a 60-year-old administrator for a team of yacht surveyors, said he meant exactly what he said: he would comply with the “fidelity and chastity” language in the Constitution. He wasn’t trying to challenge the interpretation, he said. He just wanted to serve his church.

Barber said he is involved in advocacy groups which contend that the “fidelity and chastity” standard is improper and should be removed from the PC(USA) Constitution. But Barber said “I am circumspect” when it comes to his personal life, and he made no statements of “self-acknowledgement” at all to his session about either his sexual orientation or his personal life. He decided privately that he would remain celibate, and he simply didn’t discuss it.

“I was just a Presbyterian elder willing to serve another term” on the session, Barber said in an interview. And Barber said the accusation Wier made against him — that he was a “practicing homosexual” — “impugns my reputation because it suggests I lied to the presbytery [about whether he would be sexually active] and I did not.”