Two cases provide insight into current ordination charges
By John H. Adams, The Layman Online,Commentary, October 22, 2002
So far, the opponents of the denomination’s constitutional “fidelity/chastity” ordination standard have succeeded in derailing or delaying charges against Presbyterian ministers who have publicly declared that they are defying or will defy the standard.
1993 decision
“… a presbytery (or any governing body) is not free to exercise its own judgment contrary to our constitutional standards or the lawful injunctions of higher governing bodies without jeopardizing the entire fabric of our Presbyterian system.”
General Assembly PJC Some presbytery investigating committees have already decided that there will be no trials of disciplinary charges. Other cases have bogged down in the bureaucracy, whether or not the delays are intentional.
But suppose the accusations against 19 ministers and one elder – all of whom have publicly declared or acted out their defiance of church law – moved forward quickly to presbytery courts.
How long would it take to get a final judgment? And is there any reason to expect that the final judgment would uphold the Constitution of the Presbyterian Church (USA) – especially the “fidelity/chastity” clause that has been approved and reaffirmed in three national referendums?
2000 decision
“This Commission finds that there are no constitutional grounds for a governing body to fail to comply with an express provision of the Constitution, however inartfully stated. Assertions of inconsistency, confusion, or ambiguity may justify the right to protest. They do not create a right to disregard any part of the Constitution. Furthermore, no court in our denomination has the authority to amend the Constitution or to invalidate any part of it.”
General Assembly PJC Timing is unpredictable, but most major cases in the denomination that have begun with presbytery trials and continued with appeals to the courts of higher governing bodies – the synod and, finally, the General Assembly permanent judicial commissions – require about three years.
It can be longer, depending on whether a case might be bounced back and forth. For instance, a synod court might issue an order to the presbytery, but the presbytery might disregard that. So the appeal process might be recyled before it reaches the General Assembly Permanent Judicial Commission. [Beyond the GA PJC, there is no appeal. Changes in the constitution require approval by the General Assembly and a majority of the presbyteries.]
If the cases do go to trial, two decisions by the denomination’s highest court – one in 1993 and the other in 2000 – should provide a controlling precedent.
The 1993 case
The 1993 case preceded G-6.0106b, the “fidelity/chastity” clause that became part of the Constitution of the Presbyterian Church (USA) in 1998. It involved Jane Spahr, a high-profile lesbian activist who is an evangelist for That All May Freely Serve, an organization that seeks the ordination of practicing homosexuals, bisexuals and transgendered people.
Spahr was ordained in 1974 by the United Presbyterian Church (USA), which merged in 1983 with the Presbyterian Church (U.S.) to former the Presbyterian Church (USA). With presbytery permission, she served “outside the bounds of the presbytery” at Metropolitan Community Church in San Francisco, a predominantly homosexual congregation.
In 1991, Downtown United Presbyterian Church in Rochester, N.Y., voted to call Spahr to serve as its co-pastor. The Presbytery of Genesee Valley then voted to accept the recommendation of its committee on ministry and approved Downtown Church’s call to Spahr.
Complainants asked the synod court to invalidate the presbytery’s decision and prevent Spahr’s installation.
In the synod trial, both sides stipulated that she was a “practicing lesbian.” (Spahr, a divorcee and mother before she declared that she was homosexual, once told a commissioners committee at the Salt Lake General Assembly that she “had gone beyond practicing” and was “now performing” and “was good at it.”)
The synod court ruled in favor of Downtown Church and ordered that the complaints be dismissed. But the General Assembly Permanent Judicial Commission reversed that decision, and Downtown Church was never allowed to install Spahr as its co-pastor, although she retains her ordination as a Presbyterian minister of the Word and Sacrament.
The synod court contended that there was no constitutional prohibition against ordaining homosexuals or calling them to serve in Presbyterian churches.
But the General Assembly court supported its decision by citing the “definitive guidance” that was adopted in 1978 by the General Assembly.
“The ‘definitive guidance’ provided by the position paper in this case is ‘[t]hat unrepentant homosexual practice does not accord with the requirements for ordination set forth in the Form of Government …’ Therefore, this commission holds that a self-affirmed practicing homosexual may not be invited to serve in a Presbyterian Church (U.S.A.) position that presumes ordination. However, this commission recognizes that a call may be approved for a person who is no longer engaged in a homosexual way of life.”
The 1993 decision addressed the matter of what it means to be a connectional church.
“‘The radical principles of Presbyterian church government and discipline,’ which were articulated by the 1797 General Assembly, have ever since been one of the hallmarks of Presbyterianism. They are:
- That the several different congregations of believers, taken collectively, constitute one Church of Christ, called emphatically the Church; that a larger part of the Church, or a representation of it, should govern a smaller or determine matters of controversy which arise therein; that, in like manner, a representation of the whole should govern and determine in regard to every part, and to all the parts united: that is, that a majority shall govern; and consequently that appeals may be carried from lower to higher governing bodies, till they be finally decided by the collected wisdom and united voice of the whole Church. For these principles and this procedure, the example of the apostles and the practice of the primitive Church are considered as authority. (Book of Order, G-l.0400)
The 1993 ruling said Genesee Presbytery leaders failed in their obligation to counsel churches “regarding the standards that represent the ‘voice of the whole Church.'”
“Downtown United should have been advised by presbytery’s representatives that it should not consider extending a call to anyone of affirmed homosexual practice,” the decision said. “Had the congregation received such advice and, disregarding that advice, persisted in prosecuting the call, it would have been the responsibility of the presbytery not to approve the call. Had the presbytery acted appropriately, this call would not have been approved. The questions regarding the examination and enrollment of a self-affirmed practicing homosexual would never have been raised, and this commission determines them to be outside the scope of this case.”
In a concurring opinion, Joel Secrist, one of the members of the General Assembly court, added, “Should the church foster the creation of a new situation in the church, in which practicing homosexual persons would be free to affirm their lifestyle publicly and to obtain the church’s blessing through ordination? The General Assembly said no. It was clear and concise.”
In the only dissenting opinion, in the 1993 case, W. Clark Chamberlain argued that the majority opinion called for a double standard. He asked, “If some ministers in good standing cannot do what other ministers in good standing may do, how can this be anything other than a double standard?”
The 2000 case
In 2000, the General Assembly court ruled in a similar case, but this time the issue involved a ruling elder and not a minister – and the court had G-6.0106b on the books.
The dispute arose in 1997 as presbyteries were voting on what was then known as “Amendment B.” The session of Christ Church Presbyterian in Burlington, Vt., issued a “resolution of dissent” from what became G-6.0106B, saying that it was “inconsistent with various other provisions of the Book of Order.”
The Christ Church session further declared that it would consider welcoming into leadership persons “living in committed relationships, regardless of sexual orientation.”
The Presbytery of Northern New England said Christ Church had a right to assert its defiance of the constitution, and the case went to trial in the synod court, which did not invalidate Christ Church’s repudiation of the “fidelity/chastity” ordination standard.
But the General Assembly court did, saying that church law “does not permit a governing body to disregard ordination standards mandated by the Constitution in the examination of those individuals.”
The court added, “It is not within the power of any governing body or judicial commission to declare a properly adopted provision of the Constitution to be invalid. The only appropriate avenue to change or remove a provision of the Constitution is through the process for amendment provided within the Constitution itself.”
The decision quoted from the Book of Order:
- That, in perfect consistency with the above principle of common right, every Christian Church, or union or association of particular churches, is entitled to declare the terms of admission into its communion, and the qualifications of its ministers and members, as well as the whole system of its internal government which Christ hath appointed; that in the exercise of this right they may, notwithstanding, err, in making the terms of communion either too lax or too narrow; yet, even in this case, they do not infringe upon the liberty or the rights of others, but only make an improper use of their own. (G-1.0302)
The decision addressed the difference between appropriate dissent and defiance – or even a stated “intent” to defy the constitution.
“This commission reaffirms the right of decorous dissent. An appropriate dissent may be expressed in various ways; however, it may not include an intent by those who have vowed to be governed by the church’s polity to violate the Constitution,” the court said.
Furthermore, the court said Christ Church’s resolution to defy the constitution “exceeds the constitutional bounds of freedom of conscience and therefore requires a response on the part of the governing body exercising oversight.”
In the current debate, two Presbyterians have written, contrary to the denomination’s highest court, that “intent” itself is not a violation of the constitution.
Jack Haberer, pastor of Clear Lake Presbyterian Church in Houston, said in a Presbyterian Outlook column that “on purely legalistic terms, declarations of defiance do not actually break church law. In point of fact, church law is broken only when a person actually takes the intended action.”
2000 decision
“This commission reaffirms the right of decorous dissent. An appropriate dissent may be expressed in various ways; however, it may not include an intent by those who have vowed to be governed by the church’s polity to violate the Constitution.”
General Assembly PJC Recently, Barbara Hager, an attorney who is a clerk and member of the Southern New England Permanent Judicial Commission, wrote in a venomous letter attacking Paul Rolf Jensen, who has brought charges against 19 ministers and one elder, that “simply stating ‘defiance’ is not an action subject to discipline.” She contended that charges could be filed only after witnessing “actual SEXUAL ACTIVITY which under Amendment B is the ONLY thing possible to have charges brought.”
In the Northern New England case, there never was a report of an actual violation of the ordination standard, but the court said the “intent” of the Christ Church resolution was a violation in and of itself.
The 1993 decision also spoke of the obligations of being in a covenantal community – free to disagree, but required to obey constitutional standards. “As a community bound by covenant with Christ as our head, we can celebrate and encourage a diversity of opinion while faithfully calling for conformity in action.”
Even the denomination’s stated clerk, Clifton Kirkpatrick, who has seemed hesitant to support prosecution of cases against defiant officers, has said statements of intent to defy the constitution are violations of church law.
Finally, the court concluded, “This commission finds that there are no constitutional grounds for a governing body to fail to comply with an express provision of the Constitution, however inartfully stated. Assertions of inconsistency, confusion, or ambiguity may justify the right to protest. They do not create a right to disregard any part of the Constitution. Furthermore, no court in our denomination has the authority to amend the Constitution or to invalidate any part of it. This is exclusively a legislative process.”
Since G-6.0106b became part of the constitution, Presbyterians who wish to end the prohibition against ordaining self-affirming, practicing homosexuals and adulterers have tried twice – and failed twice – to change the constitution through the legislative process. In the most recent referendum, the “fidelity/chastity” standard was upheld 3 to 1.
Despite the results of those referendums – in which nearly 30,000 Presbyterian ministers and elders voted – hundreds of Presbyterians continue to persist in acts and statements of defiance, ignoring the constitution and the clear orders of church courts. And, remarkably, some – such as Haberer and Hager – even say the courts didn’t say what they said.