Southard case update
Dissenters warn of ‘dangerous precedent’
By Edward Terry, The Layman, August 28, 2009
The two dissenters in Boston Presbytery’s Jean Southard case said that W-4.9001 in the Book of Order definitely defines marriage as between a man and woman, and accused the Permanent Judicial Commission of legislating change through the judicial process.
Southard, a Presbyterian Church (USA) minister, was found not guilty Aug. 22 of charges that she violated the denomination’s constitution and her own ordination vows by officiating the marriage ceremony of two women.
The dissenters were Margaret MacLeod and R. Ward Holder, according to court documents.
“While we find that Rev. Southard found herself in a difficult position given the request of two valued elders of the church, we do not find that tension to be sufficient reason to grant release from the strictures of the discipline of the Constitution,” they wrote in their dissenting opinion. “Her action of social justice came at the cost of her obedience to her ordination vows, (W-4.4003e), and created a situation that worked against the peace, unity and purity of the Church.”
The charges, which were filed in May by an investigating committee of the Presbytery of Boston, stemmed from the March 2008 marriage ceremony in the sanctuary of First Presbyterian Church of Walsam, Mass. Southard was accused of disregarding W-4.9000, in particular W-4.9001, which states that “marriage is a civil contract between a woman and a man.”
According to court documents, Southard participated in and directed a worship service that:
· “appropriated the liturgical forms for Christian marriage”
· “declared that as a result of the marriage ceremony she performed, the two women were then joined in Christian marriage”
· “failed to differentiate between the marriage celebrated between the two women and a Christian marriage between one man and one woman”
The PJC’s rationale for not sustaining the charge was that W-4.9000’s definition of marriage is descriptive, not mandatory.
“The Prosecuting Committee has not proven beyond reasonable doubt that W-4.9000 contains mandatory language that would prohibit a Minister of Word and Sacrament from performing a same-gender marriage. Since the Preface to the Directory of Worship (clause b) states that the Directory uses language that is ‘simply descriptive,’ this Commission takes this to mean that the definition of Christian marriage in W-4.9001 is merely descriptive … ”
The rationale also treats the Authoritative Interpretation of 1991 as “descriptive” and says there is no mandatory language in the constitution nor any authoritative interpretations that prohibit ministers from performing same-gender marriages in states where it is allowed.
Massachusetts is one of three states, along with Connecticut and Iowa, where same-sex unions currently are legal. Same-sex marriages in Vermont and Maine will be legal beginning in September and in New Hampshire Jan. 1, 2010.
The second charge, that Southard had violated her ordination vows, was not sustained due to the decision on the first charge.
Pointing to the legalization of gay marriage in Massachusetts, the dissenters emphasized the importance of a distinction between a Christian marriage and same-sex union. The case of Benton v. Presbytery of Hudson River, which ruled that PCUSA ministers could bless same-sex couples but could not “marry” them, offered a clear difference where the Southard case does not, they said.
“The issues of fact of the Southard case were stipulated – both the Prosecuting Commission and the Accused provided and accepted evidence that this was intentionally a Christian marriage. … Further, the argument that the definition of marriage being between a man and a woman is only descriptive and reflects the ideas and mores of a bygone age cannot be sustained.”
The dissenters warned of the implications the PJC’s ruling could have.
“This sets a dangerous precedent, that any part of the Constitution that has not recently been sustained by legislative action can be assumed to have lost validity. … This makes a mockery of the prescriptive language of W-4.9004, wherein the Directory of Worship orders that ‘The man and the woman shall declare their intention to enter into Christian marriage and shall exchange vows of love and faithfulness.;’ and ‘In the name of the triune God the minister shall declare publicly that the woman and the man are now joined in marriage.’”
Southard, a member of the Presbytery of Boston PJC, was present at the trial only as the accused and did not take part in the PJC’s proceedings.
According to the Book of Order, either party in a disciplinary case may appeal to the next higher governing body. If the prosecuting committee files an appeal in this case, it will go to the synod. Grounds for appeal by the prosecuting committee may include: irregularity of the proceedings; refusing a party reasonable opportunity to be heard or to obtain or present evidence; receiving improper, or declining to receive proper evidence or testimony; hastening a decision before the evidence or testimony is fully received; manifestation of prejudice in the conduct of the case; or error in constitutional interpretation.
There has been no indication yet that an appeal has been or will be filed.