I can almost predict the headlines in the secular media: “Court rules Presbyterian church policy against same-sex weddings inherently discriminatory.” They won’t take the time to parse the difference between a presbytery Permanent Judicial Commission and civil court and they won’t care that a freedom of conscience was insured during the denomination’s constitutional amendment process. What the world will hear is “church discriminates against gays.”
The on-air interviews will include people saying that they’ve been harmed by the church, excluded by these policies and that marriage restricted to one man and one woman is unconstitutional. They’ll say that the Supreme Court said they have a right to be married.
Never mind that the free exercise of religion – including theological understandings of marriage – is guaranteed by the First Amendment and that no church can be compelled to perform a religious ceremony. Never mind that a local Presbyterian church session has the authority to determine what does and does not happen on the property. Pay no attention to the fact that Presbyterian ministers have the full freedom of conscience in terms of who they will and will not marry. And disregard the reality that the PCUSA is governed by theological confessional statements that clearly define marriage as between one man and one woman. What the world will see is a bunch of Christian bigots discriminating against gay people.
Once word gets out, it won’t matter that there’s an internal ecclesiastical court process working itself out. If appealed it is likely that the church courts would overturn the PJC decision until, at least, the Book of Order is amended or an Authoritative Interpretation of the Constitution is issued that reverses what the current Advisory Opinion says. Either would take months if not years to accomplish. The court of public opinion won’t wait that long. Culture is moving quickly toward an anti-Christian view which considers that kind of policy as discriminatory, even from a church. The fact that this case has risen in North Carolina in the context of the entire HB2 hysteria (the bathroom debate) just raises the public stakes.
Those of us who have been paying attention to the trajectory in the PCUSA are not surprised by the ruling but I will admit this is not the way I thought the change would come. I expected that the challenge would come in civil court first. If that had happened, it is possible that the following facts would have been on the side of the local church:
- An appeal to the church’s own theological position as expressed Part I of the Constitution, The Book of Confessions, which clearly and repeatedly defines marriage as including one man and one woman (Second Helvetic Confession, 5.246; Westminster Confession of Faith, 6.131 and 6.133; and Confession of 1967, 9.47).
- The subordination of Park II of the Constitution, the Book of Order, to Part I, The Book of Confessions. “In these statements the church declares to its members and to the world who and what it is, what it believes, and what it resolves to do.” (F-2.01).
- The fact that all officers of the Presbyterian Church (USA) are bound by their ordination vows, including: “Will you be instructed and led by these confessions as you lead the people of God?” and “Will you … be continually guided by our confessions?” (W-4.4003 c, d).
- The fact that W-4.9003 says, “In making this decision [to conduct the marriage], the teaching elder may seek the counsel of the session, which has authority to permit or deny the use of church property for a marriage service.” The case rests on the assumption that the Session’s “authority to deny” only exists if and when the teaching elder consults them. That’s not what the words say. W-4.9003 says the session has authority whether consulted or not. The session in question is exercising that authority and a civil court wouldn’t touch this case.
So, had this been a secular lawsuit brought by a gay couple who was denied a wedding, the civil court would recognize it had no jurisdiction over an internal ecclesiastical matter. In the game of chess that’s known as “Check.”
But, instead, we’re facing checkmate.
As one colleague put it in an email, “The checkmate move here is that this is a move precisely to challenge traditional marriage within the PCUSA by the PCUSA as a matter of conscience and religious freedom.”
Essentially the judicial branch (the PJC) is accusing the legislative branch (represented by the Office of the General Assembly) of lying about the status of the law and leading the people to believe their conscience was protected when, in fact, it was not. Either way, the local church loses in the court of public opinion where it will be hard-pressed to make a theological and ecclesiastical legal argument that is able to out-shout those calling them bigoted homophobes.
If the church appeals – and I think that’s a big if – the ruling may well be overturned. If it is not appealed and is allowed to stand as a piece of precedential law in the PCUSA, then it impacts thousands of congregations whose sessions have adopted similar policies.
And since we’re talking about “classes” of people, it will be interesting to see how the Korean Presbyterians respond to the PJC’s ruling and how the OGA responds to the very public accusation that it lied to the church in selling a narrative of conscience protection when in fact there was none.