Alan Wisdom
February 17, 2011
Many traditional Presbyterians have been upset about the decision of the General Assembly Permanent Judicial Commission (GAPJC) in the case of Jean K. Southard v. Presbyterian Church (U.S.A.) through the Presbytery of Boston. Their distress is understandable. Southard, a now-retired minister in Waltham, Massachusetts, performed a purported “marriage” between two women—despite the fact that the PCUSA constitution states clearly and repeatedly that marriage is between a man and a woman. The result of the GAPJC decision is to confirm a Boston judicial panel’s verdict that Southard is “not guilty” of violating the PCUSA constitution.
It would appear that Southard has defied the church’s doctrine of marriage with impunity. Nor is she the first same-sex-marrying minister who has been let off the hook in this manner. It is no wonder that some people are angry.
But, as is often the case with GAPJC decisions, it is necessary to look past the verdict of “guilty” or “not guilty” and examine the underlying reasoning. What is most important is not whether Jean Southard is punished or not punished—at most she would have received a mild rebuke—but what the church says about marriage. By that standard, the Southard decision contains much that is strong and positive.
An Open-and-Shut Case
On its face, the case would seem to be open-and-shut. On March 1, 2008, Southard officiated at a ceremony for Jennifer Irene Duhamel and Sara Jane Herwig. The program called it “A Service of Christian Marriage and Worship.” It followed very closely the standard wedding liturgy in the PCUSA Book of Common Worship. After the exchange of vows, Southard pronounced the two women to be “joined together in holy marriage” and invited them to “seal the covenant of marriage with a wedding kiss.” This “marriage” was entered into the registry of First Presbyterian church of Waltham and attested to the Commonwealth of Massachusetts by Southard’s signature on the wedding certificate.
Under current Massachusetts law, the union of Duhamel and Herwig is recognized as a marriage. But it is not a marriage under the PCUSA constitution. The Westminster Confession defines marriage as a “spiritual and physical union [of] one man and one woman” (6.131) —an understanding also reflected in the Second Helvetic Confession (5.246) and the Confession of 1967 (9.47). The Book of Order defines marriage thus:
Marriage is a civil contract between a woman and a man. 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. In a service of Christian marriage a lifelong commitment is made by a woman and a man to each other, publicly witnessed and acknowledged by the community of faith.” (W-4.9001)
A 1991 authoritative interpretation of the General Assembly stated that “it would not be proper for a minister of Word and Sacrament to perform a same sex union ceremony that the minister determines to be the same as a marriage ceremony.” A 2000 GAPJC decision allowed same-sex union ceremonies, but with the proviso:
Ministers should not appropriate specific liturgical forms from services of Christian marriage or services recognizing civil marriage in the conduct of such ceremonies. They should also instruct same-sex couples that the service to be conducted does not constitute a marriage and should not be held out as such.
Obviously, Southard did appropriate liturgical forms from a service of Christian marriage. She did determine the union of Duhamel and Herwig to be the same as a marriage and instructed them that it was a marriage. So how could the Waltham minister possibly be judged “not guilty”? The answer is that she got off on a technicality.
A Technicality
A 2008 GAPJC decision in the case of Jane Adams Spahr v. Presbyterian Church (U.S.A.) through the Presbytery of Redwoods ruled that the previous language—“would not be proper,” “should not appropriate,” “should also instruct”—was not sufficiently binding to bar a minister from conducting a same-sex “marriage.” So that GAPJC, like the current one, found the accused minister to be “not guilty” of conducting an unauthorized same-sex marriage. But it also did something more important: It laid down an unequivocal prohibition to apply in the future: “Officers of the Presbyterian Church (U.S.A.) who are authorized to perform marriages shall not state, imply, or represent that a same sex ceremony is a marriage because under W-4.9001 a same sex ceremony is not and cannot be a marriage.”
Here, however, is the technicality that spared Southard: The Spahr case was decided on April 28, 2008—seven weeks after the Duhamel-Herwig ceremony in Waltham. The 2011 GAPJC found that the unequivocal prohibition in the Spahr decision could not be applied retroactively to condemn Southard. Therefore, she was “not guilty.”
This reasoning is very frustrating. The Scriptures are clear that marriage is between a man and a woman. The Book of Confessions is clear. The Book of Order is clear. All the authoritative interpretations prior to the Spahr case are clear. When this author was called to testify as an expert witness in the Southard trial in Boston in August 2009, he insisted: The Spahr decision was simply restating in stronger language what was already evident: There is no room in our church doctrine for a “marriage” between two members of the same sex.
Three members of the GAPJC, in a concurring opinion, made a similar point. “[I]t is disingenuous of Southard to claim that no guidance was available from the larger church on the advisability of performing a same-gender marriage,” they said. “Southard should have consulted not only the Session about the advisability of officiating at this ceremony, but should have considered the guidance already available through the larger Church.” That guidance would have counseled unanimously: No, this relationship between members of the same sex is not a marriage.
The Bottom Line: Church Teaching Reaffirmed
The crux of the Southard decision is that it reaffirmed the PCUSA’s historic understanding of marriage. It refused to accept the contention of Southard’s defense that the PCUSA lacks a clear definition of marriage that limits it to a man and a woman. It turned aside the defense’s suggestion that because Massachusetts had changed its definition of civil marriage, therefore the PCUSA had to adjust its definition of Christian marriage.
A unanimous GAPJC upheld the strict Spahr standard. It concluded:
The question before this Commission, then, is whether the Massachusetts law defining this relationship [Duhamel and Herwig] as a legal marriage changes the impact of the definitions in W-4.9001. This Commission holds that it does not. While the PCUSA is free to amend its definition of marriage, a change in state law does not amend the Book of Order. It is the responsibility of the church, following the processes provided in the Constitution for amendment, to define what the PCUSA recognizes as a “Christian marriage.” Consequently, Spahr’s holding, “By the definition in W-4.9001, a same sex ceremony can never be a marriage,” remains in effect.
The PCUSA doctrine of marriage is stronger, not weaker, after the Southard decision. Two concurring opinions that seem to point in a different direction do not alter that fact. One concurrence went beyond the duty of the GAPJC to interpret and apply the constitution. Instead it advocated a change in the constitution: “We urge the General Assembly to amend the constitution to allow for the marriage of same sex couples in the PCUSA, and otherwise welcome gay, lesbian, and bisexual people into the full fellowship of the church.” Yet members of the GAPJC have no role in the process of amending the constitution.
The other concurrence alleged that the Book of Order passage cited above fails to “provide an effective and unambiguous definition of Christian marriage.” It claimed, unconvincingly, that the repeated references to “a woman and a man,” “a man and a woman,” “a woman and a man” are merely “ancillary elements in the text” that cannot “rise to the level of legal intention or definitional weight.”
One wonders how many more passages in Scripture, the confessions, the Book of Order, and the authoritative interpretations it would take to satisfy these doubters mired in ambiguity. It seems unlikely that another constitutional amendment, as they suggested, would really resolve the definition of marriage in their minds. But in any case, the two concurrences were endorsed by a total of only seven of the 20 members of the GAPJC. The solid majority of the commission apparently holds to Christian marriage as “a covenant through which a man and a woman are called to live out together before God their lives of discipleship.”
Undoubtedly, there will be more pastors like Southard who are determined to ignore that constitutional definition of marriage. It will not be possible to discipline all of them—particularly those in liberal presbyteries such as Boston. Nevertheless, the vast majority of PCUSA pastors are sincere in their vow to be governed by our church’s polity. They will be guided by the biblical, confessional teaching on marriage that the GAPJC has once again reaffirmed. That is why the Southard decision, frustrating though it may be in some respects, is worthy of the church’s careful attention.
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