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Viewpoint
May 5, 2008
On
the Spahr decision
By Ed Koster
The General Assembly Permanent Judicial Commission has handed
down a decision in the Spahr case that may have some unfortunate
consequences.
Ms. Spahr is a passionate, dedicated, winsome, and very effective
advocate for her cause. The decision has the feel that it
was decided on the weight of who she is, not the facts and
the law. It opened the door wide enough to allow her to escape
censure, while trying to close it for future cases. Whether
the door can be closed remains to be seen. But in its zeal
to clear her of censure, the GAPJC has said some things that
may return to haunt.
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The GAPJC reasoned that since W-4.900 limits marriage
to a man and a woman, what Ms. Spahr did was not a marriage.
On that rationale, I fear someone will ask the question:
Since G-6.0106b limits ordination to those who are married
or celibate, does that mean that any non-celibate gay
or lesbian who has been ordained is not really ordained?
I am guessing the GAPJC may face this kind of argument
in the future. |
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The case lifts up the provisions of W-7.0300 and W-7.0400
as calls to do justice that are "replete with admonitions
that are inconsistent with imposing censure on a minister
of the Word and Sacrament for reaching out to a marginalized
and oppressed segment of the body." This seems to
abandon the principle declared in the Londonderry
decision (a remedial case), where the PJC refused to allow
the argument that since G-6.0106b contradicted other parts
of the Book of Order, Christ Church was justified
in ignoring it. The precedent set here may be very far-reaching.
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The GAPJC refused to demand a Presbytery PJ Commissioner
be removed where there was a clear bias. This is serious.
The effect of it is that our judicial system now allows
a judicial commissioner to hold a clear bias in favor
of one position or another, trumping the notion that a
PJC is to decide strictly on what the Constitution says.
Our judicial process is already highly subject to the
politics of election, amplified by the fact that the only
enforcement authority rests in the body that elects PJCs.
Now it would appear there is no demand that a PJ commissioner
even have the appearance of neutrality. A middle or higher
governing body may thus legitimately seek to generate
a judicial interpretation of the Constitution in a way
the governing body wishes by electing judicial commissioners
that are biased. |
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The decision seems to suggest that there is a distinction
between a wedding and a marriage. If that be true, then
it may be permissible for a minister to conduct a same-sex
wedding. Which will mean that when the newspapers report
that a minister has conducted a wedding of two folks of
the same gender, only we Presbyterians will know that
to wed is not to marry. The general public in its ignorance
may assume that we allow same-sex marriages. |
The decision seems on the one hand to say it was okay that
Ms. Spahr violated the rules – because of definitions,
logic and lack of notice – while at the same
time maintaining the rules. The effect seems to be to have
been a warning to Ms. Spahr that this won't go down this way
again. This warning is made explicit in the Concurring Opinion
of Fred L. Denson, William E. Scheu, and Gregory A. Goodwiller
for Specifications of Error 1 and 2. For the record, Ms. Spahr
in her news release says that she will continue to marry same-gender
couples. It would appear that this same case may return.
Ed Koster is a minister and a lawyer, serves Detroit Presbytery
as its stated clerk, and is a candidate for stated clerk of
the General Assembly.
Note: Viewpoint articles are unsolicited essays that we believe deserve to be highlighted. Viewpoint articles often do not express the opinion of Presbyweb.
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