PERMANENT JUDICIAL COMMISSION
PRESBYTERY OF SOUTHERN NEW ENGLAND


Remedial Case No. R-1998-1      : 
     : 
MAIRI HAIR and JAMES McCALLUM,      : 
   Appellants/Complainants      : 
     : 
v.      : 
     : 
THE SESSION OF THE FIRST      : 
PRESBYTERIAN CHURCH OF      :  BRIDGEPORT, CT
STAMFORD, CT      : 
    Appellee/Respondent      :  April 14, 2000

OPINION ON REMAND FROM APPEAL
 
 

Introduction and Procedural Background

        This remedial case was filed on June 9, 1998 by two members of the First Presbyterian Church of Stamford, Connecticut (“Session”), Mairi Hair and James McCallum (“Complainants”).  The Complainants alleged irregularities by the Session in examining and approving for installation as an active elder Wayne Osborne (“Osborne”).  Osborne had publicly disclosed his sexual orientation as a “gay man”, and the Permanent Judicial Commission of Southern New England Presbytery (“PSNE-PJC”) was asked to determine the propriety of Osborne’s installation. 1

        After trial and deliberation on February 26 – 27, 1999, the PSNE-PJC issued its opinion (“PJC Opinion”).  (A true and correct copy of the PJC Opinion is attached as Exhibit 1).  The PJC Opinion upheld the Session on Count One and declined to adjudicate Counts Two and Three. 2

        On March 5, 1999 the Complainants appealed the PJC Opinion to the Permanent Judicial Commission of the Synod of the Northeast (“Synod PJC”).  The appeal of the PSNE-PJC's Opinion identified the following three specifications of error:

(a) The PSNE-PJC erred in failing to rule that the Session acted irregularly by approving Osborne for installation as an active elder when the Session’s official minutes record that the Session was knowingly acting in violation of Amendment B.

(b) The PSNE-PJC erred in failing to rule that the Session acted irregularly by approving Osborne for installation as an active elder notwithstanding his disqualification under Amendment B.

(c) The PSNE-PJC erred in failing to rule that the Session acted irregularly by proceeding to approve Osborne’s installation when it should have declared the examination incomplete and inconclusive, thus precluding his approval for installation.

        After oral argument on October 7, 1999, the Synod PJC issued its decision on October 9, 1999 (“Decision”).  (A true and correct copy of the Decision is attached as Exhibit 2)  The Decision overruled the first specification of error, sustained in part the second specification of error, and sustained the third specification of error.  The Decision also directed the PSNE-PJC to remand the case to the Session with instructions to re-open and complete Osborne’s examination.  Further, the Synod PJC ordered the PSNE-PJC “to complete their consideration of compliance with the requirements of G-6.0108b with the information received [by Session] from the re-examination of Osborne.”

        The PSNE-PJC met and discussed the Decision and then conveyed, via certified letter dated December 7, 1999, the directive of the Synod PJC to the Session (“Letter of Instruction”).  (A true and correct copy of the Letter of Instruction is attached as Exhibit 3.)

        On January 18, 2000 the Session reexamined Osborne.  The pertinent details of this reexamination are discussed fully below.

        On February 10, 2000 the Session filed with the PSNE-PJC its report (“Session Report”) regarding its further actions, including the text of its reexamination of Osborne, along with the background materials and an account of the procedures taken by the Session in response to the Decision.  (A true and correct copy of the Session Report is attached as Exhibit 4).

        The PSNE-PJC then reviewed the Session Report to determine whether Session had complied with the Decision and the Letter of Instructions.  The PSNE-PJC had two meetings to discuss and evaluate the Session actions on March 10 and 22, 2000.  Two meetings were needed to provide additional study time to new members of the PSNE-PJC who had not participated in the original Opinion.

Summary Of Opinion

        At its meeting on March 22, 2000 the PSNE-PJC again upheld the actions of the Session, after full discussion and deliberation, by the affirmative vote of five members (Sam Hamilton, Mark Carta, Gail Faithful, William Goettler, and Barbara Hager) and one negative vote (Connie Jordan-Haas).3   Specifically, on remand the PSNE-PJC determined that:

(a) The Session fully complied with the December 7, 1999 Letter of Instruction;

(b) The reexamination of Osborne was sufficient, procedurally and substantively, to satisfy the requirements of the Synod PJC Decision;

(c) The Session, having the ultimate responsibility to decide on its elders, acted responsibly in completing the examination of Osborne and has met its  constitutional responsibilities and complied with the requirements of G-6.0108b;

(d) The Session has not acted irregularly under Amendment B in its re-examination and approval of Osborne for installation; and

(e) Consequently, the PSNE-PJC hereby lifts the Stay on the installation of Osborne that has been in place since the initiation of this remedial case in June of 1998. Absent further appeals, the way is clear to proceed with Osborne’s installation.

Opinion

         The central issue in this remedial case is whether Osborne, as an elder who has publicly disclosed his sexual orientation as a “gay man”, may be installed as an active elder without violating Amendment B.  The PSNE-PJC holds that the Session’s reexamination of Osborne was regular, that Session fulfilled its responsibilities under G-6.0108b, and the language of Amendment B permits Osborne’s installation.

        The Session’s reexamination of Osborne was not irregular.  In its Decision the Synod PJC identified three specific deficiencies it found in the Session’s examination of Osborne.  First, it felt the Session had failed to explore with Osborne what he meant by his expression “chaste in God’s eyes.”  The Session not only posed this question directly to Osborne, but asked him further if he had studied the use of the term "“chaste” in Scripture.  In his response to these questions, Osborne acknowledged that “God condemns all unchastity” and that “he believes he is chaste – i.e., holy and pure – in the merciful eyes of God.”

        Second, the Synod PJC indicated that the Session needed to pursue with Osborne his statement that there are many sins referenced in the Confessions that he felt were outdated.  Again, the Session pursued this area of inquiry and obtained a thorough and thoughtful answer from Osborne which, among other things, clarified that Osborne’s earlier response “was not referencing anything in the Confessions regarding sexual orientation or practice.”

        Finally, the Synod PJC ruled that the Session had an “obligation” to insist that Osborne explain his unwillingness to discuss whether he was engaged in a sexually active partnership.  The four questions directed to Osborne and his considered responses are set forth fully below.4   At the risk of oversimplification, Osborne acknowledged that his conscience was held captive to the Word of God, and he explained that he does not believe he is condemned as sinful by Paul’s statements concerning “homosexual perversion” in Corinthians 6:9-10.  Moreover, Osborne clarified that he was not implying an answer to the question concerning his sexual practice by declining to answer this question directly.   Nevertheless, once again, Osborne declined to disclose whether he was engaged in a sexually active relationship.  In his view, and in the view of the Session that accepted his response, the use of the term “self-acknowledged practice” in Amendment B “allowed him to choose how to answer.”  In this view, the PSNE-PJC concurs.

        Undoubtedly, there are many additional questions that could be directed to Osborne.  However, this misses the point.  Osborne’s examination raises a straight-forward, easily articulated issue:  Does Amendment B permit candidates to keep their own counsel with respect to their sexual practices when undergoing an examination for installation?  We believe it does.

        Amendment B prohibits the ordination of “Persons refusing to repent of any self-acknowledged practice which the confessions call sin …”  (emphasis added). The language of Amendment B requires a voluntary, self-disclosure of a sinful practice.  Implicit in this language, therefore, is the right of candidates for installation to keep their own counsel.  This view is bolstered by the Definitive Guidance of 1978 that mandates a session to accord itself “with discretion and sensitivity.”

        It is apparent from a review of Osborne’s earlier examination and his more recent reexamination that he has chosen to exercise his freedom of conscience within certain bounds and that he views his conscience as captive of the Word of God.  It is also clear that the Session has sought to fulfill its responsibilities under G-6.0108b to ascertain whether Osborne has “departed from the essentials of Reformed Faith and Polity.”  In view of all the information obtained by the Session concerning Osborne, the PSNE-PJC concludes that the Session has discharged its duty under G-6.0108b as the ultimate arbiter of Osborne’s qualifications to serve as an officer of our Church.

        In addition to finding the Session’s reexamination of Osborne regular and that the mandate of G-6.0108b has been fulfilled, the PSNE-PJC holds that Amendment B is not a bar to the installation as an active elder of a gay man who has publicly disclosed his sexual orientation.  On remand, the PSNE-PJC has reviewed all the information obtained by the Session to determine whether the prohibition contained in Amendment B bars Osborne’s installation.  The language containing this prohibition is not in dispute.  “Persons refusing to repent of any self-acknowledged practice which the confessions call sin shall not be ordained …” (emphasis added).  While Osborne has publicly disclosed his sexual orientation, there is no factual basis for the PSNE-PJC to find that Osborne has “self-acknowledged” a “practice” that the confessions call sin.  To rule otherwise would be to rewrite Amendment B by failing to give meaning to the two terms “self-acknowledged” and “practice”.

        It has been undisputed throughout these lengthy proceedings that homosexual orientation alone is not a bar to ordination.  Nevertheless, Amendment B prohibits the installation of a candidate who has refused to repent of a self-acknowledged homosexual practice.  Where, as here, a gay man has neither refused to repent nor to self-acknowledge a homosexual practice, Amendment B is inapplicable.  By way of further guidance, the 210th General Assembly (1998) approved the following authoritative interpretation of Amendment B:

Standing in the tradition of breaking down the barriers erected to exclude people based on their condition such as age, race, class, gender and sexual orientation, the Presbyterian Church (U.S.A.) commits itself not to exclude anyone categorically in considering those called to ordained service in the church but to consider the lives and behaviors of candidates as individuals.


Thus, the public acknowledgement of a homosexual orientation is itself insufficient to invoke the prohibition established by Amendment B.  Accordingly, in the absence of Osborne’s refusal to repent of a self-acknowledged homosexual practice, Amendment B does not prohibit his installation.

        In the judgment of the majority of the PSNE-PJC, Osborne’s installation was regular, the Session fulfilled its responsibility under G-6.0108b as the ultimate arbiter of Osborne’s qualifications as a Church officer and Amendment B does not prohibit Osborne’s installation.

Dissenting Opinion

        I dissent from the opinion of the majority because I believe the Session still does not have sufficient information to determine whether Osborne is eligible to be installed “in light of his earlier comment as well as the express standard in G-6.0106b.”

     _________________________________________
     Constance M. Jordan-Haas
 
 

ORDER

 IT IS THEREFORE ORDERED that the Session’s examination of Osborne is affirmed; and

 IT IS FURTHER ORDERED that the Stay of Enforcement of the Installation of Osborne is lifted; and

 IT IS FURTHER ORDERED that: (1) the Stated Clerk of the Presbytery of Southern New England report this Opinion to the Presbytery at its first stated meeting after receipt of this Opinion; (2) the Presbytery enter the full Opinion, including the dissenting opinion, upon its minutes; and (3) an excerpt from those minutes showing entry of the Opinion be sent to the Clerk of the Permanent Judicial Commission of the Presbytery.
 
 

CERTIFICATION(S)

        We certify that the foregoing is a full and correct copy of the Opinion on Remand of the Permanent Judicial Commission of the Presbytery of Southern New England in Remedial Case R-1998-1, Mairi Hair and James McCallum v. Session of First Presbyterian Church of Stamford, Connecticut, made in session on March 22, 2000.
 
 
 

    ________________________________________
    Elder Samuel Hamilton
    Moderator of the Permanent Judicial Commission
    of the Presbytery of Southern New England
 
 

    _______________________________________
    Reverend Barbara G. Hager
    Clerk of the Permanent Judicial Commission
    of the Presbytery of Southern New England
 

        The undersigned hereby certifies that a copy of this Opinion, without exhibits, was mailed via U.S. Postal Service certified mail, return receipt requested, to the Complainants, Complainants’ Counsel, Respondent, Respondents’ Counsel, and to the Stated Clerk of the Presbytery of Southern New England (with exhibits) on this the ___ day of April, 2000.
 
 

    _______________________________________
    Reverend Barbara G. Hager
    Clerk of the Permanent Judicial Commission
    of the Presbytery of Southern New England


FOOTNOTES
[Note: In the original, the footnotes appear on the page where they are referenced.]
1  Specifically, the Complainants’ three-count Complaint requested the PSNE-PJC to:

(a) determine that Session’s examination of Osborne was irregular (Count One);

(b) determine the approval of an elder who is living in a same sex relationship, contrary to Section G-6.0106B of the Book of Order (hereafter “Amendment B”), is irregular (Count Two); and

(c) conduct all other investigations and process that is appropriate (Count Three).

2  No order was made as to Count Two as it is a hypothetical question and therefore beyond the proper scope of the PSNE-PJC.  Further, no order was made as to Count Three as the PSNE-PJC unanimously agreed that Count Three was beyond its jurisdiction and proper scope (as it is not empowered by either the Book of Order or the Bylaws of the presbytery of Southern New England to undertake investigations).

3  Lois Yohe did not participate in this Opinion.

4  Question:  What is your interpretation of Question & Answer 87 of the Heidelberg Catechism which quotes Paul (1 Corinthians 6:9-10) saying that those unrepentant of “homosexual perversion” cannot be saved?  Wayne noted that the English translation of the Heidelberg Catechim adopted by the Presbyterian Church includes this reference to “homosexual perversion” which is absent in the original German text, but acknowledged that this translation is what’s in our Book of Confessions.  Speaking of the quotation from 1 Corinthians 6:9-10, Wayne said he agreed with Paul that such behaviors as male prostitution are evil.  He drew a distinction, however, between Paul’s understanding of homosexuality and his own experience of sexual orientation.  He concluded that he does not believe that he is condemned as sinful by Paul’s text.

Question:  Do you wish to amend your answer to the question asked in May 1998 as to whether you are engaged in a sexually active relationship?  Wayne said he did not.

Question:  On what grounds do you understand your answer to be acceptable under the Constitution of the PC (USA)?  Wayne said he felt that asking such a question or demanding an answer was intimidating not only to him, but would be intimidating to anyone.  Such questions create an atmosphere of intimidation and fear.  He felt the question was directed to him on a discriminatory basis – because he had declared his homosexual orientation.  Wayne stated that G-6106B and case law require “self-acknowledgement” of a practice, which allowed him to choose how to answer.  By declining to answer the question, he was not implying a “yes” or “no” answer.  Wayne went on to say that he was deeply offended by the Complainants’ Counsels’ repeated allegation that his conscience is not held captive to the Word of God.  He said his conscience is held captive to the Word of God. He has read the scriptures almost all his life. He submits to the Word of God in the Bible, and as interpreted in the Book of Order and the Book of Confessions, and as taught by the church today.

Question:  Being familiar with G-6.0106b, G-60108b and other pertinent Constitutional provisions, is there any reason you are not eligible or qualified to be installed as an elder?  Wayne answered “No.”