PERMANENT JUDICIAL COMMISSION

SYNOD OF THE NORTHEAST

PRESBYTERIAN CHURCH (USA)

___________________________

Case No. 99-5

In the Matter of the Appeal of
Main Hair and James McCallum, Appellants/Complainants

V.

The Session of the First Presbyterian Church of Stamford, CT, Appellee/Respondent
 
 

This is an appeal of a decision of the Permanent Judicial Commission ("PJC") of the Presbytery of Southern New England ("PSNE") dated March 5, 1999 involving three (3) claims of irregularities by the PJC of the PSNE.

On July 9, 1999, the Executive Committee (moderator and acting clerk) of the PJC Synod of the Northeast determined:

a. this Commission had jurisdiction;
b. the appellant had standing to file the appeal;
c. the appeal papers were properly and timely filed; and
d. the appeal states the grounds for appeal set forth in D-8.0105c, f and g.

At its meeting on October 7, 1999, in Bedford, New Hampshire, the PJC of the Synod of the Northeast affirmed that decision of its Executive Committee.

Oral argument was heard by this PJC on October 7, 1999.

 

PROCEDURAL BACKGROUND

This is a remedial case initiated against the Session of the First Presbyterian Church of Stamford, Connecticut (hereafter "Respondent" or "Session"), by two members of the First Presbyterian Church ("FPC"), Main Hair and James McCallum (Complainants"), concerning the installation of Mr. Wayne Osborne as an elder in active service.

Mr. Osborne's installation was originally scheduled to be held on June 14, 1998. On June 3, 1998, the Complainants obtained a Stay of Enforcement of the installation signed by three of the members of the PSNE-PJC. On June 9, 1998, a complaint was filed with PSNE.

Pursuant to the Presbyterian Church (U.S.A.) Book of Order (hereafter, "Book of Order") Section D-6.0308, on August 11, 1998 the PJC of the PSNE found that:

(1) it had jurisdiction to hear the case;
(2) the complainants had standing;
(3) the complaint had stated claims upon which relief could be granted; and
(4) the complaint was timely filed.

The complaint contained three counts requesting the PSNE-PJC:

(1) to determine that Session's examination of Osborne was irregular (Count One);
(2) to 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
(3) to conduct all other investigations and process that is appropriate (Count Three).

After trial and deliberation on February 26-27, 1999, the PSNE-PJC determined that Count One of the complaint was denied with a dissent by Reverend William Showalter, and that Counts Two and Three were not adjudicated.

HISTORY

Osborne is a member of FPC and an ordained elder. He previously served one term commencing in June, 1994 on the FPC Session. At the time of his ordination as an elder, Osborne had made no public disclosure of his sexual orientation. Between the time of that service, and the events underlying this complaint, Osborne publicly declared his homosexual orientation at a regular meeting of the PSNE.

In the Spring 1997, the FPC Session declared a "scruple" taking exception to Book of Order Section G-6.0106b, commonly known as "Amendment B." In the early months of 1998, the FPC Nominating Committee began its work of nominating a new slate of elders and deacons. In February 1998, it received Osborne's name in nomination as an elder. The Nominating Committee subsequently placed Osborne's name on its list of nominees for elders to begin service in the Spring of 1998.

Between the May 1997 "Declaration of a Scruple" and the final Session meeting in Spring 1998 in which Osborne was examined and approved, the congregation of FPC conducted a variety of educational events regarding homosexuality.

No decision was reached by the PJC of the PSNE majority as to count two of the complaint, as it was a hypothetical question and therefore beyond the proper scope of the PJC of the PSNE. The PJC of the PSNE unanimously agreed that count three was beyond its jurisdiction and proper scope (as it was not empowered by either the Book of Order or the Bylaws of the Presbytery of Southern New England to make investigations) it was not addressed in their ruling.

The entire slate of nominees was elected by the congregation in April 1998. The Session next examined the elders and deacons on May 27, 1998.

The Session approved all the nominees, and the ordination/installation service was scheduled. A Stay of Enforcement and the complaint followed before PJC of the PSNE.
 
 

STIPULATION OF FACTS BY THE PARTIES

At pre-trial in the PSNE-PJC preceding on November 7, 1998, the Complainants and the Respondent agreed to the following facts, and that all minutes and papers submitted by Respondents with and referenced in the Answer, and in the Document List Exhibit AA and forwarded to The Rev. Stewart A. Pollock, Stated Clerk of the PSNE by letter dated July 3,1998 from Elder Joyce M. Mitchell, Clerk of the Session of First Presbyterian Church of Stamford CT., were true copies of the referenced original(s):

"1. On or about June 19, 1994, Osborne, a member of the First Presbyterian Church, Stamford, CT. was duly ordained an elder of that church, and subsequently was installed and served on the session.

2. Osborne declared his sexual orientation as a gay man.

3. Section G-6.0106b of the Form of Government was, at all times relevant to this proceeding, a part of the Book of Order which, together with the Book of Confessions, constitutes the Constitution of the Presbyterian Church (US.A.) of which the FPC is a member. Said section has been and continues sometimes to be referred to as "Amendment B" and is so referred to in the minutes of the Session an other documents referenced in the Exhibit AA.

4. On May 20, 1997, the Session approved a "Response to Amendment B" and other documents referenced in Exhibit AA in which it states it declared a scruple, and filed the same. Exhibit B is a copy of the minutes of the May 20, 1997 Session meeting. Exhibit B-1 is a copy of the May 20, 1997 correspondence to FPC congregation including said "Response to Amendment B."

5. The Nominating Committee of FPC nominated Osborne to stand for election for the office of elder in its meetings on January 26, 1998 and February 9, 1998. Exhibit C and Exhibit D are copies of the minutes of the January 26, 1998 and February 9, 1998, Nominating Committee meetings, respectively.

6. Forums to which the entire Congregation of FPC was invited were held at FPC on April 19, 1998; May 7, 1998 and May 10, 1998 to discuss the nomination of Osborne.

7. At the request of Session, Southern New England Presbytery Council representatives Martha Highsmith and Phil Luckhardt attended the April 19, 1998 Session meeting and discussed the nomination of Osborne, as further referenced in the minutes of said meeting, Exhibit E. Exhibit F is a copy of correspondence dated March 20, 1998 to Presbytery Council inviting attendance at the April 19, 1998 Session meeting.

8. The results of the May 1 7, 1998 election by the Congregation by written ballot for the office of elder(s) are correctly reported in Exhibit G.

9. The May 17, 1998 Congregational meeting was duly and properly called and was conducted, according to the record of such meeting, a copy of which is Exhibit G.

10. On May 27, 1998, the Session examined and approved Osborne for installation as an elder of FPC, as evidenced in Exhibit H, a copy of the minutes of the May 27, 1998 Session meeting. Exhibit H-i is a copy of the "Statement of Wayne Osborne to the Session 5/27 98."

11. Pursuant to D-6. 01 03c of the Book of Order, the installation of Osborne as an officer of FPC was stayed pending this proceeding pursuant to a Stay of Enforcement issued by the PJC. Exhibit I is a copy of the Stay of Enforcement.

12. All meetings of the Session and Congregation referenced in the Exhibits, Exhibit AA and in this Stipulation of Facts were duly called and held.

13. The Nominating Committee referenced in the Exhibits and in this Stipulation of Facts was properly constituted, and its meetings were duly called and held.

14. All references in the Exhibits and in the parties' Stipulation of Facts about "an elder who is in a same sex relationship", "a gay person living in a committed loving relationship ", and "the candidate... in a committed gay relationship" refer to Osborne.

15. The word "gay" also means "homosexual."

16. All letters included in the Exhibits and in the parties' Stipulation of Facts were mailed to the addressees.

17. All meetings of the Session, the Congregation of FPC, and the Nominating Committee for which minutes are included in the Exhibits and in the parties' Stipulation of Facts, were duly called and held

18. The Complainants are members of FPC and as such have standing to bring the Complaint. The Complaint was timely and properly filed with the Clerk of the Presbytery of Southern New England and said Presbytery has jurisdiction.

19. The Session has elected John Harter, Debbie Hurrell and Meg Nosenzo to serve as Committee of Counsel. The Complainants have appointed Walter Baker, William Prey and Marilyn A bbazia to serve as their counsel.

20. An Answer to the Complaint dated July 3, 1998 was filed on behalf of the Session. Among other things, it requested the PJC consider 'whether the complaint fails to state a claim upon which relief can be granted

Since the above facts were stipulated by the parties, this PJC is bound by those stipulations. All of the documents referenced in the stipulation are a part of the record before this PJC and are not attached to this decision.
 
 

SPECIFICATIONS OF ERROR

1. The PSNE-PJC erred in failing to rule that the Session acted irregularly by approving an officer-elect ("Osborne") for installation as an active elder when the Session's official minutes record that the Session was knowingly acting in violation of G-6.0106b.

This specification is not sustained. The official minutes, letters, and exhibits entered as evidence were weighed against and taken into consideration along with testimony at trial and were considered in total. The Synod PJC relies on Hardwick v PJC of North Carolina (Minutes, PCUS, 1983, Part L Pp. 44-45) which holds:

...the lowest court of jurisdiction, in this case, the Presbytery, is in the best position to determine issues of fact, including the justification of those involved for their acts and/or omissions. Judgments of a lower court on factual issues are favored with a presumption of correctness and are not to be disturbed unless plainly or palpably wrong, without supporting evidence, or manifestly unjust.
2. 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 G-6.0 108b.

This specification is sustained in part.

PSNE-PJC erred when they failed to rule on the issue raised by the complainants regarding the implications ofG-6.0108b in this matter. We return this matter to the PSNE-PJC to be addressed by them as the trial court, taking testimony and completing action in this regard.

3. 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.

This specification is sustained.

We find three deficiencies in session's examination. First, the FPC session failed to explore with Osborne what he meant by his expression "chaste in God's eyes." Lacking an explanation of Osborne's intended meaning by this characterization means that the session failed to complete their examination.

Secondly, Osborne's indication that, " there are many 'sins' mentioned in the confessions that I believe are outdated or out of step with current beliefs and teachings" opens an area of further question that session cannot let stand without further information to enable the session to make an informed decision regarding the candidate's qualification to be installed as an elder in active service.

Finally, Osborne's response "I decline to answer this question" when asked, "Is this a sexually active partnership?" leaves the issue in limbo. Session at this point had a obligation to ask Osborne to explain his response, as pertinent to the issue of eligibility in light of Osborne's earlier comment as well as the express standard in G-6.0106b, second sentence.
 
 

ORDER

It is therefore ordered that the matter is reversed and remanded to the PJC of the PSNE with the following instructions:

(1) Direct the session of FPC to re-open and complete the examination as set forth in Specification 3;

(2) Thereafter, the PSNE-PJC shall complete their consideration of compliance with the requirements of G-6.0108b with the information received from the reexamination of Osborne;

(3) The stay of Osborne's installation continues in force until the PSNE-PJC decides the case;

(4) The Clerk of Session of FPC report this decision to the session of the church at their first meeting, and that an excerpt from the minutes showing entry of the decision be sent to the Stated Clerk of the Synod of the Northeast;

(5) The Clerk of PSNE report this decision to the Presbytery at their first meeting, and that an excerpt from the minutes showing entry of the decision be sent to the Stated Clerk of the Synod of the Northeast.
 
 

ABSENCES AND NON-PARTICIPANTS

Commission member Rev. Stewart Pollock, member of the Presbytery of Southern New England, took no part in the deciding of this case on the basis of D-5.0205. Rev. Craig Kerewich was present for the hearing but did not vote on this case.
 
 

Dissenting Opinion on Specification of Error No. 1


I respectfully dissent as to the ruling on specification of error #1 based on the clear and convincing evidence of record regarding the session's prior knowledge that Mr. Osborne's installation would be in violation of G6.0106b. The following reasons are presented in support of my dissent:

1.) FPC, Stamford knew well what they were doing as they studied matters related to G-6.0106b thoroughly for over two years.

2.) The minutes were circulated, reviewed and approved as preserved in the record and as such, when considered along with the numerous congregational communications that are part of the record, reflect an accurate "state of mind" of the session as a whole. Minutes, approved and entered as permanent record must be accorded due study and weight - at least equal to that of any apparent contradictions taken in oral testimony.

3.) Mr. Osborne is self-acknowledged as to his lifestyle and gay relationship and while he refuses to answer the direct question regarding sexual activity, the principle of self acknowledgment which rests largely on the distinction between orientation and practice should not be limited exclusively to sexual activity, but depends more on repentance in relation to lifestyle as per living in a loving committed homosexual relationship."

4.) The finding of the lower governing body, PSNE-PJC, is plainly wrong as Mr. Osborne's self acknowledges having a homosexual relationship (examination). This satisfies the criteria set up by Hardwick v. PJC of North Carolina.

For these reasons, I believe specification of error # 1 should have been sustained.

Respectfully submitted,

D. Dean Weaver
 
 

Dissenting opinion on specification error number 3:


While concurring with the majority of the Commission on specifications one and two, we dissent on specification three. We believe that, while one's freedom of conscience must be exercised within certain bounds, it is ultimately the "responsibility of the governing body in which he or she serves to determine whether or not the candidate "has departed from the essentials of Reformed faith and polity." (Book of Order G-6.0108b). In this case, that responsibility concerning Mr. Osborne's candidacy lay with the Session of FPC. In the Session's judgment they had fulfilled this responsibility in the examination they conducted.

Furthermore, the Presbytery reviewed that examination and found that the Session was not defiant but acted in good faith. They agreed that the Session had done what they were required to do to approve Osborne for installation. Hardwick v. Permanent Judicial Commission of Synod of North Carolina {PJC (PCIJS 1983,45)1 held that, in reviews of Sessions,

 
"... the lowest court of jurisdiction, in this case, the Presbytery, is in the best position to determine the issues of fact, including the justification of those involved for their acts and/or omissions. Judgments of a lower court on factual issues are favored with a presumption of correctness and arc not to be disturbed unless plainly or palpably wrong, without supporting evidence, or manifestly unjust."
We rely on this court case and affirm this principle in upholding the decision made by the presbytery PJC on this count.

Judith A.Wollenberg

Catherine T.R. MacDonald

Susan G. De George
 
 

CERTIFICATION
 
 

We certify that the foregoing is a full and correct copy of the Decision of the Permanent Judicial Commission of the Synod of the Northeast in Remedial Case 99-5, Main Hair and James McCallum v. The Session of the First Presbyterian Church of Stamford, CT.

Fred L. Denson, Moderator William E. Chapman, Clerk Pro-Tern
 
 

I certify that I did transmit a certified copy of the foregoing to the following persons by certified mail, return receipt requested, depositing it in the United States Mail at Hillsdale, NJ on October 12, 1999.

Rev. Stewart Pollock
Stated Clerk of the Presbytery of Southern New England

Joyce Mitchell
Clerk of Session, First Presbyterian Church of Stamford, CN

Mr. Walter Baker
Counsel for Appellants/Complainants

Mr. John Harter
Counsel for AppelleeslRespondents

Rev. Joanna Johns Jung
Stated Clerk, Synod of the Northeast

William E. Chapman, Clerk Pro Tem
Permanent Judicial Commission Synod of the Northeast