wfn.org | [PCUSANEWS] Van Kuiken 'rebuke' is overturned

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Note #8217 from PCUSA NEWS to PRESBYNEWS:

Van Kuiken 'rebuke' is overturned
04207
May 3, 2004

Van Kuiken 'rebuke' is overturned

Synod PJC says rule on same-sex rites is not a 'flat prohibition'

by John Filiatreau

LOUISVILLE - The Rev. Stephen A. Van Kuiken of Cincinnati has won a reversal
of his 2003 church-court conviction and subsequent "rebuke" for having
performed same-sex "marriage" ceremonies at a Presbyterian Church (USA)
parish in Cincinnati.

The PJC of the Synod of the Covenant ruled on April 30 that the Presbytery of
Cincinnati was wrong in April 2003 when it formally rebuked Van Kuiken for
joining homosexual couples in marriage at Mount Auburn Presbyterian Church,
where he served as pastor.

The result, in the words of George W. Baird, the stated clerk of the synod,
is that Van Kuiken is "not guilty - and not rebuked." Baird said it is not
yet known whether either side will appeal the ruling.

The provision of the Book of Order Van Kuiken was found to have violated,
W-4.9001, does not mention same-sex marriages, but has been interpreted twice
- by the General Assembly in 1991, and by the General Assembly's PJC in 2002,
in Benton et al v. Presbytery of Hudson River - to mean that same-sex
marriages are "impermissible."

However, the synod PJC ruled that both interpretations "fail to define the
performance of a same-sex marriage by a minister as an offense subject to
disciplinary trial."

The commissioners ruled by a 6-4 vote that neither constitutes an outright
prohibition because the language they use is ambiguous. The 1991
"authoritative interpretation" says that a minister's performance of such
ceremonies "would not be proper." The Benton decision uses "should/should
not" language - and the preface to the Book of Order says "should" means only
"highly recommended."

Section D-2.0203b of the Book of Order defines a disciplinary offense as "any
act or omission by a member or officer ... that is contrary to the Scriptures
or the Constitution of the Presbyterian Church."

The PJC said the record in Van Kuiken's case "does not support a finding of
guilt by proof beyond a reasonable doubt." It said the presbytery PJC erred
when it interpreted W-4.9001 as a flat prohibition of same-sex marriage
ceremonies.

To enact such a prohibition, it said, would require a new authoritative
interpretation or a constitutional amendment.

"At issue," the majority wrote, "is the existing tension in the Book of Order
between the spirit and letter of the law. The spirit of a wide gracious
welcome of all people, encouraged by the Book of Order, is in tension with
the specified limitations on gay, lesbian, bisexual and trans-gendered
Presbyterians, preventing their full and complete participation in the life
of the church. This tension reflects the church's current place in history
and its ongoing struggle with the issues of human sexuality."

The synod PJC rejected two other claims Van Kuiken had made in his appeal -
that the presbytery PJC had erred by denying him the right to follow his
conscience, and that its action was invalid because its prosecution of Van
Kuiken was selective and discriminatory - by votes of 6-4 and 10-0,
respectively.

On the "freedom of conscience" claim, the PJC said: "While the Book of Order
affirms freedom of conscience, it also affirms that there are bounds to that
freedom and that 'the decision as to whether a person has departed from
essentials of Reformed faith and polity ... ultimately becomes the
responsibility of the governing body in which he or she serves." It said the
phrase "essentials of the Reformed faith and polity" is "vaguely defined."

"Some in the church would say that the prohibition of same-sex marriages is
an essential of the Reformed faith," it said, "but others would strongly
disagree."

The commissioners said Van Kuiken's claim of selective and discriminatory
prosecution "is tantamount to an argument that the prosecution of speeders is
selective and discriminatory simply because not all who speed are apprehended
and prosecuted for the offense."

In February, a synod PJC ruling on another appeal restored Van Kuiken to
membership in the Presbytery of Cincinnati as an at-large member. Neither
that decision nor this one affects an agreement he negotiated last year
dissolving his pastoral relationship with Mount Auburn Presbyterian Church.

In the earlier case, the synod PJC ruled that the Presbytery of Cincinnati
was wrong last summer when it stripped Van Kuiken of his ordination for
having performed a same-sex marriage in defiance of a direct order from the
presbytery's PJC, because its action violated a stay of enforcement Van
Kuiken had obtained; it wrongly presumed that he had renounced the church's
jurisdiction without first determining that he had performed "a work"
disapproved by The Book of Order; he had not been given proper notice of the
PJC's decision or the potential consequences of his defiance; and  Van
Kuiken's performance of a same-sex marriage ceremony was not "a work" as the
term is used in the Book of Order (G-6.0502).

Van Kuiken, a 19-year veteran of the ministry, now belongs to a
non-denominational faith community in Cincinnati, known informally as the
Gathering, that he says "has come together around a group of former members
of Mount Auburn church."

The synod PJC members who participated in the latest decision are Elder Peggy
J. Schmitz of the Presbytery of Muskingum Valley; Elder William R. Newcomb of
Miami Presbytery; the Rev. Ross B. Jackson of Eastminster Presbytery; the
Rev. David A. Van Dyke of the Presbytery of Scioto Valley; Elder Marry M.
Waterstone of the Presbyteryof Detroit; the Rev. John William Becker of the
Presbytery of Lake Huron; the Rev. Richard Shipley of the Presbytery of
Maumee Valley; the Rev. William MacKay Taylor of the Presbytery of Mackinac,
Elder Ken Hook of the Presbytery of Western Reserve; and the Rev. John V.
Folkers of the Presbytery of Lake Michigan.

Two dissenting opinions were issued with the PJC's majority ruling:

Four commissioners (Becker, Jackson, Hook and Shipley) called the majority
decision in Van Kuiken's favor "an improper and unjustified attempt to
rewrite the clear and unambiguous meaning of W-4.9001 of the Book of Order to
reach a result ... which can only be accomplished by a legislative amendment
to that Book of Order."

They added, "It is not the role of an appellate court such as this PJC to
'fill in the blanks' in the Book of Order. One does not properly go to the
Book of Order looking for what it does not say, and then assume that silence
is permission to do what one wants."

A different group of four commissioners (Schmitz, Taylor, Van Dyke and
Waterstone) objected to the decision that the presbytery was not wrong to
overrule Van Kuiken's freedom of conscience. They argued that, after the
presbytery PJC determined that Van Kuiken and Mount Auburn had interpreted
W-4.9001 wrongly, it should have returned the matter to the presbytery for a
decision as to whether the same-sex marriage issue "rises to the level of an
'essential of the Reformed faith and polity.'"

The dissenters wrote: "The (presbytery) PJC either chose not to address the
issue of conscience, or assumed that the issue of gay marriage is an
'essential of Reformed faith and polity.' This ... is especially significant
in a situation which sets a literal reading of certain passages of the Bible
against portions of the Book or Order regarding love and inclusion, and where
there is a significant lack of unanimity on the provision among members of
the church."

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