One gray, drizzly morning in March, nine Presbyterian pastors and elders--each a member of the Permanent Judicial Commission (PJC) of the Synod of the Pacific--gather together in a makeshift courtroom at the Red Lion Hotel near Oakland's airport to consider the appeal of a 68-year-old retired minister named Jane Adams Spahr. Just the year before, Rev. Spahr had been tried by a lower, presbytery court for officiating, in 2008, at 16 same-gender wedding ceremonies. And even though that court made no attempt to have her defrocked as a minister, the six-judge panel did muster up the four votes needed to issue a rare rebuke. (The censure was then stayed pending further review.)
"They're trying their best not to martyr me," says Spahr, a lesbian herself who for decades has worked for greater inclusion of homosexuals in the life of the church.
Like so many other mainline Protestant groups, the roughly 2.1 million Americans who make up the largest Presbyterian denomination in the country--Presbyterian Church USA (PCUSA)--are sharply divided over the sanctioning of same-sex unions. But for Presbyterians the controversy is being played out in an elaborate, ecclesiastical judicial system that incorporates multiple layers of review--including a supreme court--and a constitution, encoded in part by a 495-page document known as the Book of Order. This book exhaustively details procedures of worship and rules of discipline for clergy and parishioners alike. Yet, much like their secular counterparts, the judges who serve on the church's courts do not always decide cases in a straightforward manner. Rather, they'll hedge and parse from time to time, leaving the church with enough theological wiggle room to head off massive defections. With the issue of same-sex marriages, though, PCUSA may well be approaching a day of reckoning.
To be sure, Presbyterians aren't the only ones who adjudicate their disputes within their own separate legal universe. Roman Catholics, after all, have had their canon laws for centuries. However, Catholic tribunals are conducted almost entirely behind closed doors, while Presbyterian proceedings are open to all comers; even outside "counsel" are welcome--as long as they happen to be members of the church.
"It's a reflection of the nonhierarchical, democratic approach that Presbyterians are proud of," says the Rev. Dr. Jack Rogers, a 77-year-old theologian and minister who, as moderator of PCUSA's General Assembly from 2001 to 2002, was the highest-ranking member of the church's supreme legislative body. This democratic spirit is further reflected by the critical role played by the church's 173 presbyteries, which frequently weigh in on matters of concern. In fact, since 1996 the presbyteries have voted six times on questions related to both same-sex marriage and the ordination of openly gay ministers. And just this spring they made headlines by approving a change to the denomination's constitution that could pave the way for gays and lesbians in active relationships to enter the ministry with the church's blessing. Church conservatives, of course, vow to overturn that vote.
At Spahr's appeal hearing in Oakland, she is represented by two lawyers. One is Sara M. Taylor, a San Francisco sole practitioner. The other is Scott Clark, a recent graduate of the San Francisco Theological Seminary in San Anselmo (Spahr's alma mater) who used to practice law in Alabama. Meanwhile, on the other side sits the prosecutor, JoAn Blackstone, a regal 78-year-old retired attorney with long blond hair braided around the top of her head. The Mendocino elder is in turn joined by a pastor from Fort Bragg.
The judges themselves--five women and four men--sit behind a semicircular table facing counsel and a crowd of about three dozen observers, almost all of whom are there to support Spahr.
It has, in many ways, the look and feel of a Ninth Circuit proceeding. But this aura of secular formality dissipates somewhat when the presiding judge on the PJC, an attorney from Boise, Idaho, named Ruth Goldthwaite, asks those assembled to rise for an opening prayer.
Gracious God, ... let us feel your presence with us today. ...Calm us, center us in your will and purpose, and grant that all that we say and do here would honor you and your word.
Within church circles, Goldthwaite is known as a moderately progressive elder who supports a more inclusive posture toward gays and lesbians within the church. However, no such sentiment is betrayed in the heavily scripted way she conducts the hearing. Nor for that matter do the other eight judges show any emotion--except perhaps when Melvin Khachigian, a Bakersfield real estate executive on the panel, interrupts the appellant's oral argument to register a distinct note of skepticism. Clark, at this point, is insisting that in rebuking Spahr the lower presbytery court committed no fewer than 13 errors. For example, he argues, a requirement that ministers "discriminate" against same-gender couples in administering the sacrament of marriage violates both the church's constitution and its scriptural teachings.
"Have you heard of the spaghetti defense?" Khachigian breaks in. "That's when you throw spaghetti at the wall to see what sticks, and I think that's what you've done here."
Apart from Spahr herself, no on in this converted banquet hall takes these proceedings more personally than her attorney Sara Taylor. Before going into law, Taylor, now 57, had abandoned her own plans to enter the Presbyterian ministry after coming out as a lesbian. She passed the bar in 2004 without going to law school, and set up her own practice specializing in civil rights work, often with gays and lesbians as clients. To help pay the bills, she also does trust and estate work.
Three years ago in April at the denomination's headquarters in Louisville, Kentucky, Taylor helped win an acquittal for Spahr after the minister was brought up on charges of performing "holy unions" on behalf of two lesbian couples. On that occasion, the 16 judges of the General Assembly Permanent Judicial Commission (GAPJC), which is the church's supreme court, cleared Spahr without settling anything. Instead, they ruled that since the church doesn't recognize same-sex unions, Spahr couldn't have violated its constitution, which explicitly defines marriage as the union between a man and a woman. In other words, there was no violation because, in the eyes of the church, the marriages didn't happen. It was a masterful hedge.
But in Oakland the PJC considering Spahr's case finds itself in a much tighter corner: Here the wedding vows at issue occurred within that brief window of time in 2008 when same-sex marriages were legal in California--after the California State Supreme Court effectively legalized such unions in June, but before the November passage of Proposition 8, which banned them.
"Please make no mistake," Taylor tells the panel, "the Rev. Spahr believes these marriages to be holy in the eyes of God."
She delivers this line with the passion of someone who is defending her own marriage. And in fact, she is. Even now Taylor tears up when she recalls her June wedding three years ago in the café garden of the Marin County Civic Center when she married Sherrie Holmes, the woman who'd been her longtime partner. Friends, family, and more than a few curious onlookers witnessed the ceremony Spahr performed. Given their friendship, which dates back to the early 1980s, Taylor says, Spahr was the only minister she considered for the occasion.
As Spahr's lawyer, though, that relationship has presented Taylor with some additional challenges. Most notably, at Spahr's initial presbytery trial in Napa last summer, Taylor had to let Scott Clark try the entire case so that she could testify as one of the brides.
But throughout the current proceedings, Taylor isn't the only one who claims a special relationship with the accused. In fact, when it comes time for JoAn Blackstone to address the PJC in Oakland, she begins by referring to Spahr as "a dear and longtime friend." Soft-spoken and meticulous, the prosecutor lays out her case in less than a third of the time it takes Taylor and Clark. A former in-house counsel for a credit union trade association, Blackstone has no prosecutorial background to speak of. But as a longtime church elder, she's been involved in this case from the start.
As a matter of ecclesiastical law, presbyteries must investigate all accusations that are filed against PCUSA ministers. Investigative committees are appointed as grand juries of a sort. And if a panel decides to file charges, it then becomes a prosecuting body.
For Spahr's case, Blackstone participated in both phases of the investigation conducted by the Presbytery of the Redwoods, which includes the Mendocino Presbyterian Church where Blackstone is one of 150 members. Blackstone says she agreed to serve as Spahr's prosecutor out of "a sense of duty to uphold the church's constitution" and to see to it that the issue was presented clearly and as apolitically as possible. She declines, however, to say whether she personally believes the denomination should sanction same-sex marriage. "My personal views are of little relevance," she insists.
Interestingly enough, Blackstone's late husband, San Francisco police sergeant Elliott Blackstone, served for years as a liaison to the city's gay community and was widely praised for helping improve SFPD's relations with lesbian, bisexual, gay, and transgender residents. The couple at one time even served on the board of a nonprofit Spahr founded to serve as a bridge between the Presbyterian church and its gay members.
Nevertheless, Blackstone presses the case against Spahr with as much intensity as the church's most vociferous conservatives--albeit with a grandmother's charm. The PCUSA, she tells the panel, should welcome same-sex couples and baptize their children after civil marriages. But then she adds, matter-of-factly, "Under the laws of our church, we cannot recognize as marriage a marriage between two same-gender people."
Even with occasional snickers and frowns coming from the pro-Spahr gallery, the proceedings at the Red Lion remain remarkably civil.
Among the Presbyterian faithful, openly gay and lesbian church members lament their second-class status when it comes to the church's long-held resistance to ordaining them as ministers and recognizing same-gender marriages. Traditionalists see their demands as an assault on biblical teaching.
This disagreement, according to recent surveys, divides the denomination almost exactly in half. It has also led to the loss of some churches within the PCUSA. In fact, since 2007 some 300 churches--out of more than 11,000--have left the denomination, and another 100 are said to be in the process of doing so. The Rev. Carmen Fowler LaBerge, a North Carolina minister who edits The Layman
, a newsletter that reflects the sentiments of PCUSA conservatives, calls it a "slow-motion exodus," and is among those who foresee a much larger schism. Another is Terry Schlossberg of the Presbyterian Coalition, based in Richmond, Virginia. "Depending on how the next few months play out," she says, "we would expect to see more churches pull away."
Others are more sanguine. "People make loud noises about schism, but I would be surprised and disappointed if many of them left," says Pamela Byers, executive director of the San Francisco–based Covenant Network, which advocates for more equal treatment of gays and lesbians by the church.
PCUSA traces its theological roots back to the 16th-century Calvinist teachings of the Reformation. Yet the denomination itself is relatively new, formed in 1983 by a merger of two moderate-to-liberal groups: the United Presbyterian Church in the USA (UPCUSA), and the Presbyterian Church in the United States (PCUS). Poised between the United Church of Christ, which now unambiguously endorses same-sex marriage and permits the ordination of gay clergy, and the United Methodist Church, which maintains a celibacy requirement for unmarried ministers and won't ordain gays or lesbians, PCUSA maintains a moderately liberal position--even though it has never formally abandoned a holdover PCUS ruling that "Unrepentant homosexual practice does not accord with the requirements of ordination."
On the legislative side, the denomination's 173 presbyteries elect roughly 600 ministers and elders to the PCUSA's General Assembly, which meets every two years for about a week in open sessions that usually draw another 2,000 or so observers. At these meetings the delegates issue edicts and promulgate changes to the church's constitution, which must then be ratified by the presbyteries. The church's high court in turn meets quarterly to interpret what the constitution actually means. Neither body, however, has the power to overrule the other, which almost guarantees a state of inertia. As Dr. Rogers, the theologian, observes: "In our organization, the final word lasts only until the next one of the two bodies meets."
Rogers's involvement with PCUSA dates back to the denomination's founding. He was one of 70 church leaders summoned in 1984 to a Presbyterian retreat in the Texas hill country to hammer out details of the then-newly merged denomination's governance structure. He and three others issued the group's report. Ultimately, though, the church eschewed many of their suggestions and adopted instead a constitution that was largely a synthesis of what each denomination had used previously.
After finishing his term as General Assembly moderator in 2002, Rogers remained a popular lecturer within Presbyterian circles. But in 2006 his stock within the evangelical wing of the organization plummeted when he published a book titled Jesus, the Bible, and Homosexuality: Explode the Myths, Heal the Church
, which argued that homosexuality is both a natural and enduring disposition. The book sparked a firestorm of controversy. "They shunned me," Rogers says.
It is against this backdrop that the tug-of-war over the role of homosexuals in the church drags on. "It makes for unusual drama," allows San Francisco intellectual property litigator Tim Cahn, a lifelong Presbyterian (his father was a minister in Pennsylvania) who works at Kilpatrick Townsend & Stockton. Over the past decade he has taken on more than a dozen church cases on behalf of gay and lesbian clients. For example, Cahn persuaded a presbytery judicial commission in Minnesota to acquit the Rev. Erwin Barron, a minister who now teaches at Bay Area colleges. During the early 1990s, Barron had served as an associate pastor in Grand Rapids, Michigan. But after he legally wed his gay partner in 2008 in San Francisco, an unnamed church elder wanted him defrocked.
In this case, though, the minister who officiated at Barron's wedding gave the court some room to maneuver. First, she "blessed" and "solemnized" the couple's civil union--something that the Presbyterian high court has said is permissible. Then, after a pause, she uttered a disclaimer that the church did not recognize same-gender marriage. Nor, she said, would it recognize what she proceeded to do: pronounce them legally married in the eyes of the state.
The PJC acquitted Barron earlier this year.
Now, it seems, the presbyteries have opened up a whole new can of worms by voting in May to ratify the General Assembly's 2010 recommendation to remove the so-called "fidelity and chastity" clause from the church's constitution--a clause that in practice has helped to block gays and lesbians from entering the ministry. The change takes effect this month.
To be sure, individual churches still aren't under any obligation to offer pastoral appointments to gays or lesbians. But among those who may yet benefit from the rule change is seminary graduate Lisa L. Larges. A lesbian, she runs a church-related nonprofit for the LGBT community in Marin County called That All May Freely Serve, which was originally started by Spahr to foster more gay and lesbian inclusion in church affairs. Larges has also been fighting for the right to be ordained herself. Meanwhile, Larges's opponents--led by a Presbyterian minister in Walnut Creek named Mary Holder Naegeli--have proved themselves to be equally determined. In 2009 Rev. Naegeli's group filed a remedial case in church court against the San Francisco Presbytery for advancing Larges's candidacy after she took advantage of a 2006 General Assembly rule change that allowed candidates to declare a conscientious objection or "scruple" to the fidelity and chastity clause.
Naegeli's group spent more than $200,000 on outside counsel to litigate the point, but the GAPJC denied its challenge on a technicality. The presbytery again approved Larges for ordination, so Naegeli's group went back to the PJC for a retrial, which they lost last September by one vote. Now Naegeli's side has filed a whole new appeal, which is scheduled to be heard sometime this month.
"Our system is set up to reexamine issues with its dynamic process," observes Bruce A. McIntosh, an attorney and church elder who brought Naegeli's challenge during the first trial at a "reduced" rate of $300 an hour and agreed for the second appeal to serve as a pro bono consultant. Still, before all is said and done, Naegeli estimates that the group's legal expenditures will total $300,000. "It's money well spent because we are fighting for the future of our church," she says.
Ever since she was a 14-year old girl in Pittsburgh, Jane Spahr knew she wanted to be a minister. What she couldn't have known, of course, is that she would become the focal point of a huge denominational controversy.
Once, when she confided to a therapist that she was more attracted to women than to men, she was told she would grow out of it--an assurance she accepted as an article of faith. So did Jim Spahr, who married her in 1964. When he shipped off to Vietnam with the Navy shortly after their wedding, she entered seminary in Marin County. Three years later the first of their two sons was born.
After Jim's tour ended, the family moved back east for several years, until Jane landed a job back in San Anselmo as an assistant youth pastor at the First Presbyterian Church.
That's when her whole life changed.
It was 1976, and the United Presbyterian Church's General Assembly was starting a study of whether it should allow the ordination of homosexuals. Spahr was invited to speak to a committee of presbyteries on the relationship between gender-based discrimination and bias based on sexual orientation. The other two speakers that day were the Rev. Dr. William R. Johnson of the United Church of Christ, the first openly gay minister ordained by that denomination in modern times, and the Rev. Ellen Barrett, the first openly lesbian priest ordained in the Episcopal Church.
Spahr listened as they told their stories. "I just sat there speechless, thinking, 'This is me!' " she recalls.
Sometime after Jane Spahr realized she was a lesbian, she and Jim divorced. But to this day they remain the best of friends. "The love never stopped," he says.
Still, Rev. Spahr's journey since then hasn't been an easy one. In 1980, she says, she was "encouraged to resign" as executive director of the Oakland Council of Presbyterian Churches because she was a lesbian. Spahr lost another job, as a pastor at a church in Rochester, New York, in 1992 after the GAPJC ruled she had been hired in error. During the presbytery trial in that case, the prosecutor compared her to both a "confirmed bank robber" and a "habitual child abuser." On another occasion some students at Princeton Theological Seminary likened her to a Nazi. And at still another point she received a bomb threat.
Of course, Spahr, who now lives in San Francisco, has many supporters as well. And on the morning of March 25, before the hearing in Oakland is called to order, a group of them gives her a hero's welcome at the Red Lion Hotel. Dressed in a powder blue pantsuit, the minister works the room with aplomb, overlooking no one, including Blackstone.
The scene at the presbytery hearing in Napa the year before was even more dramatic. After announcing their decision to rebuke Spahr, the six ministers and elders sitting in judgment not only praised Spahr's work for the church over the years, but apologized to the same-sex couples she had married whose unions the church wouldn't recognize, insisting that the PCUSA constitution left them no choice. (As one indication of the judges' profound ambivalence, their opinion noted the "harm" done to lesbian, gay, bisexual, and transgender people "in the name of Jesus Christ." "[D]o what needs to be done to move us as a church forward on this journey of reconciliation," the court implored the Presbyterian hierarchy.) Spahr and a woman whose marriage ceremony she had performed then led their supporters in a round of hymns and liberation songs.
Nothing quite so poignant happens at the end of the PJC hearing in Oakland. Instead, after two hours of argument, moderator Goldthwaite thanks everyone and concludes with another prayer. The judges then retire behind closed doors to deliberate.
The synod court's verdict four days later to uphold the rebuke is hardly a surprise. The judges affirm by an unspecified margin the presbytery's finding that Spahr had indeed acted outside the bounds of the Book of Order. And it rejects all 13 of her legal team's contentions of error. But like the lower court, the PJC panel gives those who will next review her case something to think about.
"In a time when increasing numbers of states permit same-gender weddings and civil unions," the panel writes in a comment attached to the verdict, "it is important for the church to clarify how its clergy might pastorally participate in such secular occasions while honoring the PCUSA's definition of Christian marriage."
The presbytery's rebuke of Spahr remains stayed while her case goes before th GAPJC, which will hear the appeal in February.
Ron Russell is editor of the online
Bay Area Observer.