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 has won a reversal of his 2003 church-court conviction and subsequent rebuke for performing same-sex “marriage” ceremonies at a Presbyterian Church (USA) parish in Cincinnati.

     The Permanent Judicial Commission (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 was 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.

     Van Kuiken reacted to the decision by issuing a press release in which he said: "A new era has dawned in the Presbyterian Church, a day for which we have waited and hoped. We are making room at the table of Christ both for our gay brothers and lesbian sisters, as well as for those with progressive Christian convictions. This is truly good news for the church."

     He added, however, that he is resigning as a minister in the PC(USA). "The Cincinnati Presbytery has left me little choice," he wrote.

       Van Kuiken, a 19-year veteran of the ministry, now leads a non-denominational faith community in Cincinnati known informally as The Gathering, which he says “has come together around a group of former members of Mount Auburn church.” He said in the May 3 release that he had been ordered to step down as leader of the group.

     "The Presbytery of Cincinnati has forced me to choose between being a Presbyterian minister and serving The Gathering," he wrote. "I choose to stand by The Gathering, as they have stood by me."

  The Mount Auburn congregation now has an interim pastor, the Rev. Edwin Dykstra.

   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 February ruling, the synod PJC said 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 his performance of a same-sex marriage ceremony was not “a work” as the term is used in the Book of Order (G-6.0502).

    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 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.”