Supreme Court cases prelude to marriage debate at General Convention
[Episcopal News Service] Episcopalians who followed the April 28 U.S. Supreme Court oral arguments on whether same-sex couples have a constitutional right to be married were no doubt looking ahead to the implications of the court’s eventual ruling for this summer’s General Convention.
The Episcopal Church officially has advocated for equal treatment of lesbian, gay, bisexual and transgender people in both the civil and ecclesial arenas for years. However, it was not until 2012 that the General Convention voted to consider anew the church’s theology of marriage, and LGBT Episcopalians’ access to the sacramental rite.
Thus, while the court’s ruling, expected to come before the current terms ends in late June or early July, may settle the issue of access to civil marriage and fulfill one of The Episcopal Church’s long-held public-policy stances, its decision could come as the convention is debating the church’s understanding of sacramental marriage and the accompanying canonical definition of marriage. The 78th meeting of the General Convention takes place June 25-July 3 in Salt Lake City, Utah.
The church’s advocacy for civil equality for LGBT persons began in 1976 with Resolution A071 in which it said “homosexual persons are entitled to equal protection of the laws with all other citizens, and calls upon our society to see that such protection is provided in actuality.” That same convention said (in Resolution A069) that “homosexual persons are children of God who have a full and equal claim with all other persons upon the love, acceptance, and pastoral concern and care of the Church.”
From then on, the trend continued, including these resolutions:
1994: Resolution D006 called for local, state and the federal government to give gay and lesbian couples the same rights and protections as non-gay married couples.
2000: Resolution D039 affirmed that some people in the church live in relationships outside of marriage and outlined the expected characteristics of those relationships.
2006: Resolution A095 said the church opposed state or federal constitutional amendment prohibiting same-sex civil marriages or civil unions.
2009: Resolution D025 recognized that the baptized membership of church includes same-sex couples living in lifelong committed relationship, that LGBT people participate in lay and ordained ministry.
2012: Resolution D018 noted the church “is a period of discernment about the meaning of Christian marriage, with faithful people holding divergent views,” and urged Congress to repeal federal laws that discriminate against same-sex civilly married couples; and pass legislation allowing the federal government to provide benefits to them.
Also in 2012, bishops and deputies allowed clergy to bless same-sex relationships with the permission of their bishop. They authorized a rite for those blessings (Resolution A049) and called (in Resolution A050) for a task force to “identify and explore biblical, theological, historical, liturgical, and canonical dimensions of marriage.” The convention asked what became known as the Task Force on the Study of Marriage to examine the “changing societal and cultural norms and legal structures” surrounding marriage.
“Personally, I continue to give thanks for the way in which Episcopalians and people of good faith in the U.S. and far beyond are learning to see the image of God in all God’s children, whether gay, straight, transgender, short, blonde or anything else,” Presiding Bishop Katharine Jefferts Schori told Episcopal News Service on April 28. “God’s ability to create in diverse ways is a sign that we will never fully know the divine mind and that we have gifts to receive from all that God offers us. The task of the church is to help people live lives of holiness, loving God and loving our neighbors as ourselves – all our neighbors.”
In an interview with ENS on April 28, House of Deputies President the Rev. Gay Clark Jennings said she believed that “our church’s long discernment on LGBT equality in civil law and our subsequent discussion about sacramental marriage equality are part of what’s moved the broader culture to the point of today’s Supreme Court arguments.” The Episcopal Church’s work joins “with other religious traditions that are also wresting with their legacy of homophobia,” she added.
The Rev. Canon Susan Russell, a longtime advocate for the full inclusion of gays and lesbians in the church and who proposed Resolution 2012-D018, told ENS that “the Holy Spirit is smack dab in the middle of both our General Convention and the Supreme Court schedule.”
Convention will face various same-sex marriage proposals
The marriage task force, the standing commission that proposed its creation and, to date, four dioceses are urging this summer’s meeting of convention to move toward greater clarity in its understanding of the availability of the sacramental rite of marriage to both different- and same-sex couples.
The Standing Commission on Liturgy and Music asks in its report (beginning on page 3 here) that convention authorize an expanded version of “Liturgical Resources I: I Will Bless You and You Will Be A Blessing,” the liturgy for blessing same-sex relationships and accompanying resources whose use was authorized in 2012. The new version (on pages 2-151 here includes three additional liturgies: “The Witnessing and Blessing of a Marriage”; “The Celebration and Blessing of a Marriage 2”; and “The Form of Solemnization of Matrimony.” Those rites offer the option of using “wife,” “husband,” “person,” or “spouse,” thus making them applicable for both heterosexual and same-sex couples.
The commission’s proposed Resolution A054 says diocesan bishops must approve use of the rites. It also says that bishops within civil jurisdictions where same-sex marriage, civil unions or domestic partnerships are legal may continue to provide “generous pastoral response” to meet the needs of church members (an echo of Resolution 2009-C056).
And the proposed resolution repeats the provision in Resolution 2012-A049 that “no bishop, priest, deacon or lay person should be coerced or penalized in any manner, nor suffer any canonical disabilities” as a result of his or her theological objection to or support of the resolution. The resolution also would extend to these new rites the provision in the church’s Canon I.18.4, which says that clergy may decline to solemnize any marriage.
The Task Force for the Study of Marriage asks that The Episcopal Church go further, proposing in its Resolution A036 to revise Canon I.18 titled “Of the Solemnization of Holy Matrimony” (page 58 of The Episcopal Church’s canons here).
Among many edits, the revision removes references to marriage as being between a man and a woman.
The revision would recast the requirement in the canon’s first section that clergy conform to both “the laws of the state” and “the laws of this Church” about marriage. The rewritten portion would require that clergy conform to “the laws of the State governing the creation of the civil status of marriage, and also to these canons concerning the solemnization of marriage.”
And the proposal preserves the canon’s provision that clergy may decline to solemnize any given marriage and extends that discretion to include the choice to decline to bless a marriage.
Among the four diocese-proposed actions, Resolution C017 from the Diocese of Chicago andResolution C0022 from the Diocese of California both ask the convention to authorize the use of the marriage rites in The Book of Common Prayer 1979 and in Liturgical Resources I “for all marriages legal in the civil jurisdiction in which the liturgy takes place.” In civil jurisdictions with same-sex marriage, the rites’ language would be interpreted as gender-neutral. C022 also proposes a rewrite of the solemnization canon.
The Diocese of Rochester, in Resolution C007, and the Diocese of Los Angeles in C009 simply ask that convention “take any and all steps necessary to make the Rite of Holy Matrimony available to same-sex couples throughout The Episcopal Church immediately.”
All of these resolutions and other related ones that might arise have been assigned to the General Convention’s Special Legislative Committee on Marriage, formally a bishop committee meeting alongside a deputy committee but voting separately, announced in July 2014 by Jefferts Schori and Jennings.
Facing the issue of making space for dissenters
A possible crux of the issue at convention could be the question of whether and how to provide space for those Episcopalians who oppose changing the definition of marriage in either the civil or ecclesial contexts, or both.
Diocese of Northern Indiana Bishop Ed Little told ENS recently that The Episcopal Church has a “mixed economy” with “a progressive majority that would be in favor of redefining marriage in terms of its civil expression and would also be in favor of redefining marriage in its sacramental expression.” And, there is a not-insubstantial conservative or traditional minority that is “concerned that both sets of developments move us away from marriage as it’s been experienced by both the human community and ecclesial community for thousands of years.”
Both groups have “space to flourish,” which “gives the Holy Spirit space to work,” Little said, because of the provisions in resolutions 2009-C056 and 2012-A049.
“At the moment, I have the space to live my conscience within the church, but it’s worrisome if marriage is redefined canonically,” he said. “That seems to narrow the options and seems to say that those who hold to ancient and traditional perspectives don’t have an honored place in our community.”
Russell said both the SCLM and the task force proposals exhibit the “Anglican genius” of recognizing that “as a church, we are a big tent; that we do hold in tension the difference that exists amongst us.” The Episcopal Church has always moved forward on divisive issues striving for “comprehensiveness, not unanimity,” she said.
“No matter what we do at General Convention, it will be too much for some and too little for others,” she predicted.
The trajectory of women’s ordination is, Little said, a “cautionary tale” in which those opposed to female priests and bishops were “sort of honored and then eventually merely tolerated and then ultimately canonically excluded.”
After General Convention agreed in 1976 that women could be priests and bishops (they already were being ordained deacons), then-Presiding Bishop John Allin told an October 1977 House of Bishops meeting he did not think “that women can be priests any more than they can become fathers or husbands,” and he offered to resign as presiding bishop. Instead, the bishops affirmed his leadership and adopted “A Statement of Conscience” saying that “no Bishop, Priest, or Lay Person should be coerced or penalized in any manner, nor suffer any canonical disabilities as a result of his or her conscientious objection to or support” of women’s ordination.
Since the “conscience clause” was never adopted by the House of Deputies, it had no canonical authority. But, a handful of bishops and their dioceses used it to bar women from the priesthood for 33 more years.
Twenty years later, General Convention said that refusing to ordain women was no longer an option. In 2000, it called for monitoring of the three dioceses (Fort Worth, San Joaquin and Quincy) that still did not ordain women.
“The result has been that people of a very traditional perspective who were not able to embrace, for theological reason, the ordination of women no longer felt welcomed,” Little said. “Most are gone. There are a few still in the church, but they are on the margins of the church”
Little said he has ordained more women than men, “but I also grieve that that traditional perspective is really canonically no longer viable in the church.”
In Salt Lake City, during what he intends to be his last General Convention as a diocesan bishop, Little will oppose any revision of the solemnization canon that would redefine marriage, he said. He would like the convention to preserve the “conscience” provision in the blessing resolution.
Russell said she thought the discretion that has always been granted to clergy in the marriage canon and the protections afforded to clergy in all of the states currently allowing same-sex marriage were sufficient protection.
And Jennings, while not commenting directly on the issue of a conscience clause, said, “I don’t think where a couple can get married should be an accident of geography, either civilly or within the church.”
No matter what happens in Salt Lake City, Little said, he will “continue to advocate for the recognition that across the church people are dealing with these difficult issues in different ways – people of deep commitment and deep integrity – and so we’ve got to find a way that their consciences could be honored.”
“The issues are significant. They impact the deepest places of our heart, but I hope that all of us will recognize, wherever we come down on these issues, that our commitment to Jesus Christ, our love for him and above all his for us, is what binds us together,” he said. “We have to recognize that in fractious times Jesus is our only hope. You can’t legislate that, but in the end the only thing that will keep us together is Jesus himself.”
Russell cited Jesus as well, saying, “I firmly believe in my deepest heart of hearts that nothing short of full inclusion of the gay and lesbian, bisexual and transgender baptized is good enough for Jesus and us, and it’s a journey to get to that goal.”
Insisting she is not an “incrementalist,” but instead an “Anglican pragmatist,” Russell said she’d like to see that full inclusion enunciated in the Book of Common Prayer. “And what I want to come out of Salt Lake City with is approval from The Episcopal Church that will stand unequivocally for ending discrimination against same-sex marriage, recognizing that we have people within this body for whom that is not congruent with their theology.”
Little said he was “in it for the long haul whatever happens and to retain whatever voice I can” and continue to try to build bridges in the church. Russell said she was not going anywhere either. “The only threat we have ever made is to continue to keep coming back,” she said, adding that the patron saint of her and her like-minded colleagues is the persistent widow. “We haven’t threatened to leave, we haven’t threatened to pull our pledges, we haven’t threatened to do anything other than to keep showing up.”
Episcopalians advocate for marriage equality
The Supreme Court justices earlier this year announced they would consider same-sex marriage bans in Ohio, Kentucky, Tennessee and Michigan that had been upheld in Novemberby the U.S. Court of Appeals for the Sixth Circuit. All other federal appeals courts that have ruled on the issue have struck down such bans.
The justices also took the unusual step of framing the issues for which it would use the cases to make their decision.. The first is whether the Fourteenth Amendment to the U.S. Constitution requires a state to license a marriage between two people of the same sex. The second is whether the Fourteenth Amendment requires a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state.
The Supreme Court’s decision to consider the cases, known as Obergefell v. Hodges and Consolidated Cases, has attracted much attention and 145 amicus curiae, or “friend of the court,” briefs had been filed as of April 27. The filers range from the U.S. Conference of Catholic Bishops to labor unions, and include the Columbia Law School Sexuality and Gender Law Clinic, and the Historians of Marriage together with the American Historical Association.
One brief was filed by the mayors of 226 U.S. cities and another came from 167 members of the U.S. House of Representatives and 44 U.S. senators. Nearly 380 employers, including Microsoft, the National Football Champion New England Patriots and small businesses such as Crazy Misfits Pets Service in Kent, Washington, filed another.
Nearly 2,000 individual lay and ordained religious leaders, led by lead signers Jennings and Episcopal Church bishops in Kentucky, Michigan, Ohio and Tennessee (the states included in the Sixth Circuit Court of Appeals), filed one of those briefs.
Those bishops include Kentucky Bishop Terry Allen White; Lexington Bishop Douglas Hahn; Michigan Bishop Wendell N. Gibbs Jr.; Western Michigan Bishop Whayne M. Hougland Jr.; Northern Michigan Bishop Rayford J. Ray; Eastern Michigan Bishop Todd Ousley; Ohio Bishop Mark Hollingsworth Jr.; Ohio Assisting Bishops David C. Bowman, William D. Persell and Arthur B. Williams Jr.; Southern Ohio Bishop Thomas E. Breidenthal; retired Southern Ohio Bishop Suffragan Kenneth L. Price Jr.; Southern Ohio Assisting Bishop Bavi Edna Rivera; West Tennessee Bishop Don E. Johnson; and East Tennessee Bishop George D. Young III. All of the bishops have authorized the blessing of same-sex couples in their dioceses, including for couples who have already entered into civil marriages in other jurisdictions.
Diocese of Vermont Bishop Tom Ely, Diocese of Hawaii Bishop Robert Fitzpatrick, Diocese of Southeast Florida Bishop Leo Frade, Diocese of Maine Bishop Steve Lane, Diocese of Atlanta Assistant Bishop Keith Whitmore and nearly 200 ordained and lay Episcopalians also signed onto the brief.
The brief outlines how a number of Protestant denominations, branches of Judaism and certain Muslim groups have come to call for marriage equality. It notes that the Presbyterian Church (U.S.A), the largest U.S. Presbyterian denomination, last summer asked its members to redefine marriage as being between “two people, traditionally a man and a woman.” The necessary constitutional change has since earned the approval of the majority of that church’s presbyteries.
The brief’s signers argue that “eliminating discrimination in civil marriage will not impinge upon religious doctrine, conscience, or practice. All religions would remain free … to define religious marriage in any way they choose.” The brief notes that such freedom currently exists in the 37 states which, along with the District of Columbia, permit same-sex couples to marry.
“The reason I signed the brief is that it’s long, long past time to end any kind of legal discrimination against God’s children in this country,” Jennings told ENS. “A reversal of the Sixth Circuit’s decision would bring us closer to the day of justice and reconciliation that I think people of all faiths long to see”
Little, of Northern Indiana, said he was concerned about the Supreme Court advocacy by some Episcopalians because it seemed to show the majority of the church moving away from the recognition of the “mixed economy” he appreciates. Those advocates, he said, “may be attempting to portray the church as monochromatic when it comes to these very difficult, very sensitive theological, pastoral issues.”
The advocacy, he said, “often does not recognize the fact that those who are signing briefs and so on are not speaking for the church; they’re speaking for themselves, but it sounds as though they’re speaking for the church.”
Jefferts Schori declined to join the brief because while The Episcopal Church has an official policy of seeking civil marriage equality, she said, “we do not have such policy for sacramental marriage.”
“I do not believe this church can or should sign amicus briefs where our own community has not formally accepted the premises that underlie such briefs,” she said. “I believe that most Episcopalians would assert that our theological position about the sacrament of marriage has greater moral weight than civil law.”
“Until our canon law changes, I see no other option,” she said. “We have come a long way, but we have not yet reached a conclusion. I ask your prayers as the Church seeks greater clarity.”
– The Rev. Mary Frances Schjonberg is an editor/reporter for the Episcopal News Service.
Editor’s note: The U.S. Supreme Court has posted audio recordings and written transcripts of the April 28 oral arguments on its website here. The New York Times, among other news sites,live blogged the arguments.