Synod PJC overturns presbytery decision on technical grounds

by John Filiatreau, Presbyterian News Service

LOUISVILLE -- February 11, 2004 [posted here 2-13-04] -- A church court has ruled that the Presbytery of Cincinnati acted wrongly last summer when it stripped the Rev. Stephen Van Kuiken of his ordination for having performed a same-sex marriage in defiance of a direct order.

The favorable ruling on Van Kuiken's appeal restores him to membership in the Presbyterian Church (USA), and to the ministry, as an at-large member of the presbytery. It does not affect an agreement he negotiated late last year dissolving his pastoral relationship with Mount Auburn Presbyterian Church.

After a Feb. 6 hearing, the Permanent Judicial Commission (PJC) of the Synod of the Covenant unanimously (9-0) upheld each of four arguments Van Kuiken had made in his appeal, ruling that:

· The presbytery's action violated a stay of enforcement Van Kuiken had obtained pending his appeal of the prior decision of the presbytery's PJC;

· The presbytery should not have presumed that Van Kuiken had renounced the church's jurisdiction without first determining officially that he had performed "a work" disapproved by The Book of Order;

· Presbytery officials had not given Van Kuiken proper notice of the PJC's decision or consulted with him about the potential consequences before voting to expel him;

· 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).

That section of the constitution reads: "When a church officer, after consultation and notice, persists in a work disapproved by the governing body having jurisdiction, the governing body may presume that the officer has renounced the jurisdiction of this church."

Van Kuiken told the Presbyterian News Service on Feb. 11: "To a large degree, I feel vindicated by this decision that the presbytery was wrong to summarily remove me for doing a same-sex marriage. The good news is that it allows me to continue, within the system of the Presbyterian Church, to challenge the legitimacy of the Benton decision and how that decision is being used to deny freedom of conscience and religious expression ... (and) to impose a narrow Biblical interpretation on all the members of our church."

Van Kuiken was referring to a 2000 ruling in which the General Assembly PJC said, in a case from upstate New York (Benton, et al. v. Presbytery of Hudson River), that PC(USA) ministers and sessions may not use liturgies for Christian marriage in ceremonies for same-sex couples, and should not allow church facilities to be used for same-sex union ceremonies determined to be the same as marriage ceremonies. The decision upheld the definition of marriage in The Book of Order as a covenant between a woman and a man.

Van Kuiken said he believes the synod PJC's ruling "will force presbyteries to think twice before they take high-handed measures, and force them to consider fair and due process." He added, however, that he feels that his own "career and reputation have been irreparably damaged."

Cincinnati Presbytery Executive Janis Adams said the PJC's decision was read during a presbytery meeting Tuesday night. "The presbytery believes in the polity of our government and in the judicial process," she said. "I'm quite sure the Committee on Ministry will deal with this at its next meeting."

The presbytery acted against Van Kuiken during a special called meeting on June 16, 2003, when elders and ministers voted 119-45, with four abstentions, to uphold a finding of the presbytery's Committee on Ministry (COM) that Van Kuiken had "renounced jurisdiction" of the Presbyterian Church (USA) by refusing to be bound by its orders.

The effect of the vote was to remove Van Kuiken as pastor of Mount Auburn Presbyterian Church and as a minister member of the PC(USA) and to instruct the stated clerk to strike his name from the presbytery's roster.

The presbytery's PJC had ruled in April that Van Kuiken was guilty of having "married" homosexual couples, in violation of the PC(USA) constitution. The ruling concluded, addressing Van Kuiken: "The Presbytery of Cincinnati, in the name and authority of the Presbyterian Church (USA), expresses its condemnation of this offense, and rebukes you."

(In the same case, the PJC found Van Kuiken not guilty of ordaining and installing deacons and elders "who refuse to repent of self-acknowledged practices which the Confessions call sin" ---- that is, homosexuals.)

The PJC ordered Van Kuiken to refrain from performing such same-sex marriage ceremonies in the future, and urged him "to use diligently the means of grace …… that your actions may be without offense to the Constitution." Van Kuiken filed an appeal (obtaining an automatic stay of enforcement), and vowed to defy the presbytery PJC's order, declaring on his church's Web site, "I will not change from my position." Then, on May 17, he performed what he billed as "A Service of Christian Marriage" uniting two lesbians.

In response, the presbytery's Committee on Ministry recommended that the presbytery declare that Van Kuiken "has persisted in a work disapproved by the governing body having jurisdiction" and that it therefore "presumes that he has renounced the jurisdiction of this Church." That recommendation was the subject of the June 16 meeting.

Presbytery officials met with Van Kuiken on April 25 to provide "pastoral care." They contend that they warned him then that he could be presumed to have renounced jurisdiction of the church. Van Kuiken says no such warning was given. Officials met with him again on June 4 "to inform him of the COM's recommendation to be offered at the upcoming special Presbytery meeting and to express concern for his welfare." On June 5, the synod PJC said Van Kuiken had "properly and timely" filed an appeal and suspended the censure of rebuke against Van Kuiken.

Van Kuiken asked to meet with the COM before the June 16 meeting, but his request was denied.

During the special meeting, the presbytery approved the COM's recommendation, in effect withdrawing Van Kuiken's ordination and his membership in the presbytery. On July 3, he filed an appeal with the synod PJC. That was the case taken up in the Feb. 6 trial and the ruling released yesterday.

The synod PJC ruled that it was wrong for the presbytery to use its PJC's decision of last April as the basis of its own decision in June regarding subsequent "alleged offenses by Rev. Van Kuiken." Doing so while the PJC decision and censure were on appeal, the commissioners said, deprived Van Kuiken of "the protections of due process and fundamental fairness."

Moreover, they said, the section of the Book of Order invoked in the case, G-6.0502, "is properly applied in administrative matters, whereas the Presbytery's action was disciplinary in its intent."

Finally, the PJC said, "The Presbytery's presumption that Rev. Van Kuiken had renounced jurisdiction ignores the fact that he acknowledged jurisdiction of the church by filing the appeal."

The PJC cited a 1994 case, Wilson v. Presbytery of Donegal, in arguing that "a presbytery's disapproval of the work in question is a condition precedent to any finding of renunciation of jurisdiction." The presbytery PJC's disapproval wasn't sufficient, it said, because a PJC is not a "governing body" as specified in G-6.0502.

The PJC also agreed with Van Kuiken's contention that he was not given "proper notice and consultation," as required by the Book of Order.

"Under the circumstances of this case, where a minister may be found to have forfeited his or her career," the synod PJC said, the accused must be given "fair notice and understanding of the consequences of the minister's actions." It said neither of the two meetings between presbytery officials and Van Kuiken was sufficient to meet that condition. Such a meeting and such a warning should have come before the May 17 wedding, it said, and Van Kuiken should have been given "opportunity to desist."

It said the presbytery also was wrong to refuse Van Kuiken's request to meet with the COM before the special presbytery meeting. The Rev. Bruce Archibald, the moderator of the COM, had argued that "there wasn't time" for such a consultation before the June 16 meeting, and that "since the COM motion had been made, there was no point."

Finally, the synod PJC ruled that "G-6.0502 may not … be used administratively to impose the highest degree of censure (D-12.0105) by removing a minister from office and membership in the church without the necessity of judicial process."

While the phrase "work disapproved" has never been authoritatively interpreted by the General Assembly or the GA PJC, it said, it believes the term is "related to a minister's vocation," and "may not be used to apply to a particular act of a minister's work."

Van Kuiken, a 19-year veteran of the ministry, said he now belongs to a non-denominational faith community, known informally as the Gathering, that has "come together around a group of former members of Mount Auburn church ... and I feel supported by those folks."

The Cincinnati Enquirer reported that Van Kuiken, who is married and the father of two daughters, accepted an $80,000 severance package from Mount Auburn.

The full text of the Synod PJC decision is available on their website.