The Central Carolina Presbytery of the Presbyterian Church in America (PCA) has sent an overture (Overture 6) to the 37th General Assembly asking that the chapter of the church’s Directory for Worship addressing the “solemnization of marriage,” Chapter 59, be amended and then given full constitutional authority. As explained more fully below, I think this overture is ill-advised.

Although the entirety of the Directory for Worship (part of the Book of Church Order) is part of the church’s constitution, most of it, including Chapter 59, is “precatory”—expressing a desire for action but in a nonbinding way.

The impetus for Overture 6 is the decision of several states in the United States and of Canadian authorities to recognize as valid same-sex marriages. The overture asserts that, in order to defend themselves from civil rights lawsuits and criminal charges of discrimination, chaplains, ministers, and churches that refuse to conduct same-sex weddings “will need to be able to show that not just they, but the denominations they belong to are opposed to same-sex marriage.” Given that “liberal Presbyterian churches” whose official doctrinal standards are identical to that of the PCA on this issue “are already performing same-sex weddings,” the overture asserts that “the simplest, quickest, and least expensive manner of taking a stand on the issue of biblical marriage and protecting the PCA’s ministers and churches is to grant chapter 59 of the BCO constitutional authority.”

As it is currently worded, however, Chapter 59 states that “all citizens are bound to obey” the “laws to regulate marriage” that are made by “every commonwealth, for the good of society.” BCO ¶ 59-1. The BCO also states that “[i]t is enjoined on all ministers to be careful that, in this matter, they transgress neither the laws of God, nor the laws of the community.” BCO ¶ 59-6. Because the authors of the overture believe that these injunctions could “cause problems of interpretation,” the overture seeks their rewording as follows:

59-1. Marriage is a divine institution though not a sacrament, nor peculiar to the Church of Christ. It is proper that every commonwealth, for the good of society, make laws to regulate marriage, which all citizens are bound to obey.

59-6. Marriage is of a public nature. The welfare of society, the happiness of families, and the credit of Christianity, are deeply interested in it. Therefore, the purpose of marriage should be sufficiently published a proper time previously to the solemnization to it. It is enjoined on all ministers to be careful that, in this matter, they transgress neither the laws of God, nor the laws of the community do not transgress the laws of God; and that they may not destroy the peace and comfort of families, ministers should be assured that, with respect to the parties applying to them, no just objections lie against their marriage.

I do not believe that giving such an amended version of Chapter 59 of the BCO full constitutional authority is necessary to protect PCA churches and ministers or a good way to “take a stand” against same-sex marriage.

In the United States, it is highly unlikely that a state or federal court would ever attempt to sift the relative importance of a church’s stated religious beliefs in order to determine whether those beliefs suffice to support a religious exemption from discrimination laws. As the U.S. Department of Justice’s “First Freedom” website explains, “[t]he Constitution prohibits Federal, State, and local governments from infringing the free exercise of religion, or from establishing religion.” The Supreme Court has interpreted this prohibition to mean that civil tribunals must defer to a church’s own resolution of questions of religious doctrine. See Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 709-10 (1976).

In Canada, the Charter of Rights and Freedoms guarantees freedom of conscience and religion. Constitution Act, R.S.C., App. II, No. 44, Sched. B, Pt. I, § 2(a) (1985) (Can.). In addition, the Civil Marriage Act specifically states that “officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs” and that “no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom.” Civil Marriage Act, 2005 S.C., ch. 33, §§ 2, 3.1 (Can.).

Given that the binding part of the PCA constitution already states that “[m]arriage is to be between one man and one woman,” WCF 24.1, the overture’s assertion that additional language in the church’s constitution is necessary in order for churches and ministers to avoid criminal and/or civil liability for refusing to conduct same-sex marriages is thus dubious. Moreover, individual churches and presbyteries are free to place additional restrictive language in their own governing documents, and ministers can appeal to their own deeply held religious beliefs.

As for the assertion that the BCO changes are necessary to “take a stand” against same-sex marriage, I think that the PCA has made its voice clear and that, in any case, a simple resolution of the General Assembly would suffice (and arguably speak more clearly than the action proposed by the overture, which outsiders would likely see as procedurally convoluted).

Furthermore, the proposed rewriting of the BCO’s current language fails to appreciate the traditional balance that has been struck between the civil and ecclesiastical spheres in their oversight of marriage. There was a time when marriage nullity and dissolution were questions decided by ecclesiastical courts. Over time, the Protestant church came to defer to the civil magistrate’s resolution of these questions. Today, that balance has been upset by the revolution in the law of the family and of sex that began in the latter 20th Century and continues today. Same-sex marriage is the latest in a series of developments in civil law that render the state’s law of marriage and the church’s beliefs regarding marriage so incongruous that they cast a darkening shadow over the PCA’s continued deferral to the state on these questions.

To the extent that the overture recognizes this, that’s a good thing. But the solution is more complex than the overture suggests.

Currently, the PCA has no law addressing, for example,

  • the minimum age for marriage
  • the nature of the intent required to enter into a marriage
  • the minimal commitments that must be expressed in order to enter into marriage
  • whether the expression of those commitments must be explicit or can arise from tacit conduct
  • how to handle difficult cases of physical sexual ambiguity
  • the specific degrees of consanguinity that render marriage invalid
  • whether fraud and/or other factual circumstances (and if so, which) can invalidate an otherwise valid marriage

These are just a sampling of numerous questions regarding marriage that the PCA has not had to think about because it has deferred to the state. If PCA ministers no longer took the state’s answers to these questions into account when marrying couples, then they would be entering a functional legal vacuum.

It’s possible, of course, that the changes to the language of the BCO proposed by the overture would not have such far-ranging affects, especially given other language in the PCA constitution generally requiring obedience to the civil magistrate. Even so, I think the overture would truncate and hinder the church’s consideration of how to react to the revolution in secular law concerning sex and family. For one thing, that debate has far less to do with securing the church’s rights vis-à-vis the state (since, as discussed above, those rights are already secure) and far more to do with how we, as the body of Christ, corporately live in faithful submission to his word.

ADDENDUM (05/18/2009)

I didn’t mean to deny that the religious liberties of Christians more broadly speaking are currently under threat.  In recent years, we have seen laws requiring Christian pharmacists to dispense abortifacient drugs, courts requiring Christian doctors to help same-sex couples bear children through the application of reproductive technology, human rights commissions fining Christian photographers for refusing to photograph same-sex weddings, laws requiring Christian adoption services to place shildren with same-sex couples, etc.  However, Overture 6 does not purport to—and would not in fact—provide any help to any of these people because (1) it only speaks to the obligations of ministers officiating at weddings, and (2) the Christians in these cases were denied protection because the governmental authorities did not recognize any religious exemption—not because the Christians failed to establish that they in fact qualified for such an exemption.  Moreover, even if there were religious exemptions in play (as there are in cases involving churches and ministers), amending BCO 59 as the overture requests would not help because the PCA’s religious beliefs on the question of same-sex marriage are already clear.