Although much of the business of the General Assembly of the Church of Scotland relates to legislation and debates of reports from committees, unlike the synods of episcopal churches the General Assembly is also a court, with exclusive jurisdiction in ‘matters spiritual’. However, under the terms of Act III 2001, as amended,Footnote 1 disciplinary matters are investigated by a Presbyterial Commission and, in disputed cases, ultimately come before the Assembly's Judicial Commission. Cases before the General Assembly were once quite common; but for the 2009 Assembly to find themselves hearing a judicial dispute was very unusual indeed.
The Revd Scott Rennie is in a committed same-sex relationship and known to be so. In 2008, he asked to be considered for the vacancy at Queen's Cross, Aberdeen, where he had served as a probationer assistant prior to his ordination. In November of that year, the nominating committee invited him to preach as sole nominee for the vacant charge and the congregation decided by an overwhelming majority to call him as their new minister.
Though it is for the congregation to call a new minister, that call must be sustained by the presbytery of the bounds – the court of ministers and elders that exercises, collegially, the oversight of its constituent parishes that in episcopal churches would be exercised by the bishop – and in January 2009 the Presbytery of Aberdeen sustained Rennie's call by 60 votes to 24. However, the practice and procedure of the Church of Scotland provides that any member of a court who disagrees with its decision may appeal by lodging a Dissent and Complaint against it; and twelve of the minority duly did so.Footnote 2 It should be noted that, strictly speaking, the issue was not a matter of discipline concerning Mr Rennie's conduct and he was not a party to the proceedings; in formal terms, the question was whether or not the correct procedures had been observed in appointing to the vacancy.Footnote 3
The Dissent and Complaint was transmitted to the Commission of Assembly;Footnote 4 however, when the Commission met to consider the case on 25 March, rather than disposing of the matter itself it decided by a majority of one to refer the case to the General Assembly for determination.Footnote 5 In addition, the Presbytery of Lochcarron-Skye lodged an OvertureFootnote 6 to the General Assembly as follows:
Whereas: 1. the Church's historic understanding of the Biblical teaching on homosexual practice has been questioned in recent years; 2. a lengthy period of reflection has elapsed without a resolution of the issue; 3. it is undesirable that the courts of the church should be asked to judge on individual cases in advance of any such resolution.
It is humbly overtured by the Reverend the Presbytery of Lochcarron-Skye to the Venerable the General Assembly to receive the Overture set out below: ‘That this Church shall not accept for training, ordain, admit, re-admit, induct or introduce to any ministry of the Church anyone involved in a sexual relationship outside of faithful marriage between a man and a woman’.Footnote 7
The Assembly Arrangements Committee decided that the Dissent and Complaint should be heard first, followed by the Overture. At the first Session of the Assembly, on 21 May, it was proposed that the order of consideration of the two items should be transposed, on the grounds that it would be illogical to decide a specific case without having already established the principle against which the case would be tested. In effect, however, Lochcarron-Skye Presbytery was attempting to have only one of the possible issues of principle decided in advance – and to have it decided without the oral pleadings of the case available to the Assembly. Since there was nothing to prevented any issue of principle being discussed in relation to the case itself, there was no need to take the Overture first; and the proposal to transpose the order of consideration was rejected.
Although the General Assembly dealt with the Dissent and Complaint on the basis that it was about process rather than about conduct, the actual text of the Dissent and Complaint clearly went beyond that, raising issues about the legitimacy of the Presbytery's decision in the face of an admitted same-sex relationship, with the result that the discussion inevitably spilled over into the issue of Mr Rennie's personal circumstances. The arguments of the appellants were these: that the Scriptures were the supreme rule of faith and life in the Church of Scotland; that scriptural references to homosexual relations presented them as ‘a wrong choice’;Footnote 8 that this had been the historic and orthodox position of the Church, from which it had not departed; and that the ordination and induction of active homosexuals had never been the accepted practice of the Church of Scotland or of the Church catholic, ‘except where there has first been a clear debate and decision to ordain active homosexuals’.Footnote 9
The Presbytery responded, inter alia, that, on the basis of the Articles Declaratory set out in the Schedule to the Church of Scotland Act 1921,Footnote 10 the concept of ‘orthodoxy’ could only be applied to the ‘fundamental doctrines’ of the Church of Scotland.Footnote 11 The Church's stance on same-sex activity was neither credal nor confessional and it was therefore perfectly permissible for different views on the matter of same-sex activity to be held within the Church. Nor had it been the practice to enquire about the sexual activities of candidates for the ministry in the course of their selection or training; and there was no Act or Regulation of the General Assembly disqualifying ‘active homosexuals’ from ordination and/or induction.Footnote 12 On the contrary, section 1(a) of Act V 2007 (Anent Discrimination) set out the protected grounds on which it was unlawful to discriminate, whether directly or indirectly, as ‘age, gender, marital status, colour, racial group, ethnic origin, national origin, nationality, sexual orientation or disability’ and section 1(d) specifically forbade discrimination ‘that affects the selection, appointment, translation or training of any minister of Word and Sacrament to whom the provisions of civil employment law do not apply’.Footnote 13 The assertion in the Complaint that Mr Rennie was involved in ‘a self-professed active homosexual relationship’ was based entirely on inference, since no such assertion had been made in Mr Rennie's biographical document cited in section 1 of the Complaint, which merely referred to ‘a committed relationship with his Christian partner David’. That did not provide an adequate foundation for the assertions in the Complaint; and to ask Mr Rennie to provide additional information about his personal life would have infringed his human rights.Footnote 14 Moreover, the Presbytery was ‘concerned that nothing should be done in contravention of the European Convention on Human Rights or the jurisprudence of the European Court of Justice’.Footnote 15
After more than four hours of debate, the General Assembly voted by 326 to 267 to:
(a) refuse the Dissent and Complaint of Aitken and others and sustain the decision of the Presbytery of Aberdeen on the basis that the Presbytery followed the vacancy procedure correctly in Act VIII 2003; (b) affirm for the avoidance of doubt that this decision does not alter the Church's standards of ministerial conduct.Footnote 16
The Assembly then adjourned and the Overture was held over to the following Monday – during which time over a hundred commissioners had signed a Notice of Dissent from the Assembly's decision.
When the matter came before the Assembly again, the Revd Dr John McPake proposed an Addendum to the Minute of the decision in Aitken et al to establish a Special Commission that would report to the General Assembly of 2011 on Ordination and Induction to the Ministry in the light of a previous report to the Assembly in 2007, A Challenge to Unity: Same-Sex Relationships as an Issue in Theology and Human Sexuality and the issues raised by the case of Aitken et al. In the process, it would consult all the presbyteries and, crucially, there would be a moratorium on public comment and decision-making in relation to contentious matters of human sexuality.
Dr McPake's proposal gave rise to another long debate, during which several amendments were proposed. The principal concerns were that the proposed timescale for the Special Commission was too long and that clergy and congregations might face difficulties if they were unable to make any public comment whatsoever on issues of human sexuality. However, the Assembly finally agreed the following Deliverance:Footnote 17
For the sake of the peace and unity of the Church the General Assembly:
1. Appoint a Special Commission composed of nine persons, representative of the breadth and unity of the Church, to consult with all Presbyteries and Kirk Sessions and to prepare a study on Ordination and Induction to the Ministry of the Church of Scotland in the light of the issues (a) addressed in the report welcomed by the General Assembly of 2007: ‘A challenge to unity: same-sex relationships as an issue in theology and human sexuality’, and (b) raised by the case of Aitken et al v The Presbytery of Aberdeen, and to report to the General Assembly of 2011;
2. Instruct all Courts, Councils and Committees of the Church not to issue press statements or otherwise talk to the media or to make decisions in relation to contentious matters of human sexuality, with respect to Ordination and Induction to the Ministry of the Church of Scotland, until 31 May 2011; and
3. Instruct Presbyteries to observe a moratorium on ordinations and inductions which might appear to prejudice the Special Commission before it reports.
4. For the avoidance of doubt affirm that the provisions of this whole motion shall in no way be interpreted as offering grounds for challenging the decision of the General Assembly of 2009 in the Referred Case heard in Session V and all other related matters of process.
5. Urge all members who are subject to the discipline of the Courts of the Church of Scotland to act in accordance with the process outlined in 1 and 2.
6. For the further avoidance of doubt, nothing in 2 and 3 will cause the Church and Society Council, HIV/AIDS Project and Mission and Discipleship Council to desist from engaging with Government and other appropriate civic and church bodies in pursuance of their remits and within the parameters of existing Church policy.Footnote 18
Following this, the Presbytery of Lochcarron-Skye withdrew its Overture.Footnote 19
The Church subsequently issued a clarificatory statement as follows:
The General Assembly have set up a Special Commission chaired by a Scottish judge to examine questions relating to homosexuality and the ordination and induction of ministers. The Commission will report to the General Assembly of 2011. Meanwhile, the Assembly have instructed the Courts and committees of the Church to avoid making public statements on that particular issue, while leaving open the possibility of more general discussion. Individuals too are asked to behave in the spirit of this decision.
The Assembly heard a case involving the Presbytery of Aberdeen, which had previously been brought before the Church's Courts. The Assembly approved the procedures followed by the Presbytery, and therefore decided to allow the call to the charge of Aberdeen: Queen's Cross to be sustained. However, further decisions relating to ordinations and inductions in similar circumstances are not to be made until the Special Commission has reported.Footnote 20
And there for the moment, in terms of church law, the matter rests. But it may prove to be little more than a temporary respite, not least because section 3 of the Deliverance means that any probationer in a same-sex relationship who was expecting to be ordained before 21 May 2011 will not now be ordained after all. Though the debate on the Deliverance was both courteous and measured, it was clear both from the speeches and from the surrounding media coverage that – just as in the Anglican Communion – the issue is one on which there is a fundamental and persistent division within the Church.
