Kevin Boonstra, lead counsel in the 2018 case of Trinity Western University’s proposed law school before the Supreme Court of Canada, has written a 16-page opinion on the impact of the General Assembly’s Remits. The full document can be downloaded here. Gerard D. Chipeur, who has advocated before the Supreme Court of Canada, has written a similar 7-page opinion that concludes, “Decisions on doctrine belong to the PCC. Nevertheless, once the decisions are made, the PCC will be required to defend the decisions in the event a couple seeking same-sex marriage disagrees with the religious convictions of local PCC clergy, congregations or members. Should the Remits be implemented in their current form, it will be difficult to effectively defend the position of PCC clergy, congregations or members who refuse to participate in same-sex wedding ceremonies, with potential resulting liability to the PCC itself.” The full document can be downloaded here. Any member of a church court can forward these legal opinions to their court’s clerk and request that it be received for correspondence, since it is pertinent information regarding matters before our church courts.

Key Findings

1. It is not clear from the language of the Remits how they would be applied or interpreted within the PCC polity. The Clerks of Assembly have provided a written interpretation in this regard, but that interpretation is not legislatively authoritative. If the Remits were to be adopted, significant changes would be required to be completed in the Book of Forms, subordinate standards and/or other PCC documents. None of these necessary amendments have been provided in draft and, as such, it is very difficult to assess the internal impacts to the PCC and its membership if the Remits are adopted.

   In any event, the interpretation of the Clerks of Assembly on the impact of adoption of the Remits do not take into account what Canadian federal and provincial law may require of PCC congregations, Presbyteries, ministers or ruling elders.

2. The law currently protects clergy from being compelled by statute to perform same-sex marriage ceremonies against their religious beliefs, particularly in two provinces and one territory that have enacted statutory protections. However, this may not be the case in provinces in which such legislation does not exist or in the longer term given current trends in the law and how the Charter of Rights and Freedoms has been interpreted and applied in recent legal cases. As interpreted by the Clerks of Assembly, the Remits would not permit ministers to believe in the sinfulness of same-sex marriage in all circumstances. The adoption of the Remits will make it more difficult for PCC ministers to establish a sincerely held religious belief opposing the morality of same-sex marriages, particularly if they are compelled by the PCC to accept ordination of ministers and ruling elders who are in such relationships.
3. The adoption of Remit B may expose the PCC to liability for discrimination, even if individual ministers are permitted to refuse to perform same-sex marriage ceremonies. Further, individual ministers could themselves be potentially liable if they fail to take adequate steps to accommodate such a ceremony request, even if they are not personally required to perform such a ceremony.
4. The adoption of Remit B would also undermine the ability of individual congregations to refuse to allow church property to be used for same-sex wedding ceremonies and celebrations.
5. Additionally, the adoption of Remit B would undermine the ability of congregations and Presbyteries to refuse to employ ministers who are in same-sex marriages or who wish to perform same-sex wedding ceremonies.
6. It will be difficult for the PCC to change its current uniform theological teaching on same-sex marriage, as expressed in Living Faith, and at the same time grant “liberty of conscience and action” for ministers and congregations.
7. While there is no safe and guaranteed path to protect liberty of conscience and action, the best option (short of separating into two denominations) would be to defeat the adoption of the Remits and then either (a) maintain the status quo; or (b) to devolve theological teachings on same-sex intimacy and marriages to the Presbyteries and allow each congregation to join (or transfer to) a Presbytery that shares its religious belief and commitment. Before moving in this direction, the PCC should carefully set out the proposed changes to the Book of Forms such that the Presbyteries and General Assembly can actually understand the impacts of what is being proposed.