WHERE IS CORDELL HULL WHEN WE REALLY NEED HIM?

On December 7, 1941, approximately one hour after the Japanese sneak attack on Pearl Harbor had begun, Japanese envoys handed to Secretary of State Cordell Hull a note breaking diplomatic relations between the United States and Japan and announcing that war could commence at any time in the future.

Earlier this month the Presbyterian Lay Committee wrote to the session of every PC(USA) congregation, reporting on the outcome of the 218th General Assembly of the Presbyterian Church (USA). Specifically, it reported that

• the GA established a $2 million fund to help middle-governing bodies (presbyteries and synods) sue local churches and confiscate their properties.

• in defiance of the PC(USA)'s constitution, GAPJC has ruled that presbyteries can establish permanent commissions armed with the power to defrock your minister, remove your session, seize your property and even deny your congregation the right to hold a meeting.

• in several cases, individual lawsuits have been filed against session members and local church trustees.

The Lay Committee suggested that sessions consider

a. cutting off all unrestricted mission giving and per capita payments to the denomination’s higher governing bodies (presbytery, synod, and General Assembly) "until they call a halt to their cruel assaults on your brother and sister congregations."

b. re-directing unrestricted mission gifts to ministries that the session knows it can trust.

c. designating GA, synod and/or presbytery per capita contributions to a Legal Assistance Fund established by the Lay Committee to assist congregations and their leadership sued by the denomination and its agents.

Now, The Layman reports that on November 18, the Stated Clerk of the PC(USA) wrote to all Sessions in the PC(USA) claiming that the Lay Committee's letter "contained many factual errors and may cause great misunderstanding."

On that grim "date that will live in infamy, Secretary Hull, having already been told of the attack, excoriated the Japanese diplomats, telling them, "In all my 50 years of public service, I have never seen a document so full of outright lies and scurrillous distortions."

Reading the Stated Clerk's letter, one asks, "Where is Cordell Hull when we need him?"

The Stated Clerk says "The General Assembly did not create a two-million-dollar defense fund, as requested by the Presbytery of Northern New England. The assembly chose, instead, to create an Extra Commitment Opportunity (ECO) fund that would receive voluntary contributions. The name of the ECO is Constitution Legal Defense Fund and it is numbered E052058. To date, we have received no contributions to this fund, and no money from the per capita budget has been allocated for it."

Well, I'm glad the Stated Clerk set that straight! A "Legal Defense Fund" for presbyteries has not been established. It is a "Constitution Legal Defense Fund." Moreover, the CDLF has no set amount, unlike the $2,000,000 fund desired by the Presbytery of Northern New England. And how nice that he goes to great length to tell Sessions how they can contribute to the CDLF. He had to--so far, the CDLF has not received a nickel. And he forgot to mention that the reason that PNNE's overture was defeated is because the GA did not want to commit "its" funds to such a purpose.

Yep. Those guys and gals at the Lay Committee sure tried to slip a whopper past the Sessions--not.

Next, he reports that

The letter suggests that presbyteries have taken aggressive actions to deprive congregations of their pastors and property via ecclesiastical processes and the secular courts. The letter misrepresents the actions of presbyteries and misinterprets recent General Assembly Permanent Judicial Commission cases.

Virtually all actions by presbyteries are reactions to aggressive schismatic behavior by individual congregations and sessions. Of the thirty-nine cases in civil courts, thirty-six have been filed for local sessions. The three filed by presbyteries have sought only that sessions and congregations be required to follow the processes provided by the Book of Order.

Oh, my. Where to begin?

No aggressive action by the PC(USA) or the Presbyteries? Read the Louisville Papers for yourself--especially the part that suggests that as soon as a presbytery thinks a congregation may be re-considering its denominational affiliation, it form an AC to remove the pastor and session, chenge the locks on the doors, freeze the bank accounts, and get to court to tell the judge that the presbytery is a "bishop"! Or telling the judge that the PC(USA) is a hierarchical denomination even though the authors admit that the PC(USA) has never called itself that.

Consider that before the Louisville Papers were leaked, the Presbytery of Eastern Oklahoma put them into effect by clouding the title to the property of each of its member congregations.

"Of the thirty-nine cases in civil courts, thirty-six have been filed for local sessions."

As counsel to four of those thirty-six churches, I can explain their action. In the case of three of them, they knew that the Presbytery of Donegal had instituted suit against two disaffiliating churches 25 years ago. The presbytery lost at the trial court level and on appeal. Desiring to be the plaintiff rather than the defendant, they filed a declaratory judgement action, asking the court to rule on which corporations owned the property. They then allowed the presbytery to refrain from answering the complaints and entered into negotiations. We never set foot in a court-room!

In the fourth case, the Session had advance word that the presbytery (PNNE) was planning to appoint an AC to assume original jurisdiction, oust the Session, change the locks, and "prevent" the huge majority of the congregation from leaving the PC(USA). That case has also been settled. The majority gave up the physical plant, part of which is nearly 200 years old, to the 50 or so which make up the so-called "loyal PC(USA) remnant). The 200 plus majority has now swelled in number.

Most of the other 32 congregations that filed suit have also done so under the duress of the Louisville papers.

And lest anyone forget, it is presbyteries, following the game plan of the Louisville Papers, that have sued individual elders and pastors. See, e.g., Presbytery of Northern New England and its surrogate, the "loyal remnant" who sued elders at Londonderry Pres, and Presbytery of Washington who sued pastor and elders at Peter's Creek Pres.

"The three filed by presbyteries have sought only that sessions and congregations be required to follow the processes provided by the Book of Order. When sessions/congregations have followed those processes, they have usually
been dismissed to the reformed denomination of their choice.
"

First of all, there are no such processes set forth in the Book of Order. Second, the Stated Clerk is apparently not well-informed by his staff. Where presbyteries have created such procedures sua sponte, the procedures put the presbytery in control of scheduling and require innumerable delays to "ensure" that the congregation really understands what it is doing. Where congregations have tried to follow such procedures, they have usually resulted in a determination by the presbytery that a "loyal remnant", often of ten percent or less, constitutes the "true church" which ought to get all the property.

It is true that presbyteries served with civil lawsuits have had to expend significant resources in defending our Book of Order processes. In the Sundquist v. Heartland Presbytery case, the General Assembly Permanent Judicial Commission (GAPJC)recently affirmed the validity of those processes, which include permitting presbyteries to create structures that can respond to civil lawsuits when they arise, but such processes do not provide for aggressive actions by presbyteries.

Huh? As I discussed in a blog a couple of weeks ago, Sundquist is highly suspect. It appears to have been written with the sole intent of allowing the Stated Clerk to write this letter, because the questions of disaffiliation and dismissal were not at issue in the case. The sole issue taken up on appeal was whether a presbytery could give an AC blanket authority to go after a pastor and/or session and/or congregation on mere suspicion that they might be talking about whether they should leave the PC(USA). The GAPJC nonetheless threw in a long piece of obiter dicta about dismissal procedures, essentially assuming the role of GA and presbyteries to amend the Boook of Order.

And what nonsense it is to claim that the suits are about "defending our Book of Order processes." Not a single presbytery or congregation has filed or responded to suit. In every instance, corporations created under state law (and in tune with the Book of Order suggestion that congregations ought to incorporate) have been in suit over ownership of property, an issue which even the PC(USA) concedes is a matter of State law.

The Stated Clerk gets really exercised when it comes to the suggestion that sessions withhold per capita. He says "The congregation’s responsibility is not to itself, but to itself in light of its call to ‘fulfill its responsibilities as the local unit of mission for the service of all people, for the upbuilding of the whole church, and for the Glory of God’ (Book of Order, G-4.0104).” (Citing to Johnston, et al. v. Heartland Presbytery)

Well, yeah, but how is it wrong to withhold per capita from the PC(USA)and use it through some other agency "for the service of all people, for the upbuilding of the whole church, and for the Glory of God"? Just because the agency used is not the PC(USA)? Or is it that he believes, as did the authors of the Louisville Papers, that the PC(USA) alone is the "true church"?

And try as he might to limit Central Presbyterian v. Presbytery of Long Island (a presbytery cannot require payments from a session, nor can it punish a session for its refusal to comply with requests for payment from a presbytery),Kirk Johnson et al v. Heartland Presbytery, and Minihan and Richards v. Scioto Valley Presbytery to his aspirational language, he must admit that those cases established and reaffirmed long-standing GAPJC decisions that payment of per capita is voluntary, not mandatory.

Finally, we hear once again a plea "to heed the words of 1 Cor. 6:7 and avoid lawsuits." Well let's look at 1 Corinthians 6.

1 When one of you has a grievance against another, does he dare go to law before the unrighteous instead of the saints? 2 Or do you not know that the saints will judge the world? And if the world is to be judged by you, are you incompetent to try trivial cases? 3 Do you not know that we are to judge angels? How much more, then, matters pertaining to this life! 4 So if you have such cases, why do you lay them before those who have no standing in the church? 5 I say this to your shame. Can it be that there is no one among you wise enough to settle a dispute between the brothers, 6 but brother goes to law against brother, and that before unbelievers? 7 To have lawsuits at all with one another is already a defeat for you. Why not rather suffer wrong? Why not rather be defrauded? 8 But you yourselves wrong and defraud—even your own brothers!

9 Or do you not know that the unrighteous will not inherit the kingdom of God? Do not be deceived: neither the sexually immoral, nor idolaters, nor adulterers, nor men who practice homosexuality, 10 nor thieves, nor the greedy, nor drunkards, nor revilers, nor swindlers will inherit the kingdom of God. 11 And such were some of you. But you were washed, you were sanctified, you were justified in the name of the Lord Jesus Christ and by the Spirit of our God.

Paul counsels against using frivilous lawsuits against brothers, that is, suits for improper purposes. He does not forbid all suits. For instance, in Romans 13 he reminds us

1 Let every person be subject to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God. 2 Therefore whoever resists the authorities resists what God has appointed, and those who resist will incur judgment. 3 For rulers are not a terror to good conduct, but to bad. Would you have no fear of the one who is in authority? Then do what is good, and you will receive his approval, 4 for he is God's servant for your good. But if you do wrong, be afraid, for he does not bear the sword in vain. For he is the servant of God, an avenger who carries out God's wrath on the wrongdoer. 5 Therefore one must be in subjection, not only to avoid God's wrath but also for the sake of conscience. 6 For because of this you also pay taxes, for the authorities are ministers of God, attending to this very thing. 7 Pay to all what is owed to them: taxes to whom taxes are owed, revenue to whom revenue is owed, respect to whom respect is owed, honor to whom honor is owed.

In other words, God created and instituted the civil magistrate to carry out those proper functions within its domain. One of those functions, recognized since at least the Roman Empire, is to resolve property disputes. When Paul asks, "Can it be that there is no one among you wise enough to settle a dispute between the brothers, but brother goes to law against brother, and that before unbelievers?", I wonder if he meant that one brother claiming the property could decide the issue between himself and the other brother? Probably not. And a whole lot of judges today are believers--witness the admonition of the Louisville Papers to seek a Roman Catholic or Episcopalian judge!

And I'll bet that many in the PC(USA) wish the Clerk had stayed away from 1 Corinthians 6. "Or do you not know that the unrighteous will not inherit the kingdom of God? Do not be deceived: neither the sexually immoral, nor idolaters, nor adulterers, nor men who practice homosexuality, nor thieves, nor the greedy, nor drunkards, nor revilers, nor swindlers will inherit the kingdom of God."

Ooooops.

Oh, Cordell, what would you think?

PANIC IN LOUISVILLE

As many have recently reported in the blogosphere, the PC(USA) continues its slide into an episcopal dictatorship. The latest institutional departure from historic presbyterianism arises out of the vote in Woodland Presbyterian Church in New Orleans to disaffiliate from the Presbyterian Church (USA). The vote by secret written ballot was 150-6 in favor of disaffiliation, with six abstentions.

What made Woodland's vote unique was the attempt by the Presbytery of South Louisiana to obtain from the civil courts a temporary restraining order prevent Woodland from holding a congregational meeting to vote on disaffiliation.

In this case, the civil court got it absolutely right: recognizing that the congregation has a constitutionally protected freedom of assembly--free from the interference of the civil government-- the request fro the TRO was denied.

Woodland voted three days later to disaffiliate, thus severing its voluntary association with the PC(USA). Sadly, the presbyteryis still seeking a preliminary injunction to stop Woodland from conducting the meeting that has already occurred. (That last sentence was as hard to write as it is to read, but that is what PSL is doing.) In effect, PSL asks the court to enforce PSL's incorrect interpretation of the Book of Order and to bar Woodland from ever meeting to vote on disaffiliation.

The bureaucratic attempt to remedy a defect in the PC(USA) constitution by means of civil suit and administrative fiat results from a nearly thirty year old defect in the Books of Order of the UPCUSA and the PC(USA). Since at least 1984, the PC(USA) has been aware that the absence of an express provision in its constitution forbidding disaffiliation, churches are free to do so. Coupled with the ambiguous grant to congregations of certain undefined "permissive powers," another ambiguity, the absence of such a ban fully supports the right of unilateral disaffiliation.

As more and more congregations learn just how far the bureaucracy in Louisville has strayed from the grassroots in matters of theology, Christology, and Scripture, the bureaucrats have panicked and attempted a putsch to stamp down on the restiver membership. The tools employed have been the unilateral amendment of the Book of Order by presbyteries in the form of "procedures" that change constitutional provisions on quora and required voting majorities. Louisville started the the assault on the Book of Order with the promulgation of the infamous "Louisville Papers."

The court's ruling in Woodland would appear to render PSL's request moot, but PSL has announced that it intends to pursue a preliminary or permanent injunction against Woodland. This can only be read as a warning signal to other congregations, meant to delay any more disaffiliation votes until the upcoming PC(USA) General Assembly. At that GA, the PC(USA) will attempt to ram through a new "Form of Government" which may clear up some of the ambiguities in the present Book of Order, and to transfer most power to the halls of Louisville.


Considering the recent actions by the Synods of the Sun and of the Pacific to usurp the powers of presbyteries, it becomes clear that Louisville hopes to shove through amendments to the Book of Order that will convert the PC(USA) from a presbyterian body to an episcopacy. As the clock runs down, it will be interesting to see just how many congregations make a break for freedom.

PERMISSIVE POWERS (PART IX)

Note: The posts in this series are the opinion of the author. They do not reflect, nor should they be construed to reflect, the opinions or positions of Cozen O’Connor, Forks of the Brandywine Presbyterian Church, the New Wineskins Association of Churches, or the Evangelical Presbyterian Church.

To wrap up:

A mandatory State-church is anathema to Americans. We cannot send out press gangs to force people to become members of the PC(USA), the EPC, or any other congregation or denomination. People may come and go as the Spirit moves them. If a majority of the individual members of a faith community collectively and collegially determine that they are called to move together, they have the right to do so with the property that they have purchased and maintained for that community and its ministry and mission. Cf., Genesis 12: 5. The suggestion that such a conscientious decision may be made only by individuals, rather than through a corporate decision, can only be the result of a truly bureaucratic mind.

Attempts to coerce continued membership through the use of unnecessarily bureaucratic and dilatory processes and the in terrorem effect of confiscatory “property trusts” are doomed to failure. Although parishioners are naturally emotionally tied to “their” church [building], faith and God’s call will ultimately lead faithful believers to abandon their baggage if faithfulness so requires.

The claim that power to sever relations with an entire congregation is reserved solely to the presbytery does not appear in the Book of Order. In order for such power to reside in the presbytery alone, Book of Order § G-11.0301 would have to read:

T h e presbytery is responsible for the mission and government of the church throughout its geographical district. It therefore has the sole responsibility and power
* * *
i . to divide, dismiss, or dissolve churches; . . ..

This wording is obviously unworkable when one applies it to the other 26 subparagraphs of § G-11.0301. Instead, a separate provision would be needed, for example:

G-11:0301.1
a. The presbytery has the sole responsibility and power to divide, dismiss, or dissolve churches within its geographical district.
b. Dismissal is the only constitutionally permissible means for a congregation to sever its relationship with the PC(USA) and its presbytery.

Obviously, the PC(USA) has taken no such action to limit the decision to depart to the presbytery. In fact, the absence of such a clear and specific proscription led the Pennsylvania Supreme Court to recognize disaffiliation as a permissive option for a congregation. See, Presbytery of Beaver-Butler v. Middlesex, 489 A.2d 1317, 1324 (Pa. 1985) (“[t]he Constitution [of the UPCUSA] does not prohibit a congregation from disaffiliating . . .”; “when the local body voluntarily affiliated with the UPCUSA’s predecessor. . .”) (emphasis added).

In the ensuing 24 years, the PC(USA) has ignored that decision and its inherent warning and has taken no action whatsoever to remedy the absence of such a bar to disaffiliation. Until it does, the Book of Order is ambiguous and that ambiguity ought to be construed in favor of a reading of § G-7.0304a(5) to reserve to congregations a permissive power to disaffiliate.

Here endeth the lesson.

PERMISSIVE POWERS 101 (PART VIII)

Note: The posts in this series are the opinion of the author. They do not reflect, nor should they be construed to reflect, the opinions or positions of Cozen O’Connor, Forks of the Brandywine Presbyterian Church, the New Wineskins Association of Churches, or the Evangelical Presbyterian Church.

Some might suggest that this [the power to request dismissal] is a power held by the session. This argument must fail on at least two grounds.

First, the Book of Order is silent as to any power of the session to request dismissal on its own authority.

Second, when considering the other momentous topics that are specifically assigned to action by the congregation, such as pastoral relations and encumbrance of property, the idea that a session could unilaterally commit a congregation to a similar action—dismissal—fails the “smell test.”

Although any resort to common sense in discussions of government or polity is fraught with danger, in this case, it is probably safe to conclude that a presbytery may not unilaterally dismiss a congregation to some other denomination. Cf., Book of Order, anot. 21.194 (“When dealing with a request by a church for dismissal with its property. . .”) (emphasis added).

It then follows that a congregation would have to initiate such a request. However, the proponents of a strict reading of § G-7.0304 would have us believe that the congregation apparently has no constitutional authority to take such action. That erroneous and narrow reading of § G-7.0304 must fail, in favor of some broader permissive right of termination reserved to the congregation. If a request to be dismissed is one of the permissive powers of a congregation, then other similar powers to modify or terminate the voluntary affiliation between congregation and denomination should also be included in that broad, undefined category.

The congregation rather than a “governing body” is granted express power with respect to buying, mortgaging, or selling real property. It would follow that the congregation is also empowered to take at least one other action which impacts on its ownership of its property: maintaining that unfettered ownership even as it decides that it is called to embrace a new denominational affiliation.

By the PC(USA)’s own definition, the congregational meeting discusses property issues, melds individuals into a unified (corporate) congregation, and, repeatedly, gathers information and takes action to forward its mission. Because the church’s property is the home base for its mission to the community, state, nation and the world (cf., Acts 1:8), the congregation (as opposed to any other entity) must have control over its property.

Obviously, after prayer and deliberation, a congregation may actually decide to create a trust and then place its property in that trust for the use and benefit of some other entity, e.g., its presbytery or the PC(USA). However, the decision is that of the congregation, not a unilaterally imposed edict of the denomination.

Boiled down to its basics, at its annual meeting, the congregation asks and answers the following questions:

• Who shall be our leaders?
• What shall we agree and promise to pay our pastor?
• What shall we do with our land, buildings and other property which we, as a congregation have purchased for the purpose of our worship?

All of these questions go directly to the root of the congregation’s unique identity. Surely, the final component of that identity—denominational affiliation—must also be reserved to the congregation. Thus, we add to the foregoing list the question

• How (by what denominational name) shall we identify ourselves to the community?

Observe that in every instance, these questions go to the core issue of the identity of the congregation.

Accordingly, while a request to be dismissed is clearly one option for terminating denominational affiliation, it is not necessarily the only option under the Book of Order. Because the congregation is the body designated to make such essential missional decisions, absent a clear, unambiguous limitation on congregational authority, unilateral disaffiliation must also be an option open to a congregation. And such power is absolutely necessary to avoid the consequences of a presbytery which, wrongfully or in bad faith, withholds dismissal.

Some might argue that a presbyterian veto is necessary to prevent untoward departures. That is yet another symptom of the modern preference for coercion over trust.

While a presbytery’s deliverances and policy statements are not binding on the membership of the local Church, if a presbytery refuses to give its assent to a request for dismissal, and does so for valid reasons, its statements should be considered worthy of the respect and prayerful consideration of the requesting congregation’s members. Ordinarily, only if dismissal is improperly withheld would resort to unilateral disaffiliation be necessary.

Of course, when evidence exists of presbytery’s predisposition to withhold, such as previous action by the presbytery to ignore dismissal requests or previous resort to administrative commissions or civil suit, immediate resort to disaffiliation would be reasonable. A recent example of such appropriate evidence is the secret distribution by denominational headquarters to the presbyteries in 2005 of two documents: “Church Property Disputes: A Resource For Those Representing Presbyterian Church (U.S.A.) Presbyteries And True Churches In The Civil Courts” (Office of the General Counsel, PC(USA), rev. 12/05) and “Processes for use by presbyteries in responding to congregations seeking to withdraw,” (Department of Constitutional Services, PC(USA), September 2005).

These documents, which have come to be known as the “Louisville Papers,” are plans for a punitive and pre-emptive legal campaign against congregations merely suspected of considering seeking to leave the denomination.

Despite the attempt by some writers to characterize denominational affiliation as a permanent choice, we all know that members of a congregation may “vote with their feet” and change churches and even denominations at will. The most often used comparison is enlistment in the armed forces. See, e.g., Elder Bill Newkirk “To Leave or Not to Leave: An Open Letter to fellow Presbyterians,” Presbyterian Outlook on-line (03/05/2007) (“What makes anyone think that they can pick up and leave any time something comes along they don't agree with? In the military services they call that desertion.”); Rev. Paige McRight, “Personal reflections on the New Wineskins convocation,” id. (03/12/2007) (“Until I was ten, my father was an Army officer and we lived our lives by military orders. We drove the posted speed limit on base, my dad wore the uniform prescribed in the orders of the day and when the Army said move, we packed.”) But see, Elder Michael R. “Mac” McCarty, “Going Where God Has Ordained Us To Be,” id., (03/21/2007) (“The desertion analogy would be correct only if the PC(USA) were the one true church. But it isn’t. In this case, many congregations have received an order from God to ‘stand detached from the PC(USA) and proceed and report to the EPC for duty.’ God is our commander-in-chief. The entire Church is His. When He issues orders to ‘Go,’ and to ‘Do this,’ obedience of those orders is mandatory. Obedience cannot be desertion because the departure is with authority. The recipient of those orders must pack and go.”)

That's the finish line ahead!

PERMISSIVE POWERS 101 (PART VII)

Note: The posts in this series are the opinion of the author. They do not reflect, nor should they be construed to reflect, the opinions or positions of Cozen O’Connor, Forks of the Brandywine Presbyterian Church, the New Wineskins Association of Churches, or the Evangelical Presbyterian Church.

What are the permissive powers of the congregation?

Any discussion of the powers, both inherent and permissive, of the congregation must start with the understanding that the congregation is not itself a court of the Church. Any suggestion to the contrary is unsupportable by fact or by logic. Unlike the age-old question about the priority of the chicken and the egg, the congregation must precede the session, both temporally and logically. The congregation is the most basic expression of the Church of Jesus Christ. Without the congregation there is no session, and without the congregation, there can be no presbyteries, synods, or a general assembly.

The court of original jurisdiction for the congregation is the session. The presbytery is a court with a wider jurisdiction. It properly has original jurisdiction over the ministers and, to a lesser degree, session, but not the congregation. Presbyteries are not given the power to unilaterally dissolve congregations but can only do so by a process that necessarily involves due process, including conversations with the congregation and other procedural safeguards. Even here, the Book of Order is ambiguous with respect to the issue of dissolution of a congregation. Other than a mere recitation that a presbytery has the power to dissolve a congregation, §G-11.0103i, and the assertion that the property of a dissolved congregation becomes that of the presbytery, §G-8.0601, the Book of Order states no bases upon which a dissolution decision must rest. Thus, a covetous presbytery might consider dissolution for no better reason than to confiscate the property of one of its member churches for the pecuniary gain of the presbytery.

Definition of permissive powers of the congregation is extremely important at this juncture in history. For the first time in over a quarter-century, a significant number of congregations are voicing their desire to terminate their affiliation with the Presbyterian Church (U.S.A.). In response, the national headquarters of the denomination and various presbyteries are loudly and repeatedly asserting with no support in either fact or law that the only avenue for such departure is by way of “dismissal” by the presbytery in which the congregation is situated. Absent dismissal, says the denomination, a congregation is forced to either stay in the PC(USA) or to disband and forfeit its property to the presbytery. (In so doing, they are following that oldest of propaganda rules: a false statement or interpretation, voiced often enough and loudly enough, will soon take on an aura of truth.)

Section G-11.0103i is the only mention in the Book of Order of dismissal as a means of departure from the PC(USA). (Mere reference to §G-11.0103i in §G-8.0601 is not an independent mention of dismissal. ) Section G-11.0103 makes it clear that the congregation (“members”), not the session, is on the other side of the situational equation from the presbytery. Nowhere in the Book of Order is there any mention of how the dismissal process is to be initiated or executed.

There is a presumption that each word contained in a document such as the Book of Order has a meaning and is not mere surplussage. Londonderry, et al. v. Pby of Northern New England, (Remedial Case 213-2, GAPJC 2001)(it is the task of governing bodies and judicial commissions to resolve tensions and ambiguities in the Constitution’s provisions in such a way as to give effect to all provisions).

Giving a presbytery the right to dismiss a congregation presupposes that the congregation can constitutionally request dismissal. To empower a presbytery to respond to a request that a congregation has no authority to make would be a nullity of the first order.

Therefore, because § G-7.0304 makes no specific mention of request for dismissal, the congregation’s right to do so must be one of the “permissive powers” reserved to the congregation.

More tomorrow.

PERMISSIVE POWERS 101 (PART VI)

Note: The posts in this series are the opinion of the author.They do not reflect, nor should they be construed to reflect, the opinions or positions of Cozen O'Connor, Forks of the Brandywine Presbyterian Church, the New Wineskins Association of Churches, or the Evangelical Presbyterian Church.

Boiled down to basics, the congregation reserves the power of self-government, including the right to organize itself, so that, at the local level, its witness and ministry is most effective. Among the powers expressly reserved to the congregation are:

- election of officers of the local congregation (elders, deacons, and trustees),

- calling a pastor or pastors, matters related to the relationship between the pastor and the congregation, such as changing the terms of call, or requesting or consenting or declining to consent to dissolution,

- matters related to major financial impacts on the congregation, such as buying, mortgaging, or selling real property, and

- organization of its local, internal governance, such as lodging all administrative responsibility in the session, or requesting exemption from one or more requirements because of limited size.

Self-government has always been a hallmark of American presbyterianism. As part of their self-governance, congregations, voluntarily give, and through their elected elders, collect and spend the tithes and offerings in order to further their mission and ministry. They do so free from any legal or constitutional power in presbyteries, synods, or general assemblies to tax them or to otherwise confiscate their funds.

In most cases, they purchased and continue to maintain the property that is central to their local ministry and mission through the gifts, tithes and offerings of their local congregations. Congregations alone elect the elders who will lead them and call the pastors who will be their shepherds. Leadership of the local church is not imposed from on high by bishops, cardinals or other hierarchies.

It follows then that the permissive powers of the congregation must include those which protect the congregation from governmental, political, and bureaucratic tyranny.

More tomorrow.

PERMISSIVE POWERS 101 (PART V)

Note: The posts in this series are the opinion of the author.They do not reflect, nor should they be construed to reflect, the opinions or positions of Cozen O'Connor, Forks of the Brandywine Presbyterian Church, the New Wineskins Association of Churches, or the Evangelical Presbyterian Church.

So, what powers might fall within the rubric of “permissive powers?” Clearly, it is a general article or catch-all clause, intended to account for the distribution of powers not specifically mentioned but necessary to the function of the congregation and to protect it from the arbitrary exercise of unauthorized power by a “governing body.”

In this regard, § G-7.0304 is instructive. At §G-7.0304a, it provides:

a. Business to be transacted at meetings of the congregation shall include the following:
( 1 ) matters related to the electing of elders, deacons, and trustees ;
( 2 ) matters related to the calling of a pastor or pastors;
( 3 ) matters related to the pastoral relationship, such as changing the call, or requesting or consenting or declining to consent to dissolution;
( 4 ) matters related to buying, mortgaging, or selling real property (G-8.0500) ;
( 5 ) matters related to the permissive powers of a congregation, such as the desire to lodge all administrative responsibility in the session, or the request to presbytery for exemption from one or more requirements because of limited size. (Emphasis added.)

Some may opine that the list is exclusive, relying on § G-7.0304b:

b . Business at congregational meetings shall be limited to the foregoing matters (1) through (5). Whenever permitted by civil law, both ecclesiastical and corporate business may be conducted at the same congregational meeting.

However, when §G-7.0304 is read as a whole, that argument must fail, if for no other reason than that the entire section is ambiguous. The inclusion of the phrases “shall include” and “such as” clearly connote that the list is not exclusive and that other business “such as” the topics set forth may properly be “include[d].” In other words, the topics listed are by way of example.

PERMISSIVE POWERS 101 (PART IV)

Note: The posts in this series are the opinion of the author.They do not reflect, nor should they be construed to reflect, the opinions or positions of Cozen O'Connor, Forks of the Brandywine Presbyterian Church, the New Wineskins Association of Churches, or the Evangelical Presbyterian Church.

The Book of Order recognizes a separate and distinct set of powers that belong, not to the “governing bodies,” but to the individual congregations. These powers are referred to as the “permissive powers of the congregation.” Book of Order, §G-7.0304a(5).

At least one chapter of the Book of Order begins with a section entitled “definitions,” (see, § G-9.0101. See, also, § G-9.0401). However, nowhere in the Book of Order can one find a definition of the elusive and ambiguous phrase “permissive powers of the congregation.” It is this very ambiguity that presents the greatest obstacle to those who argue that the power to depart must reside only in an all-powerful presbytery.

The doctrine contra proferentum stands for the proposition that an ambiguity in a document shall be construed against he who wrote the document. In this case, the Book of Order was written and adopted by bodies other than the congregations against whom it is being used. In fact, it was written by the very bodies who seek to benefit from their own interpretation of their ambiguity. The Book of Order is suspiciously akin to a contract of adhesion.

The General Assembly has long been aware of the ambiguity, see, e.g., Presbytery of Beaver-Butler v. Middlesex, 489 A.2d 1317, 1323 (Pa. 1985); Presbytery of Donegal v. Calhoun, 99 Pa. Cmwlth 300, 513 A. 2d 531, 538 (1986); Presbytery of Donegal v. Wheatley, 99 Pa. Cmwlth 312, 513 A. 2d 538,540 (1986).

It has always had the power to cure the ambiguity, but, for over 20 years, has failed to do so. Therefore, the ambiguity must be construed against the General Assembly (as sponsor and beneficiary of the Book of Order) and in favor of the congregations which had no say in the drafting and adoption thereof.

The conspicuous absence of a definition of the permissive powers of the congregation, coupled with the vague descriptive list in subparagraphs (1) through (4), leads to the necessity of a contextual definition. Studying the theme of §G-7.0304a, one comes to the conclusion that those powers include any that are central to the life and ministry of the congregation and that are not specifically granted to one of the governing bodies. It is reasonable to assume that such powers are those that are of greatest concern to, and which have the greatest impact on, the core identity of the individual congregation.

Note the limitation of this assertion: it claims for the congregation only those undefined powers that impinge upon its own ministry. By way of example, it makes no claim to the right to take under care inquirers or candidates or to examine candidates for ordination as Ministers of Word and Sacrament, or to exert judicial power beyond the four walls of its church.

More to come.

IT'S ALL ABOUT PROPERTY

We interrupt our regularly scheduled program for a bulletin.

A letter to The Layman

Well, they are at it again. Imperial Louisville and its barons and earls (or is that Cardinals and Bishops?) have gundecked a nice little piece of extra-constitutional justification and dressed it in constitutional trappings. This time the Advisory Committee on the Constitution (ACOC) has recommended that this June’s General Assembly adopt an Authoritative Interpretation regarding the constitutionality of dismissal of congregations to the New Wineskins Transitional Non-geographic Presbytery of the EPC.

Friends, as pigs go, it is dressed up real nice….but it is still a pig.

In a feat of legerdemain that would do the Spahr court proud, they admit that presbyteries have the power (unless you are in Southern Louisiana), but they must actively assure themselves that the receiving body is one “whose organization is conformed to the doctrines and order of this church.”

They then opine that the EPC is not such a body because it has a defined set of Essential Tenets which elders, teaching and ruling, must affirm without any reservation! Oh, the shame of it all. The EPC is ready to say to the whole world just what it believes.

The Merlin's of Louisville go on to state that

In both our polity and in the theology on which it is founded, we have long recognized that “reservations” and points of disagreement in some matters of faith are not only inevitable but ultimately nourishing for the health of the church. Moreover, we have resisted listing the “essential tenets of the Reformed faith” (W-4.4003c), precisely because such lists tend to confine the theology of the church within the narrow strictures of the historical moment in which the list was created, robbing it of its life and liveliness. For this reason, we have deemed it wise to have not one confessional statement but a Book of Confessions (Part I of this denomination’s constitution), in which are registered multiple statements of faith that stand in both mutual support and occasional tension. Can such theological suppleness be said to characterize the doctrines of the Evangelical Presbyterian Church?

“Theological suppleness” is the way to go. Forget the unchanging nature of God’s call on us. We need to make sure that no one goes to a denomination that does not reserve the right to change God’s inerrant and unchanging Word by adding the manmade “life and liveliness” of the moment. That is why it is better to have “multiple statements of faith that stand in both mutual support and occasional tension.” It is a Chinese restaurant theology—pick one from column A and another from column B.

So, out of an abundance of theological caution, they imply that dismissal is probably not permissible.

You know what? If they had just stopped right there, they might have at least had a colorable argument, weak though it is. But they go on to what really galls them.

What happens to congregations in transitional presbyteries that elect not to be received into full EPC membership . . . [w]hen the five-year sunset date for the provisions is reached [?]

* * * * * * * *

Neither the EPC Book of Government or (sic) the enabling actions of the 27th General Assembly contain any property trust provisions; indeed, both maintain absolute congregational ownership of church property. This appears to mean that congregations dismissed from membership in EPC transitional presbyteries at or before the sunset date for transitional presbyteries may thereby attain independent status. It thus appears quite possible that a congregation seeking membership in an EPC transitional presbytery may be, in effect if not in actual intent, seeking dismissal to independent status. Such an eventuality would result in the loss of the investment of the time, money, energy, and faithfulness of generations of Presbyterians to the witness of the Reformed faith. It would certainly violate the spirit, if not the letter, of the Anderson and Bagby decisions. (Emphasis added.)

So there it is. The property pig all dressed up in polity gingham. ACOC's real gripe with the EPC is that it trusts its congregations to stay in the denomination so long as the denomination stays faithful to Scripture. The difference between the two is this:

The EPC recognizes that if it strays from the essential tenets of the Reformed faith, the faithful have the right to leave; that coercion through a “property trust” (even one that is unenforceable, such as the PC(USA)’s ) is immoral, or as my nine-year old would say "just plain wrong."

In the PC(USA) the only essential tenet is “we can believe any old heresy we want and if you don’t like it, we’ll try to take your building and the hymn books and the little plastic communion cups.”

It is still all about property!

PERMISSIVE POWERS 101 (PART III)

Note: The posts in this series are the opinion of the author.They do not reflect, nor should they be construed to reflect, the opinions or positions of Cozen O'Connor, Forks of the Brandywine Presbyterian Church, the New Wineskins Association of Churches, or the Evangelical Presbyterian Church. Now Mr. Mott knows.

Beginning any discussion of power and jurisdiction within the PC(USA), it is important to remember that the denominational Constitution is prescriptive rather than proscriptive. A prescriptive constitution confers upon the judicatories of the denomination only those powers specifically enumerated. See, e.g., §G-1.0307, and §G-1.0308.

On the other hand, a proscriptive constitution surrenders to governing bodies all powers that are not specifically forbidden to them. It follows, then, that the governing bodies of the PC(USA) possess only those powers expressly delegated to them, respectively, in the Constitution. Any assertion to the contrary constitutes a patent usurpation of authority and contravenes the very foundations of Presbyterian polity.

Governing bodies have no civil authority or jurisdiction. See §G-9.0101. Moreover, the governing bodies have only shared ecclesiastical authority. Book of Order §G-9.0103 states in pertinent part:

All governing bodies of the Church are united by the nature of the Church and share with one another responsibilities, rights, and powers as provided in this Constitution.

While “higher” governing bodies may review the actions of a lower, the respect and obedience due to any governing body is both limited, §G-1.0307, and contingent, §C-6.174 . The Permanent Judicial Commission of the General Assembly of the PC(USA) determined in Johnston et al. v. Heartland Presbytery, Remedial Case 217-2:

G-1.0400 does not characterize the task of governance as power and authority to carry out edicts, but in terms of arriving at the “collected wisdom and united voice of the whole Church”. While the Book of Order refers to a higher governing body’s “right of review and control of a lower one” (§G-4.0301f), these concepts must not be understood in hierarchical terms, but in light of the shared responsibility and power at the heart of Presbyterian order (G-4.0302) (emphasis added).

The Westminster Confession of Faith (as amended in 1788) states the limiting conditions on the authority of governing bodies:

. . . which decrees and determinations, if consonant to the Word of God, are to be received with reverence and submission, not only for their agreement with the Word, but also for the power whereby they are made, as being an ordinance of God, appointed thereunto in his Word (emphasis added).

The current tendency of some leaders in the PC(USA) to view the governing bodies of the church as legislative bodies is historically flawed. Until 1983, the proper reference was to “judicatories” rather than to “governing bodies. Although the descriptor was changed with the reunion of 1983, the functions remained essentially unchanged. The powers of sessions, presbyteries, synods and the General Assembly are powers of jurisdiction and interpretation of the Law of the Church which is the word of God. The Constitution, in both the Confessions and the Book of Order, is merely a historical compilation of the interpretation of that law by one particular branch of the Church universal.

It is also important to remember that § G-9.0103’s reservation of certain “powers not mentioned” is limited in its application to “governing bodies.” In other words, powers of governing bodies are distributed among the several judicatories, with those powers of the governing bodies which are not enumerated devolving to the presbytery. See, also, Strong and Bagby v. Synod of Mid-South (PCUS, 1976, pp. 92-99, (No. 1 - 1976)) (“It is critical to the maintenance of this form [of government] that the various [governing bodies] exercise the specific jurisdiction conferred upon them, neither usurping that not given them nor declining to exercise that given, whether by default or by attempted delegation. . . . ”) (emphasis added).

Strong and Bagby is often cited as support for the proposition that under the Book of Order of the PC(USA) only a presbytery can dismiss a congregation. Strong and Bagby was decided based on the Book of Church Order (“BCO”) of the old PCUS. There is no indication that the BCO contained any recognition that the congregation has its own discrete permissive powers, nor, apparently was any such issue briefed in that case.

Ultimately, the judicatories/governing bodies/councils of the denomination are limited in their jurisdiction to ecclesiastical matters, to be determined as a matter of theology. This limitation on church authority and jurisdiction was the genesis of the development by the United States Supreme Court of the “neutral principles of law” approach to instances in which church organizations were embroiled in matters of purely civil law.

More tomorrow.

THE nFOG CRISIS

We interrupt our regularly scheduled program for a bulletin.

The Presbyterian Outlook reports here on the proposed "new Form of Government" ("nFOG") which will be offered up at the PC(USA) General Assembly this June. Included is a report on a debate between Cynthia Bolbach, Esquire, co-moderator of the nFOG Task Force and Rev. James Berkley, Director of Presbyterian Action for Faith and Action.

Imperial Louisville is pushing hard to have the GA adopt nFOG and to send it out to the presbyteries for prompt ratification. A number of presbyteries, noting that this is a drastic overhaul of the current Form of Government, have overtured the GA to simply receive the nFOG and to then send it to the presbyteries for two years of study. Action could then be taken at the next GA in 2010.

Why the big push from Louisville to get this done now?

The nFOG makes several changes that inure to Louisville’s game plan to establish a hierarchical, episcopal government within the PC(USA). In particular:

The reference in the current Book of Order to “permissive powers of the congregation” has quietly disappeared. The matters on which a congregation can act will be limited to four narrowly drafted topics in which Louisville has no interest.

Moreover, in an ambiguously written revision, it appears that payment of per capita by congregations can be forced. Arguably, failure to pay per capita can then expose a session to action by its presbytery to assume original jurisdiction to force payment.

Churches that want to leave the PC(USA) with their property had better act quickly. They can no longer trust that the constitution means anything to those people in Louisville. More and more, disaffiliation appears to be the only constitutionally permissible means of severing a congregation’s voluntary affiliation with the PC(USA.

PERMISSIVE POWERS 101 (PART II)

Note: The posts in this series are the opinion of the author.They do not reflect, nor should they be construed to reflect, the opinions or positions of Cozen O'Connor, Forks of the Brandywine Presbyterian Church, the New Wineskins Association of Churches, or the Evangelical Presbyterian Church.

As I will discuss later, the various “governing bodies” (session, presbytery, synod, and General Assembly) of the PC(USA) are constitutionally fashioned to have limited powers. Although referred to in the current Book of Order as “governing bodies;” traditional presbyterianism has always deemed its elected representative bodies, from the session through the General Assembly, to be judicatories or courts as opposed to legislatures. See, e.g., the ambiguous statement of Clifton Kirkpatrick, Stated Clerk of the General Assembly in amicus brief filed in the United States Supreme Court in Full Gospel Tabernacle, et al. v. Community School District 27, et al.(U.S. Supreme Court, No. 98-1714; May 26, 1999)(“ The General Assembly does not claim to speak for all Presbyterians, nor are its deliverances and policy statements binding on the membership of the Presbyterian Church. The General Assembly is the highest legislative and interpretive body of the denomination, and the final point of decision in all disputes. As such, its statements are considered worthy of the respect and prayerful consideration of all the denomination's members.” (emphasis added).)

The Kirkpatrick affidavit, repeated in numerous cases in which the PC(USA) filed "friend of the court" briefs, also undercuts the recent claim by Louisville that the PC(USA) is a hierarchical church. The statements of a legislature are mandatory, not simply “worthy of the respect and prayerful consideration.” You can bet that Pope Benedict, the head of a real hierarchical church, would never sign such a statement.

In fact, the Form of Government Task Force created by the 217th General Assembly has proposed that that term “governing bodies” be replaced by the word “councils” in the proposed new Form of Government.

Finally, the assertion by the bureaucracy that denominational polity does not provide any right to disaffiliate, that no such authority is given to a congregation, and that no such authority is delegated to the session, actually presents the foundation for the conclusion that such a power is therefore reserved to the congregation under the scheme of limited powers.

So, before we look at the powers of the congregation, we must consider the limited powers of judicatories/governing bodies/councils.

Stay tuned.

PERMISSIVE POWERS 101 (PART I)

Note: The posts in this series are the opinion of the author.They do not reflect, nor should they be construed to reflect, the opinions or positions of Cozen O'Connor, Forks of the Brandywine Presbyterian Church, the New Wineskins Association of Churches, or the Evangelical Presbyterian Church.

In a recent post, I discussed the growing disregard of the Constitution of the PC(USA) by imperial Louisville and its barons in some synods and presbyteries. I observed that in response, some churches have decided to forego requesting that their presbyteries dismiss them with their property and have exercised their “permissive powers of the congregation” to simply disaffiliate from the PC(USA).

A number of folks have posed a very astute question, to wit: “Huh? What are ‘permissive powers’?”

Good question. So following a practice of many pastors, I will begin a sermon series entitled “Permissive Powers 101.” Shall we begin?

Today’s reading comes from Chapter VII of the Book of Order.

Section G-7.0304a, provides:

a. Business to be transacted at meetings of the congregation shall include the following:

( 1 ) matters related to the electing of elders, deacons, and trustees ;
( 2 ) matters related to the calling of a pastor or pastors;
( 3 ) matters related to the pastoral relationship, such as changing the call, or requesting or consenting or declining to consent to dissolution;
( 4 ) matters related to buying, mortgaging, or selling real property (G-8.0500) ;
( 5 ) matters related to the permissive powers of a congregation, such as the desire to lodge all administrative responsibility in the session, or the request to presbytery for exemption from one or more requirements because of limited size. (Emphasis added.)

As you now peruse your well-thumbed copy of the Book of Order looking for the definition, I bid you a fond adieu.

A SUCCESSFUL DISAFFILIATION

Wow! Easter is past and we are headed for Spring. A sure sign was the congregation of neighbors at the head of our driveway as I drove in. When the weather gets just a little warmer, it will be 9 pm or later before we even get into the house.

Yesterday, our former PC(USA) presbytery finally voted on the settlement of our suit to quiet title. Although a couple of pastors spoke for retribution, when it finally came to a vote, the presbytery approved the settlement unanimously.

We had disaffiliated last June on the Sunday after the EPC approved the creation of the New Wineskins Transitional Non-Geographic Presbytery. In light of the Louisville Papers and because our former presbytery had a reputation for suing churches, having done so unsuccessfully in the mid-80's, we elected to file a declaratory judgment action to quiet title to our real and personal property.

We offered to negotiate almost immediately, but it took until October for the Administrative Commission to get together and meet with us. Their initial demand was $500,000, but we quickly agreed on a little less than $25,000. We had a full agreement in principle by early January, but the presbytery did not vote until yesterday.

The settlement is a good one for all concerned. The law was strongly against the presbytery and we had no real gripes with them; our concern was the extreme leftward and worldly drift of the PC(USA). They get 5 years of presbytery per capita based on our membership on the day we disaffiliated, directed to one of four of their missions. (We chose the summer camp. They will get a little over $18,000.) We also gave a much smaller unrestricted gift to the presbytery.

For us, it was a nuisance settlement--lawyer talk for it would have cost us more to continue the DJ action, and we get finality. We keep our name and our records, and can now focus on being the church God wants us to be in our community.