Part 2
INDEFENSIBLE OMISSION

Maxwell is critical, because the process Pittsburgh Presbytery (the ordaining governing body) followed is exactly what PUP now proposes. The GAPJC carefully reviewed Kenyon’s examination and recognized that it was done reasonably, responsibly, prayerfully, and deliberately. The presbytery decided that Kenyon was fit to be ordained, despite his expressed views. The GAPJC overruled the presbytery (the ordaining governing body) and prohibited his ordination. Acting on its own authority and without any prior determination by the General Assembly, the GAPJC established that the ordination of women was an essential of Reformed faith and polity. It ruled that Kenyon’s unwillingness to comply with an explicit constitutional requirement precluded his ordination.

The import of the Maxwell decision goes far beyond the immediate question of the ordination of women to office. Rather, the GAPJC affirmed the more encompassing principle of review and control by higher bodies (G-4.0304f), as fundamentally enunciated in the Radical Principles of Presbyterian church government in Book of Order, G-1.0400:

That power of review, invoked in Maxwell, had been clearly recognized by GA’s 1927 approval of the report of the Special Commission of 1925 (“the Swearingen Commission”). The ACC advice cites this report, but omits any reference to some of its pertinent statements. While advising great restraint in the exercise of power, the Swearingen Commission made explicit acknowledgement of General Assembly’s right to declare and enforce binding requirements:

Although limiting the effect of a judicial ruling to the specific case being considered, that Swearingen Commission still recognized the GA’s power of plenary review and enforcement:

The Maxwell court’s ruling was based on substance and directed to the outcome, not merely the process, of ordination decisions:

The GAPJC has heard many cases involving ordination issues since Maxwell, including many noted by the ACC. Particular decisions have gone diverse ways, but Maxwell invariably is cited and the GAPJC’s power to review both process and substance (plenary review) has never been at issue. Yet the 2006 ACC omits any mention of the Maxwell decision.

If adopted, Recommendation #5 would, for the first time, prohibit judicial review of the substance and outcome of an ordination decision. Under provision 5(d), only the process, i.e. whether the examination was done “reasonably, responsibly, prayerfully, and deliberately,” could be challenged. No longer could the substance or constitutional basis be reviewed judicially. This poses a radical shift of power from the GA to the presbyteries. Recommendation #5 would overturn Maxwell, notwithstanding G-1.0400 and G-4.0301f and other binding precedents. If adopted, it would effectively strip General Assembly of any meaningful constitutional power to make and enforce binding qualifications on office bearers. There is every reason to believe that in practice, the Constitution would have, at best, the authority of moral suasion. More likely, the Constitution would be widely treated as a merely advisory document with respect to ordination requirements.

Without any real constitutional justification or analysis, the ACC now advises that the GA has the power to do exactly what authorities from the Swearingen Commission to the Maxwell court and beyond said no governing body could do. It is essential for GA to understand the radical alteration of polity that Recommendation #5 would bring. In this context, the ACC’s failure to consider Maxwell and its ramifications for the PUP proposal makes the ACC report as seriously deficient as a history of recent US civil rights jurisprudence would be if it ignored the Supreme Court’s Brown v. Board of Education decision.

The glaring omission of Maxwell leads to inevitable conclusions: The 2006 ACC report is not entitled to any credibility as an even-handed analysis. Rather it should be read as advocacy for overturning the constitutional requirement of G-6.0106b that the presbyteries have voted to ratify and twice have refused to modify. The fact that it seeks to do this while asserting the perfect consistency of the proposals of Recommendation 5 with the present Constitution of the PC(USA) demonstrates its unreliability.