Part 6
DECONSTITUTING THE CONSTITUTION
WITH AN "EXPERIMENT"

Because the Book of Order expressly gives these powers to GA, they cannot constitutionally be removed or nullified by just one vote in the GA alone. If this or a future GA believes it wise to strip the GA of its inherent power to make and enforce binding constitutional requirements for the ordination of church officers, the Book of Order would have to be amended to change not only the specific ordination standards of G-6.0106 and G-6.0108, but also the fundamental historic principle of G-1.0302 and G-1.0400, that higher governing bodies have the authority to set binding ordination standards and to mandate compliance through judicial review. Adoption of the proposed authoritative interpretation would also violate the precept of Robert’s Rules ^a that a body cannot unilaterally set aside its own constitution and circumvent the amendment process defined by the Book of Order.

A. Recommendation #5 functionally strips GA of the power to set binding requirements for ordination.

Recommendation #5(a)-(b) pay lip service to the concept that the whole church, acting through the constitutional process of legislation by GA, with the concurrence of a majority of presbyteries, establishes “standards” for ordination. But the term “standards” is used equivocally. In Recommendation #5, a “standard” is an aspirational ideal, not a binding requirement. Section 5(c) (1) indicates that an ordaining governing body has the power to determine whether a candidate for church office “has departed from scriptural and constitutional standards for fitness for office.” Section 5(c) (2) would call for the ordaining governing body to determine “whether a departure constitutes a failure to adhere to the essentials of Reformed faith and polity.” GA’s power to mandate compliance functionally would be removed, because an ordaining governing body could declare any of the church’s “standards” to be non-essential; compliance would not be required. In the words of Jim Berkley, “Optional requirements are nonsense.” ^b

The 2006 ACC advice relies on the report “Historic Principles, Conscience, and Church Government” adopted by the 1983 GA. Coming at the time of reunion, the report addressed significant tension resulting from the newly-imposed requirement that all PCUSA sessions include both men and women. The ACC quotes an extended, six-paragraph excerpt. But note the following passages the ACC omits to quote:

The 1983 “Historic Principles, Conscience, and Church Government” report could hardly be clearer. Failure to comply with constitutional mandates has never been an option in the PC(USA).

The ACC’s advice completely negates these conclusions, that also echo the work of the Swearingen Commission (1925-27) and repeated GAPJC decisions, e.g. in the Maxwell v. Pittsburgh Presbytery (1975) and Londonderry PC v. Northern New England Presbytery (2001) cases discussed in earlier sections of this analysis. Taken together, this constitutional history refutes the 2006 ACC’s advice that Recommendation #5 can be adopted as an authoritative interpretation without following the amendment process. The GA has been ill-served by the 2006 ACC’s omissions and selective quotations. ^c

B. Recommendation #5 strips GA of the power to enforce binding requirements for ordination.

GA’s power to set standards is paralleled by its power to enforce those standards through the GAPJC. The principle that decisions of lower governing bodies are subject to review by governing bodies is foundational: “…appeals may be carried from lower to higher governing bodies, till they be finally decided by the collected wisdom and united voice of the whole Church” (G-1.0400).

Recommendation #5(d) strips GA of its power of enforcing constitutional requirements for ordination by restricting judicial review to purely procedural questions. On appeal, a PJC review of an ordaining governing body’s decision under Recommendation #5(c)(1-2) would be strictly limited to process questions – “[w]hether the ordaining/installing body has conducted its examination reasonably, responsibly, prayerfully, and deliberately.” This limit would preclude a synod or GA PJC from considering any issues of substance or content in an ordination decision.

With its enforcement power curtailed, GA’s ability to carry out its duties “to warn or bear witness against error in doctrine or immorality in practice” and “to decide controversies brought before it and to give advice and instruction in cases submitted to it, in conformity with the Constitution” (G-13.0103p-q) would be severely compromised. Would-be complainants would be robbed of judicial protection for their rights.

The power of GA to enforce constitutional requirements has been foundational since the Adopting Act of 1729. It was recognized by the Swearingen Commission (1925-1927): “…it is competent for the General Assembly to decide that, in view of all the conditions surrounding [a] particular case, the opinions which the candidate holds are not such as fit him for the office of the ministry in the Presbyterian Church.” The GAPJC invoked this power in forbidding the ordination of Wynn Kenyon in Maxwell v. Pittsburgh Presbytery (1975). The 1983 GA recognized the same enforcement power by adopting “Historic Principles, Conscience, and Church Government.” More recently, the GAPJC decision in Londonderry PC v. Northern New England Presbytery again affirmed GA’s enforcement power: “The Historic Principles of Church Order [G-1.0302] are explicit as to the right of the church to make and to enforce these standards.”

The ACC advice mistakenly compares Recommendation #5(d) with principles coming from GAPJC decisions in Simmons et al. v. Presbytery of Suwannee (1977) and Rankin v. National Capital Union Presbytery (1981). It misses a crucial distinction between appellate restraint in the use of judicial power and the lack of power. In the Simmons and Rankin cases, the GAPJC exercised great reluctance to overturn determinations of fact made by an ordaining governing body. But in both cases, the GAPJC left unquestioned its ultimate authority to enforce ordination requirements. Recommendation #5(d) would remove that power.

Members of the PUP Task Force have admitted their recommendations are an “experiment” with an “unpredictable outcome.” One thing is certain – Recommendation #5(d) would, in a single action of GA and without presbytery concurrence, overturn almost three centuries of Presbyterian polity. As both Edward Koster and Daniel Saperstein have demonstrated, this PUP proposal is unquestionably an amendment whose adoption would further damage an already weakened level of trust in the PC(USA).

In 1926, GA approved the Swearingen Commission’s preliminary report, which warned:

In 2006, the ACC advice approves the “intolerable,” without any apparent recognition of the implications or dangers.

The 2006 ACC’s analysis of Recommendation #5 is especially ironic, given its resurrection of the long moot claim that the adoption of “Definitive Guidance” in 1978 was an amendment, not an interpretation. (See Part 3 of this series.) It is difficult to understand why the 2006 ACC failed to apply the same scrutiny to Recommendation #5. It has been billed as an interpretation, but straightforward analysis says it is a de facto amendment.

Both the PUP Task Force Report and the 2006 ACC advice have also failed to recognize that the abrogated powers of GA would restrict the scope of General Administrative Review by synods (G-12.0102o1) and presbyteries (G-12.0102o1) and Special Administrative Review (G-9.0409a2).

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^a “Rules contained in the bylaws (or constitution) cannot be suspended – no matter how large the vote in favor of doing so or how inconvenient the rule in question may be – unless the particular rule specifically provides for its own suspension …” (Robert’s Rules of Order, 25.30).

^b James D. Berkley, presentation at Presbyterian Coalition Gathering.

^c In any secular court of law, an attorney who cited an authority selectively so as to mislead the court and distort the conclusions that would reasonably drawn would be regarded as breaching a core ethical duty of good faith and candor. The credibility of the attorney’s case would be severely undermined. In sufficiently egregious instances, attorneys are disciplined by the bar, and possibly even suspended or permanently disbarred for such misconduct. (Observation courtesy of William Brafford, Esq.)