Flawed Advisory Opinion #18 Frustrates the Church
The recently released (and once corrected) “Advisory Opinion #18: Discernment in Examining Bodies – G-6.0108,” attempts to provide advice to ordaining bodies about how to handle the recent Authoritative Interpretation of G-6.0108. Because of the great variety of opinion about what the Authoritative Interpretation (“AI”) means and how it applies--and especially about what ordaining bodies now can or cannot do in respect to ordaining practicing homosexual persons--many had hoped the Advisory Opinion would supply bold leadership and necessary clarity.
We were dismayed to discover neither leadership nor clarity in the Advisory Opinion. Fundamental questions remain unanswered, such as “Can or cannot an ordaining body ordain a practicing homosexual person?” Instead, a jumble of confusing, contradictory, and at times misleading statements add up to scant help for the sessions and presbyteries that face concrete decisions about candidates’ lives and ministries.
Even worse, the Advisory Opinion plants false doubt about the propriety of administrative or judicial review, and faintly biases a process that demands consistent, evenhanded, and sure application of Presbyterian belief and polity. While the constitution is clear, the Advisory Opinion bends the meaning of the new Assembly-adopted AI toward allowing what the constitution--adopted by the whole church--forbids.
The Advisory Opinion offers ordaining bodies a hint here or there, tosses off a few strategically chosen nudges towards permissiveness, guardedly biases higher governing bodies against review, and then lets the ordaining bodies grope their way toward idiosyncratic decisions. This fails to serve the church and seems bound to engender confusion and then litigation.
In particular, we point to three specific illustrations of problems in the Advisory Opinion:
1. The Advisory
Opinion Misstates the Sources of Constitutional Law.
The Stated Clerk’s interpretation of Section (b) of the Authoritative
Interpretation, while perhaps technically correct, will likely lead to a misunderstanding
of the relationship among the Constitution (Book of Order), Authoritative Interpretations
by the General Assembly, and decisions of the General Assembly Permanent Judicial
Commission (GAPJC). The opinion states that ordination “standards are
articulated” [emphasis added] by the Constitution,
decisions of the GAPJC, and Authoritative Interpretations, implying that the
three sources have an equal role in the setting of these standards.
On the contrary, however, Section (b) of the AI follows the Constitution and makes clear that standards for ordination “are determined by the whole Church . . . solely by the constitutional process of approval by the General Assembly with the approval of the presbyteries” [emphasis added]. That is, the standards are established in the Constitution. The AI goes on to say that those standards may be “interpreted by the General Assembly and its Permanent Judicial Commission.” It is clear that it is the role of the Constitution to set the standards, while that of the General Assembly and GAPJC is merely to interpret them.
This is not just a matter of semantics. The power to interpret the Constitutional standards does not include the power to amend or ignore them. No interpretation can depart from the plain meaning of those standards or, we believe, fail to honor the mandatory language of the Constitution. But if standards are, as the Advisory Opinion states, articulated by the Constitution, judicial decisions, and authoritative interpretations, on an equal level, and without the latter two being subordinated to the first, then the Constitutional standards themselves lose their priority and fundamental nature. The distinction is emphasized by the exacting process required to amend the Constitution, which includes approval by General Assembly and confirmation by presbytery ratification, whereas AIs can be changed by a majority vote of a single General Assembly or GAPJC. The Stated Clerk’s use of this imprecise language should not be allowed to obscure the clear intent of the AI or the underlying rules of Constitutional construction.
2. The Advisory
Opinion Discourages Thorough Examinations.
A virtue of the report of the Task Force on Peace, Unity, and Purity is its
renewed emphasis on thorough examinations of candidates for ordination. Regrettably,
the Advisory Opinion’s citation of Wier
v. Session, Second Presbyterian Church of Ft. Lauderdale, Florida,
Remedial Case 214-5 (2002) (“Wier II”) is truncated and misapplied.
The result is likely to discourage thorough examinations.
The Advisory Opinion overreaches in several respects. First, the only questions on which any limit is imposed by Wier II are ones that implicitly involve inquiry that might have “extreme consequences to a person’s reputation, career, or friendships.” The Advisory Opinion wrongly implies that all questions are so limited. Second, Wier II explicitly permits any questions that are asked of every candidate being examined. Questions about compliance with the “fidelity/chastity” requirement cannot be asked of any particular candidate solely based on hunch or stereotype, or even acknowledgment of particular sexual orientation. However, such questions can be asked if all candidates are so questioned. The Advisory Opinion fails to recognize this alternative. Third, the Wier II PJC recognized that examining bodies may have knowledge of a candidate that is independent of any self-acknowledgment the candidate volunteers during the examination. If the examining body has knowledge that is “plain, palpable, and obvious,” it has a positive obligation to pursue further inquiry, whether or not the candidate has self-acknowledged. Such an inquiry would seem to be essential for the examining body to make the determinations required under Sections (c)(1-2) of the AI, i.e., whether a candidate has departed from scriptural and constitutional standards [(c)(1)], and thereafter, whether there is a failure to adhere to the essentials of Reformed faith and polity [(c)(2)]. The Advisory Opinion again fails to recognize this part of the Wier II decision.
3. The Advisory
Opinion Misinterprets GAPJC Decisions and Omits Critical Precedent.
The portion of the Advisory Opinion interpreting section (d) of the AI states,
“In previous cases, the Permanent Judicial Commission declined to substitute
its judgment for that of the ordaining/installing body but said that it has
the power to do so in extraordinary cases,” citing the pre-reunion case
of Rankin
v. National Capital Union Presbytery, UPCUSA, (1981) 113. This mischaracterizes
the applicable precedents, ignores the more recent decisions of the GAPJC, particularly
those applying the Constitutional ordination standard of “fidelity and
chastity” under G-6.0106(b), and incorrectly attempts to raise the bar
for challenges to improper actions by ordaining bodies.
In addition, the AO treats two very different determinations as if they were the same. It is one thing for an ordaining body to properly make a factual determination as to whether a particular candidate meets the Constitutional standards (as in Rankin). But it is another thing altogether to make a legal determination to ignore a mandatory Constitutional standard, something we believe to be beyond the authority of the ordaining body. (See the discussion of the Londonderry case below.)
Rankin supplies no support for the proposition that the judgment of the ordaining body can be questioned only in “extraordinary cases,” because Rankin was decided before reunion, before the adoption of the current Constitution, and before the addition of G-6.0106(b) to that Constitution. It did not relate to a straightforward standard of conduct, such as that contained in G-6.0106(b), but to the inherently more subjective determination by the presbytery regarding the ordination candidate’s theological knowledge and integrity.
In addition, Rankin is of limited application, since the ordination question being interpreted under Rankin has been substantially modified since reunion. Rankin suggested that asking a candidate about a specific of the confessions was not in the purview of the examining body. Under the constitution of the UPCUSA before reunion, a candidate was asked only whether the candidate would receive the confessions for instruction and guidance. The present Book of Order imposes the more exacting requirement that a candidate vow to “sincerely receive and adopt the essential tenets of the Reformed faith as expressed in the confessions of our church…” (G-14.0207c, 14.0405b(3)). This change in the underlying constitutional law severely restricts the conclusions that may be drawn from Rankin today.
The cases decided after reunion do not apply the “extraordinary case” standard to ordination decisions. For example, in Wier II, the GAPJC states that “If [a] governing body has reasonable cause for inquiry based on its knowledge of the life and character of the candidate, it has the positive obligation to make due inquiry and uphold all of the standards for ordination and installation.” While the GAPJC found that no such reasonable cause was alleged in the complaint, it was clear that if it had, and if the Session had not proceeded further with its enquiry, the complaint would have been sustained.
Similarly in McKittrick v. Session, West End Presbyterian Church of Albany, New York, Remedial Case 215-5 (2003), the GAPJC reinstated a complaint filed by an elder against his session, alleging that the examination of an elder-elect by the session was prematurely terminated after the candidate had admitted that he was gay, that he was in a long-term relationship with another man, and that he had shared this information with his pastor and the nominating committee. In reinstating the complaint, the GAPJC took pains to admonish governing bodies not to rush from examination to ordination and installation, so that dissenting parties would have an opportunity to stay the ordination and installation, pending remedial action.
In Londonderry, et al. v. Pby of Northern New England, Remedial Case 213-2 (2001), a case alleging the failure of the Presbytery of Northern New England to properly respond to the declaration of a session within its jurisdiction that it would not comply with the standard in G-6.0106(b), the GAPJC stated, in part, that:
When an individual or governing body threatens to move from verbal dissent to active disobedience, it is the obligation of the covenant community to seek to prevent the dissenting party from falling into contumacy. This begins as an act of pastoral care, but may become an act of church discipline (D-1.0103). . . .
There are no constitutional grounds for a governing body to fail to comply with an express provision of the Constitution. . . . Furthermore, no court in our denomination has the authority to amend the Constitution or to invalidate any part of it. This is exclusively a legislative process (G-18.0300).”
None of these post-reunion cases limited the PJC’s jurisdiction to “extraordinary cases.” Even the AI itself states that ordination decisions are “subject to review by higher governing bodies,” and provides no higher bar for review. No other support for the Advisory Opinion’s additional hurdle was suggested or exists. To now apply this extra-constitutional hurdle would improperly limit the rights of dissenters.
We believe that the Church would have been far better served by an Advisory Opinion that resolved questions rather than suggested new ones, that provided certainty rather than obfuscation, that followed the Constitution and the new AI, and that was consistent with existing Authoritative Interpretations (such as the 1978/1993 AI and GAJPC case law) and Advisory Opinions on the matter (such as Advisory Opinion #8). Presbyteries and sessions are left without guidance, forced to find their way on their own. This will not lead to peace within the Church, but only to further uncertainty and litigation.
Signatories
Rev. Dr. James D. Berkley, Director of Presbyterian Action for Faith and Freedom
and a board member of the Presbyterian Coalition, has observed and critiqued
the Theological Task Force’s activity since 2003.
Rev. David Bridgman (HR), former Pastor at Eastminster Presbyterian Church, Wichita, KS and former member and Clerk of the General Assembly Permanent Judicial Commission. David is an Associate Director for Presbyterian Frontier Fellowship.
Elder Whitman H. Brisky, Attorney and Partner of the Chicago firm of Mauck & Baker, LLC and Clerk of Session of First Presbyterian Church, Evanston, IL.
Elder Gwen O. Cook, Stated Clerk of Western Colorado Presbytery and former member and Assistant Clerk of the General Assembly Permanent Judicial Commission.
Rev. John C. Dudley, Stated Clerk of Mississippi Presbytery and former member of the General Assembly Permanent Judicial Commission.
Elder Gordon E. Fish, Ph.D., Member of Grace Presbyterian Church, Montclair, NJ; physicist and Registered US Patent Agent with an intellectual property law firm; co-counsel with the late Julius B. Poppinga in the Londonderry and Benton GAPJC cases. He serves on the board of the Presbyterian Coalition.
Rev. Charles Hammond (HR), Moderator of the General Assembly (1980), former executive presbyter of Wabash Valley and Philadelphia Presbyteries, and former member of the General Assembly Permanent Judicial Commission.
Rev. Dr. Winfield R. (Casey) Jones, Pastor of First Presbyterian Church, Pearland, TX, member of Presbytery of New Covenant and past Chair of its Committee on Ministry. He was a candidate for Stated Clerk of the General Assembly in 2000.
Rev. Dr. Paul Leggett, Senior Pastor of Grace Presbyterian Church, Montclair, NJ; member and current Moderator of Newark Presbytery and commissioner to the 217th General Assembly. He served as Vice Moderator of the Committee of Fifteen on the Brief Statement of Faith.
Rev. James H. Quillin, Co-Pastor of Highland Heights Presbyterian Church, Cordova, TN and former member of the General Assembly Permanent Judicial Commission.
Rev. Dr. Richard Randall, Pastor of the Village Church at Lake Tahoe; member and past Moderator of the Presbytery of Nevada; commissioner to 217th General Assembly serving on the Ecclesiology Committee.
Rev. David Snellgrove (HR), former executive of Synod of Living Waters and St. Andrew Presbytery (Mississippi); former member and Moderator of the General Assembly Permanent Judicial Commission.
Rev. James R. Tony, Senior Pastor of Palos Park (IL) Presbyterian Community Church; member of Chicago Presbytery and former member of its Permanent Judicial Commission. He serves on the board of the Presbyterian Coalition.
Rev. Christopher A. Yim, Senior Pastor of Neelsville Presbyterian Church, Germantown, MD; member of National Capital Presbytery and a former member and Vice-Moderator of the General Assembly Permanent Judicial Commission. He serves on the board of Presbyterians for Renewal.
This statement is a collaborative work of the individuals named above, several of whom deal with polity concerns on behalf of renewal organizations.