Letter to The Advisory Committee on the Constitution Regarding Recommendation 5 of the Report of the Theological Task Force on Peace, Unity, and Purity of the Church (PUP)
Introduction and Section I
William A. Brafford is an attorney and elder at Westminster Presbyterian Church in Charlotte, North Carolina. He has read the Report of the Theological Task Force on Peace, Unity, and Purity of the Church (PUP). He is disturbed by the apparent constitutional problems of Recommendation 5 of that report. In a request for comment from the Advisory Committee on the Constitution (ACC), lawyer Brafford sets forth the difficulties he sees and his questions to the ACC. We hope you find great value in reading the arguments that William Brafford sets forth for the church.
January 30, 2006
Advisory Committee
on the Constitution
General Assembly of the Presbyterian Church (USA)
c/o: Margy Wentz, Moderator
Office of the Stated Clerk
Presbytery of Southern California and Hawaii
1501 Wilshire Boulevard
Los Angeles, CA 90017
Dear Members of the Advisory Committee:
The purpose of this letter is to raise a number of constitutional concerns with regard to Recommendation 5 from the Task Force on Peace, Unity, and Purity of the Church. I understand that your Committee has already considered the constitutionality of this recommendation and may have reached a conclusion. However, it is also my understanding that you may have done so without the benefit of an "adversary process" to sharpen and illuminate the issues. As you probably know, the benefits of our American adversary legal system in this regard are considerable. Therefore, I trust that my arguments will be of help in making the best possible constitutional advice available to the General Assembly. Moreover, if you have already reached a conclusion contrary to my own, I hope you will treat this letter as a "motion to reconsider." In any event, these issues are clearly of monumental importance to our church, and I therefore request that you respond appropriately to this letter.
SUMMARY
1. Insofar as it proposes an "interpretation" of our Book of Order, Recommendation 5 is wrong in terms of the language and history of the applicable provisions and contrary to relevant case precedents.
2. Despite the historical claim that Recommendation 5 is not an innovation, this proposal would make a fundamental change in Presbyterian polity, one which should be made (if at all) only by the constitutional process for amending the Book of Order.
3. Precisely because it violates our constitution, Recommendation 5 would not promote the unity of the church; it would instead exacerbate existing divisions and create new ones.
PREFACE
I am a lawyer and an elder (not currently serving on the session) at Westminster
Church in the Presbytery of Charlotte. While I do not write as a representative
of our session or our congregation (or any other group in our denomination),
there is a chance that our session may take action seeking a related presbytery
overture in the near future. In addition, this letter may be posted on one or
more Internet websites, thus making it an "open letter" that may serve
to promote discussion and debate throughout the church.
I do not claim to be an expert on Presbyterian history or polity, and I have not researched the cases exhaustively. However, I have read enough to see that legal reasoning is pretty much the same in the church and in our civil courts. In either system, bad interpretations of legal documents, and especially constitutional interpretations that distort basic procedures and allocations of power, can be highly destructive when organizations are simply too large to operate on the basis of an informal "consensus." In this context, it seems clear that Recommendation 5 is a bad interpretation of our Book of Order and our Presbyterian tradition, despite the hard work and good intentions of the Task Force. If adopted, it would seriously undermine our constitutional order and ultimately our corporate life as a national church.
It should also be noted at the outset that Recommendation 5 is not exactly what it purports to be, that is, an "authoritative interpretation of section G-6.0108 of the Book of Order." (Lines 1048-1050.) It implicitly relies on new and questionable interpretations of several provisions in the Book of Order, including G-6.0106b and G-9.0103. I will discuss G-6.0106b below. However, consideration of the other problematic constitutional interpretations underlying Recommendation 5 is beyond the scope of this letter.
In the interest of full disclosure, I should mention that I support our Book of Order's current substantive position on ordination, as reflected in G-6.0106b. However, the burden of this letter is to uphold our well-established constitutional procedures and structural allocations of power rather than to achieve any particular result on the issue of ordination.
FACTS AND LEGAL ARGUMENT
1. Recommendation 5 proposes that the 2006 General Assembly approve an "authoritative interpretation" ("AI") of section G-6.0108 of the Book of Order. In essence, this AI states that "ordaining and installing bodies" (such as presbyteries) will determine whether candidates have departed from the standards for membership and whether such a departure "constitutes a failure to adhere to the essentials of Reformed faith and polity . . . thus barring the candidate from ordination and/or installation." It then goes on to describe the review of such determinations by higher governing bodies exclusively in terms of process, i.e., whether "the ordaining/installing body has conducted its examination reasonably, responsibly, prayerfully, and deliberately . . . ." In addition, it urges a "presumption of wisdom" for such determinations by ordaining/installing bodies. (Lines 1048-1072.)
2. The AI does not expressly state how it would apply to G-6.0106b, which provides a standard that church officers are required "to live either in fidelity within the covenant of marriage between a man and a woman . . . or chastity in singleness. Persons refusing to repent of any self-acknowledged practice which the confessions call sin shall not be ordained and/or installed . . . ." However, the Task Force's "rationale" following the AI explains that an ordaining/installing body would determine whether a candidate has departed from G-6.0106b and, if so, then proceed to "determine whether this departure violates the essentials of faith or polity." (Lines 1221-1232.) In other words, the AI adds a "gloss" to G-6.0106b, so that it would mean, "Persons refusing to repent . . . shall not be ordained and/or installed [unless the ordaining/installing body decides that the refusal in relation to this standard is not an essential matter, in the sole judgment of the ordaining/installing body.]" I say "sole judgment" because the rationale then touches briefly on the principle of review by higher governing bodies and previous AIs regarding standards for ordination and installation, but seeks to insulate the original governing body's decision from substantive review by asserting that these principles do not "override that body's power to judge which matters are essential and whether any departure from nonessentials is sufficiently serious that a candidate will not be ordained or installed." (Lines 1233-1262.) In my view, it is here that the Task Force gets our constitutional order badly wrong. For convenience, I will refer to this aspect of Recommendation 5 as the idea of "autonomy" with regard to ordination decisions by presbyteries and sessions.
3. The Task Force characterizes the relationship between G-6.0108 and G-6.0106b as a "point of confusion" in recent years, claiming that "[s]ome interpreters have insisted that [G-6.0106b] supersede[s] the right of ordaining and installing bodies to determine fitness for ordination in all cases." (Lines 1113-1125.) The Task Force's proposed AI, however, relies on G-6.0108 as a basis for governing bodies to nullify the plain meaning and clear intent of G-6.0106b. Such an "interpretation" would be worse than the one the Task Force apparently rejects. A reasonable interpretation of both constitutional provisions would give full effect to both. As stated by the General Assembly Permanent Judicial Commission in Londonderry v. Presbytery of Northern New England, 12.1044 (2001):
It is not unusual for a document such as our Constitution, written at different periods of time and under different circumstances, to exhibit tensions and ambiguities in its provisions. Nevertheless, it is the task of governing bodies and judicial commissions to resolve them in such a way as to give effect to all provisions.
This principle is axiomatic in our American legal system. State and federal courts follow it routinely in interpreting both our national constitution and the constitutions of organizations involved in civil lawsuits. See, e.g., Tom v. Sutton, 533 F.2d 1101, 1106 (9th Cir. 1976) ("all constitutional provisions are of equal dignity and, if possible, should be construed in harmony with each other").
4. The Task Force places far too much weight on a distinction between "essentials" and "standards" in G-6.0108 (lines 1096-1112), especially in light of the fact that this provision seems to treat these terms as more or less synonymous. From this distinction, however, the Task Force then draws the inference that ordaining/ installing bodies have the authority to determine that a departure from standards is not "serious" or that it is "nonessential," subject to review that is defined only in terms of the process followed, as noted above. (Lines 1138-1152.) In other words, sessions and presbyteries are considered autonomous with regard to the substantive conclusions of their ordination decisions. A more faithful constitutional approach, however, would be to affirm that such bodies must initially determine whether there is a serious departure from standards or essentials and whether ordination is clearly prohibited by our Book of Order on any ground, whether or not that ground is considered an "essential," with all such decisions being subject to review by higher governing bodies for both substantive and procedural error. All "acts" of governing bodies, and not merely the procedures they follow, are subject to review. G-9.0103; see also G-1.0400 and G-4.0301(f). This approach would give full effect to all of the relevant constitutional requirements.
5. When approved in 1996-1997, G-6.0106b was clearly intended as a substantive limitation on the power of governing bodies to ordain and install some candidates they might otherwise approve. Prior to G-6.0106b, several General Assembly AI's (or statements of "definitive guidance") rejected ordination of "self-affirming, practicing homosexuals." These General Assembly actions were alleged to violate certain other fundamental principles in our Book of Order, such as diversity and inclusiveness. Overtures and judicial cases expressly sought to overturn those actions and establish a constitutional rule of presbytery and congregational autonomy regarding ordination.(1) These efforts were unsuccessful, but they continued at the 1996 General Assembly (2), where they were specifically answered by the Assembly's action in approving G-6.0106b and submitting it to the presbyteries. In other words, one question specifically answered by the 1996 General Assembly with G-6.0106b was whether lower governing bodies have inherent autonomous authority regarding ordination, as suggested by Recommendation 5, and the church as a whole answered that question in the negative. Through the process set forth in our Book of Order, a majority of Presbyterians spoke and resolved the question as a constitutional matter.
6. Recommendation
5 is a "local option" measure as a practical
matter, despite the Task Force's disclaimer that standards will continue to
be "set" by the church as a whole under the proposed AI. (Lines 1131-1137.)
If a session or presbytery can decide in its sole and unreviewable discretion
that an express requirement of the Book of Order is "nonessential"
and thus need not be followed, then the fact that the whole church set the standard
is meaningless. While G-6.0106b could have been drafted in a way more suited
to a constitutional standard, the language in its historical context is clear
enough. If such mandatory language ("shall not be ordained and/or installed")
can be treated as nonessential by any governing body, then it is hard to see
why the same could not be done with any other requirement in the Book of Order.
7. I have found no historical basis for the suggestion (Lines 716-736) that
our polity allows practices (and not merely beliefs or opinions) that are inconsistent
with explicit constitutional provisions, at least in the area of polity (i.e.,
the Form of Government, as distinguished from the Book of Confessions). As stated
in Londonderry at 12.1064:
While one is free to hold and decorously to advocate ideas that are contrary to [duly constituted authority], one may not act in contravention of such authority (in this case, a properly enacted provision of the Church's Constitution).
With reference to our current debate on ordination, for example, it might be entirely proper, as a matter of polity, for a session or presbytery to ordain someone who disagrees with G-6.0106b, but this would not be the case where a candidate states that he or she will refuse to comply. See also G-6.0108b (note 1) and Maxwell v. Pittsburgh Presbytery (UPCUSA 1974) (known as the Kenyon case), discussed below.
8. The Task Force attempts to support Recommendation 5 by several assertions that seem to confuse theological and moral categories. It states, for example, that "[s]tandards are aspirational in character. No one lives up to them perfectly . . . ." (Line 1104.) Well, yes and no, but mostly no, at least to the extent that the Task Force applies this idea to the principle of repentance in G-6.0106b. While no one's manner of life is "perfect" in any area, including sexual morality, repentance is not fundamentally a matter of aspiration. (Imagine someone saying, "I really want to repent about this, but I just can't do it well enough.") No, when we do not repent, it is almost always because we don't believe we have done anything wrong or because we just don't want to change our behavior. Moreover, repentance does not have to be perfect in order to be genuine and discernible. I submit that presbyteries, for example, are quite capable of determining whether a candidate has repented of an acknowledged departure from the express requirements of G-6.0106b.
9. In appealing to G-6.0108, the Task Force claims that it is proposing nothing new. (Lines 1126-1179.) Their historical argument uses examples involving theological beliefs and matters of polity, but none involving the individual conduct (or "manner of life") of candidates for ordination. However, the Task Force gradually shifts its terminology from "polity" to "behavior," treating these very different concepts as virtually identical in order to bring the history of the former to bear on the latter. (Lines 1162-1165.) As a matter of history, however, there is in fact no real precedent for the Task Force's approach to G-6.0106b, because no similar constitutional provision existed (or was necessary) prior to the 1990s.
10. Judicial precedent also demonstrates the Task Force's defective understanding of our polity in this area. In Maxwell v. Pittsburgh Presbytery, the 1974 UPCUSA case of Walter Wynn Kenyon, Pittsburgh Presbytery voted to ordain Mr. Kenyon despite his conscientious opposition to the ordination of women. (Kenyon was willing to serve with ordained women but would not personally participate in their ordination process.) Dissenters in Pittsburgh Presbytery appealed to the Synod Judicial Commission, which determined that the ordination was "irregular." On further appeal, the General Assembly's Permanent Judicial Commission expressly held that "Presbytery does not have the power to permit the ordination of Mr. Kenyon, who rejects this part of the polity of our church." (3) While the Kenyon opinion touches on several important polity issues, the PJC clearly rejected the idea of autonomous presbytery authority that is proposed by Recommendation 5.
11. In light of the Kenyon case, a decision by the 2006 General Assembly to adopt Recommendation 5 would raise questions of a constitutional double standard. Many Presbyterians would see it as implying that "liberal" scruples can be treated as acceptable departures from our constitutional order, but "conservative" scruples and departures are unacceptable. (4) Unless the General Assembly is prepared to repudiate Kenyon, it would be better to avoid this problem altogether. More fundamentally, the existence of Kenyon as a continuing precedent raises serious questions about the consequences of Recommendation 5 over the long run. Although proponents of change often insist that ordination of self-acknowledged practicing homosexuals will not be "mandatory," that conclusion is the inescapable logic of their arguments. Ideas have consequences. If "discrimination" in this area of sexual behavior is the same kind of thing as discrimination based on status (such as race or sex), then those who oppose ordination will be seen, and treated, as bigots. Ultimately, Presbyterians who are "conservative" in this area will be denied ordination. Exhortations to "forbearance" by the Task Force (see, e.g., lines 623-628) are no substitute for a strong constitutional polity in which the express terms of all provisions in our Book of Order are given their full effect, regardless of how earnestly some Presbyterians may disagree with them.
12. No one wants the General Assembly or its Permanent Judicial Commission to have to get involved in hundreds of individual cases. As a practical matter, there seem to be only two ways to avoid this problem. One is the AI proposed by the Task Force, where session and presbytery decisions on ordination/installation are not subject to review as long as they are made prayerfully and deliberately. The problem with this option, however, is that it effectively nullifies G-6.0106b without seeking approval of the whole church through the constitutional process for amending the Book of Order, which will be seen as a breach of trust by many thousands of individuals and congregations. The other option would be for the whole church to recognize that G-6.0106b is a clear and categorical requirement that can and should be changed only by amending the Book of Order. If these alternatives are really our only two options, it seems to me that the latter will be recognized by most Presbyterians as having far more integrity as a matter of polity.
13. The Task Force apparently believes that Recommendation 5 is a compromise that can be accepted by all sides in our current debates. It is already obvious, however, that many Presbyterians will not see it that way. If Recommendation 5 is adopted, one side will get most of what they wanted. Some presbyteries will routinely determine that departures from G-6.0106b do not involve an "essential" matter. Frankly, I think the Task Force knows this as well as any other realistic observer of our recent struggles, yet their "presumption of wisdom" (lines 1069-1072) seems like an unfair effort to pre-empt and stigmatize any such criticism.
CONCLUSION
I am well aware that many Presbyterian leaders, including seminary presidents and former moderators of the General Assembly, have endorsed the Task Force report, presumably including Recommendation 5. To the best of my knowledge, however, no one has yet publicly and convincingly demonstrated that this proposal is valid under our constitution. Therefore, notwithstanding those influential Presbyterians who apparently believe otherwise, I must reluctantly point out that "the Emperor has no clothes." Recommendation 5 is wrong in light of our history and our Book of Order. Its adoption in the form of an AI by the General Assembly, without the officially-expressed approval of the church as a whole, would change and seriously undermine the order and government of our church. I urge you to advise the General Assembly to reject it on constitutional grounds.
Faithfully in Christ,
William A. Brafford
cc: Rev. Clifton
Kirkpatrick
Stated Clerk
Office of the General Assembly
Presbyterian Church (USA)
100 Witherspoon Street
Louisville, KY 40202
(1) See, e.g., Overture 79-37 (UPCUSA 1979); Permanent Judicial Commission report regarding Union Presbyterian Church v. Presbytery of Western New York (1985); Overture 20-88 (1988); Overture 93-20, answering Overtures 93-102 and 93-108, and Permanent Judicial Commission report regarding LeTourneau v. Presbytery of The Twin Cities (1993).
(2) See Overture 96-20.
(3) Kenyon was a divided ruling; three members of the PJC dissented without opinion.
(4) Anticipating
an attempt to distinguish Kenyon on the ground that it involved an "essential"
matter of women's rights, I would respond by insisting that holiness of life
is also an essential principle. See G-1.0304. At this point in our history,
G-6.0106b is merely an awkward but necessary means of upholding that principle.
However, even if we disagree about what is essential, the polity issue before
the PJC in Kenyon was really about the limits of a presbytery's power
to decide. Pittsburgh Presbytery obviously knew that Mr. Kenyon's position was
a "departure" from constitutional standards and decided, at least
implicitly, that the departure was not sufficiently serious that he could not
be ordained. Contrary to the "rationale" of the Task Force (lines
1260-1262), the PJC clearly stated that a "presbytery's power is not absolute.
It must be exercised in conformity with the Constitution."