Peace, Unity, and Property

[Note: This paper is part of a series prepared by a group of leaders and experts in church polity associated with several renewal groups within the Presbyterian Church (USA) to address concerns that have arisen in the aftermath of the 217th General Assembly (2006). The papers provide suggested resolutions for presbyteries, along with historical background and analysis of pertinent sections of the Book of Order and related actions by the General Assembly and its Permanent Judicial Commission. The resolutions are fully consistent with PCUSA polity and our covenantal obligations.]

Introduction

“. . . [Y]ou are no longer foreigners and aliens, but fellow citizens with God's people and members of God's household, built on the foundation of the apostles and prophets, with Christ Jesus Himself as the chief cornerstone. In Him the whole building is joined together and rises to become a holy temple in the Lord. And in Him you too are being built together to become a dwelling in which God lives by His Spirit.” (Eph. 2:19-22)

“The unity of the Church is a gift of its Lord and finds expression in its faithfulness to the mission to which Christ calls it” (G-4.0200). We believe that our unity as a denomination, our true connectionalism, comes from Christ, our Chief Cornerstone. It is our prayer that we would all be One in Christ, just as Christ and the Father are one. But this oneness should be based upon the unity of the Spirit and the Faith that we hold in common. Congregations should not be held as unwilling captives by the denomination's claims upon their property, or coerced into sullen acquiescence by threats and intimidation.

We shall not treat property as a basis for unity or as an opportunity for division. Thus, we encourage every congregation, every presbytery, and every member to stay and renew this denomination. Yet we would exercise forbearance, not coercion, toward any who believe, after due consideration and prayer, that they can better serve the Kingdom of God from outside our fellowship. Our goal always should be to further the Great Ends of the Church, not the parochial interests of the denominational structures.

We offer the following sample resolution and supporting information to assist presbyteries and provide a way to advance the true unity of the Church in Christ and reject coercion and a false unity enforced through the exercise of power.

Sample Resolution

Therefore, it is appropriate for a presbytery to carefully contemplate how to prudently fulfill its obligations under G-8.000 and G-11.0103i concerning church property. Below is a sample resolution a presbytery might consider.

Be it resolved that this presbytery:

Facts

Rationale

Historically, we Presbyterians are connectional, constitutional, and confessional. All too often, we have also been combative and confrontational, as evidenced by our numerous splits and mergers. While we have a long tradition of encouraging people to advocate strongly for their positions, we also have a deeply rooted ethos to be conciliatory, even in the midst of great strife.

Since the 217th General Assembly in 2006, many faithful believers within the Presbyterian Church (USA) have been experiencing crises of conscience that may lead them to seek dismissal from this denomination. This has resulted in increasing discord and turbulence in the denomination over the issue of property.

In 2005, during the ongoing deliberations of the Theological Task Force on Peace, Unity, and Purity, the Stated Clerk of the General Assembly (SC) engaged legal counsel regarding possible actions to be taken against pastors, sessions, and congregations who might seek dismissal from the denomination. Some of the advice is contained in two documents that have been widely disseminated on-line, though not officially made public: Processes for Presbyteries in Responding to Congregations Seeking to Withdraw (“Processes for Presbyteries”) and Church Property Disputes: A Resource for those Representing Presbyterian Church (USA) Presbyteries and True Churches in the Civil Courts) (“Church Property Disputes”).

The documents recommend many harsh tactics that would be considered aggressive but common in the secular realm and are unmistakably designed to squelch as much potential dissent as possible. Presbyteries are counseled to establish predetermined rules and processes. The long list of recommended actions includes:

What is troubling here is not that secular lawyers would propose such measures, aggressive as they are. We expect lawyers to be lawyers. Rather, there are two problems. First, these unbiblical and vexatious tactics (see Westminster Larger Catechism, C-7.252) fundamentally forsake the connectional nature of our community by being both harsh and preemptive. The compulsion of civil law cannot replace true connectionalism. Second, while the Stated Clerk was publicly affirming the PUP Task Force’s call for peacefulness, community, and conciliation, his office was privately promulgating a diametrically opposite approach. The Stated Clerk’s office has not repudiated or tempered this legal advice. The lack of repudiation feeds the fear that those who would exercise freedom of speech will face preemptive retaliation. The result is conformity through intimidation.

The Stated Clerk’s advice in Processes for Presbyteries and Church Property Disputes, along with his more recent Advisory Opinion #19, stands in stark contrast to the action of General Assembly in 1988 , 1989, and 1990. In its Authoritative Interpretations of G-11.0103, GA warned against rigid guidelines on property issues, mandated fact-specific, case-by-case analysis, and recognized that presbyteries should trust their own good judgment. But now the Clerk insists on predetermined, inflexible answers and threatens retribution against presbyteries that exercise that good judgment.

Against the Clerk’s approach are the Great Ends of the Church (G-1.0200) and the first Historic Principle of Church Order, namely, “God alone is Lord of the conscience” (G-1.0301). First, our goal is to further the Kingdom of God, which transcends the boundaries of any single denomination, including the Presbyterian Church (USA). It is our high responsibility to use our resources in ways which will most effectively further these Great Ends rather than to lay up treasure on this earth (Matt. 6:19-21). Second, Presbyterians historically have been given wide latitude to discuss decorously all manner of issues. To squelch discussion or dissent preemptively, and by fiat, is troubling.

First Corinthians 6 is clear in directing believers to come together before going to secular court. We are deeply concerned that the denomination has earmarked substantial funds for anticipated secular legal battles. As people of faith, as ordained officers who are bound together by common vows, we should follow biblical principles for conflict resolution, rather than employing scandalous tactics that are designed to win at all costs, or that turn congregations into unwilling servants of the denomination, rather than the denomination serving the congregations.

In John 17:21, Jesus prays that those who believe in Him would be one. We believe that the unity Christ calls us to is beyond denominational lines. The Presbyterian Church (USA), like all Christian denominations, is only one part of the Church over whom Christ alone is the head (G-1.0100). Therefore, whatever furthers the Great Ends of the Church (G-1.0200) serves for the “use and benefit” of our denomination (G-8.0201).

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.

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.

Rev. Dr. Michael D. Bush, Professor, Erskine Theological Seminary, Due West, SC, and a leader of Constitutional Presbyterians.

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. 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. 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. 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. Michael R. Walker, Executive Director, Presbyterians For Renewal.

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. For advice, contact polity-help@presbycoalition.org or legalteam@pfrenewal.org. October, 2006.

Appendix of Citations

Book of Order

G-1.0200 The Great Ends of the Church
The great ends of the church are the proclamation of the gospel for the salvation of humankind; the shelter, nurture, and spiritual fellowship of the children of God; the maintenance of divine worship; the preservation of the truth; the promotion of social righteousness; and the exhibition of the Kingdom of Heaven to the world.

G-1.0301 Right of Judgment
(1) (a) That “God alone is Lord of the conscience, and hath left it free from the doctrines and commandments of men which are in anything contrary to his Word, or beside it, in matters of faith or worship.”

G-4.0101
The church in its witness to the uniqueness of the Christian faith is called to mission and must be responsive to diversity in both the church and the world. Thus the fellowship of Christians as it gathers for worship and orders its corporate life will display a rich variety of form, practice, language, program, nurture, and service to suit culture and need.

G-8.0201 Property Is Held in Trust
All property held by or for a particular church, a presbytery, a synod, the General Assembly, or the Presbyterian Church (U.S.A.), whether legal title is lodged in a corporation, a trustee or trustees, or an unincorporated association, and whether the property is used in programs of a particular church or of a more inclusive governing body or retained for the production of income, is held in trust nevertheless for the use and benefit of the Presbyterian Church (U.S.A.).

G-8.0500 Selling, Encumbering, or Leasing Church Property
G-8.0501 Selling or Encumbering Church Property
A particular church shall not sell, mortgage, or otherwise encumber any of its real property and it shall not acquire real property subject to an encumbrance or condition without the written permission of the presbytery transmitted through the session of the particular church.
G-8.0502 Leasing Church Property
A particular church shall not lease its real property used for purposes of worship, or lease for more than five years any of its other real property, without the written permission of the presbytery transmitted through the session of the particular church.

G-11.0103i. to divide, dismiss, or dissolve churches in consultation with their members.

D-1.0103 Conciliate and Mediate
The traditional biblical obligation to conciliate, mediate, and adjust differences without strife is not diminished by these Rules of Discipline. Although the Rules of Discipline describe the way in which judicial process within the church, when necessary, shall be conducted, it is not their intent or purpose to encourage judicial process of any kind or to make it more expensive or difficult. The biblical duty of church people to “come to terms quickly with your accuser while you are on the way to court...” (Matthew 5:25) is not abated or diminished. It remains the duty of every church member to try (prayerfully and seriously) to bring about an adjustment or settlement of the quarrel, complaint, delinquency, or irregularity asserted, and to avoid formal proceedings under the Rules of Discipline unless, after prayerful deliberation, they are determined to be necessary to preserve the purity and purposes of the church.

Book of Confessions

C-7.252

Pertinent Excerpts from General Assembly Actions

Minutes, 1988, Part I, p. 140

12.231(b)
A presbytery may dismiss a church with its property pursuant to G-11.0103i and G-11.0103y, provided the request is made in proper form and provided proper consideration is given to the interests of the Presbyterian Church (U.S.A.)as provided in Chapter VIII. In particular, G-8.0201 recognizes the principle that all property by or for a particular church is held in trust for the use and benefit of the Presbyterian Church (U.S.A.). Thus the Presbyterian Church (U.S.A.) is a party in interest when a presbytery takes action with respect to a request to dismiss a church with its property. Both traditions in our present denomination have always held that church property of any kind is held in trust for the use and benefit of the denomination as a whole, even though both differed somewhat in its application of this principle to churches wishing to withdraw from the denomination. This implied principle is now explicit in our present Form of Government (G-8.0101) and was also explicitly written into both Constitutions prior to reunion.

Minutes, 1989, Part I, p. 237.

21.195
When dealing with a request by a church for dismissal with its property pursuant to G-11.0103i and G-11.0103y, the presbytery is responsible for exercising the expressed trust provisions of G-8.0201 recognizing and protecting the interests of the Presbyterian Church (U.S.A.). Separate consideration should be given to the questions of dismissing the congregation, the disposal of property, and the relationships of ministers of the Word and Sacrament.

21.196
Each request for dismissal should be considered in the light of the particular situation and circumstances involved. If guidelines are established, it should be done with extreme caution. Any guidelines which restrict presbytery in its deliberations and in the exercise of its responsibility and authority might be subject to question in a case of judicial process within the church. Instead of establishing guidelines a presbytery might be better advised to trust its good judgment in particular situations.

Minutes, 1990, Part I, p. 260, Request 90-24.

21.242
Request 90-24, from the session of the First Presbyterian Church of Houston, Texas, asks for an answer to the following question:

Shall G-8.0701 be interpreted so that the “Constitution of the church of which it was a part, prior to the reunion. . .” and “the Constitution to which it was subject immediately prior to establishment of the Presbyterian Church (U.S.A.)” be understood to mean the Constitution as it existed in 1981?

21.244
To answer this question it is first of all important to state the purpose and ends of the church which are “the proclamation of the gospel for the salvation of humankind; the shelter, nurture, and spiritual fellowship of the children of God; the maintenance of divine worship; the preservation of the truth; the promotion of social righteousness; and the exhibition of the Kingdom of Heaven to the world” (G-1.0200). It is to these ends that the church proclaims the gospel of Jesus Christ, worships, works and witnesses under the “joyous reality of the grace of God” (G-1.0100d). “In the worship and service of God and the government of the church, matters are to be ordered according to the Word by reason and sound judgement, under the guidance of the Holy Spirit” (G-1.0100c). It is to these ends that the church must use and own its property.

Minutes, 1990, Part I, p. 252, Request 90-25.

21.270a
The director of constitutional services of the Office of the Stated Clerk has asked for answers to the following questions which have arisen under Article 13 of the Articles of Agreement…

21.270d, k
3. If, after June 10, 1991, a congregation requests to be dismissed within its property, does presbytery have authority under G-11.0103i and G-11.0103y to consider and act on the request?
Ans: Yes. A presbytery has authority under G-11.0103i and G-11.0103y to consider and act on any request of a church to be dismissed with its property.

21.270e, l
4. Does the response to inquiries in the Minutes 1988, page 141, and Minutes 1989, page 226, mean that the presbytery may dismiss a congregation with its property without seeking the approval of the General Assembly?
Ans: Yes. While it was the practice of action of the former United Presbyterian Church that the disposition of the property of a church that had been dismissed by a presbytery was to be determined by the General Assembly, this is not the case in the Presbyterian Church (U.S.A.). Article 1.9 of the Articles of Agreement provides that "Each and every policy statement adopted by or issued at the direction of the General Assembly of the Presbyterian Church in the United States or of the General Assembly of The United Presbyterian Church in the United States of America shall have the same force and effect in the Presbyterian Church (U.S.A.) as in the Church which adopted or issued it until rescinded, altered or supplanted by action of the General Assembly of the Presbyterian Church (U.S.A.)." The provisions now found in G-8.0301 and G-8.0401 clearly rescind and supplant this practice and give presbytery the power to determine the disposition of such property.

21.270f, m
5. May the presbytery also consider the circumstances of the congregation, and its pastoral responsibilities for the gospel ministry to all of the persons involved, and as a result agree with the congregation on an equitable division of the property between those who chose to remain with the presbytery and those who chose to be dismissed to another denomination?
Ans: Yes. Under Article 13, G-11.0103i, and G-11.0103y, a presbytery has this authority.

21.270g, n
6. If so, would the final terms of such an agreement be subject to the approval of the congregation? The congregation may have voted to seek to leave the denomination, but the results of the negotiation between representatives may not be known for months. Considering G-7 .0304d and G-11.0103i, must the congregation vote on the final terms?
Ans: Yes. The final terms of an agreement described in question five are subject to the approval of the congregation.

Pertinent Excerpts from the Most Applicable GAPJC Case

Strong and Bagby v Synod of Mid-South
(PCUS, 1976, pp. 92-99, (No. 1 - 1976))

It is an essential characteristic of the presbyterian form of church government that specific limited powers are constitutionally allocated for exercise in the first instance by different ones of its representative assemblies (or courts), arranged in a “regular order of gradation.” … In this denomination the different courts in their regular order of gradation “are not separate and independent tribunals” but “have a mutual relation” which is designed to “express the unity of the church.” … It is critical to the maintenance of this form that the various courts 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. … Within this constitutional system exclusive original jurisdiction to dismiss churches BCO 16-7(8), and to dismiss ministers, BCO 16-7(13), is vested in presbytery. Neither appears among the enumerated matters over which sessions (or congregations) possess exclusive original jurisdiction, BCO 15-6.

Consonant with these principles we conclude that the action of the Presbytery of East Alabama in question here was an unconstitutional attempt to abdicate the powers possessed exclusively by it to dismiss churches and ministers within its jurisdiction. In the case of churches, this included an effort to delegate the power to individual sessions and congregations. While the resolution ostensibly delegated this power to an administrative commission of presbytery, it is manifest upon inspection of the prescribed procedure that the true power of decision on the matter was sought to be given over directly to sessions and congregations. Under its design the administrative commission acted as nothing more than a loose supervisor of the congregational voting process, having only the function of observing the voting procedure (if any of the commission members so desired), of receiving reports of the voting results, and of acting upon those reported results in accordance with a predetermined mandate, having no power of substantive review. By this means presbytery sought utterly to abdicate any power to exercise independent judgment about the substantive propriety of dismissing churches within its charge, and to deprive its commission of any power to exercise such independent judgment. The unmistakable intent of this presbyterial action was to permit unilateral congregational withdrawals under the pro forma imprimatur of “dismissals” by an administrative commission of presbytery and to cut off the power of substantive review of such actions by higher church courts. This is patently at odds with the clear constitutional arrangement wherein the power to make that decision in the first instance is cast upon presbytery acting as a reasoning, evaluative body, with the power then to review presbytery action, both procedurally and substantively, reposed in higher courts of the denomination.

The gist of what has been said so far is that this attempt by presbytery to delegate to individual congregations the power in effect to dismiss themselves violates the church constitution. Judgment could well be rested on that ground alone. If this were done, however, two questions might remain which should appropriately be addressed in this opinion. The first is whether by any action a presbytery may constitutionally give to an administrative commission its decision-making power in respect of the dismissal of churches. The basic ground for decision here is that the particular administrative commission created by the resolution in question was a mere shell, with no power of decision; that the actual delegation was therefore to congregations; and that this was unconstitutional. This leaves the question whether a more appropriate direct delegation of this particular power to an administrative commission, truly acting as such, see BCO 19-2, 118-2, might pass constitutional muster. If the answer were no, this would provide an additional ground for judgment. Suffice it for this case to express strong reservations, without deciding the point explicitly, whether presbytery by any form of delegation may give over to an administrative commission the power to dismiss churches.

This leads to the second question. Assuming that some form of delegation of the dismissal power by presbytery to an administrative commission might be permissible, to what ecclesiastical bodies might presbytery authorize it to make dismissals? Clearly presbytery could not authorize a commission to effect dismissals which presbytery itself could not effect. There are constitutional limits on presbytery's power here. They were expressed in 1974 by the General Assembly in the case of Harvard A. Anderson vs. The Synod of Florida, Minutes of the 114th General Assembly, pp. 119-121 (1974). That case, decided after adoption of the resolution in question, held that a presbytery could not constitutionally dismiss its churches to “independency” nor to any specified body except another presbytery of this denomination or of ecclesiastical bodies with which union with this denomination is permitted by the Book of Church Order.

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