Monthly Archives: November 2012

PC(USA) Synod PJC Decision — St. Andrews Session v. Santa Barbara Presbytery Regarding Union Presbyteries

On Friday, 9 November , the Permanent Judicial Commission of the Synod of Southern California and Hawaii heard a remedial case against the Presbytery of Santa Barbara that challenged their action to reorganize themselves as a union presbytery between the Presbyterian Church (U.S.A.) and the Covenant Order of Evangelical Presbyterians (ECO). The decision in Session of St. Andrew’s Presbyterian Church of Santa Barbara, CA, et al., Complainants vs The Presbytery of Santa Barbara, Respondents, was announced the next morning but the written decision was not released until the following Wednesday morning.

For a whole variety of reasons I have been working through various ways to present my analysis of this case. I have decided to present an executive summary, then discuss the bulk of the case in my typical fashion. The issue that has engendered the greatest amount of discussion since the decision was announced are the parts dealing with ECO so I want to address those in their own section. And then I will finish up with a look at the dissenting opinion and some general conclusions and comments.

Executive Summary
Nineteen charges were brought against the Presbytery for their action to try and restructure themselves as a union presbytery. All but one of the charges were sustained. The sustained charges included two that argued that ECO, with its Presbytery of the West, is not a Reformed body and not qualified for participation in a union presbytery.

What this means: Santa Barbara’s efforts to create a union presbytery are effectively halted unless this case is overturned on appeal to the General Assembly PJC (GAPJC), a prospect I consider unlikely based on this decision and other recent decisions.

What this does not mean: Since a Synod PJC decision is only binding on the parties involved in the case (207th GA AI on D-7.0402b) this does not automatically disqualify ECO as a Reformed body that churches may be dismissed to.

What this might mean: This decision is precedent setting for the presbyteries in the Synod of Southern California and Hawaii (same AI as above). However, the decision was regarding a union presbytery and not dismissal and in my mind there are a bunch of other issues that call into question the applicability of this precedent and make me think it could be successfully challenged. (That is why the ECO issue gets its own section further on). But I could be wrong.

The SPJC Decision
On 2 June 2012 the Presbytery of Santa Barbara held a called meeting and approved with a 73% majority a Plan of Union for Santa Barbara Union Presbytery (the Plan). Shortly after a remedial case was filed with the Synod PJC listing 19 irregularities. At trial on 9 November both Complainants and Respondents were represented but the Respondents only presented opening and closing arguments and did not have pre-trial briefs or present any additional documentation or witnesses at trial. The Complainants did.

The SPJC ruled unanimously in favor of the Complainants on all but five counts. There is a dissenting opinion that disagreed with the majority on four of the charges. One charge was not sustained.

Two details before I begin breaking this down. First I would like to note a stylistic choice made by the SPJC in
writing their decision. Formal citations are few in this decision and nowhere in the
statement of the charges and the rational for the decision on each one
is there a citation to relevant portions of the Book of Order. Furthermore, for only one charge is there a reference to applicable GAPJC decisions.

Second, as I break down this decision I will be drawing from a wide variety of sources. This was the trial court and their formal decision can only be based on the evidence presented at trial and the ecclesiastical law. While I may have disagreements or concerns at points I also have a larger set of sources to draw from. Documentation related to this case includes, besides the decision itself, the original complaint and the packet Santa Barbara Presbytery put together in advance of the called meeting where the Plan of Union was approved. Almost all documents in this case are posted on a web page St. Andrews Church of Santa Barbara maintains.

Counts 1, 3 and 4 deal specifically with the nature of ECO and I will return to those in a moment. (This decision uses the acronym ECOP. Those are the initials of the original name of ECO and ECO is now an official logo. I will try to use the preferred title ECO but ECOP will appear inside quotations. For the record, the new initials would be COEP.)

It is worth noting that the decision is, shall we say, streamlined and with the large number of counts the commissioners did not expound beyond the minimum on many of them.

Count 2 accused the Presbytery of promoting “division and schism in the church.” The SPJC found that a fuller discernment process would have been better since the Plan, while not intended to be so, it was judged that the “action did indeed bring about schism in the presbytery.”

Count 5 alleged “Mis-use of our constitutional provisions for union presbyteries” and Count 6 alleged the “disregard of important constitutional requirements.” The decision notes that union presbyteries are intended to promote ecumenism and reconciliation and “reduce unnecessary expense.” Instead they found that this plan “has been formed to serve as a ‘shield’ to the denomination’s action and judicial decision.”

Let me take a moment and drill down into this a bit. In the complaint the “Union Presbytery Movement” is discussed in paragraphs 19-21 pointing out that it was developed as a method for churches in the northern and southern branches to cooperate in advance of reunion in 1983. Fair enough – this union presbytery does not fit that model but rather fits the opposite of churches that are dividing but still desire to work together on mission.

But let me take this a step further. While we know historically what union presbyteries have been about is there a fundamental problem with using our polity in new creative ways? After all, one of the objectives of the New Form of Government was “With greater freedom and flexibility, the New Form of Government encourages congregations and councils to focus on God’s mission and how they can faithfully participate in this mission.” (emphasis in the original)

And when I looked at this in the Annotated Book of Order I noticed something interesting — There are no additional instructions in this section. The section of the Form of Government dealing with Union Presbyteries (G-5.04) has no interpretations from GA or the GAPJC.

The bottom line is that while we have a history behind union presbyteries the language of the Book of Order includes nothing of that history and from what I see puts no fundamental prohibition on a union presbytery between the PC(USA) and any other Reformed body.

Now, this does not mean that this specific union presbytery is constitutional and it does suffer from a couple of problems the Complainants point out and the SPJC agreed. First, we have the problem that the SPJC found that ECO is not a reformed body. Second, the ECO Presbytery of the West is not a “comparable council” because it did not yet have the size required of a PC(USA) presbytery. And third, an argument that is in the complaint but is not in the decision at this point — Santa Barbara Presbytery and Presbytery of the West are vastly different geographic sizes and so it would make Santa Barbara Presbytery a de facto non-geographic presbytery. (Presbytery of the West covers all churches west of the Mississippi River.)

A fourth issue is that the Plan of Union did not properly reconcile the requirements of the PC(USA) Book of Order and the ECO Polity. This was not however for lack of trying as Santa Barbara Presbytery had overtured the 220th GA with a proposed method to reconcile the two polities as G-5.0401 requires. The overture and another like it were rejected and the annotation noting this is the only annotation for section G-5.04.

Counts 7, 8, 9 and 10 were grouped together. Count 7 is “Violation of our constitutional guarantee of respect for biblically-formed conscience.” Count 8 is “Conditioning congregational membership on more than a profession of faith.” Count 9 is “Infringing congregations’ right to elect, and sessions’ responsibility to assess the fitness of, congregational leaders.” And Count 10 is “Violation of presbytery’s obligations in assessing its congregations’ choices of pastoral leadership.”

The SPJC responded to all four charges by saying:

Councils do not have the right to bind the conscience of either pastors or members to a pro-forma set of essentials. While teaching elders’ consciences are free within the confines of the church’s polity interpretation of Scripture as put forth in the Constitution, members have the right of conscience to a greater degree as well as freedom of conscience to determine the fitness of their own leaders, both at the congregational level as well as the level of the presbytery. The “litmus test” for ordination is given in the Book of Order and provides presbyteries with the freedom to examine candidates on a case by case basis and determine whether or not they meet those standards and are judged by a particular presbytery to be fit for pastoral leadership.

I have printed it all because this reflects the core of their argument why ECO is not a reformed body as I will get to in a minute.

The implication of Charge 8 is that to even be a member of an ECO church you must agree to something more than accepting Jesus Christ as your Lord and Savior. Here the SPJC brevity does them a disservice. Paragraph 1.0402 of the ECO polity talks about congregational membership (covenant partner) saying:

A covenant partner is a person who has made a profession of faith in Christ, has been baptized, has been received into the membership of the church, has voluntary submitted to the government of this church, and participates in the church’s worship and work. Covenant partners are eligible to vote in congregational meetings.

For comparison the PC(USA) says in G-1.0303a

Public profession of faith, made after careful examination by the session in
the meaning and responsibilities of membership; if not already baptized, the person making profession of faith shall be baptized;

The next section lays out the responsibilities of membership which include “taking part in the common life and worship of a congregation” and “participating in the governing responsibilities of the church.”

While ECO has consolidated the participation into the paragraph and the PC(USA) sets it up as a response to membership, in a bottom-line sense I don’t see enough of a difference to sustain Charge 8.

But the SPJC apparently saw something and I have to wonder if the SPJC was interpreting the phrase “has voluntary submitted to the government of this church” as meaning they accepted the Essential Tenets document. Taking it on face value I have trouble seeing this as adhering to anything other than faith in Jesus Christ because when talking about qualifications for officers in 2.0101 the Essential Tenets are explicitly mentioned.

As for the other three charges, the discussion of ECO below pertains to those.

The next six charges are related to details in the Plan of Union and how they conflict with PC(USA) polity and many are related to the failure of the overture to GA.

Charge 11 is “Defiance of the church’s discernment that categorical exclusion of gay and
lesbian Presbyterians is improper.” The decision points out that the ECO Essential Tenets do not conform to the GAPJC decisions in the Parnell and Larson cases. (As I noted above this is the one place in the whole Findings and Rational section where there is a formal citation to the Book of Order or an Interpretation of it.)

Charge 12 is related as it says “Denial of our commitment to remain open to God’s continuing reformation of the church.” The charge is sustained with the logic that by adopting Essential Tenets “…the processes of dialogue and discernment whereby divergent views may be examined with the goal of discovering common ground for agreement have been inhibited significantly…”

Charge 13 is “Violation of presbytery’s duty to exercise genuine, good-faith discernment in
providing for dissident congregations.” Dismissal of congregations is now like examinations for ordination and membership and they must be conducted on a case-by-case basis. To make summary pronouncements like the Plan of Union does is a violation of the constitution.

The rational is similar for sustaining Charge 14 concerning the Plan of Union not enforcing the Trust Clause.

Charges 15 and 16 are parallel. The first is that proper provision is not made in the Plan of Union for churches that are “exclusively loyal to the PC(USA).” The second is that the Plan of Union does not properly provide for ministers in validated ministries and not serving in a congregation. The SPJC agreed with both charges noting that the Plan of Union polity mentions, but does not adequately cover these cases “contrary to assertions otherwise.”

Well we are in the home stretch on this section. Charge 17 is about the differences in the physical size of the two Presbyteries and the SPJC writes that in considering the union the Presbytery “has put theological affinity ahead of doing ministry in a geographical location and to work to develop and strengthen ecumenical relationships with believers of other denominations as a sign of the unity of Christ’s church.” This is also where the concept that this physical mis-match would effectively make Santa Barbara a non-geographic is mentioned in the decision.

Charge 18 was “Failure to conduct business decently and in order.” The SPJC agreed saying:

While those supporters placing the Plan for Union before the presbytery membership observed the letter of the law, the spirit of open dialogue, using every avenue available to share information, using gatherings to answer questions, responding appropriately to written requests for information, allowing open discussion without time constraints – all were clearly missing. Both written documentation and trial testimony confirm this. While the plan was clearly laid out and a timeline presented, members felt excluded and their concerns given little importance. While the process may have been orderly, a significant portion of members did not feel that they were treated decently.

Finally, Charge 19 was that the Presbytery had gone ahead with the Plan of Union before receiving Synod approval and the SPJC found that this was not the case and did not sustain the charge.

I hope you are still with me because that section alone is longer than I usually write for a PJC decision. But wait – there’s more! We have one more important issue to address…

Is ECO a Reformed Body?
The focal point of this question is Charge 3 which says the ECO has been mischaracterized as a Reformed body. The SPJC agreed citing the fact that ECO has Essential Tenets and that by requiring agreement to these the group is placing on members a requirement for membership beyond the “only membership requirement one’s personal faith in Jesus Christ as Savior and Lord.” The discussion concludes with this:

The preponderance of the evidence demonstrates that the requirements of ECO are otherwise, and by requiring a signed agreement of like belief, exist beyond the boundaries of what it is understood to be Reformed.

I discussed the membership issue above and my reading that the ECO membership requirements do not differ significantly from those of the PC(USA). In a moment here I want to explore the larger context of ECO’s doctrinal requirements for ordained officers embodied in the Essential Tenets.

Charge 1 follows from Charge 3 — if ECO is not a Reformed body the Presbytery must be “Conferring on a “special interest” group a veto over the constitutional governance of the church.”

Charge 4 is that the Presbytery of the West is not a comparable body with which to unite. This was sustained on a couple of points, one being the problems with ECO. In addition, at the time of the trial it did not have the necessary number of churches and teaching elders for what the PC(USA) would recognize as a presbytery.

In reading through this decision the perspective on ECO is the point that really jumped out at me and that particularly bothered me. But what bothered me was not that they declared ECO to be a “special interest group” and not a Reformed body, but how they did it.

Now, ECO may or may not be a Reformed body in your book and I am personally still in waiting mode before I draw any final conclusions. But for a number of reasons I thought the path to this conclusion in the decision had some issues that I would like to explore.

I find three areas to highlight. (And I would include at this point a reminder that the decision was based on the submitted evidence and I am probably going beyond that.)

1. The decision’s reasoning

For starters there is an AI from the 218th GA on G-3.0301a that says in part:

The 218th General Assembly (2008)… advises the presbyteries that they must satisfy themselves concerning the conformity with this denomination… in matters of doctrines and order.

doctrinally consistent with the essentials of Reformed theology as understood by the presbytery;

governed by a polity that is consistent in form and structure with that of the Presbyterian Church (U.S.A);

of sufficient permanence to offer reasonable assurance that the congregation is not being dismissed to de facto independence.

Failure on the part of the presbytery thoroughly to explore and adequately to document its satisfaction in these matters may thus violate, however unintentionally, the spirit of the polity of the Presbyterian Church (U.S.A.)”

First, this AI is not specifically referenced in the decision. In regards to that it should be noted that it is an Interpretation on the section on dismissals and not partners in a union presbytery and that it was issued for a particular situation involving transitional presbyteries in a denomination other than ECO. It does however, in the portion quoted above, contain important useful guidelines for assessing another denomination. Furthermore, as I look ahead I suspect future cases involving the nature of ECO are more likely to be about dismissals and not other topics like union presbyteries.

I would further note one important point in this AI which is not referenced in this case — It is the responsibility of the presbytery to determine the status of the body that a church is being dismissed to.

OK, back to the decision. Now, since the Complaint and the Decision do not reference this three-part test we don’t know if the SPJC applied the first (doctrine) or the second (polity) in considering the issue of freedom of conscience. In the end it really does not matter.

But regarding ECO, let’s go ahead and break this down. The question of doctrine is initially fairly straight forward as ECO has adopted the current PC(USA) Book of Confessions. The conditional, of course, would be whether ECO’s inclusion of the Essential Tenets changes the doctrine enough so it is no longer “consistent with the essentials of Reformed theology.” As for the polity, while not adopted verbatim from the PC(USA) there is a strong similarity in structure and practice, as can be seen in the membership requirements I compared above. Probably ECO’s weakest point in the test is the last “sufficient permanence” test since ECO has only been in existence as a body for less than a year.

I’ll return to ECO itself in a few minutes but my point here is that a broad test exists in the Interpretation of the Constitution. The Decision emphasizes one point as the linchpin of Reformed doctrine and the deciding factor regarding Charge 3.

This argument for the Complainants is emphasized by a Director of the Covenant Network, Doug Nave, who represented the Complainants in this case. When the decision was issued the Covenant Network posted notice of it on their web site and a lively discussion ensued in the comments. At one point in the comments Mr. Nave says this:

The SPJC discerned that the PC(USA) Constitution, interpreted as a whole, gives particular meaning to the term “Reformed.” This includes a rejection of both subscriptionism and “works righteousness” — both of which are found in ECO’s theology and polity documents. While other communions might self-identify in a manner that leaves room for the imposition of abstract “essential tenets,” or for requirements that condition church membership on more than a person’s profession of faith, the PC(USA) does not.

It is lost on almost no one that one of the tensions in the PC(USA) is that officers vow “Do you sincerely receive and adopt the essential tenets of the Reformed faith as expressed in the confessions of our church as authentic and reliable expositions of what Scripture leads us to believe and do, and will you be instructed and led by those confessions as you lead the people of God?” The denomination has steadfastly refused to say what the Essential Tenets are. In the PC(USA) the Essential Tenets only become specific when examining a candidate for membership. It reminds me of the card game Mao where “the only rule we can tell you is we can’t tell you the rules.”

However, the PC(USA) does have a guide to our Reformed theology and polity and that is the new Foundations section of the Book of Order. Before the reorganization of the materials San Francisco Theological Seminary created a document based on the old chapter G-2 that listed ten Essential Tenets of the Presbyterian Reformed Faith. Interestingly, freedom of conscience did not make their list. (To be fair, they based it on the old Chapter 2 and the “Right of Judgement” was in the old Chapter 1.)

There is an interesting parallel piece by Dr. Jack Rogers where he breaks down the various doctrine in a like manner. In the introduction of that article he begins by noting that presbyteries and sessions can not construct fixed sets of tenets. He then goes on to point out how the GAPJC in giving this interpretation then broke that rule by affirming the status of the then in force “fidelity and chastity” section. It is interesting to consider if this SPJC has similarly broken this rule when they suggest an essential when write “Councils do not have the right to bind the conscience of either pastors or members to a pro-forma set of essentials” or in the decision on Charge 8 when they declare that there is a “litmus test” regarding how examinations for ordinations are to be carried out.

The point here is that to many reading this decision the “look and feel” is that the value of freedom of conscience has been raised to a position above, or maybe even in place of, the other Essential Tenets of the Reformed Faith. As the SFTS document demonstrates there are multiple Tenets yet this decision deals with only one without creating a context in regards to the others. This has the feel that in saying there are no stated Essentials one has been declared.

To put it another way, Mr. Nave in his discussion interprets the decision like this – “In all of this, the SPJC applied the principle… that each part of our Constitution – including its use of the term “Reformed” – must be interpreted in light of the whole Constitution.” While the SPJC may have applied this principle their reasoning is not as transparent in their writing as it could be.

What adds to this problem of the “look and feel” is that as officers we agree to “exercise freedom of conscience within certain bounds.” The reference to G-2.0105 was abbreviated and without citation in the decision on the combined Charges 7, 8, 9 and 10. This is the section in the PC(USA) Constitution that sets the openness and also the limits of an officer’s freedom of conscience:

G-2.0105 Freedom of Conscience
It is necessary to the integrity and health of the church that the persons who serve it in ordered ministries shall adhere to the essentials of the Reformed faith and polity as expressed in this Constitution. So far as may be possible without serious departure from these standards, without infringing on the rights and views of others, and without obstructing the constitutional governance of the church, freedom of conscience with respect to the interpretation of Scripture is to be maintained. It is to be recognized, however, that in entering the ordered ministries of the Presbyterian Church (U.S.A.), one chooses to exercise freedom of conscience within certain bounds. His or her conscience is captive to the Word of God as interpreted in the standards of the church so long as he or she continues to seek, or serve in, ordered ministry. The decision as to whether a person has departed from essentials of Reformed faith and polity is made initially by the individual concerned but ultimately becomes the responsibility of the council in which he or she is a member.

2. Historical background in American Presbyterianism

In an interesting line in the decision the SPJC writes

In spite of evidence that the history of the Reformed Tradition did involve
adherence to “essential tenets” and required signed affirmation of same for short periods of time, it is the current understanding that the Reformed Tradition rests on a clear understanding that Jesus Christ alone is Lord of the conscience…

I think this minimizes this very conflict in our ecclesiastical heritage and it would be better phrased that “American Presbyterianism has throughout much of its history held a tension between, and struggled with the balance in, freedom of conscience and subscriptionism.” Let me quote from an interesting article titled Jonathan Dickinson and the Subscription Controversy:

In the early eighteenth century the Synod of Philadelphia was a unique blend of two ecclesiastical traditions and theological mind-sets. Within its small compass the synod was home to both a Scotch-Irish contingent, whose training and heritage rendered its members more likely to be the traditionalists or conservatives on each newly rising issue, and a New England party, whose emphasis was on personalized religion bound only by the Word of God and individual conscience. The confluence of these two traditions within the infant synod meant that controversy was inevitable. As new problems arose, the Scotch-Irish naturally tended to impose the structure and rigidity of Old-World Presbyterianism while the New Englanders opted for a freer, less hierarchical approach. The Scotch-Irish tended to translate the Old-World model of a strong, centralized ecclesiastical government and rigid creedal conformity into a world as yet ecclesiastically unshaped. The New Englanders, by contrast, fearing a return to what they considered the too-rigid control over religion from which their forefathers had narrowly escaped, naturally sought theological and moral protection in places other than tight ecclesiastical control. [Bauman, M., 1998, JETS, v 41, n 3, p 455-467, quoted from p. 456]

Does this sound at all familiar? This has been the struggle throughout the history of the American Mainline Presbyterian Church. Among other things, the Adopting Act of 1729 and the Special Commission of 1925 dealt with this issue. For this decision to cite only written subscription “for a short time” misses one of the major arcs of American Presbyterianism.

This has been a continuing discussion in mainline American Presbyterianism and the general, although not exclusive, trend has been for those favoring confessional adherence to depart the mainline. The present situation is no exception. What this decision seems to imply is that enough confessionalists have departed that the preferences of those on the “personal religion” side now dominate.

3. Bigger picture of Reformed Churches

What probably frustrated me the most with this decision is the implication that the PC(USA) gets to define what it does and does not mean to be Reformed.

Presumably the SPJC had as evidence the Packet with the call to the Special Meeting. In this packet the Presbytery Council had their own analysis of ECO as well as documents from three of their experts – Rev. Eunice McGarrahan, Dr. Richard Mouw and Dr. Wayne Darbonne – all speaking favorably of ECO as a Reformed body. Whether through the choice of the SPJC or the minimal response by the Presbytery the arguments in this packet are not reflected, or rebutted, in the decision.

One of the arguments that the Complaint makes against ECO not being a Reformed body is that it is not yet a member of the World Communion of Reformed Churches (WCRC) (Complaint paragraph 17(b)). Fair enough. So if WCRC membership is the imprimatur of being Reformed, or at least goes a long way towards that designation, I would point out that there are denominations in WCRC that require forms of subscription (e.g. Christian Reformed Church, see Article 5 Supplement in Church Order. And the CRC has a page on “What is Reformed?” and I could not find freedom of conscience in there.) And to take it a step further from what PC(USA) polity understands, it is in full communion with the Moravian Church, a Reformed body that has bishops. (They use the term for an ordained office with teaching responsibilities and not in the sense of an episcopal hierarchy.)

But let’s look at a “close relative.” Historically and polity wise the two closest Reformed bodies to the PC(USA) are the Cumberland Presbyterian Church and the Evangelical Presbyterian Church. The PC(USA) is in correspondence with both through WCRC.

If you consider the EPC Book of Church Order, section 13-6 says:

The candidate or transferring Teaching Elder shall provide a written statement of any exceptions to the Westminster Confession of Faith and the Larger and Shorter Catechisms of this Church, and the Presbytery must act to allow or disallow the exceptions. The Presbytery shall not allow any exception to “Essentials of Our Faith.” If the Teaching Elder develops exceptions to the Westminster Confession of Faith and the Larger and Shorter Catechisms after ordination, he or she must report those exceptions to the Presbytery and the Presbytery must act to allow or disallow these exceptions.

And this is fundamentally different from the ECO requirement how? The EPC is a recognized similar Reformed body the PC(USA) is in correspondence with and that churches from the PC(USA) have been dismissed to and it has a subscription requirement in its Constitution that if anything is stronger than ECO’s. Can I get a QED?

It is interesting as you look around that what is meant by “Reformed” varies a bit and is something of a Rorschach test or the five blind men and the elephant. There is not a single definition and as you would expect different emphases reflect different theological perspectives. WCRC probably represents the broadest view of what it means to be in the Reformed tradition while other councils, like the North American Presbyterian and Reformed Council have more specific scriptural and confessional standards.

Minority Report

There is a dissenting opinion authored by the Rev. Michael D. Haggin which is joined in part by two other commissioners. No objection is made to the overall decision but as the intro says

I completely concur in the unanimous decision of the Commission that the action of the Presbytery of Santa Barbara to create a union presbytery together with the Presbytery of the West of the ECO is irregular and unconstitutional. This could have been a single point of complaint and would, by itself, justify the remedial action ordered in this case. Complainants, however, allege a large number of additional points of complaints which appear to impute unnecessarily negative motives to the Respondent. Accordingly I cannot concur with my colleagues in their decision on several of the counts of the Complaint.

Pursuant to the discussion of whether ECO is a Reformed body the opinion says

The Form of Government (G-5.04) authorizes a presbytery to unite “with one or more comparable councils or governing bodies, each of which is a member of another Reformed body.” Accordingly, on June 2, 2012, Respondent presbytery voted “to recognize ECO: a Covenant Order of Evangelical Presbyterians as a Reformed body.” This Commission has effectively found that ECOP is not “another” body and that Presbytery of the West is not a “comparable council.” In this count, Complainant asks us to deny that ECOP is “Reformed.” Witness testimony was presented to indicate that ECOP fails a particular theological ‘litmus’ test. I believe that it is at least equally legitimate to classify as “Reformed” bodies whose theological witness descends historically from the central preachers and teachers of the sixteenth-century Protestant Reformation, including Huldrych Zwingli, John Calvin, Heinrich Bullinger, Zacharius Ursinus, Thomas Cranmer, John Knox, and others of that ‘school.’ When any individual seeking ordination is examined, the ordaining council has the responsibility of determining whether or not the candidate has departed from essentials of Reformed faith and polity (G-2.0105). In this case, Respondent presbytery exercised its analogous responsibility responsibly and defensibly.

The dissenting opinion speaks similarly about Charge 2 – promoting schism: “By prompting
this Complaint, their action gave rise to divisions in the Presbytery community, but it would be a sheer speculation to say that the divisions and schisms resulting from one course of action were greater or less than those resulting from another course of action… I do not endorse Complainant’s desire to mark it as malevolent..”

Regarding Charge 12 about not being open to continuing reformation he says “Since this count appears to charge Respondent with doing something improper in the future, I cannot concur with the Commission decision here.”

Finally, all three commissioners object to the findings on Charge 18, not conducting the business decently and in order. They say “The presbytery was ready to proceed to a decision on June 2, 2012, even if the Complainants felt themselves to be ‘behind the pace’ in the competition of ideas. Respondent presbytery’s actions were (as we have found) mistaken and irregular, but they were not indecent or disorderly.”

General Discussion
Let me begin by echoing Mr. Haggin’s comments. There are clear grounds in my mind for ruling the Santa Barbara Plan of Union as unconstitutional — if nothing else the failure of their overture to General Assembly probably guaranteed as much. But what really struck me was the tone of the decision as I read it. I recognize that this could be completely unintentional on the part of the SPJC, but the terse, streamlined and citation-free nature of the decision left this polity wonk with some concerns about the impression it was trying to leave.

The other thing that contributed to my disappointment with the nature of the decision was my knowledge of people in Santa Barbara Presbytery that I have worked with at the synod level. I am more than willing to accept that for some this proposal was an escape or shield from the new reality of the PC(USA) following the passage of Amendment 10-A. But 73% of the commissioners approved the Plan of Union and I have talked with friends in the Presbytery for whom this is not an ideal choice but agreed with it as a possible path forward. They do not want to see division but recognize that one way or another it will probably come. These are good Presbyterians of integrity who came to the conclusion that the Presbytery, as well as the PC(USA) as a whole, is better off working together in a union presbytery setting than as two separate entities. I was disappointed that there was no acknowledgement of this reality in the main decision and only in the dissenting opinion where it says “The evidence shows that the moving actors in Respondent presbytery sought to form a union presbytery in the belief, hope, or expectation that it would hold the Presbytery of Santa Barbara together and prevent a number of the member congregations from seeking dismissal.”

So what does all of this mean? Let me turn to the AI for D-7.0402b for guidance:

Decisions of the permanent judicial commissions of synods and
presbyteries are binding on the parties to the particular cases in which
the decisions are rendered unless overturned on appeal. No synod or
presbytery permanent judicial commission is able to make its decisions
binding beyond the parties to the particular case by simply declaring it
to be so.

At the same time, decisions of synod permanent judicial commissions
are precedent setting for that synod, its presbyteries, members of the
presbyteries, sessions, and members of the particular churches in the
synod…
That is to say, governing bodies and members in the same jurisdiction
and a lower jurisdiction below the one rendering a decision should be
aware that the permanent judicial commission will render similar
decisions in cases on the same issues and with like fact situations.

So the first thing we can say that this attempt at a union presbytery has probably ended.

However, as the AI says this decision is binding on no one beyond the parties involved so alternate models for union presbyteries might be acceptable. As I stated above, while this decision appealed to history and original nature of the presbyteries to invalidate the concept, another SPJC or the GAPJC may interpret the constitution only as written and find that they are permitted when all the explicit constitutional requirements are met.

Likewise, the parts declaring ECO is not a Reformed body are not binding elsewhere. At the present time ECO is not seriously threatened by this decision and dismissals to ECO by other presbyteries have gone unchallenged as to the nature of ECO. In fact, in the GAPJC decision in the Tom v San Francisco case the decision’s focus was on process for the Trust Clause and no issue was raised with the body the church was dismissed to regarding it not having a Trust Clause.

Now according to the AI the decision is not binding but precedent setting for the other churches and presbyteries in the Synod of Southern California and Hawaii. So does this determination that ECO is a special interest group carry over to congregations being dismissed to ECO? For me the key phrase is “…the permanent judicial commission will render similar
decisions in cases on the same issues and with like fact situations.” I would expect that future cases tied to this issue would be more comprehensive in submitting evidence regarding the nature of ECO changing the “fact situations.” In addition, ECO is also changing as churches join it. In my opinion the precedent here is not strong, will be short-lived and stands a reasonable chance of being revised in future cases. Finally, the Book of Order and the AI regarding dismissal do make it clear that it is the presbytery’s responsibility and right to determine if the other body is in the Reformed tradition and that usually gives the presbytery an edge when their decisions are appealed.

If this case were to be appealed to the GAPJC I would not expect any of the key charges being overturned. New evidence can only be included on appeal if it is newly discovered so more than likely an appeal would proceed based on the original material. Some findings might be overturned, but even overturning a few of the decisions would still leave enough in place to retain the trial court’s verdict regarding the union presbytery. There is a chance that the GAPJC could be convinced that the available evidence at trial was not properly considered with regards to the nature of ECO and that part of the ruling could be overturned. But one must weigh the risk of a decision that now applies to only one presbytery being upheld and becoming a standard for the whole church.

Let me conclude with these points:

From the evidence presented the flaws in the Plan of Union are significant enough to invalidate it, especially in light of the 220th GA not approving the details reconciling the two different polities.
The evidence presented and argued at trial ended up presenting a narrow view of Reformed doctrine and based on a more comprehensive view of the world Reformed movement I think ECO’s doctrine and polity would be found to lie well within the bounds of what is more widely considered to be Reformed. In addition, what might disqualify a body as a partner in a union presbytery where cooperation is required might not necessarily be a barrier to dismissal.
While the Plan of Union had defects, the dismissal of the fundamental concept of the union presbytery suggests that we are not ready for creative answers to modern issues and are more concerned with preserving the institution as we know it. It has the feel of the Seven Last Words of the Church – “We’ve never done it that way before.”

I think I can say that one way or another at least some of this is not yet a settled question. While I would think the odds are against seeing another union presbytery proposal I would not completely rule it out. On the other hand, the disqualification of ECO sent a collective gasp through much of the denomination from what I read and heard and that is a discussion which could be around for a while before it becomes settled law. While many presbyteries have dismissed churches to ECO without issues this case opens up the suggestion that future dismissals are more likely to be challenged, particularly since this is a question that presbyteries must answer and even the GAPJC can not issue an overriding decision on that question (although they could “counsel” a presbytery when they find the presbytery may have done it incorrectly).

OK, at about 7000 words I have probably written enough – maybe too much.
This ended up being a bit of a core dump so I hope my arguments are
coherent and thought-provoking, and maybe even convincing.

I have a couple of related items in the works but after spending two solid weeks researching and writing this maybe it is time to turn geek share a couple of data sets. Stay tuned…

PC(USA) GAPJC Decisions — Larson and others v. Presbytery of Los Ranchos

PC(USA) GAPJC Decision — Tom and Others v Presbytery of San Francisco

8 Replies

It was a busy and significant week for the General Assembly Permanent Judicial Commission of the Presbyterian Church (U.S.A.). A bit over a week ago they heard three important cases and a week ago issued their decisions. I am taking these individually because of the importance of each one and taking them in order of their case number. I have already posted 221-02 Newark v. McNeill and am hoping to have 221-04 Larson v. Los Ranchos posted in a couple of days.

But here is today’s case…

Remedial Case 221-03: Wilber Tom, David Hawbecker, and Thomas Conrad, Appellants (Complainants), v. Presbytery of San Francisco, Appellee (Respondent)

This decision includes a concurring opinion. It is also notable that, as the decision says, “Presbytery of San Francisco (Presbytery or Appellee) waived its appearance at the hearing and chose to rely on its written submissions.”

If you want the bottom line, from a polity standpoint, here you go:

When a congregation seeks dismissal under G-11.0103i (now G-3.0301a), it is the responsibility of the presbytery to fulfill its fiduciary duty under the Trust Clause.

OK, now let’s dig into this. I will first discuss the case, make a few comments about the GAPJC arguments themselves, and conclude with some thoughts on what this decision means.

To begin, few preliminary notes:

First, two types of issues were part of the appeal: the Trust Clause and process issues including possible conflict of interest of commissioners and documents received into evidence. The latter is specific to this case, I will make some mention of it, but because it does not provide any real polity issues I won’t do a lot with it.

Second, while this was tried under an earlier version of the Book of Order the language of the cited sections has not changed, only the section numbers. The two most important sections are the Trust Clause (G-8.0201 is now G-4.0203) and the presbytery’s authority to dismiss (G-11.0103i is now G-3.0303b).

Third, this case is a bit unusual in that no remedy could be provided the Complainants. The Presbytery has changed their Gracious Dismissal Policy (GDP) and the church in question has been dismissed. As the decision says “[I]n cases where circumstances prevent a remedy, this Commission may exercise its declaratory authority to provide guidance to lower councils and prevent future violations. Daniel J. McKittrick v. The Session of the West End Presbyterian Church (Remedial Case 215-5, 2003).”

This case results from the dismissal of Community Presbyterian Church of Danville (Danville) by the Presbytery of San Francisco in November 2010. The church was dismissed under the Presbytery’s Gracious Dismissal Policy (GDP) with their property and an agreement to make payments representing per capita and mission funding to the Presbytery over five years. Right after the dismissal the Presbytery voided their first GDP and began work on a new one. Following the dismissal decision a remedial case was filed with the Synod PJC of the Synod of the Pacific and in March 2012 the SPJC ruled in favor of the Presbytery and affirmed the dismissal of Danville. In May, as the GAPJC was accepting the case, the Presbytery signed a quitclaim deed and finalized the Danville dismissal. Based on this the Presbytery argued the GAPJC case was moot but as noted above the GAPJC proceeded with the case. This helps explain the fact that the Presbytery only submitted written briefs.

There were 15 specifications of error by the SPJC which the GAPJC reordered in their decision, but they did not consolidate any.

The first seven specifications of error deal with issues related to the Trust Clause and the last eight deal with proceedings at the trial concerning conflict of interest of a commissioner, questions asked and receiving evidence. All specifications of error in the first group were sustained and only two specifications of error in the second group, those regarding documents that were not received as evidence, were sustained.

The seven dealing with the Trust Clause were answered as a group. Several of these specifications are related to specific details and that the Presbytery “failed to consider or to understand the meaning of the property trust clause (G-4.0202, formerly G-8.0201) or that the church property in question was in fact unequivocally owned by the Presbyterian Church (U.S.A.).” The specifications include that the testimony of a witness was not properly considered, that the meaning of the trust clause was not properly interpreted, that the Presbytery did not properly consider two General Assembly (GA) Authoritative Interpretations (AI), that the Presbytery’s Engagement Team did not properly consider the Trust Clause in their negotiations and that the Presbytery had exercised too broad a power with regards to the Trust Clause.

The GAPJC in their decision says:

Under the Trust Clause, a presbytery’s discretionary authority to determine property rights, while broad, must be guided by the presbytery acting as a fiduciary for the benefit of the PC(U.S.A.), the beneficiary of the Trust Clause. A congregation’s financial and all other assets are also understood to be covered by the Trust Clause. Chesterbrook Taiwanese PC v. National Capital Presbytery, Remedial Case 217-12, 2006.

Under the fiduciary obligations inherent in the Trust Clause, a presbytery must take into consideration the PC(U.S.A.)’s use and benefit of the property in every decision concerning its disposition. To comply with the Trust Clause, the presbytery must consider the interest of PC(U.S.A.) as a beneficiary of the property. Payments for per capita or mission obligations are not satisfactory substitutes for valuations of the property held in trust. (G-4.0203)

Note that the case cited (217-12) regards a dissolving congregation so the application to this case beyond the scope of the Trust Clause is somewhat limited. The decision continues:

Based on an examination of the record, this Commission finds that the GDP developed by Presbytery, its implementation, and SPJC in its trial decision, failed to duly consider the economic interests of the PC(U.S.A.). Such consideration is essential. SPJC’s exclusion of documents which were the most convincing evidence of the position of PC(U.S.A.) in regard to the Trust Clause and of the financial position of Danville, strongly supports the allegation of erroneous interpretation. Failure to consider the property value and the PC(U.S.A.)’s beneficial interest in the property was a fatal omission of the trustee’s duty to the PC(U.S.A.).

The justification given by Presbytery for dismissal of the Danville church with property, which included only “Great Ends of the Church” and avoidance of litigation, was erroneously upheld by SPJC. While certainly valid, such considerations alone are not sufficient to satisfy the due diligence requirement imposed by the Trust Clause. SPJC erred in finding that due consideration had been given to the interest of the PC(U.S.A.) as the trust beneficiary under the Constitution. Due diligence, of necessity, will include not only the spiritual needs of the congregation and its circumstances, but an examination of the congregation’s financial position and the value of the property at stake. It is undisputed that Presbytery failed to make such an examination. SPJC erred in failing to require that financial due diligence be undertaken by Presbytery.

So, based on that can we determine exactly what steps a Presbytery needs to take to do “due diligence” and fulfill it’s “fiduciary responsibility”? More on that in a minute.

The other specifications of error related to process – questioning of witnesses, possible conflict of interest, and documents received or not received as evidence. With the exception of the documents alluded to above none of these specifications were sustained. The two documents that should have been received are the GA Stated Clerk’s Amicus Brief to the California Supreme Court and the Annual Statistical Report of the Danville Church.

[On a side note: I had to laugh where the decision refers to the Amicus Brief as “a clear statement of the legal position of the PC(USA).” Have a look. It is 5,294 words written for a civil court case with legal citations and vocabulary. For a document that is here described to as a “clear statement” I have always found to be a slow read. And I sometimes wonder if a document written for a civil judicial proceeding has much value in an ecclesiastical judicial case. In this case it reinforces the nature of the Trust Clause but does not really enlighten a Presbytery in determining how to properly consider it.]

The final decision section is brief, but important. Here it is in its entirety:

When the lower council’s actions cannot be undone, this Commission may exercise its declaratory authority to provide guidance to lower councils and to prevent future violations.

When a congregation seeks dismissal under G-11.0103i (now G-3.0301a), it is the responsibility of the presbytery to fulfill its fiduciary duty under the Trust Clause. This fiduciary duty requires that the presbytery exercise due diligence regarding the value of the property of the congregation seeking dismissal. Due diligence, of necessity, includes not only an evaluation of the spiritual needs of the congregation and its circumstances but also financial analysis of the value of the property at stake. Payments for per capita or mission obligations are not satisfactory substitutes for the separate evaluation of the value of the property held in trust.

There is a helpful concurring opinion that, while not authoritative, helps suggest some details for the process.

We also join in the majority’s conclusion that the language of the Gracious Dismissal Policy adopted by the Presbytery of San Francisco did not require adequate consideration of property retention issues. The needs of future congregations, the involved debt, the probability that a substantial number of dissenting members may be enabled to continue a PCUSA congregation would compel retention of a property or equity facilitating those or similar interests are all matters to be considered to be involved in the Presbytery trustee’s decision. The Gracious Dismissal Policy did not require the PET to deal with those aspects of the dismissal decision.

However erroneous the omissions of the GDP, and the construction given by its PET, it may well have been within the discretion of the Presbytery to dismiss the Danville church with its property.

and after considering the circumstances of the Danville situation

In short, there may have been no apparent reason to require retention by the PC (USA) of any property interest. With the evidence in that stature, the burden of proof that the Complainant would had to have met to show an abuse of discretion by the Presbytery would have been heavy.

And they conclude:

What the Presbytery did in securing additional mission and per capita payments may or may not have been sufficient to “balance the books” in this particular scenario, but it was within their discretion once they exercised due diligence and considered all the factors inherently required by the fiduciary duty of a trustee.

Let me take a brief look at a couple of the points in the arguments before the GAPJC that an observer at the hearing passed on to me. One point that the complainants argued for was step by step instructions that show the presbyteries understand the Trust Clause. Beyond this there also was a request that the GAPJC constitutional interpretation include payment of just compensation. In questions from the commissioners there was one of the nature of “Aren’t you in effect asking us to write the rest of the trust clause?” The response was along the lines that they wished they didn’t have to but it is clearly not understood so the presbyteries need procedural steps.

So we have this decision and it does not contain a step-by-step checklist as the complainants suggested. How does it fit into the patchwork of interpretation and what does it mean? Well, I had to chuckle when I read the two Authoritative Interpretations cited in the Specifications of Error. The first, 9-88, was from a stated clerk asking for guidance in these matters. The second, 89-10, was the same stated clerk coming back to GA a year later asking for further clarification. Yup, clear as mud.

So what interpretation do we have? The first AI says:

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.

The second expounds on this:

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.

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.

This decision says:

Under the Trust Clause, a presbytery’s discretionary authority to determine property rights, while broad, must be guided by the presbytery acting as a fiduciary for the benefit of the PC(U.S.A.), the beneficiary of the Trust Clause. A congregation’s financial and all other assets are also understood to be covered by the Trust Clause.

and later

Under the fiduciary obligations inherent in the Trust Clause, a presbytery must take into consideration the PC(U.S.A.)’s use and benefit of the property in every decision concerning its disposition. To comply with the Trust Clause, the presbytery must consider the interest of PC(U.S.A.) as a beneficiary of the property. Payments for per capita or mission obligations are not satisfactory substitutes for valuations of the property held in trust. (G-4.0203)

and finally

Due diligence, of necessity, will include not only the spiritual needs of the congregation and its circumstances, but an examination of the congregation’s financial position and the value of the property at stake.

At the present time there is Advisory Opinion 19 from the Office of the General Assembly that talks about the Trust Clause for the Unity of the Church. The detail contained in there talks about dismissing a church but does not address the due diligence discussed in this decision. There might be an update in the works based on this case. There is also a constitutional musing on Transferring Congregations that talks a lot about process but does not detail the property aspect.

Based upon all of these let me make a few observations and suggestions that relate to this and what these passages suggest to me is due diligence.

In spite of the AI above cautioning against a fixed policy the 218th General Assembly encouraged the development of Gracious Dismissal Policies. It would seem that based on the interpretations above these policies would entail process and guidelines but not specific dismissal terms. It should also be noted that the GDP postdates the two AI’s.
The thoughts that follow are contingent on a number of conditions including that the dismissal is to another recognized reformed body, there is near unanimous agreement in the congregation for dismissal, the process has been followed and there are no encumbrances on the property or at least all sides can agree on how loans and deed restrictions will be handled.
The first thing that these guidelines seem to say is that the real and other property must be specifically accounted for in the dismissal agreement and an acknowledgement that they are presently held in trust for the PC(USA) as a whole.
The requirement for due diligence indicates that the value of the property should be determined by appraisal or some other reasonable method.
As the concurring opinion suggests, a case can be made in the agreement for dismissal with property, possibly without financial compensation in consideration of the property, where the case for mission supports it. But it appears that this case needs to be laid out in detail in the agreement or an associated document.
One spiritual and fiduciary consideration should be the cost, in money and good will, of civil litigation.

As I look at the collection of documents this is the conclusion that I reach. Your mileage may vary.

There is certainly the possibility that there will be official clarification on this by one of the usual channels. We can get official interpretations by an AI from the General Assembly or a future judicial case that has the GAPJC clarify this decision. There can also be clarifications, recommendations and guidelines that might be issued by various entities or individuals (like my thoughts above) that are helpful but do not rise to the level of Constitutional Interpretation like those from GA or the GAPJC. [Guidance has been issued by the Office of the General Assembly – See UPDATE at bottom.]

On thing I would not expect and would caution against is a definitive number that is recommended. I often hear suggestions of a payment of 10% of the value of the property but the AI above talks about taking these on a case-by-case basis and the Assembly Committee on the Constitution gave the advice to the 220th General Assembly, regarding a different matter, not to enshrine specific numbers in the constitution as that was against the spirit of the new Form of Government.

Let me conclude with some thoughts on the implications of this decision. The original San Francisco GDP has been held up as a model for use by other presbyteries, my own included. At the risk of inviting a remedial case I would add that the agreements with the churches we recently dismissed would probably not meet the test the GAPJC puts forward in this decision. I have to wonder how many other dismissal cases currently in process or recently completed would be in the same category. Clearly all future agreements need to seriously address the Trust Clause and provide due diligence regarding property.

In addition, I don’t think it is an exaggeration to say that the Trust Clause has become a bit of a Rorschach Test across the denomination and different people and groups see it differently.

But the bottom line is that the GAPJC did not give a definite process or very many specific steps as to what would constitute due diligence. Until or unless such authoritative guidance is given each presbytery that dismisses congregations has some latitude in determining for itself what it’s good faith due diligence work entails.

Enough about that for the moment. Something tells me this question may arise again in the future.

Now I set my sights on the last of the three cases, Larson and other v. Presbytery of Los Ranchos. We will see how quickly I can get that written. Stay tuned…

UPDATE: 11/12/12 – Late last week the Office of the General Assembly issued a Frequently Asked Questions document about this decision. There guidance is a bit less detailed than the suggestion I had above but my thoughts are pretty much in line with the guidelines they gave.

PC(USA) GAPJC Decisions — Presbytery of Newark v McNeill

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This was a busy and significant week for the General Assembly Permanent Judicial Commission of the Presbyterian Church (U.S.A.). A week ago they heard three significant cases and earlier this week issued their decisions. I am going to take these individually because of the importance of each one and taking them in order of their case number hoping to have all three finished by the end of the weekend.

Disciplinary Case 221-02: Presbyterian Church (U.S.A.) through Presbytery of Newark,
Appellant (Complainant) v. Laurie McNeill, Appellee (Accused)

This decision includes three concurring opinions and a dissent.

The GAPJC decision gives a good summary of the origins of this disciplinary case:

On October 17, 2009, McNeill, a minister of the Word and Sacrament, Pastor of the
Central Presbyterian Church in Montclair, New Jersey of the Presbyterian Church (U.S.A.) (PC(U.S.A.)), and member of Presbytery, was married under the state law of Massachusetts to
Ms. Lisa Lynn Gollihue. The ceremony took place at Christ Episcopal Church in Harwich Port,
Massachusetts, and was officiated by a minister of the United Church of Christ and two priests of
the Episcopal Church, according to a modified marriage rite from the Book of Common Prayer of
the Episcopal Church.

Upon the announcement of the marriage a complaint was filed with the presbytery, an investigating committee was formed and TE McNeill was tried on two charges:

Charge 1: You, Laurie McNeill, on or about October 17, 2009, did commit the offense of participating in a same-sex ceremony, in which two women, namely yourself and Lisa Lynn Gollihue, were married under the laws of the Commonwealth of Massachusetts in violation of W-4.9001 of the Book of Order, and thereafter representing to your then congregation and others that such ceremony was a “marriage” all in violation of the Constitution of the Presbyterian Church (U.S.A.).

Charge 2: You, Laurie McNeill, during the period beginning at least as early as October 17, 2009 and continuing until the date hereof, did commit the offense of being involved in a relationship described as a “happy marriage” with Lisa Lynn Gollihue, a person of the same sex as yourself, in violation of G-6.0106(b) of the Book of Order, in failing to live a life either in fidelity in marriage between a man and a women [sic] or chastity in singleness, all in violation of the Constitution of the Presbyterian Church (U.S.A.).

You will note that the charges were filed under the previous Form of Government and before G-6.0106(b) was changed.

The Presbytery PJC acquited her on both charges and on appeal the Synod PJC concurred. The case was then appealed to the GAPJC.

The GAPJC consolidated the 32 specifications of error by the SPJC down to 11 specifications. For the sake of space I will be consolidating a bit further and summarizing the specifications. None of the errors were sustained by the GAPJC.

The first error addresses the Directory for Worship and the definition of marriage in W-4.9001 and the second error addresses the SPJC determination “that the Constitution of the PC(U.S.A.) does not regulate the conduct of ordained officers of the PC(U.S.A.) in services conducted outside the auspices of the PC(U.S.A.).”

While the present decision does not reference the Southard decision at this point, part of that decision does reflect on this:

This Commission further held in Spahr, for prospective application, “that the liturgy should be kept distinct for the two types of services.” In light of the change in the laws of some states, this Commission reiterates that officers of the PCUSA who are authorized to perform marriages, when performing a ceremony for a same-gender couple, shall not state, imply, or represent that the same-gender ceremony is an ecclesiastical marriage ceremony as defined by PCUSA polity, whether or not the civil jurisdiction allows same-gender civil marriages.

In response to these two specifications of error the present decision says:

The Directory for Worship “…sets standards and presents norms for the conduct of worship in the life of congregations and governing bodies of the Presbyterian Church (U.S.A.).” In this case the service of worship did not occur in a PC(U.S.A.) church nor was it conducted under the auspices of the PC(U.S.A.); therefore, the Directory for Worship does not apply. The Constitution is silent regarding the marriage of an officer of the PCUSA in civil marriage ceremonies. Further, Scripture and Confessions were not argued as part of the trial record and, therefore, could not be considered on appeal.

Note that there are two circumstances that combined brought this ceremony outside of the established legal precedent for the PC(USA) — First, is that it was not “conducted under the auspices of the PC(U.S.A.)” and the second was that prior decisions involved those that preformed the ceremonies not simply participate in them. Since this ceremony was only connected to the PC(USA) in that a teaching elder in the PC(USA) was one of the individuals getting married under a narrow reading of the Directory for Worship and previous decisions they would not apply in this case. This rational also applies regarding specification of error number four not being sustained.

The third specification of error said that it is a violation of the Constitution to describe this relationship as a marriage to which the GAPJC points out “The stipulated facts from the record reflect that, although Appellee did describe herself as married, she made it clear that the PC(U.S.A.) did not recognize her marriage.”

The fifth and sixth errors were regarding G-6.0106b — what constitutes a violation of it and when it should be applied. In the rational the decision says “the evidence did not support a finding beyond a reasonable doubt that McNeill committed an offense.” In part, as one of the concurring opinions points out, this is a diplomatic way of saying that there was no evidence presented of sexual activity in this marriage.

But the decision leaves unanswered one part of the fifth specification of error where it says “The SPJC erred in determining that it was not clear in what circumstance or to whom G-6.0106b applied and that G-6.0106b was only applicable in the context of an examination and, therefore, could not be enforced in a disciplinary process.” Without answering if G-6.0106b was applicable outside the context of an examination they have affirmed that view in this case but do not give the church guidance for future cases. (And even though G-6.0106b is now in a different form in G-2.0104b it does raise an interesting question of the applicability of this or other specific standards for ordination in the Book of Order.)

The next three specifications of error address the applicability of Scripture and the Confessions in this case. These errors were not sustained because, as you can see in the charges above, the charges focused on the Book of Order provisions and did not include support by Scripture or the Confessions and support from these sources was not introduced at the original trial. The decision says:

Appellant charged Appellee for violating two specific provisions of the Book of Order. In the trial before PPJC, Appellants neither argued nor presented evidence of violations of Scripture or Confessions. An appellate body cannot find that a trial court erred by not considering argument or evidence when neither the argument nor the evidence was presented to the trial court. Further, it is impermissible for an appellate body to consider new arguments and evidence on appeal, except on application as set out in D-14.0502. No such application was made in this case. By not arguing or presenting evidence of violations of Scripture or Confessions at the trial level, Appellant waived making such arguments and presenting such evidence on appeal.

Finally, the last two errors suggest that the case was proved beyond a reasonable doubt but the GAPJC in their decision sides with the opinion of the PPJC that it was not.

Most of the rational is in the reply to the specification of charges but the GAPJC adds a bit of commentary in the formal decision section:

This case illustrates the tortuous place in which the PC(U.S.A.) finds itself on the matter of same-gender marriage. Previous cases, which dealt with teaching elders officiating at such services, state that unions between same-gender couples, whether legally recognized or not, cannot be declared to be marriages under the current interpretation of W-4.9001. Our Constitution, specifically this section of the Directory for Worship, did not anticipate the range of issues facing the church today surrounding same-gender relationships. In light of the number of cases coming before this Commission and the convoluted grounds upon which cases are brought and decided, it would be beneficial for the church to provide a definitive position regarding participation of officers in same-gender ceremonies whether civil or religious.

No errors were sustained, all appeals are exhausted and no PJC found grounds to affirm the charges against TE McNeill.

Now some other opinions in the matter.

The first concurring opinion, signed by three commissioners, takes the main and expands upon it saying that the General Assembly needs to supply clear guidance regarding same-sex marriage because of the spiritual and financial toll these cases are taking on the church.

The second concurring opinion, signed by two commissioners, is a bit more specific about discussing whether sexual activity could be addressed. The bulk of the opinion says:

There was no evidence of sexual activity here. Appellee entered into her civil marriage on October 17, 2009, when former G-6.0106b was in effect. Since PPJC refused to presume sexual activity, there was no evidence that G-6.0106b had been violated. While it is tempting to assume that “happily married” persons are engaging in sexual activity, it would be inappropriate to reach a guilty verdict exclusively on a presumption. See Wier v. Second Presbyterian Church, Minutes, 2002. Defendants in disciplinary cases are presumed innocent until proven guilty (D-11.0401), and have a right to remain silent. (D-10.0203c). If a rebuttable presumption of sexual activity were allowed, a defendant would have to waive the right to remain silent in order to rebut the presumption. The PPJC verdict was therefore supported by the evidence and was properly sustained by SPJC.

And in case you are thinking “does this really hinge on sexual activity” the answer is “yes” and you can refer to decision 220-01 White and Crews v. Session, St. Paul Presbyterian Church of
San Angelo, Texas.

The third concurring opinion addresses the very narrow scope of the charges and the decision when it says that the Directory for Worship guides “congregations and governing bodies” but does not mention individuals. This opinion says, in part:

…Clearly the Directory for Worship does not reach to services of worship held outside of Presbyterian Churches without absurd consequences. For example… Presbyterians may worship in churches that do not share our theology of the Word or the sacraments without being accused of an offense.

However, “the Directory for Worship reflects the conviction that the life of the church is one, and that its worship, witness, and service are inseparable. …. [I]t describes the theology that underlies Reformed worship.” (Preface, Directory for Worship) Here is suggested an integrity of theology, worship, and life.

It is troubling that the Appellee in this case, by virtue of being a subject in a marriage ceremony held in a church over which the Directory for Worship has no jurisdiction, succeeded in doing for herself what she would be unable (under Spahr and Southard) to do for others, i.e., enter into a marriage that, while not recognized by the Presbyterian Church (U.S.A.), is legally recognized under the laws of the Commonwealth of Massachusetts.

This Commission is bound by the charges brought by the Complainants/Appellants. Therefore, this case is limited to considering the application of W-4.9001 and G-6.106b. The Commission was restricted to these particular matters of polity and could consider neither Scriptural and Confessional arguments nor standards of pastoral accountability rooted in the Constitutional questions for ordination. It is conceivable that, had the charges referenced Scripture and/or Confessions or the ordination question concerning the peace, unity, and purity of the church, the argument and outcome of this case may have been different.

The dissent in this case is filed by two commissioners. This dissent takes issue with all of the underlying issues in this case and how they were viewed by the majority. It is not diplomatic about arguing for the presumption of sexual activity. It argues for the applicability of the Directory for Worship to the conduct of individuals:

[T]he argument that the Directory for Worship, which is an integral part of our Book of Order, does not provide grounds for which to regulate the conduct of our officers outside the context of worship, is also troublesome given that “This Directory for Worship reflects the conviction that the life of the Church is one, and that its worship, witness and service are inseparable.” (Preface). It also states in Section W-1.1005 that “a Christian’s personal response to God is in community” and that “the Christian community worships and serves God in shared experiences of life, in personal discipleship, in mutual ministry, and in common ministry in the world.” How can any officer of the church, or any member for that matter, separate his or her life as being within the church in part, and outside the church in part, or as was argued in this case, single in the eyes of the church and married in the eyes of the state? Our life as Christians is integrally a part of the church, or as stated in W-1.1005, “A Christian’s personal response to God is in community”.

And finally, they argue for the applicability of G-6.0106b in this case.

There is one additional expression of dissent in this case beyond the GAPJC decision and it comes from a press release from Mauck & Baker, LLC, the law firm that worked with the prosecution throughout the case. In addition to expressing their disappointment they provide more details on their case and take issue with all the reasoning by the GAPJC majority in the decision.

Regarding the lack of admissibility of Scriptures and Confessions on appeal the press release says:

This
is in clear distinction to the recent Davis case from 2009 in which a
Presbyterian Teaching Elder was accused of viewing pornography on a
church computer. There the charges were as unspecific as to what had
been violated as in this case, citing the ordination vows generally,
there being nothing at all in Scripture or the Constitution which
addresses pornography. Nevertheless the GAPJC had no trouble sustaining
the conviction on the general grounds that viewing porn disturbed the
peace, unity and purity of the Church.

I would first note that, unlike this case, in the Davis case (Decision 219-09) the charges on which the trial was held contained specific reference to Scripture (the Seventh Commandment as explained in the Confessions) and ordination vows (guided by the Confessions and furthering the peace, unity and purity of the church). I would also note that in the current decision I could find no reference to the Davis case.

But this press release is correct that in the Davis case G-6.0106b was cited in regards to prosecution based on standards in daily life and not just in the context of examination. The decision says:

The Book of Order and the Book of Confessions make it clear that church officers are to conduct themselves within certain limits. While there are few specific church-wide standards of proscribed conduct, (e.g., G-6.0106b), there are many aspirational statements in the church constitution for how church officers should behave. Notwithstanding the church’s preference to avoid a code of forbidden conduct, the church expects that the life and character of its officers be marked by adherence to Biblical and confessional principles.

The Davis decision later goes on to say

This Commission finds that a session or presbytery may determine whether one of its members acted or failed to act in a particular manner that “is contrary to the Scriptures or the Constitution of the Presbyterian Church (U.S.A.)” (D-2.0203b)… The question before this Commission is this: “Was Davis’ use of pornography on a church computer a constitutional offense?” The governing body of membership first determines whether a church officer has departed from biblical and constitutional standards (G-6.0108b) and whether to impose a censure (G-11.0103n and r). The PPJC did make such determinations about Davis’ use of pornography. The SPJC affirmed that decision and this Commission concurs.

There are a number of other outlets that have expressed opinions on the outcome of this case including More Light Presbyterians, The Layman and the Covenant Network.

A couple of my thoughts on this case…

First, Detail Matter! From reading the GAPJC decision much of the outcome was related to the way the charges were drawn up and the trial conducted. Once the trial is concluded it is only under specific circumstances that additional arguments can be introduced.

I was reminded of the importance of details listening to the news this evening regarding insurance coverage for those affected by Superstorm Sandy earlier this week. One important distinction relates to the cause of damage to your house. If you have rain or wind damage than standard homeowners insurance will cover it, but if the damage is due to flooding you better have special flood insurance. The second distinction regards the storm itself. If your homeowners insurance has the higher hurricane deductibles it matters if the storm that hit you was Hurricane Sandy or Superstorm Sandy.

In a way this decision came down to details and how the GAPJC decided to interpret the constitution. They could have applied G-6.0106b to manner of life similar to the Davis case, they could have interpreted the Directory for Worship to have had greater applicability to an individual’s life and not just congregational worship, but they kept to narrow interpretations. As the one concurring opinion says, “It is conceivable that, had the charges referenced Scripture and/or Confessions or the ordination question concerning the peace, unity, and purity of the church, the argument and outcome of this case may have been different.”

My second comment is the implication of that last quote: This was one case but because it was so tightly tied to the details I believe it has very little applicability and interpretive importance going forward. Those interested in prosecuting these cases know what does not work so clearly the roadmap now is to construct charges and prosecution strategy that includes Scripture, the Confessions and interpretation of the Directory for Worship that balances both the covenant community and the individual within it. Charges should have a theological depth like the Davis charges or the charges against Charles A. Briggs.

Enough on that for this evening. Next stop: San Francisco and the trust clause. While I think the McNeill case has a limited scope going forward I think the San Francisco decision presents us with the most important decision of the three this week. It is a decision that could have significant implications and broad applicability. At least that is my read on it – your mileage may vary. Stay tuned…

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