For years I have taught confirmands and officers-elect with some pride that the Presbyterian Church (U.S.A.) has a constitutional form of government. The constitutional rule of law is one of our denomination’s greatest gifts. It is also in serious danger of being undermined if recommendation five of the Theological Task Force on the Peace, Unity, and Purity of the Church is adopted as written.
On the whole, the report is a first-rate product. It provides the church with clear guidance on matters of Christology and biblical authority. The Task Force worked hard to model for the church how to resolve differences while building Christian community. Even regarding ordination standards, task force members wisely turned to the historic methods Presbyterians have used to resolve such disagreements, set forth in the Adopting Act of 1729 and the reports of the Swearingen Commission of 1925. For all these, they should be commended. However, in applying these historic methods to our current context, the Task Force both violates the original intent of the documents and sets a dangerous constitutional precedent.
The process devised by Jonathan Dickinson in the Adopting Act of 1729 is an ingenious blend of Presbyterian principles and common sense compromise. It affirms that standards are set nationally but applied locally, with flexibility for individual exceptions in non-essential matters. It proved successful for nearly 250 years, until it came under fire during conflicts over the ordination of women (by the left) and homosexuals (by the right). With the adoption of G-6.0106b in 1997, specific restrictions on the right of ordaining bodies to assert independent judgment concerning the application of ordination standards were written into the Constitution.
Recommendation five tries to address these restrictions through an authoritative interpretation of G-6.0108, on “freedom of conscience.” It reasserts the historic process of permitting ordaining bodies to weigh a candidate’s scruples of conscience and to determine whether they constitute a bar to ordination. In doing so, however, the Task Force states that a governing body may determine mandatory constitutional qualifications such as those set forth in G-6.0106b to be “non-essential” and therefore non-binding when applied to a particular candidate (lines 1374-1380). The recent guidance from the Advisory Committee on the Constitution inexplicably skirts this issue.
Let me state up front that I favor permitting governing bodies greater latitude in the examination and ordination of church officers. I believe the effect of G-6.0106b to bar all “self-affirmed, practicing homosexuals” without distinction is wrong. I also believe that G-6.0106b is poorly crafted constitutional law. But it is constitutional law nevertheless, and the attempt in recommendation five to alter its impact by authoritative interpretation only compounds the problem.
Contrary to other provisions of chapter six of the Form of Government, G-6.0106b is not merely a “manner-of-life standard”; it specifically restricts the power of an ordaining body. The third sentence, “Persons refusing to repent of any self-acknowledged practice which the confessions call sin shall not be ordained and/or installed as deacons, elders, or ministers of the Word and Sacrament,” is directed not only to the candidate’s qualifications, but also to the authority of the ordaining body. It establishes the parameters within which the judgment of the ordaining body may be exercised, without exception. Recommendation five clearly amends these restrictions.
If recommendation five is adopted, even the assurance of remedies upon appeal would be meaningless. The recommendation provides for appeals only on the basis of process, not judgment (whether the examination was conducted “reasonably, responsibly, prayerfully, and deliberately”). Recommendation five would grant permission to governing bodies to disregard the explicit provisions of G-6.0106b even when they conclude that the candidate does not meet the standards contained therein.
Recommendation five is built on the paradoxical foundation that an ordaining body has the right to determine whether a mandatory provision of the Constitution constitutes an “essential” that is “indispensable in doctrine or government.” There is a fundamental distinction, however, between an individual’s scruple of conscience concerning the rightness of our polity (as a matter of belief) and a governing body’s determination that the polity is not binding (as a matter of practice). An individual may disagree with the polity of the church, but that des not mean he or she is permitted to violate it. By allowing governing bodies to disregard the explicit provisions of the Constitution, the recommendation not only extends the right of conscience provided in G-6.0108 to governing bodies, but also uses it as a license to act in direct contradiction to the Constitution.
The issue, therefore, is not a candidate’s scruples of conscience regarding standards for ministry. The issue, rather, is whether a governing body may disregard an explicit provision of the Constitution limiting its powers. The General Assembly Permanent Judicial Commission noted in Londonderry v. Presbytery of Northern New England, “It is not within the power of any governing body or judicial commission to declare a properly adopted provision of the Constitution to be invalid.” This echoes the intent of the Swearingen Commission report of 1926, Â§ IV.2.(3): “It would be intolerable if the General Assembly, whose powers are limited by the Constitution, could, even when sitting as a judicial court, amend by indirection, the organic law of the Church, which contains within itself provisions for effecting orderly change.”
Yet, “amending by indirection the organic law of the Church” is precisely what recommendation five would accomplish. By permitting an ordaining body to circumvent the explicit provisions of G-6.0106b that limit its powers, recommendation five unravels the threads that hold together the fabric of constitutional unity. The same rationale might be used to override other specifically enumerated qualifications for ordination, such as church membership, or to bypass existing provisions for “exceptional” candidates (G-14.0313). It will fracture trust in our constitutional form of government by trying to accomplish through authoritative interpretation what should rightfully be achieved only through constitutional amendment.
What remedies might the Assembly take to rectify this problem? Possible solutions might include any or all of the following:
“¢ amending the authoritative interpretation in recommendation five to clarify that governing bodies exercise judgment within the parameters of the powers granted to them by the Constitution, and may not violate explicit provisions limiting those powers, such as are found in G-6.0106b;
“¢ amending the authoritative interpretation in recommendation five to clarify that the process of administrative and/or judicial review of examination includes whether a governing body acted within the bounds of its authority under the Constitution;
“¢ sending to the presbyteries an amendment to remove G-6.0106b, or at least to remove the problematic third sentence of the paragraph;
“¢ sending to the presbyteries an amendment of G-6.0108 stating that in the exercise of discretionary judgment, governing bodies are obligated to enforce explicit provisions of the Constitution.
The Task Force is to be commended on an otherwise magnificent piece of work. All that good work may be for naught, however, if the fundamental flaw of recommendation five goes uncorrected.
Daniel M. Saperstein is executive presbyter of the Presbytery of Plains and Peaks in Colorado and Nebraska. He served on the General Assembly Permanent Judicial Commission from 1997-2003.