Meeting in Kansas City, the judicial commission heard arguments on Feb. 28 from
lawyers representing parties in the case – Westminster church, Canton, Ohio, which
brought the complaint, arguing that the Assembly should have been called back to do
something about defiance of the PC(USA)’s Constitution, and, among others,
Fahed Abu-Akel, moderator of the 214th General Assembly, who determined that not
enough commissioners had signed the petition asking the Assembly to reconvene and
concluded he could not call the Assembly back.
While the judicial commission’s ruling certainly will be significant – it represents perhaps
the last-gasp possibility that last year’s Assembly still could reconvene – the lawyers’
presentations also served as a reminder that the players already are lining up for the next
few innings in the contest over whether the PC(USA) should ordain gays and lesbians
who are sexually active, and what should be done about Presbyterians who say they’ll
permit such ordinations as a matter of conscience.
Clifton Kirkpatrick, the PC(USA)’s stated clerk and a key player in this dispute – the man
his critics say has a responsibility to protect and defend the Constitution, and who say he
should be much more aggressive in doing that – is up for a mid-term review at this
Assembly, which means his performance will be under scrutiny. And Judy L. Woods, a
lawyer on the committee of counsel for Kirkpatrick, Abu-Akel and the Committee on the
Office of the General Assembly, said overtures involving constitutional defiance already
have been submitted by two presbyteries – including one from Donegal Presbytery asking
the Assembly to provide an authoritative interpretation of some of the language used in
the ordination standards, including the meaning of the word “chastity.” So if the 214th
General Assembly doesn’t get a chance to talk about defiance, Woods said, the 215th
assembly, the one that meets in Denver in May, certainly will.
The drive to Kansas City was a long and twisty one, starting last fall, when Alex
Metherell, an Australian native and convert to Presbyterianism, now an elder and
physician from California, became outraged and decided to do something about it. What
some saw as a fight for equality and justice – arguing that it’s not in keeping with Christ’s
teachings to refuse to ordain gays and lesbians who don’t pledge chastity – Metherell saw
as an intentional and deliberate effort to undermine the Constitution of the denomination
he loves, which limits ordination to those who practice fidelity if they’re married or
chastity if they are single. In a connectional church, he has argued, people who have
made vows to uphold the denomination’s Constitution cannot simply disregard it, or the
church itself will pull apart and collapse.
When he started out – asking commissioners to petition the moderator to reconvene the
Assembly so it could do something about constitutional defiance – many PC(USA)
insiders didn’t give Metherell much of a chance. But he showed up in Louisville on a
chilly Tuesday in January, and handed Abu-Akel a leather folder containing a stack of
postcards, bearing the names of 57 commissioners who asked that the Assembly
reconvene: 26 ministers and 31 elders, representing 46 presbyteries and all 16 synods.
Under the rules, Metherell needed at least 50 commissioners’ names – at least 25 elders
and 25 ministers, representing at least 15 presbyteries from at least five synods. Once he
had them, a lot of folks figured that was it: he’d done what he set out to do.
But Abu-Akel and Kirkpatrick determined that they needed to verify the signatures, to
make sure that those whose names were on the list really did desire that the Assembly
reconvene. That decision, to contact the commissioners who signed the petition, raised a
pile of questions. Should Abu-Akel have sent a letter to commissioners, telling them he
opposed calling the Assembly back and that, at an estimated cost of more than $400,000,
it would be too expensive? Should commissioners have been asked whether it was their
intention to ask the Assembly to reconvene – giving them a chance to answer yes or no –
or simply whether it was actually their signature on the petitions that had already been presented?
Was Abu-Akel right in saying that commissioners needed a 120-daynotice, which would
bump the recalled Assembly right up against the 215th General Assembly, which opens
in Colorado on May 24? Some commissioners weren’t convinced that back-to-back
assemblies was a good idea. Or, as Metherell contended, was only a 60-day notice required?
And then there’s the matter of what precisely did Metherell want the Assembly to do if it
did come back. Some have argued that the best case Kirkpatrick and Abu-Akel could
have made from the start was that the petition was not adequate, because it didn’t specify
clearly enough what items of business were to be considered.
In making its ruling, the judicial commission must consider which argument to believe:
that top officials of the PC(USA) were wrong when they refused to call the Assembly
back into session despite the seeming success of the petition, or that they acted properly
and responsibly in refusing to recall the Assembly since, during the process of
“verifying” the signatures, they determined that not enough commissioners favored the idea.
Paul Rolf Jensen, the committee of counsel for Westminster church and himself a lawyer
who has filed a flock of complaints involving constitutional defiance, argued that once
Metherell’s petition was presented, Abu-Akel had no choice under the rules but to send a
notice that the Assembly would meet again. Instead, Jensen said, the moderator tried to
dissuade the commissioners – imploring them in the name of Jesus not to call the
Assembly back – and presbytery officials worked behind the scenes, trying to convince
those who had signed the petition to change their minds. Metherell has contended that
once a commissioner had signed the petition, the name could not be withdrawn – as
Jensen put it, “a revote is not permitted.”
And if a trial is not granted, “you will deprive a remedy to a great wrong,” Jensen told the
judicial commission. “The essence of our Presbyterian form of government is that all
Presbyterians from the newest member of the smallest church in the denomination to the
highest officers of the General Assembly are subject to our Constitution.”
But Woods, an elder and lawyer from Indianapolis, argued that Kirkpatrick and Abu-
Akel acted promptly, in accordance with the PC(USA) Constitution and as good stewards
of the church’s resources. Metherell presented the signatures on Jan. 14. By 10 the next
morning, she said, Kirkpatrick already had received an e-mail from a minister who’d
signed the petition, saying he did not favor recalling the assembly. About an hour and a
half later, the Office of the General Assembly got a fax from an elder in Detroit whose
name was also on the petition, and who indicated that she didn’t support the idea either.
Metherell also sent Kirkpatrick an e-mail saying that one minister on the list had
indicated “some time ago” that he did not want his name included. And one woman, an
elder, indicated “she didn’t know how her name got onthat list,” Woods said. The receipt
of such communications, all of them unsolicited, “dictated the process,” Wood said, and
made it imperative that Kirkpatrick verify the signatures , names that were collected over
many months, to see if those people did still favor calling the Assembly back.
“This is not a case where we had a vote and there was a second vote,” Woods said.
Instead, there was a “serious question” if Metherell ever had enough signatures to call the
Assembly back.
On Jan. 27, after the verification process was complete, Abu-Akel told a news conference
that 13 commissioners who signed the petition – six ministers and seven elders –
indicated they wanted their names removed. This left the names of 20 ministers and 24
elders commissioners on the petition – but to call the Assembly back, 25 in each category are required.
Woods also said the names of two commissioners, both ministers, who asked to sign the
petition after Metherell first presented it were accepted and added to the list. And she
contended there was no coercion involved in the process, “no attempt to influence
anyone.”
Jensen countered that Abu-Akel’s letter was “full of mistakes and mischaracterizations,”
and that to claim he wasn’t trying to influence commissioners, when he wrote to tell them
that he opposed calling the Assembly back and asked them not to do it, flies in the face of
commonsense.
Patricia Norris, a judicial commission member from Phoenix, asked Jensen if he would
have objected to “a neutral, completely vanilla inquiry” to the commissioners whose
names were on the petition, a letter asking “Were you a commissioner? Is this your
signature?” Jensen said no, if that had been done promptly.
There also was dispute over whether the judicial commission had jurisdiction – whether
Abu-Akel and Kirkpatrick are “entities” of the General Assembly, which would give the
judicial commission jurisdiction, or whether the moderator and stated clerk are
accountable only to the General Assembly, which elects them.
Jensen argued that “this commission is in the technical sense the General Assembly
acting in judicial matters,” and the dictionary defines an entity as either an organization
or an individual. But Woods said the question of whether the moderator acted correctly
“is a matter for the General Assembly to decide,” and is something she would not be at all
surprised to see come up when the 215th Assembly meets in May.
