Guest commentary by Ed Koster
In the 1920s, the Presbyterian Church was afflicted by theological, social and polity conflicts that went to its very core. The matter came to a head in 1925 when New York Presbytery licensed Baptist Harry Emerson Fosdick to serve in one of its churches. This resulted in various attempts to get the General Assembly to reverse that action or require Fosdick to conform to the theological standards of the Presbyterian Church. In order to resolve the problems of peace, unity and purity that were roiling the denomination, the 1925 General Assembly voted to create a commission to address those problems, with specific attention to the case of Fosdick. This commission, chaired by Henry C. Swearingen, reported twice to the General Assembly, in 1926 and 1927. The 1926 report spoke of the constitutional principles involved, particularly concerning the authority of the General Assembly. In 1927, the Swearingen Commission addressed the authority of the General Assembly over the action of New York Presbytery to license Fosdick. (The Swearingen reports can be found under the Resources tab of pc-biz.org.)
The 1926 report established some fundamental principles. One is that where, as was then the case, a church has a constitution (there was none until 1789) the church is bound by the provisions and processes of that constitution. Another principle is that the General Assembly was created by the church and is specifically a child of the constitution. Therefore, the General Assembly cannot assume powers not given it in the constitution and must follow the procedures laid out therein. The commission specifically said the General Assembly did not have the authority to define the “essentials” of the faith and could not amend the constitution without the approval of the presbyteries. The report was approved unanimously by the General Assembly.
In its 1927 report, the commission applied this set of principles to the authority of the General Assembly over a decision on ordination. The commission declared that presbyteries and sessions were given the authority to ordain and none was given to the General Assembly. Therefore, the General Assembly had no power over the decision of the presbytery to license Fosdick. It is this principle that has governed the debate over the ordination of noncelibate gays and lesbians in this generation: The General Assembly had no authority to prohibit it. This was mitigated somewhat when the General Assembly Permanent Judicial Commission (GAPJC) ruled in 1975 that the Pittsburgh Presbytery could not ordain Walter Kenyon because he declared he would not participate in the ordination of a woman and also when the 1978 Report on Homosexuality declared that self-affirming practicing homosexuals could not be ordained. The attempt to give authority to that prohibition by the adoption of G-6.0106b into the Book of Order in 1996 can be characterized by its internal contradictions and general failure.
The authority of the General Assembly to interpret the constitution by judicial case was well established in the Swearingen Report. Sixty-plus years later, the General Assembly sent an amendment down to the presbyteries that significantly modified that principle when it declared that either the GAPJC or the General Assembly in plenary could make “authoritative interpretations” of the constitution (AIs). These AIs effectively become the constitution in that they require churchwide compliance in interpretation and implementation of the subject provision. The amendment settled the question of what would happen if the General Assembly and the GAPJC disagreed on an interpretation by declaring that the most recent shall be binding (G-6.02).
In 2014, the 221st General Assembly sent an amendment to the presbyteries to amend G-4.9000 to allow for same-sex marriages if approved by the presbyteries. Since 1991, the current provision, which states that marriage is between a man and a woman, has been interpreted as a clear and unambiguous prohibition of same-sex marriages. (Same-sex unions are permitted.) For reasons beyond me, the 221st General Assembly also approved an AI that interprets G-4.9000 in a way that allows a teaching elder to conduct marriages between two people of the same gender. That meant that from the moment the AI was approved, teaching elders have been allowed to conduct same-sex marriages anywhere it is legal.
This AI, in particular, has generated a vigorous and visceral response throughout the denomination based on claims that the AI in effect interprets the clear and unambiguous words in the constitution to say something that it does not say. The claim is that the AI effectively amended the constitution without the approval of the presbyteries. Since the assembly, there have been several judicial cases filed to reverse the AI, but all have failed since they seem to have been filed against the General Assembly itself. The General Assembly cannot be sued under our Rules of Discipline.
But entities of the General Assembly can be. One case was filed against the Advisory Committee on the Constitution, which declared that its written advice to the General Assembly no longer applied; the written advice, which relied on authoritative interpretations that it itself had proposed to the General Assembly and others that had been held to prohibit same-sex marriages for over 20 years, said such an AI was improper. The ACC, in this surprise switch during the plenary debate, advised the moderator (and the General Assembly) that the General Assembly has the authority to interpret the constitution, even if such an interpretation created a conflict with current wording rather than resolved one. In the course of the debate, the General Assembly overruled an objection that the resolution was out of order because it violated the constitution and is void even if approved, a very clear rule found in Robert’s Rules of Order (11th ed.).
In its decision to refuse to allow a trial on the matter, the GAPJC declared that there is no remedy. The GAPJC did not deny a trial because there was no violation, but because there is nothing that can be done about it.
The Swearingen Commission, along with its clear polity principles, is toast. What distresses, even frightens, is that under this ruling there is absolutely nothing that can be done to call the General Assembly to account when it interprets the constitution. Who can predict what proposals for AIs will be made in the future? Whatever may come, it cannot be prevented by parliamentary means from consideration, approval and implementation. Nor can it be challenged after the fact since there is simply no remedy.
Now I suppose many will suggest that I am raising a hyperbolic alarm here, but I do not believe so. The process of the General Assembly in plenary and committee is driven by all kinds of arguments, many of which are not very good. A majority vote can emerge because there is a whole lot of sentiment, support and sympathy for a position — even heavy lobbying — without regard for constitutional constraints. The same issue before the GAPJC is driven by the facts and the law. Hence there are two possible outcomes, the most recent being binding. But now, since there is no remedy, politically driven decisions of the General Assembly to authoritatively interpret the constitution will always prevail, regardless of the constitutional implications and outcomes.
It is now too late to undo the marriage AI. Moreover, with G-4.9000 having passed in the presbyteries it is certainly a moot point. So I turn my attention to what can be done to limit the now-unlimited power of the General Assembly to determine what the constitution says. I can think of several possibilities. One would be to remove the provision allowing the General Assembly to make authoritative interpretations in plenary, leaving that function solely to the GAPJC. Perhaps another would be to amend the Rules of Discipline in some way to allow sessions and presbyteries and synods to sue the General Assembly itself. Perhaps it would help to require the General Assembly in plenary to cast a supermajority vote to approve any authoritative interpretation of the Constitution. There are certainly other possibilities.
The suggestions I make here involve difficulties in drafting and implementation, to be sure. But I fear for the church now, my church, and I believe the specter of an unbridled General Assembly is so scary that it is worth the effort to find some way to limit the General Assembly’s power. I am very frightened simply to rely on all future General Assemblies to show constraint.
EDWARD KOSTER is the stated clerk of the Presbytery of Detroit.
