In a recent post, I discussed the growing disregard of the Constitution of the PC(USA) by imperial Louisville and its barons in some synods and presbyteries. I observed that in response, some churches have decided to forego requesting that their presbyteries dismiss them with their property and have exercised their “permissive powers of the congregation” to simply disaffiliate from the PC(USA).
A number of folks have posed a very astute question, to wit: “Huh? What are ‘permissive powers’?”
Good question. So following a practice of many pastors, I will begin a sermon series entitled “Permissive Powers 101.” Shall we begin?
Today’s reading comes from Chapter VII of the Book of Order.
Section G-7.0304a, provides:
a. Business to be transacted at meetings of the congregation shall include the following:
( 1 ) matters related to the electing of elders, deacons, and trustees ;
( 2 ) matters related to the calling of a pastor or pastors;
( 3 ) matters related to the pastoral relationship, such as changing the call, or requesting or consenting or declining to consent to dissolution;
( 4 ) matters related to buying, mortgaging, or selling real property (G-8.0500) ;
( 5 ) matters related to the permissive powers of a congregation, such as the desire to lodge all administrative responsibility in the session, or the request to presbytery for exemption from one or more requirements because of limited size. (Emphasis added.)
As you now peruse your well-thumbed copy of the Book of Order looking for the definition, I bid you a fond adieu.
As I will discuss later, the various “governing bodies” (session, presbytery, synod, and General Assembly) of the PC(USA) are constitutionally fashioned to have limited powers. Although referred to in the current Book of Order as “governing bodies;” traditional presbyterianism has always deemed its elected representative bodies, from the session through the General Assembly, to be judicatories or courts as opposed to legislatures. See, e.g., the ambiguous statement of Clifton Kirkpatrick, Stated Clerk of the General Assembly in amicus brief filed in the United States Supreme Court in Full Gospel Tabernacle, et al. v. Community School District 27, et al.(U.S. Supreme Court, No. 98-1714; May 26, 1999)(“ The General Assembly does not claim to speak for all Presbyterians, nor are its deliverances and policy statements binding on the membership of the Presbyterian Church. The General Assembly is the highest legislative and interpretive body of the denomination, and the final point of decision in all disputes. As such, its statements are considered worthy of the respect and prayerful consideration of all the denomination's members.” (emphasis added).)
The Kirkpatrick affidavit, repeated in numerous cases in which the PC(USA) filed "friend of the court" briefs, also undercuts the recent claim by Louisville that the PC(USA) is a hierarchical church. The statements of a legislature are mandatory, not simply “worthy of the respect and prayerful consideration.” You can bet that Pope Benedict, the head of a real hierarchical church, would never sign such a statement.
In fact, the Form of Government Task Force created by the 217th General Assembly has proposed that that term “governing bodies” be replaced by the word “councils” in the proposed new Form of Government.
Finally, the assertion by the bureaucracy that denominational polity does not provide any right to disaffiliate, that no such authority is given to a congregation, and that no such authority is delegated to the session, actually presents the foundation for the conclusion that such a power is therefore reserved to the congregation under the scheme of limited powers.
So, before we look at the powers of the congregation, we must consider the limited powers of judicatories/governing bodies/councils.
Beginning any discussion of power and jurisdiction within the PC(USA), it is important to remember that the denominational Constitution is prescriptive rather than proscriptive. A prescriptive constitution confers upon the judicatories of the denomination only those powers specifically enumerated. See, e.g., §G-1.0307, and §G-1.0308.
On the other hand, a proscriptive constitution surrenders to governing bodies all powers that are not specifically forbidden to them. It follows, then, that the governing bodies of the PC(USA) possess only those powers expressly delegated to them, respectively, in the Constitution. Any assertion to the contrary constitutes a patent usurpation of authority and contravenes the very foundations of Presbyterian polity.
Governing bodies have no civil authority or jurisdiction. See §G-9.0101. Moreover, the governing bodies have only shared ecclesiastical authority. Book of Order §G-9.0103 states in pertinent part:
All governing bodies of the Church are united by the nature of the Church and share with one another responsibilities, rights, and powers as provided in this Constitution.
While “higher” governing bodies may review the actions of a lower, the respect and obedience due to any governing body is both limited, §G-1.0307, and contingent, §C-6.174. The Permanent Judicial Commission of the General Assembly of the PC(USA) determined in Johnston et al. v. Heartland Presbytery, Remedial Case 217-2:
G-1.0400 does not characterize the task of governance as power and authority to carry out edicts, but in terms of arriving at the “collected wisdom and united voice of the whole Church”. While the Book of Order refers to a higher governing body’s “right of review and control of a lower one” (§G-4.0301f), these concepts must not be understood in hierarchical terms, but in light of the shared responsibility and power at the heart of Presbyterian order (G-4.0302) (emphasis added).
The Westminster Confession of Faith (as amended in 1788) states the limiting conditions on the authority of governing bodies:
. . . which decrees and determinations, if consonant to the Word of God, are to be received with reverence and submission, not only for their agreement with the Word, but also for the power whereby they are made, as being an ordinance of God, appointed thereunto in his Word (emphasis added).
The current tendency of some leaders in the PC(USA) to view the governing bodies of the church as legislative bodies is historically flawed. Until 1983, the proper reference was to “judicatories” rather than to “governing bodies. Although the descriptor was changed with the reunion of 1983, the functions remained essentially unchanged. The powers of sessions, presbyteries, synods and the General Assembly are powers of jurisdiction and interpretation of the Law of the Church which is the word of God. The Constitution, in both the Confessions and the Book of Order, is merely a historical compilation of the interpretation of that law by one particular branch of the Church universal.
It is also important to remember that § G-9.0103’s reservation of certain “powers not mentioned” is limited in its application to “governing bodies.” In other words, powers of governing bodies are distributed among the several judicatories, with those powers of the governing bodies which are not enumerated devolving to the presbytery. See, also, Strong and Bagby v. Synod of Mid-South (PCUS, 1976, pp. 92-99, (No. 1 - 1976)) (“It is critical to the maintenance of this form [of government] that the various [governing bodies] exercise the specific jurisdiction conferred upon them, neither usurping that not given them nor declining to exercise that given, whether by default or by attempted delegation. . . . ”) (emphasis added).
Strong and Bagby is often cited as support for the proposition that under the Book of Order of the PC(USA) only a presbytery can dismiss a congregation. Strong and Bagby was decided based on the Book of Church Order (“BCO”) of the old PCUS. There is no indication that the BCO contained any recognition that the congregation has its own discrete permissive powers, nor, apparently was any such issue briefed in that case.
Ultimately, the judicatories/governing bodies/councils of the denomination are limited in their jurisdiction to ecclesiastical matters, to be determined as a matter of theology. This limitation on church authority and jurisdiction was the genesis of the development by the United States Supreme Court of the “neutral principles of law” approach to instances in which church organizations were embroiled in matters of purely civil law.
The Book of Order recognizes a separate and distinct set of powers that belong, not to the “governing bodies,” but to the individual congregations. These powers are referred to as the “permissive powers of the congregation.” Book of Order, §G-7.0304a(5).
At least one chapter of the Book of Order begins with a section entitled “definitions,” (see, § G-9.0101. See, also, § G-9.0401). However, nowhere in the Book of Order can one find a definition of the elusive and ambiguous phrase “permissive powers of the congregation.” It is this very ambiguity that presents the greatest obstacle to those who argue that the power to depart must reside only in an all-powerful presbytery.
The doctrine contra proferentum stands for the proposition that an ambiguity in a document shall be construed against he who wrote the document. In this case, the Book of Order was written and adopted by bodies other than the congregations against whom it is being used. In fact, it was written by the very bodies who seek to benefit from their own interpretation of their ambiguity. The Book of Order is suspiciously akin to a contract of adhesion.
The General Assembly has long been aware of the ambiguity, see, e.g., Presbytery of Beaver-Butler v. Middlesex, 489 A.2d 1317, 1323 (Pa. 1985); Presbytery of Donegal v. Calhoun, 99 Pa. Cmwlth 300, 513 A. 2d 531, 538 (1986); Presbytery of Donegal v. Wheatley, 99 Pa. Cmwlth 312, 513 A. 2d 538,540 (1986).
It has always had the power to cure the ambiguity, but, for over 20 years, has failed to do so. Therefore, the ambiguity must be construed against the General Assembly (as sponsor and beneficiary of the Book of Order) and in favor of the congregations which had no say in the drafting and adoption thereof.
The conspicuous absence of a definition of the permissive powers of the congregation, coupled with the vague descriptive list in subparagraphs (1) through (4), leads to the necessity of a contextual definition. Studying the theme of §G-7.0304a, one comes to the conclusion that those powers include any that are central to the life and ministry of the congregation and that are not specifically granted to one of the governing bodies. It is reasonable to assume that such powers are those that are of greatest concern to, and which have the greatest impact on, the core identity of the individual congregation.
Note the limitation of this assertion: it claims for the congregation only those undefined powers that impinge upon its own ministry. By way of example, it makes no claim to the right to take under care inquirers or candidates or to examine candidates for ordination as Ministers of Word and Sacrament, or to exert judicial power beyond the four walls of its church.
So, what powers might fall within the rubric of “permissive powers?” Clearly, it is a general article or catch-all clause, intended to account for the distribution of powers not specifically mentioned but necessary to the function of the congregation and to protect it from the arbitrary exercise of unauthorized power by a “governing body.”
In this regard, § G-7.0304 is instructive. At §G-7.0304a, it provides:
a. Business to be transacted at meetings of the congregation shall include the following:
( 1 ) matters related to the electing of elders, deacons, and trustees ;
( 2 ) matters related to the calling of a pastor or pastors;
( 3 ) matters related to the pastoral relationship, such as changing the call, or requesting or consenting or declining to consent to dissolution;
( 4 ) matters related to buying, mortgaging, or selling real property (G-8.0500) ;
( 5 ) matters related to the permissive powers of a congregation, such as the desire to lodge all administrative responsibility in the session, or the request to presbytery for exemption from one or more requirements because of limited size. (Emphasis added.)
Some may opine that the list is exclusive, relying on § G-7.0304b:
b . Business at congregational meetings shall be limited to the foregoing matters (1) through (5). Whenever permitted by civil law, both ecclesiastical and corporate business may be conducted at the same congregational meeting.
However, when §G-7.0304 is read as a whole, that argument must fail, if for no other reason than that the entire section is ambiguous. The inclusion of the phrases “shall include” and “such as” clearly connote that the list is not exclusive and that other business “such as” the topics set forth may properly be “include[d].” In other words, the topics listed are by way of example.
Boiled down to basics, the congregation reserves the power of self-government, including the right to organize itself, so that, at the local level, its witness and ministry is most effective. Among the powers expressly reserved to the congregation are:
- election of officers of the local congregation (elders, deacons, and trustees),
- calling a pastor or pastors, matters related to the relationship between the pastor and the congregation, such as changing the terms of call, or requesting or consenting or declining to consent to dissolution,
- matters related to major financial impacts on the congregation, such as buying, mortgaging, or selling real property, and
- organization of its local, internal governance, such as lodging all administrative responsibility in the session, or requesting exemption from one or more requirements because of limited size.
Self-government has always been a hallmark of American presbyterianism. As part of their self-governance, congregations, voluntarily give, and through their elected elders, collect and spend the tithes and offerings in order to further their mission and ministry. They do so free from any legal or constitutional power in presbyteries, synods, or general assemblies to tax them or to otherwise confiscate their funds.
In most cases, they purchased and continue to maintain the property that is central to their local ministry and mission through the gifts, tithes and offerings of their local congregations. Congregations alone elect the elders who will lead them and call the pastors who will be their shepherds. Leadership of the local church is not imposed from on high by bishops, cardinals or other hierarchies.
It follows then that the permissive powers of the congregation must include those which protect the congregation from governmental, political, and bureaucratic tyranny.
What are the permissive powers of the congregation?
Any discussion of the powers, both inherent and permissive, of the congregation must start with the understanding that the congregation is not itself a court of the Church. Any suggestion to the contrary is unsupportable by fact or by logic. Unlike the age-old question about the priority of the chicken and the egg, the congregation must precede the session, both temporally and logically. The congregation is the most basic expression of the Church of Jesus Christ. Without the congregation there is no session, and without the congregation, there can be no presbyteries, synods, or a general assembly.
The court of original jurisdiction for the congregation is the session. The presbytery is a court with a wider jurisdiction. It properly has original jurisdiction over the ministers and, to a lesser degree, session, but not the congregation. Presbyteries are not given the power to unilaterally dissolve congregations but can only do so by a process that necessarily involves due process, including conversations with the congregation and other procedural safeguards. Even here, the Book of Order is ambiguous with respect to the issue of dissolution of a congregation. Other than a mere recitation that a presbytery has the power to dissolve a congregation, §G-11.0103i, and the assertion that the property of a dissolved congregation becomes that of the presbytery, §G-8.0601, the Book of Order states no bases upon which a dissolution decision must rest. Thus, a covetous presbytery might consider dissolution for no better reason than to confiscate the property of one of its member churches for the pecuniary gain of the presbytery.
Definition of permissive powers of the congregation is extremely important at this juncture in history. For the first time in over a quarter-century, a significant number of congregations are voicing their desire to terminate their affiliation with the Presbyterian Church (U.S.A.). In response, the national headquarters of the denomination and various presbyteries are loudly and repeatedly asserting, with no support in either fact or law, that the only avenue for such departure is by way of “dismissal” by the presbytery in which the congregation is situated. Absent dismissal, says the denomination, a congregation is forced to either stay in the PC(USA) or to disband and forfeit its property to the presbytery. (In so doing, they are following that oldest of propaganda rules: a false statement or interpretation, voiced often enough and loudly enough, will soon take on an aura of truth.)
Section G-11.0103i is the only mention in the Book of Order of dismissal as a means of departure from the PC(USA). (Mere reference to §G-11.0103i in §G-8.0601 is not an independent mention of dismissal. ) Section G-11.0103 makes it clear that the congregation (“members”), not the session, is on the other side of the situational equation from the presbytery. Nowhere in the Book of Order is there any mention of how the dismissal process is to be initiated or executed.
There is a presumption that each word contained in a document such as the Book of Order has a meaning and is not mere surplussage. Londonderry, et al. v. Pby of Northern New England, (Remedial Case 213-2, GAPJC 2001)(it is the task of governing bodies and judicial commissions to resolve tensions and ambiguities in the Constitution’s provisions in such a way as to give effect to all provisions).
Giving a presbytery the right to dismiss a congregation presupposes that the congregation can constitutionally request dismissal. To empower a presbytery to respond to a request that a congregation has no authority to make would be a nullity of the first order.
Therefore, because § G-7.0304 makes no specific mention of request for dismissal, the congregation’s right to do so must be one of the “permissive powers” reserved to the congregation.
Some might suggest that this [the power to request dismissal] is a power held by the session. This argument must fail on at least two grounds.
First, the Book of Order is silent as to any power of the session to request dismissal on its own authority.
Second, when considering the other momentous topics that are specifically assigned to action by the congregation, such as pastoral relations and encumbrance of property, the idea that a session could unilaterally commit a congregation to a similar action—dismissal—fails the “smell test.”
Although any resort to common sense in discussions of government or polity is fraught with danger, in this case, it is probably safe to conclude that a presbytery may not unilaterally dismiss a congregation to some other denomination. Cf., Book of Order, anot. 21.194 (“When dealing with a request by a church for dismissal with its property. . .”) (emphasis added).
It then follows that a congregation would have to initiate such a request. However, the proponents of a strict reading of § G-7.0304 would have us believe that the congregation apparently has no constitutional authority to take such action. That erroneous and narrow reading of § G-7.0304 must fail, in favor of some broader permissive right of termination reserved to the congregation. If a request to be dismissed is one of the permissive powers of a congregation, then other similar powers to modify or terminate the voluntary affiliation between congregation and denomination should also be included in that broad, undefined category.
The congregation rather than a “governing body” is granted express power with respect to buying, mortgaging, or selling real property. It would follow that the congregation is also empowered to take at least one other action which impacts on its ownership of its property: maintaining that unfettered ownership even as it decides that it is called to embrace a new denominational affiliation.
By the PC(USA)’s own definition, the congregational meeting discusses property issues, melds individuals into a unified (corporate) congregation, and, repeatedly, gathers information and takes action to forward its mission. Because the church’s property is the home base for its mission to the community, state, nation and the world (cf., Acts 1:8), the congregation (as opposed to any other entity) must have control over its property.
Obviously, after prayer and deliberation, a congregation may actually decide to create a trust and then place its property in that trust for the use and benefit of some other entity, e.g., its presbytery or the PC(USA). However, the decision is that of the congregation, not a unilaterally imposed edict of the denomination.
Boiled down to its basics, at its annual meeting, the congregation asks and answers the following questions:
• Who shall be our leaders?
• What shall we agree and promise to pay our pastor?
• What shall we do with our land, buildings and other property which we, as a congregation have purchased for the purpose of our worship?
All of these questions go directly to the root of the congregation’s unique identity. Surely, the final component of that identity—denominational affiliation—must also be reserved to the congregation. Thus, we add to the foregoing list the question:
• How (by what denominational name) shall we identify ourselves to the community?
Observe that in every instance, these questions go to the core issue of the identity of the congregation.
Accordingly, while a request to be dismissed is clearly one option for terminating denominational affiliation, it is not necessarily the only option under the Book of Order. Because the congregation is the body designated to make such essential missional decisions, absent a clear, unambiguous limitation on congregational authority, unilateral disaffiliation must also be an option open to a congregation. And such power is absolutely necessary to avoid the consequences of a presbytery which, wrongfully or in bad faith, withholds dismissal.
Some might argue that a presbyterian veto is necessary to prevent untoward departures. That is yet another symptom of the modern preference for coercion over trust.
While a presbytery’s deliverances and policy statements are not binding on the membership of the local Church, if a presbytery refuses to give its assent to a request for dismissal, and does so for valid reasons, its statements should be considered worthy of the respect and prayerful consideration of the requesting congregation’s members. Ordinarily, only if dismissal is improperly withheld would resort to unilateral disaffiliation be necessary.
Of course, when evidence exists of presbytery’s predisposition to withhold, such as previous action by the presbytery to ignore dismissal requests or previous resort to administrative commissions or civil suit, immediate resort to disaffiliation would be reasonable. A recent example of such appropriate evidence is the secret distribution by denominational headquarters to the presbyteries in 2005 of two documents: “Church Property Disputes: A Resource For Those Representing Presbyterian Church (U.S.A.) Presbyteries And True Churches In The Civil Courts” (Office of the General Counsel, PC(USA), rev. 12/05) and “Processes for use by presbyteries in responding to congregations seeking to withdraw,” (Department of Constitutional Services, PC(USA), September 2005).
These documents, which have come to be known as the “Louisville Papers,” are plans for a punitive and pre-emptive legal campaign against congregations merely suspected of considering seeking to leave the denomination.
Despite the attempt by some writers to characterize denominational affiliation as a permanent choice, we all know that members of a congregation may “vote with their feet” and change churches and even denominations at will. The most often used comparison is enlistment in the armed forces. See, e.g., Elder Bill Newkirk “To Leave or Not to Leave: An Open Letter to fellow Presbyterians,” Presbyterian Outlook on-line (03/05/2007) (“What makes anyone think that they can pick up and leave any time something comes along they don't agree with? In the military services they call that desertion.”); Rev. Paige McRight, “Personal reflections on the New Wineskins convocation,” id. (03/12/2007) (“Until I was ten, my father was an Army officer and we lived our lives by military orders. We drove the posted speed limit on base, my dad wore the uniform prescribed in the orders of the day and when the Army said move, we packed.”) But see, Elder Michael R. “Mac” McCarty, “Going Where God Has Ordained Us To Be,” id., (03/21/2007) (“The desertion analogy would be correct only if the PC(USA) were the one true church. But it isn’t. In this case, many congregations have received an order from God to ‘stand detached from the PC(USA) and proceed and report to the EPC for duty.’ God is our commander-in-chief. The entire Church is His. When He issues orders to ‘Go,’ and to ‘Do this,’ obedience of those orders is mandatory. Obedience cannot be desertion because the departure is with authority. The recipient of those orders must pack and go.”)
To wrap up:
A mandatory State-church is anathema to Americans. We cannot send out press gangs to force people to become members of the PC(USA), the EPC, or any other congregation or denomination. People may come and go as the Spirit moves them. If a majority of the individual members of a faith community collectively and collegially determine that they are called to move together, they have the right to do so with the property that they have purchased and maintained for that community and its ministry and mission. Cf., Genesis 12: 5. The suggestion that such a conscientious decision may be made only by individuals, rather than through a corporate decision, can only be the result of a truly bureaucratic mind.
Attempts to coerce continued membership through the use of unnecessarily bureaucratic and dilatory processes and the in terrorem effect of confiscatory “property trusts” are doomed to failure. Although parishioners are naturally emotionally tied to “their” church [building], faith and God’s call will ultimately lead faithful believers to abandon their baggage if faithfulness so requires.
The claim that power to sever relations with an entire congregation is reserved solely to the presbytery does not appear in the Book of Order. In order for such power to reside in the presbytery alone, Book of Order § G-11.0301 would have to read:
T h e presbytery is responsible for the mission and government of the church throughout its geographical district. It therefore has the sole responsibility and power
* * *
i . to divide, dismiss, or dissolve churches; . . ..
This wording is obviously unworkable when one applies it to the other 26 subparagraphs of § G-11.0301. Instead, a separate provision would be needed, for example:
G-11:0301.1
a. The presbytery has the sole responsibility and power to divide, dismiss, or dissolve churches within its geographical district.
b. Dismissal is the only constitutionally permissible means for a congregation to sever its relationship with the PC(USA) and its presbytery.
Obviously, the PC(USA) has taken no such action to limit the decision to depart to the presbytery. In fact, the absence of such a clear and specific proscription led the Pennsylvania Supreme Court to recognize disaffiliation as a permissive option for a congregation. See, Presbytery of Beaver-Butler v. Middlesex, 489 A.2d 1317, 1324 (Pa. 1985) (“[t]he Constitution [of the UPCUSA] does not prohibit a congregation from disaffiliating . . .”; “when the local body voluntarily affiliated with the UPCUSA’s predecessor. . .”) (emphasis added).
In the ensuing 24 years, the PC(USA) has ignored that decision and its inherent warning and has taken no action whatsoever to remedy the absence of such a bar to disaffiliation. Until it does, the Book of Order is ambiguous and that ambiguity ought to be construed in favor of a reading of § G-7.0304a(5) to reserve to congregations a permissive power to disaffiliate.
Here endeth the lesson.
