Thoughts re Overture 3 Tuesday, Jun 9 2009

The Central Carolina Presbytery of the Presbyterian Church in America (PCA) has sent an overture (Overture 3) asking that the General Assembly amend BCO ¶¶ 33-1 and 34-1, which govern a higher court’s assumption of original jurisdiction over a matter otherwise within the original jurisdiction of a lower court. Overture 3 does have a point—there has been some confusion about BCO ¶¶ 33-1 and 34-1. Nevertheless, Overture 3 is very misguided and confused itself, misrepresenting PCA history and proposing changes that would distort the current polity of the PCA. I think it should be answered in the negative.

Background: The concept of “original jurisdiction”

“Original jurisdiction” refers to the power of a court to hear and decide a matter before any other court can review it. Under the BCO, sessions have original jurisdiction over ruling elders, deacons, and congregational members, presbyteries have original jurisdiction over sessions (which are ecclesiastical “persons” and therefore tried in cases of process like individuals so far as possible (see BCO 40-6)) and teaching elders, and the GA has original jurisdiction over presbyteries. However, under BCO ¶¶ 33-1 and 34-1, two sessions or two presbyteries can ask their presbytery or the GA, respectively, to assume original jurisdiction over (i.e., become the trial court for) a matter that is within the original jurisdiction of the court next below. (It is important to note that once a higher court assumes original jurisdiction over a matter, the lower court LOSES its jurisdiction over the matter. Original jurisdiction is an exclusive power—it can only be properly exercised by one court (i.e., only one court can be the trial court).)

The Overture’s proposal

Overture 3 would make two changes to current law. First, it would expand the ability of higher courts to assume original jurisdiction of cases by eliminating the requirement that the lower court “refuses to act” (i.e., refuses to indict (see discussion infra for more on this point)). Accordingly, higher courts could assume original jurisdiction in any whatsoever (so long as it is otherwise within the original jurisdiction of the court next below and the required number of requests are made), including cases where the lower court has indicted the individual, and even cases where the lower court has rendered a judgment, and the judgment has been appealed and affirmed by the SJC. The overture also seeks to increase the number of presbyteries required to vest the SJC with original jurisdiction in BCO ¶ 34-1 from two to five, but it does not seek a similar increase regarding the number of sessions required to vest a presbytery with original jurisdiction in BCO ¶ 33-1.
Here is the exact wording of the proposed revisions (I added underlining to indicate proposed new language in order to clarify that some punctuation is not in the original):

Chapter 34 – Special Rules Pertaining to Process Against a Minister
(Teaching Elder)
34-1. Process against a minister shall be entered before the Presbytery of
which he is a member. However, if the Presbytery refuses to act in
doctrinal cases or cases of public scandal and two, if five other
Presbyteries request the General Assembly to assume original jurisdiction
(to first receive and initially hear and determine), the General Assembly
shall do so. Assumption shall be postponed until the Presbytery has
concluded its consideration of the matter and rendered its judgment –
or at least until after it has been afforded reasonable time to do so.

Chapter 33 – Special Rules Pertaining to Process Before Sessions
33-1. Process against all church members, other than ministers of the
Gospel, shall be entered before the Session of the church to which such
members belong, except in cases of appeal. However, if the Session
refuses to act in doctrinal cases or instances of public scandal and, if two
other Sessions of churches in the same Presbytery request the Presbytery
of which the church is a member to initiate proper or appropriate action in
a case of process and thus assume jurisdiction and authority, the
Presbytery shall do so. Assumption shall be postponed until the
Session has concluded its consideration of the matter and rendered its
judgment – or at least until after it has been afforded reasonable time
to do so.

The overture argues that the current wording of the BCO is “confusing” because it only allows a higher court to assume original jurisdiction where a lower court “refuses to act.” According to the overture, this “confusion” prevented the SJC from assuming original jurisdiction in two judicial matters—involving Rev. John Wood and Rev. Steve Wilkins. The overture also appears to suggest that when a higher court assumes original jurisdiction over a matter, it should continue to defer to the lower court’s handling of the matter up to that point. In addition, the overture contends that in certain cases where “an original court has actually instituted process, if the censure is inadequate, other Presbyteries or Sessions should have the right to petition for AOJ and if granted, the minister or member would then answer for himself directly before the higher court (the broader church)” and that “AOJ should not be contingent on what the original court does or doesn’t do.”

Summary Analysis

In what follows, I will explain my conclusions and how I arrived at them. To give you a road map, here is where I am heading:

The overture has a point—there has been some confusion about the meaning of the phrase “refuses to act” in BCO ¶¶ 33-1 and 34-1. However, that confusion has been substantially resolved by the John Wood case, and can be further elucidated by considering the double jeopardy and “grass roots” polity concerns behind it. As such, there is no need for the action identified by the overture, and the revision proposed by the overture would only make the problems attending the assumption of original jurisdiction worse and distort the polity of the PCA.

1. PCA history misrepresented

Of course, I don’t think that the authors of this overture meant to misrepresent the historical facts regarding the John Wood case and Steve Wilkins dispute, but that is exactly what they (unwittingly) have done. The overture suggests that two judicial cases demonstrate that confusion over the phrase “refuses to act” has made the assumption of original jurisdiction inordinately difficult. In fact, one of those cases substantially resolved the very “confusion” that the overture claims persists, and the other case is pretty much inapposite.

a. The John Wood case

The first case involved the Rev. John Wood, who was accused of having been involved (as moderator of the session of his church) in allowing a woman to preach at two evening worship services and of holding heterodox views regarding women in the ministry. See In re John Wood, No. 99-1 (SJC 2000), in 28 PCA GA Minutes 238-41 (2000). After the controversy surfaced, Tennessee Valley Presbytery, of which Rev. Wood was a member, ended up discussing the matter (albeit informally) and adopting two resolutions regarding the matter in which the presbytery cleared the session of wrongdoing. See 28 PCA GA Minutes, supra, at 239-40; see also 29 PCA GA Minutes 74-75 (2001) (describing developments in the presbytery leading up to the adoption of the resolutions). In response, three other presbyteries adopted resolutions requesting the General Assembly to assume original jurisdiction over Rev. Wood. 28 PCA GA Minutes, supra, at 238. The SJC determined that the GA had no power to assume original jurisdiction because Tennessee Valley Presbytery “did not refuse to act” under BCO ¶ 34-1. Id. at 238-39.

At that point, Louisiana Presbytery sent an overture to the GA, asking that the GA “condemn” the SJC’s ruling. Id. at 276-77. Among the claims in the overture, Louisiana Presbytery argued that the SJC erred in ruling that Tennessee Valley Presbytery’s action vindicating the session of Rev. Wood’s church “automatically clears” Rev. Wood. Id. at 277. Before the overture was presented to the GA floor by the Committee on Bills and Overtures (CBO), the GA decided to refer the overture to the Committee on Constitutional Business (CCB) based on a petition by RE W. Jack Williamson. Id. at 214-15. Among the several constitutional questions raised by the petition, the CCB was asked whether the resolutions of Tennessee Valley Presbytery clearing the session of Rev. Wood’s church fulfilled the requirement of “acting” as set forth in BCO ¶ 34-1 or had the presbytery “refused to act” under ¶ 34-1 and whether the assumption of original jurisdiction would violate the constitutional principle of double jeopardy. Id. The CCB punted the overture back to the CBO. Id. at 80, 258.

The CBO was divided. See id. at 275-78. A majority of the CBO recommended that the overture from Louisiana Presbytery be answered by adopting a resolution overruling the SJC by stating that the GA “declares that the resolutions of [the three presbyteries requesting the assumption of original jurisdiction over Rev. John Wood] be treated as overtures timely filed to this General Assembly, and be referred to the Committee of Commissioners on Bills and Overtures, for recommendation to this Assembly as to whether the Assembly should assume original jurisdiction as so requested, and refer the case for hearing before the SJC.” Id. at 276. In support of this recommendation, the CBO stated:

The plain language of BCO 34-1, absent any other provision in the Constitution or Rules, appears to have the Presbyteries in question petition the Assembly itself concerning the question of original jurisdiction. After that decision is rendered, the Assembly should exercise its jurisdiction in the regular Constitutional manner, i.e., through the SJC (cf. BCO 15-4).

Id. at 276 (emphasis in original). The minority of the CBO argued that the overture from Louisiana Presbytery was out of order because, among other things, Tennessee Valley Presbytery did not “refuse to act” for purposes of BCO ¶ 34-1 and conducting a “second investigation would amount to an act of double jeopardy.” Id. at 278. The GA rejected the minority report of the CBO and adopted the majority report. Id. at 258-59.

On remand, the SJC conducted an investigation pursuant to BCO ¶ 31-2 but unanimously determined that the evidence was insufficient to support an indictment of Rev. Wood. In re John Wood, No. 99-1 (SJC 2001), in 29 PCA GA Minutes, supra, at 70-82; see also 29 PCA GA Minutes, supra, at 198-202 (declining to condemn the ruling of the SJC). Of 17 SJC members present and qualified to vote in the matter, only 6 expressed the view that the SJC should not indict Rev. Wood because, inter alia, the GA did not have the authority to assume original jurisdiction in the matter because the presbytery did not “refuse to act.” 29 PCA GA Minutes, supra, at 73-76.

Well, as one of my law profs once said, “Dissents are for losers.” While it is true that, as Overture 3 asserts, there was some confusion about whether a presbytery that has conducted an investigation and found insufficient evidence for an indictment has thereby “refused to act” for purposes of BCO ¶ 34-1, the ultimate disposition of Rev. John Wood’s case substantially resolved that confusion. The GA’s actions show that

1. the propriety of assuming original jurisdiction under BCO ¶ 34-1 is a question reserved to the GA floor itself—only once the Assembly has voted to assume original jurisdiction pursuant to proper requests under BCO ¶ 34-1 is the SJC vested with the power to proceed in the matter;
2. “refusal to act” for purposes of BCO ¶ 34-1 means, at the very least, a refusal or failure to do more than what Tennessee Valley Presbytery did (actions consisting of some informal questioning and fact-finding by the presbytery and that did not lead to an indictment); and
3. implicitly (especially given the specific arguments raised by RE W. Jack Williamson, by the minority of the CBO, and by the 6-member minority opinion of the SJC on remand), investigating a matter anew after the assumption of original jurisdiction in such a case does not expose the accused to “double jeopardy” because the lower court’s mere investigation of a matter without an indictment did not result in a judgment precluding subsequent judicial action.

In other words, far from constituting proof of the need to eliminate the “refuses to act” prong of the BCO ¶ 34-1 (and ¶ 33-1) threshold, the John Wood case is a window into both the concerns behind the requirement and the limits of its application.

b. The Steve Wilkins dispute

The second matter discussed in the overture involved Rev. J. Steven Wilkins, who was accused of doctrinal error in a “memorial” from Central Carolina Presbytery before the 2006 GA. See In re Memorial from Central Carolina Presbytery, No. 2006-2 (SJC 2008), in 36 PCA GA Minutes 75-83 (2008).

(The BCO provision contemplating that a presbytery could be cited to appear before the GA’s SJC based on a “credible report” of an important delinquency or grossly unconstitutional proceeding, BCO ¶ 40-5, employed the term “memorial” prior to an amendment effective upon the GA’s ratification in 2006. 34 PCA GA Minutes 52, 57-60 (2006); cf. BCO ¶ 26-2 (requiring ratification of subsequent GA for amendment to the BCO). The CCB advised the SJC that the memorial in Wilkins’s case was in order because it was received prior to the effective date of the amendment of BCO ¶ 40-5. See 34 PCA GA Minutes, supra, at 149, 186.)

The memorial from Central Carolina Presbytery asked for alternative relief. In re Memorial, in 36 PCA GA Minutes, supra, at 80 (quoting Central Carolina Presbytery’s January 28, 2006 memorial). First, it asked the GA to assume original jurisdiction over Rev. Wilkins under BCO ¶ 34-1. Id. If that were not done, then the memorial asked, in the alternative, that the GA cite Louisiana Presbytery “per BCO 40-5 and SJC Manual 16.” Id. The SJC decided at its March 3, 2006 meeting “to cite Louisiana Presbytery to appear in person pursuant to BCO 40-5.” Id.

The SJC received two other communications in 2006 pertaining to Rev. Wilkins and Louisiana Presbytery—one from Southern Florida Presbytery and one from Calvary Presbytery, but the SJC’s Report to the GA that year simply states that they were “found out of order.” 34 PCA GA Minutes 84 (2006). I could not ascertain from the GA minutes the basis for the SJC’s ruling. A man who was an SJC member at the time has advised me that only one overture (the Central Carolina Presbytery memorial) requested the assumption of original jurisdiction over Rev. Wilkins, and that once the SJC had decided to pursue the matter under BCO ¶ 40-5, the other requests were moot. That is somewhat incongruous with the wording of the PCA GA minutes, which state that the communication from Calvary Presbytery was a “Request for Original Jurisdiction . . . RE: S. Wilkins.” Id. My best guess, given what the SJC member told me, is that the request from Calvary Presbytery was not received until after the SJC had already decided to begin BCO ¶ 40-5 proceedings in regard to Louisiana Presbytery (which is consistent with the numbering of the Calvary Presbytery request on the SJC docket as No. 2006-03), at which point the SJC either decided that granting the request of the Central Carolina memorial for the BCO ¶ 40-5 proceeding had rendered its alternative request for the assumption of original jurisdiction moot or that the institution of the BCO ¶ 40-5 proceedings against Louisiana Presbytery for its handling of the Wilkins matter somehow preempted the assumption of original jurisdiction over Wilkins himself.

The GA minutes also show that Suncoast Florida Presbytery sent an overture to the GA asking that it summarily declare that the Session of Auburn Avenue Presbyterian Church was heterodox, that Louisiana Presbytery erred in declaring that Rev. Wilkins was faithful to the confessional standards of the PCA, and that the GA appoint a commission to discipline the Session of Auburn Avenue and Rev. Wilkins. 34 PCA GA Minutes, supra, at 310-10b (2006). The CCB’s advice to the SJC was not reported to GA. Id. at 83. I cannot discern from the GA minutes what became of this overture. The overture’s request that the SJC appoint a commission to handle the Wilkins matter could be what led to its apparent demise because BCO ¶ 15-4 requires the GA to “commit all matters governed by the Rules of Discipline” to the SJC—not ad hoc commissions. (This language was adopted at the outset of the 34th GA in 2006, but even prior to its adoption the BCO required that all “judicial cases within its jurisdiction” be committed to the SJC, to the same effect. See 34 PCA GA Minutes, supra, at 55 (quoting the Strategic Planning Committee as stating that the change “makes clear that not just ‘judicial cases,’ a narrower category, but all matters of discipline, a broader category, are to be referred to the SJC”).)

Thus, it is far from clear that any confusion regarding the phrase “refuses to act” led the SJC to rule that the assumption of original jurisdiction over Rev. Wilkins was foreclosed, as Overture 3 suggests. In fact, an SJC member specifically recalls that the issue had to do with the lack of “two” requests from presbyteries for such action.

To recap, the John Wood case substantially resolved the very confusion that the overture claims justifies revision of the BCO, and the dispute regarding the assumption of original jurisdiction over Rev. Wilkins was apparently inapposite to the meaning of “refuses to act” insofar as the dispute turned on questions concerning the continuing viability of alternative relief, the timing of requests, and the propriety of a request for an appointed commission.

2. PCA polity would be distorted

Overture 3’s solution to the (virtually non-existent) “confusion” regarding the phrase “refuses to act” would distort the PCA’s polity. First, it would create double jeopardy problems and lead to meaningless proceedings that undermine the integrity of the courts. Second, it would centralize power in the SJC in a manner contrary to the PCA’s decentralized organization.

a. Double jeopardy and institutional integrity

There are actually two different concerns when it comes to double jeopardy. The first is fairness to the accused. It’s not fair for the accused to have to be tried over and over again for the same issue. Once of a court of competent jurisdiction resolves the matter, it is decided, and the only relief for those aggrieved by the decision is an appeal or complaint (or in extraordinary cases a collateral attack on the original judgment predicated on something as fundamentally defective in the original proceeding as a lack of jurisdiction (e.g., a minister was actually subject to the jurisdiction of a neighboring presbytery), fraud (e.g., the judge was bribed), etc.). This is why the Committee on Review of Presbytery Records does not review presbyteries’ judicial cases—they are only subject to review by the SJC through appeal or complaint (or indirectly, in cases of grossly unconstitutional proceedings, through BCO ¶ 40-5 proceedings).

In addition to protecting the accused, the prohibition on double jeopardy also protects the integrity of the courts. If any court’s judgment could be second-guessed apart from regular appeal or complaint, then the entire judicial system would be rendered chaotic. Every judgment would only be provisional; no judgment would be truly binding or conclusive. In the words of Presiding Judge Roscoe Conkling of the Missouri Supreme Court, “There must be a sometime end to litigation.” Drainage Dist. No. 1 Reformed, of Stoddard County v. Matthews, 234 S.W.2d 567, 573 (Mo. 1950). The PCA BCO specifically mentions this latter concern in BCO Chapter 11, where it describes the jurisdiction of church courts. There the BCO states that the courts of the church “are not separate and independent tribunals, but they have a mutual relation, and every act of jurisdiction is the act of the whole Church performed by it through the appropriate organ.” BCO ¶ 11-4.

The requirement that the lower court “refuses to act” before the higher court can assume original jurisdiction protects both of these principles of double jeopardy and institutional integrity. In criminal law, the protection against double jeopardy does not arise until jeopardy “attaches.” In other words, a person has to be in actual jeopardy once before the prohibition on their being in jeopardy a second time arises. See Will v. Hallock, 546 U.S. 345, 355 n. (2006). The Supreme Court has held that jeopardy attaches when a trial jury is empanelled and sworn. Crist v. Bretz, 437 U.S. 28 (1978). Similarly, in the PCA, there is no double jeopardy problem where a higher court assumes original jurisdiction over a matter where the lower court “refuses to act” because the refusal to act shows that the accused was never in jeopardy to begin with.

At the same time, once jeopardy attaches, any outcome constitutes a binding “judgment” conclusive of the proceedings apart from regular appeal (or, in the PCA, complaint), even if the outcome is a mistrial. By contrast, the failure or refusal to indict does not constitute a judgment. It can be complained against (as can all actions of a church court), but it cannot be appealed because there is no judgment to appeal. Turning again to the concern for the integrity of the judicial system itself, we see that the “refuses to act” requirement ensures that no higher court rides roughshod over a lower court’s competent judgment. Higher courts can assume original jurisdiction and reach an original judgment where there is no lower judgment standing in the way. But if there is such a competent judgment (or process) already in existence (or underway), then the higher court must be careful that the referral of the matter “shall not be so exercised as to impinge upon the authority of the lower court.” BCO ¶ 11-3.

Overture 3’s simple deletion of the “refuses to act” requirement would possibly expose church members to being tried anew after being investigated, indicted, tried, convicted, and even after those convictions were affirmed on appeal by the very higher court that would now purport to exercise original jurisdiction in the case. Needless to say, that would render the first trial—and the appeal—meaningless. (Or would it render the second one meaningless?)

b. “Grass roots” polity

The “refuses to act” requirement also reflects a preference for local resolution of local problems. Those closest to the situation will have the best grasp of the facts and the best ability to exercise appropriate discretion with respect to the pastoral and spiritual needs of those involved as well as the local community. It is gross empiricism to suppose that those “detached” from the local circumstances would have a better grasp of the facts by not being clouded by prejudice. A group of godly men who have lived and ministered in a community for decades will almost certainly have a better understanding of its people and needs than those on a three-day junket from across the country. This is why in cases of appeal or complaint, a “higher court should not reverse a factual finding of a lower court, unless there is clear error on the part of the lower court.” BCO ¶ 39-3(2).

That does not mean that there is no place for such extraordinary assumption of original jurisdiction, but those cases should in fact be extraordinary. The requirement that the court of original jurisdiction “refuses to act” before a higher court can assume that jurisdiction forces the locus of effort to the lower courts and, only once they have refused to address the question does a higher court have the power (upon request) to intervene.

Overture 3 tries to hold onto something of the protection of the grass-roots polity of the PCA afforded by the “refuses to act” requirement by providing that a higher court cannot assume original jurisdiction until the lower court first has had time to reach a judgment. However, that judgment would simply be set aside as soon as it were rendered, and the higher court would be required to start a de novo proceeding. Where the lower court has acted, such a course undermines the integrity of the judicial system and shifts the power to the higher court.

Conclusion

Overture 3’s proposal is a bad idea. Again, the overture does have a point—there has been some confusion about just what “refuses to act” means in BCO ¶¶ 33-1 and 34-1. However, the discernable rationale for the requirement and SJC precedent suggest that it means something like “refuses to indict.” Where there is no indictment, there is no judgment to preclude another court’s consideration of the issues and there was no jeopardy of the accused to preclude a second jeopardy.  The word “refuses” implies that the original court has had an opportunity to indict but has not done so, which ensures that the first opportunity for discipline remains in local hands. This is a good requirement that, far from frustrating the effective and proper functioning of the PCA courts, is quite essential thereto.

To the extent there is confusion about the requirement, it could be resolved through better education of presbyters or through the replacement of the word “act” with the word “indict.”

2 Responses »

 

Thoughts re Overture 7 Tuesday, May 19 2009

The Southeast Louisiana Presbytery of the Presbyterian Church in America (PCA) has sent an overture (Overture 7) to the 37th General Assembly (GA) asking that § 16 of the Operating Manual for Standing Judicial Commission (SJC Manual) be declared “constitutionally defective,” and that the SJC be asked to propose an revision of that section of the SJC Manual that would bring it into line with the Book of Church Order (BCO).

The skinny

This overture is somewhat technical, so don’t get lost in the details. Basically, the BCO, in language dating back to the 1800’s, has always required that inferior courts must be given a full-dress trial under the BCO before they can be censured by a higher court. (Note that a censure is more severe than simply taking exceptions to the minutes of a lower court, which can be done during the annual review of the minutes.) The overture rehearses in mind-numbing detail the series of failed attempts to get § 16 enacted while many in the PCA expressed concern about its constitutionality. In the end, SJC Manual § 16 was ultimately adopted. The problem is that § 16 allows the GA to censure a lower court without a trial but only after a “hearing” during which the accused court’s representatives are given “a maximum of 30 minutes” to make an argument. No evidence, no witnesses, none of the rules of procedure set forth in the Rules of Discipline – just a 30-minute presentation by each side and then a judgment. Because the SJC Manual is a law of lesser authority than the BCO (and since it can be amended by a single General Assembly), the GA can declare it constitutionally defective.

Sour grapes?

You might suspect that this overture is meant to undermine the action of the SJC in the recent case against Louisiana Presbytery. You’d be wrong. First, this overture comes from *Southeast* Louisiana Presbytery—not regular old Louisiana Presbytery. Second, although the SJC initially took up some of the issues in the Louisiana Presbytery case pursuant to a memorial under § 16, they wisely exercised some restraint and at that time only remanded the matter for further proceedings. In the end, before the SJC censured Louisiana Presbytery, they held a full-dress trial. After holding a preliminary hearing pursuant to a formal citation, an indictment was issued; pleas were entered; at the trial opening statements were made, witnesses were called, examined, and cross-examined, and closing arguments were made; and only then did the court render a judgment censuring the presbytery. So what happened with Louisiana Presbytery is neither here nor there as far as this overture is concerned.

The nitty-gritty

Turning to BCO Chapter 40, again, don’t to lose sight of the big picture. The BCO states that “[i]n process against a lower court, the trial shall be conducted according the rules provided for process against individuals, so far as they may be applicable.” As F.P. Ramsay explained in his 19th Century commentary on the PCUS’s nearly identical antecedent provisions to our BCO Chapter 40, “[N]o inferior court may be censured except after conviction on regular trial, any more than an individual.” F.P. Ramsay, An Exposition of the Form of Government and the Rules of Discipline of the Presbyterian Church in the United States 243 (1898). If § 16 allows this to occur when the BCO forbids it, then § 16 is constitutionally defective as the overture asserts. End of story.

You might be wondering, however, what this means when it comes to the annual review of records. After all, don’t higher courts typically find fault with the minutes of lower courts? Well, yes, and this is where Ramsay is especially helpful. As you can see in the linked PDF of his commentary, the PCUS Book had language virtually identical to our Chapter 40. According to Ramsay, the first four paragraphs of this chapter (the first three in the PCA BCO) have to do with the review of records, the next (our ¶ 40-4) “asserts the power of the reviewing court to go outside of the records,” and “the last two” (our ¶¶ 40-5 and 40-6) “treat of process against a court, the last paragraph particularly prescribing the rules of such process after the citation.” Ramsay, supra, at 238. Ramsay proceeds to explain the distinction between the “general review and control” and the “jurisdiction by process” of higher courts over lower courts:

In the exercise of general review and control the superior court may go so far as to enter upon the records of the inferior a censure of the records (but not of the court), or send to the inferior court an order to review and redress irregular proceedings [nota bene: in the PCA, we call a "censure of the records" or an "order to review and redress" in this context an "exception" (see generally RAO 16)]; but in the exercise of its jurisdiction by process the superior court may censure the inferior court (and not its records merely), and may itself reverse and redress the proceedings (in other than judicial cases) instead of ordering the inferior court to reconsider and correct them.

Id. at 242. As Ramsay explains, the GA can take exceptions to presbytery minutes all day long and can even order presbyteries to redress irregular proceedings recorded (or not) in the minutes. See RAO 16-7, -10. (Review of judicial cases, as Ramsay notes, is special because they can only come to the GA through appeal, complaint, or referral, and then they go to the SJC for review rather than to the Committee on Review of Presbytery Records (CRPR).) But the GA cannot censure a presbytery without a trial because that requires the exercise of jurisdiction by process. This is why the Rules of Assembly Operation provide for a referral from the CRPR to the SJC where the CRPR believes that a presbytery “has persisted in an error that is significant enough to require an Assembly response” other than “again seek[ing] a more acceptable response from the presbytery.” RAO 16-10(d).

“Mooted” by recent BCO changes?

There have been suggestions by some that the question presented by the overture was mooted by an amendment to the BCO in 2006. See generally 34 PCA GA Minutes 57-60 (2006). At that time the first line of BCO ¶ 40-5 was changed from

“When any court having appellate jurisdiction shall be advised, either by the records of the court next below or by memorial, either with or without protest, or by any other satisfactory method, of any important delinquency…”

to

“When any court having appellate jurisdiction shall receive a credible report with respect to the court next below of any important delinquency…”

Id. The amendment was proposed by the Strategic Planning Committee, which asserted that the “[p]roposed change simplifies the language of the antecedent in the conditional, and allows for the use of a commission, in anticipation of a proposed amendment to ‘RAO’ 14-10.c. establishing a judicial procedure to settle the question of the disputed exceptions alleged under General Assembly review of presbytery records.” Final Report of the Strategic Planning, 2261, ll. 30-37 (2005), reprinted in part in 34 PCA GA Minutes, supra, at 57-58. (That amendment to the RAO was in fact adopted, and it is now codified at RAO 16-10.c.) There is no indication in the language of the amendment or in the comments from the Strategic Planning Committee that the change would have such far-ranging effects as rendering meaningless an entire section of the SJC Manual. While it is true that § 16 refers to “memorials,” there is no reason to believe that this now-anachronistic term would not continue to embrace a “credible report” to the same effect.

And even if § 16 were somehow “mooted” by this 2006 BCO amendment, that doesn’t change the fact that § 16 still appears in the SJC Manual and is the only section of the SJC Manual that speaks to SJC’s exercise of original jurisdiction over presbyteries. In other words, even if the 2006 BCO amendments had the apparently unintended and unforeseen effect of rendering the entirety of § 16 suddenly meaningless, that only adds to the urgency of declaring that section “constitutionally defective” and asking the SJC to propose revisions.

Hamstringing the SJC?

You might worry what the implications of declaring the current § 16 “constitutionally defective” might be. So do I. Thankfully, the overture didn’t ask that the section be declared “unconstitutional” or “void” because that might hamstring the SJC, leaving it to exercise judicial oversight over presbyteries without any procedure on point. Instead, the “constitutionally defective” language basically identifies a problem but allows the SJC to work around that problem in some way until a revision can be adopted by the GA.

Conclusion

Overture 7 is a wise and temperate overture that seeks to reform the SJC Manual so that the SJC can more effectively exercise its responsibilities of judicial oversight of lower courts but happily leaves the SJC free to find an interim work-around and also asks them to propose a longer term solution.

ADDENDUM (06/03/2009)

Today, I came across further evidence that the 2006 amendment to BCO ¶ 40-5 did not “moot” or render meaningless SJC Manual § 16.  That year, the SJC received a memorial from Central Carolina Presbytery asking that the SJC proceed against Louisiana Presbytery under BCO ¶ 40-5.  The Committee on Constitutional Business (CCB) advised the SJC that the memorial should be processed under the pre-amendment version of BCO ¶ 40-5 since the memorial was sent and received before the amendment’s effective date.  See 34 PCA GA Minutes 149, 186 (2006).  The CCB also stated that “the SJC Manual 16 may need to be revised in the future since the terminology of memorial has been removed from BCO 40-5.”  Id. at 186 (emphasis added).  The CCB thus stopped well short of advising the SJC that § 16 had been mooted or rendered meaningless, suggesting instead that it only “may” need to be revised because “the terminology” had been altered by the recent BCO amendment.  This adds further proof to the notion that SJC Manual § 16 is still a live problem for the PCA, just as current Overture 7 contends.

Comments Off

 

Thoughts re Overture 6 Saturday, May 16 2009

The Central Carolina Presbytery of the Presbyterian Church in America (PCA) has sent an overture (Overture 6) to the 37th General Assembly asking that the chapter of the church’s Directory for Worship addressing the “solemnization of marriage,” Chapter 59, be amended and then given full constitutional authority. As explained more fully below, I think this overture is ill-advised.

Although the entirety of the Directory for Worship (part of the Book of Church Order) is part of the church’s constitution, most of it, including Chapter 59, is “precatory”—expressing a desire for action but in a nonbinding way.

The impetus for Overture 6 is the decision of several states in the United States and of Canadian authorities to recognize as valid same-sex marriages. The overture asserts that, in order to defend themselves from civil rights lawsuits and criminal charges of discrimination, chaplains, ministers, and churches that refuse to conduct same-sex weddings “will need to be able to show that not just they, but the denominations they belong to are opposed to same-sex marriage.” Given that “liberal Presbyterian churches” whose official doctrinal standards are identical to that of the PCA on this issue “are already performing same-sex weddings,” the overture asserts that “the simplest, quickest, and least expensive manner of taking a stand on the issue of biblical marriage and protecting the PCA’s ministers and churches is to grant chapter 59 of the BCO constitutional authority.”

As it is currently worded, however, Chapter 59 states that “all citizens are bound to obey” the “laws to regulate marriage” that are made by “every commonwealth, for the good of society.” BCO ¶ 59-1. The BCO also states that “[i]t is enjoined on all ministers to be careful that, in this matter, they transgress neither the laws of God, nor the laws of the community.” BCO ¶ 59-6. Because the authors of the overture believe that these injunctions could “cause problems of interpretation,” the overture seeks their rewording as follows:

59-1. Marriage is a divine institution though not a sacrament, nor peculiar to the Church of Christ. It is proper that every commonwealth, for the good of society, make laws to regulate marriage, which all citizens are bound to obey.

59-6. Marriage is of a public nature. The welfare of society, the happiness of families, and the credit of Christianity, are deeply interested in it. Therefore, the purpose of marriage should be sufficiently published a proper time previously to the solemnization to it. It is enjoined on all ministers to be careful that, in this matter, they transgress neither the laws of God, nor the laws of the community do not transgress the laws of God; and that they may not destroy the peace and comfort of families, ministers should be assured that, with respect to the parties applying to them, no just objections lie against their marriage.

I do not believe that giving such an amended version of Chapter 59 of the BCO full constitutional authority is necessary to protect PCA churches and ministers or a good way to “take a stand” against same-sex marriage.

In the United States, it is highly unlikely that a state or federal court would ever attempt to sift the relative importance of a church’s stated religious beliefs in order to determine whether those beliefs suffice to support a religious exemption from discrimination laws. As the U.S. Department of Justice’s “First Freedom” website explains, “[t]he Constitution prohibits Federal, State, and local governments from infringing the free exercise of religion, or from establishing religion.” The Supreme Court has interpreted this prohibition to mean that civil tribunals must defer to a church’s own resolution of questions of religious doctrine. See Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 709-10 (1976).

In Canada, the Charter of Rights and Freedoms guarantees freedom of conscience and religion. Constitution Act, R.S.C., App. II, No. 44, Sched. B, Pt. I, § 2(a) (1985) (Can.). In addition, the Civil Marriage Act specifically states that “officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs” and that “no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom.” Civil Marriage Act, 2005 S.C., ch. 33, §§ 2, 3.1 (Can.).

Given that the binding part of the PCA constitution already states that “[m]arriage is to be between one man and one woman,” WCF 24.1, the overture’s assertion that additional language in the church’s constitution is necessary in order for churches and ministers to avoid criminal and/or civil liability for refusing to conduct same-sex marriages is thus dubious. Moreover, individual churches and presbyteries are free to place additional restrictive language in their own governing documents, and ministers can appeal to their own deeply held religious beliefs.

As for the assertion that the BCO changes are necessary to “take a stand” against same-sex marriage, I think that the PCA has made its voice clear and that, in any case, a simple resolution of the General Assembly would suffice (and arguably speak more clearly than the action proposed by the overture, which outsiders would likely see as procedurally convoluted).

Furthermore, the proposed rewriting of the BCO’s current language fails to appreciate the traditional balance that has been struck between the civil and ecclesiastical spheres in their oversight of marriage. There was a time when marriage nullity and dissolution were questions decided by ecclesiastical courts. Over time, the Protestant church came to defer to the civil magistrate’s resolution of these questions. Today, that balance has been upset by the revolution in the law of the family and of sex that began in the latter 20th Century and continues today. Same-sex marriage is the latest in a series of developments in civil law that render the state’s law of marriage and the church’s beliefs regarding marriage so incongruous that they cast a darkening shadow over the PCA’s continued deferral to the state on these questions.

To the extent that the overture recognizes this, that’s a good thing. But the solution is more complex than the overture suggests.

Currently, the PCA has no law addressing, for example,

• the minimum age for marriage
• the nature of the intent required to enter into a marriage
• the minimal commitments that must be expressed in order to enter into marriage
• whether the expression of those commitments must be explicit or can arise from tacit conduct
• how to handle difficult cases of physical sexual ambiguity
• the specific degrees of consanguinity that render marriage invalid
• whether fraud and/or other factual circumstances (and if so, which) can invalidate an otherwise valid marriage

These are just a sampling of numerous questions regarding marriage that the PCA has not had to think about because it has deferred to the state. If PCA ministers no longer took the state’s answers to these questions into account when marrying couples, then they would be entering a functional legal vacuum.

It’s possible, of course, that the changes to the language of the BCO proposed by the overture would not have such far-ranging affects, especially given other language in the PCA constitution generally requiring obedience to the civil magistrate. Even so, I think the overture would truncate and hinder the church’s consideration of how to react to the revolution in secular law concerning sex and family. For one thing, that debate has far less to do with securing the church’s rights vis-à-vis the state (since, as discussed above, those rights are already secure) and far more to do with how we, as the body of Christ, corporately live in faithful submission to his word.

ADDENDUM (05/18/2009)

I didn’t mean to deny that the religious liberties of Christians more broadly speaking are currently under threat.  In recent years, we have seen laws requiring Christian pharmacists to dispense abortifacient drugs, courts requiring Christian doctors to help same-sex couples bear children through the application of reproductive technology, human rights commissions fining Christian photographers for refusing to photograph same-sex weddings, laws requiring Christian adoption services to place shildren with same-sex couples, etc.  However, Overture 6 does not purport to—and would not in fact—provide any help to any of these people because (1) it only speaks to the obligations of ministers officiating at weddings, and (2) the Christians in these cases were denied protection because the governmental authorities did not recognize any religious exemption—not because the Christians failed to establish that they in fact qualified for such an exemption.  Moreover, even if there were religious exemptions in play (as there are in cases involving churches and ministers), amending BCO 59 as the overture requests would not help because the PCA’s religious beliefs on the question of same-sex marriage are already clear.

Comments Off