An open letter regarding church property issues
By Michael R. ‘Mac’ McCarty, The Layman Online, December 4, 2007
In the most recent article about the shenanigans in Greater Atlanta Presbytery, the following comments attributed to the executive presbyter caught my eye:
“The congregation does not have the authority to ‘disaffiliate from the PCUSA, thereby denouncing their authority over our congregation’ and ‘worship temporarily as an independent congregation,’ . . . In G-7.0304 of the Book of Order, the five powers of a congregation are listed and it is clear that it does not give the power to the congregation to do what you are suggesting. . . . . “In G-11.0103(i), it is clear that only the presbytery (not the congregation, not the session, not the synod, not the General Assembly) has the ability to dismiss a congregation.”
While it may be clear to Mr. Albright, it is far from clear to anyone who reads the Book of Order. In fact, the Book of Order is so ambiguous on these points that the exact opposite is true. Mr. Albright needs to pay particular attention to G-7.0304a(5) (“matters related to the permissive powers of a congregation”).
At the outset of any discussion of power and jurisdiction within the Presbyterian Church (USA), it is important to recall that the Book of Order confers upon the judicatories of the denomination only those powers specifically enumerated. See, e.g., G-1.0307, and G-1.0308.
The current tendency of some leaders in the PCUSA 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.
The U.S. Constitution that was drafted in Philadelphia in the summer of 1787 (at the same time that Presbyterians were meeting to form a national denomination) envisioned a central government of limited powers and, with its first 10 amendments, reserved to the states or the people any rights not expressly delegated to the federal government. See, U.S. Const., amend. IX and X. The civil concern that a strong central government might become despotic is mirrored in the most current provision of the Book of Order:
… The jurisdiction of each governing body is limited by the express provisions of the Constitution, with powers not mentioned being reserved to the presbyteries, and with the acts of each subject to review by the next higher governing body (emphasis added). Book of Order, § G-9.0103.
It is important to note that § G-9.0103’s reservation of certain “powers not mentioned” is limited in its application to “governing bodies,” specifically defined in the Book of Order as “session, presbytery, synod, General Assembly” (§ G-9.0101). In other words, powers of governing bodies are distributed among the several judicatories, with those 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). This case is often cited as support for the proposition that under the Book of Order of the PCUSA 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.
Of greater importance, however, is the recognition by the Book of Order that a separate and distinct set of powers belong, not to the “governing bodies,” but to the individual congregations. These powers are referred to as the “permissive powers of the congregation.”
At least one chapter of the Book of Order begins with a section titled “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 legal doctrine contra proferentum stands for the proposition that an ambiguity 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 that seek to benefit from their own interpretation of their ambiguity.
Because the General Assembly was 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),] had the power to cure the ambiguity and failed to do so, any such 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. In fact, the Book of Order is suspiciously akin to a contract of adhesion.
The resultant conspicuous absence of a definition of those permissive powers, coupled with the vague descriptive list, leads to a contextual definition. One comes to the conclusion that those powers include any that impinge upon 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 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.
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. In other words, 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.
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. So, we must ask, “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 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 some extent, the 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.
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 (USA). In response, the national headquarters of the denomination and various presbyteries are loudly asserting 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 PCUSA or to disband and forfeit its property to the presbytery. The only constitutional support for this coercive proposition, weak and ambiguous as it may be, is found is in Book of Order § G-11.0103i :
The presbytery is responsible for the mission and government of the church throughout its geographical district. It therefore has the responsibility and power
* * *
i . to divide, dismiss, or dissolve churches in consultation with their members; (emphasis added).
This is the only mention in the Book of Order of dismissal. (Mention of dismissal in G-8.0601 is merely a restatement by reference to G-11.0103i; it is not a separate grant of authority.) 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 pre-supposes 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 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. . .”)
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