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An open letter regarding church property issues

By Michael R. 'Mac' McCarty
 The Layman Online
Tuesday, 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 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.

A document prepared by the PCUSA supports this conclusion:

The multiple functions for a meeting of the congregation are to

(1) act on the business to be conducted (matters related to the election of elders, deacons, and trustees; calling of a pastor(s); pastor relationship; property; permissive powers of the congregation) (G-7.0304a(1)-(5));

(2) express the individual responsibility of membership in the corporate context of the congregation (G-5.0102b);

(3) present the reports and recommendations of the organizations and groups in the particular church in a creative and innovative way that motivates members to mission (G-7.0302);

(4) provide information in report form that the session can use in its review of all proceedings and actions of the organizations of the church (G-9.0407a);

(5) exercise the responsibility to review the adequacy of the compensation for the pastor(s);

(6) formalize in bylaws the way the congregation will structure itself for mission; and

(7) act on the ecclesiastical and corporate matters recommended by the session that will move the congregation forward in mission.

See, "Companion to the Constitution, prepared by the Office of the General Assembly, PC(USA)" ("Companion"), ch. 12 at "Multiple Functions of the [Congregational] Meeting."

By the PCUSA'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, Acts 1:8, the congregation (as opposed to any other entity) must have control over its property.

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.

Moreover, despite the attempt by some 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. We cannot send out press gangs to force people to be members of the PCUSA, the EPC, or any other congregation or denomination. In fact, a state church is anathema to Americans.

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. Consider, e.g., Genesis 12: 5.

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 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.

The problem arising out of the PCUSA's interpretation of its ambiguous constitution is that it confuses the "decision" to leave with the "means" of leaving. The PCUSA position that severance of relations between the denomination and a congregation belongs to the presbytery ignores the fact that a congregation is made up of individuals and they retain the freedom to stay or to leave. A congregation may make the decision individually or corporately, but the decision is the congregation's to make. It has the unlimited power to dissolve itself simply by abandoning the property it has collectively purchased and maintained, but it also retains the right to take that property with it when the congregation leave as a body.

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:

The 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 PCUSA)and its presbytery.

In the past 23 years, the PCUSA has taken no such action to limit the decision to depart to the presbytery. 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.

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