Analysis by Carmen Fowler LaBerge, The Layman, November 1, 2012
In all three cases decided this week by the General Assembly Permanent Judicial Commission (GAPJC) the ecclesiastical court has turned the screws against conservatives.
The GAPJC’s willingness to engage in open advocacy, particularly on behalf of those seeking to redefine marriage, is a troubling development. But equally disturbing are the decisions rendered by the ecclesiastical court against presbyteries and congregations seeking to voice their conscience on the matter and those congregations seeking peaceable dismissal from the denomination.
The right of presbyteries to dismiss churches with their property
221-03, Tom et al v San Francisco Presbytery
The action of the GAPJC in this case has bearing on every congregation that may desire to realign its denominational affiliation and every presbytery that may be inclined to follow the 2008 guidance of the General Assembly in graciously dismissing such congregations. The San Francisco policy was lifted up as a model. However, the policy that was unanimously adopted by the presbytery was not even actively defended by council during the GAPJC oral arguments that resulted in the decision analyzed here.
Recognizing that the financial and real property assets of the particular church named in the case cannot be re-claimed by the denomination, the GAPJC chose to “exercise its declaratory authority to provide guidance to lower councils and to prevent future violations.” That stands to affect all future dismissals from the PCUSA.
The decision reads, “When a congregation seeks dismissal…it is the responsibility of the presbytery to fulfill its fiduciary duty under the Trust Clause. This fiduciary responsibility duty requires that the presbytery exercise due diligence regarding the value of the property of the congregation seeking dismissal. Due diligence, of necessity, includes not only an evaluation of the spiritual needs of the congregation and its circumstances but also financial analysis of the value of the property at stake. Payments for per capita or mission obligations are not satisfactory substitutes for the separate evaluation of the value of the property held in trust.”
Attorney Lloyd Lunceford, editor of The Guide to Church Property Law, second edition, and who represents local congregations in such cases sees the ruling as “big bad news.”
“The GAPJC has said that any presbytery dismissal policy that permits dismissal with property upon payment of certain continued per capita or mission giving and that does not ALSO require additional payment of a percentage of the value of the property, is null and void on its face, as written. Louisville’s perception of its own economic interests trump any presbytery-determined definition of gracious.”
Lunceford went on to observe: “The GAPJC’s ruling, that the presbytery’s fiduciary obligation to the PCUSA demands exacting some percentage of the value of the property as the price for dismissal, stands in sharp contrast to what had effectively been the PCUSA’s temporary national dismissal policy at the time of the 1983 reunion. Under the Articles of Agreement, if a church had a one-third quorum and a two-thirds vote, dismissal with property was automatic without any payment of any kind being required. If this was deemed proper notwithstanding the existence of the trust clause, and it was, how then can dismissal with no payment of a percentage of the value ( but with continued payment of graduated per capita and mission giving) now be deemed improper? Has the Book of Order changed? No. The only thing that has changed is the increasing financial needs of a dwindling PCUSA — hence the shift in the alleged fiduciary duty of presbyteries. Grace? No. In the eyes of the GAPJC, it’s all about the money. If anybody still had doubts about what is important to the PCUSA, the Tom v. San Francisco Presbytery decision gives an answer. It might well be called the “Show Me the Money” case or Sola Moola.”
The right of councils to freely profess what they believe
221-04, Larson et al v Presbytery of Los Ranchos
This decision has a bearing on sessions and presbyteries who have adopted statements, resolutions or policies that seek to articulate and communicate in advance that the manner of life they view as required of church officers includes fidelity in heterosexual marriage or chastity in singleness. The GAPJC has ruled that no presbytery, and by logical extension, no session, can set in place a policy that would articulate in advance of a full examination of an individual candidate, what constitutes a manner of life appropriate for ordained officers.
In its own rationale the court admits that it’s okay for a council to declare itself “More Light” but it is not okay for a council to communicate with prospective officers the expectation of fidelity and chastity within their bounds.
It is important to know that for Los Ranchos presbytery the resolution was adopted as a statement of conscience and a middle way. They intentionally used language from the Book of Order (for which they were scolded by the GAPJC for restating the Constitution). They were seeking to hold body and soul together in the midst of fractious denominational days. Instead they found themselves on the losing end of a judicial double standard.
Where the court calls conservatives to “mutual forbearance” in regard to the flagrant ecclesiastical disobedience being practiced by officers in relationship to marriage (see the McNeill case below), the court fails to call on liberals to live with forbearance of conservatives. The mutual forbearance door only swings one way in the PCUSA.
A judicial redefinition of marriage
221-02, Newark Presbytery v McNeill
Although constitutionally both the Book of Confessions and the Book of Order expressly define marriage as exclusively between one man and one woman, the GAPJC opens its decision by recognizing the existence of “same-gender marriage.” The decision reads, “this case illustrates the tortuous place in which the PCUSA finds itself on the matter of same-gender marriage.”
In introducing a definition of marriage that includes same-gender couplings, the GAPJC has given judicial recognition to a reality that does not exist in the denomination’s constitution. That is more than an over-reach; it is a functional redefinition of a matter on which the legislative branch of the church’s governance, the General Assembly, has consistently determined shall not be redefined.
The Board of Pensions took similar action in functionally redefining marriage when it authorized the extension of benefits to the same-sex partners of Plan members. Five PCUSA seminaries have also functionally redefined marriage by providing on-campus housing to students in same-sex relationships. In its decision in McNeill, the GAPJC has followed suit.
The mental gymnastics required by the court in arguing that sex cannot be assumed to be a part of McNeill’s self-described “happily married” life is nothing short of casuistry. The argument that one can live as single in the eyes of the church and married in the eyes of the world is the same. Life is not so bifurcated into the sacred and the secular because Reformed Christians believe that God is sovereign over all things. In seeking to twist the facts in this case into a form that allows for McNeill to be found not guilty of the charges against her the GAPJC bears witness to the fact that the “convoluted grounds” to which they refer in their decision are, in fact, their own.
Double standards in these decisions abound. Worthy of n
ote is the failure of the court to apply the plain meaning of “marriage”, let alone assume the practical effect, in the McNeill case and yet, in the Larson/Los Ranchos case to rule on the assumed practical effect instead of trusting the presbytery to act according to the plain meaning of its own resolution. The court was unwilling to presume that two “happily married” women are having sex but they were willing to assume that Los Ranchos presbytery would deal unfavorably with an LGBT candidate. In the one case the defendant was found not guilty of sins clearly committed and in the other case the presumption was that a sin would be committed in the future and therefore the presbytery stands convicted.
Such are the days in which we live in the PCUSA.
Per-capita and mission funds not enough
GAPJC declares presbyteries must consider property values when dismissing congregations