Deliberating by the Book

By Matt Fender | July 19, 2022

During the proceedings of the 49th General Assembly of the Presbyterian Church in America (PCA), we saw two examples of historical precedent being invoked to support a decision of the moderator that appeared to be contrary to the plain language of the Book of Church Order (“BCO”) or Rules of Assembly Operation (“RAO”). In this article, it is not my intention to reargue those points or to cast aspersions against the presbyters who argued on either side.  I take it for granted that all involved were acting in good faith and seeking to serve the Church to the best of their abilities. Rather, it is my intention to argue that such a historicist approach to constitutional interpretation is flawed, and that instead the PCA should follow a strict textualist approach — resorting to historical and extrinsic evidence only where the text of the BCO or RAO is ambiguous.

Twice at the 49th Assembly, we saw the following scenario play out: A commissioner seeks to assert his rights or the rights of another to speak or take an action, based on the text of the BCO or RAO, and is then told he may not, based on what appears to be a counter-textual interpretation of the rule. The counter-textual interpretation is supported by reference to some historical precedent or other, perhaps from many years ago. Sometimes these precedents are based on prior language that has since been amended. 

First Instance: Filing an Objection to a Standing Judicial Commission (SJC) Case

First, during the morning session of the Assembly on Thursday, June 23, 2022, TE Jerid Krulish of the Pacific Northwest Presbytery came to a microphone and asked to lodge a protest or objection against the decision of the Standing Judicial Commission (SJC) in the Herron case 2021-06.

Moderator RE John Bise interrupted TE Krulish’s speech and conferred with Stated Clerk Emeritus TE L. Roy Taylor. TE Bise then ruled that only those individuals entitled to vote on a matter may lodge a protest, so TE Krulish, who was not a member of the SJC, could not do so. TE Krulish then asked to raise it as an objection: “It is my understanding than an objection may be raised by any member of the court who did not have the right to vote.” RE Bise again conferred with TE Taylor. RE Bise then reported, “The parliamentarians advise me that at the 41st General Assembly this matter was considered and it was adjudicated that an objection is not allowable sir.  I appreciate your concern but there is no path for that.

TE Jared Nelson then rose and challenged the ruling of the chair.

RE Bise then yielded to TE Taylor for some additional historical information that could be useful to the Assembly. TE Taylor stated that only the members of the SJC who were disqualified from voting could raise and objection. TE Taylor cited the minutes of the 41st General Assembly, page 39, for the proposition that only members of the SJC could register an objection to a decision in a case adjudicated by the SJC.  He stated that after that ruling was made at the 41st Assembly, the moderator’s ruling was challenged and sustained.[1]

In the ensuing debate, TE Jacob Gerber cited BCO 45-4 where “objection” is defined. In full, that provision reads:

45-4. An objection is a declaration by one or more members of a court who did not have the right to vote on an appeal or complaint, expressing a different opinion from the decision of the court and may be accompanied with the reasons on which it is founded.

TE Gerber then argued that the SJC is a commission of the GA, not a court.  The GA is the court, so members of the GA have the right to raise an objection to a decision rendered by the SJC.  TE Gerber noted that this understanding is based on what BCO 45-4 actually says. He made a textual argument.

The ruling of the chair was then sustained by a vote of 1051-548.  This colloquy can be found on the live stream video for the Thursday morning session between 2:26:00 and 2:35:30 here.[2]

Second Instance: Presenting a Minority Report

The second example of a counter-textual ruling was when Moderator RE John Bise ruled against my attempt to bring the Committee on Constitutional Business (CCB) minority report to the floor. TE David Coffin, after being accorded the privilege of speaking first, made an argument based on historical practice that appeared to be contrary to the plain language of RAO 19-2. In fact, he did not directly address BCO 19-2. The opening sentences of TE Coffin’s speech were as follows:

For context, it is important to recall that in the past, the Committee on Constitutional Business (CCB), under a different name, did report its advice on Constitutional issues as recommendations for ratification by the General Assembly (GA). The process had become highly controversial, enormously time-consuming, and the outcome was not binding upon anyone. The process was revised by the work of an ad interim committee and the proposed CCB was created by the Assembly as an exclusively advisory committee presenting no recommendations for action by the Assembly.

In fairness, TE Coffin indicated that had he had the opportunity to speak to the issue again, he would have addressed the application of RAO 19-2, but the topic clock ran out before he could do so. The relevant portion of RAO 19-2 reads as follows:

When a minority of a committee wishes to present a minority report, the member reporting for the minority shall have the privilege of presenting the minority report and moving it as a substitute for the portion of the majority report affected.

The plain language of this provision contradicts RE Bise’s ruling. The chair was narrowly sustained on this point by a vote of 970 to 856.  The debate can be found in the video of the Wednesday afternoon session between 1:40:28 and 2:02:47 here.

Ruled by Text or by Discerning Intent?

Both of these examples illustrate an approach to interpreting and applying our rules that requires special knowledge of the history of the PCA. It is an approach that treats the text of the BCO and RAO as secondary to supposed original intent deduced from a loose body of history and tradition. It is my argument in this article that such an approach is in error, and that the Assembly should adopt a textual approach to interpreting and applying our accepted rules.

In interpreting statutes and contracts, civil courts look first to the text. If the text of the statute or contract is clear and unambiguous, then the inquiry ends there and the text is given effect via its natural reading. Only if the text is ambiguous does a court then consider extrinsic evidence such as the negotiating history of a contract, the courts of dealing between the parties, or the legislative history of a statute.

It is assumed that the parties to a contract or the legislators who drafted a statute knew what they were doing when they chose the words they did. The text itself is the best evidence of what was agreed to. To allow one side to argue for a counter-textual interpretation, based on extrinsic evidence, has the capacity to work injustice.

The same methodology should apply when we interpret our church documents. The BCO, RAO, and the Operating Manual for the Standing Judicial Commission (“OMSJC”) contain detailed provisions describing how we are to proceed in conducting the affairs of that visible expression of Christ’s Church known as the PCA. It is one of the great strengths of our denomination that we have a well-developed system of governance that has been refined over many years. We are a church that is governed by the rule of law. We are not to be respecters of persons. We must always heed the Biblical injunction to do things decently and in order.  (1 Cor. 14:40).

Why does this matter?

First, by following a textualist approach we give full effect to the best evidence of what prior Assemblies intended. We spend a great deal of time and effort at each Assembly and at the many Presbytery meetings that occur throughout the year, crafting, amended, and debating proposed changes to our documents. The text of the BCO, RAO, and OMSJC reflects the net effect of almost fifty years of such efforts by many faithful men. The text represents the distilled procedural wisdom of the church. To set aside the plain reading of the text in an attempt to discern an inherently uncertain supposed original intent which may contradict that plain reading undermines the process the Church has adopted to work through contested matters and robs the Church of the benefit of the labor that went into the text.

Second, a textual approach gives presbyters confidence in our polity. In order to function well as a connectional church, our members and officers need to have confidence that our system of government is administered fairly and impartially. Giving full effect to the plain text of our documents promotes this. The BCO, RAO, and OMSJC are printed and widely distributed among our churches. They are freely available on the Internet. When reference is made in a GA proceeding to these documents, every member and officer observing the proceedings, whether present or observing from a distance via technological means, can readily refer to the documents and understand the ruling. But if instead we disregard the plain meaning of the text of our governing documents and make decisions based on a supposed original intent, found only in the unexpressed or inaccessible thoughts of a select few, then confidence in our system of governance is undermined. We should value a plenary reading of the text our constitutional documents, just as we do the text of the Scriptures, and not defer to an oral tradition or remembered tradition of original intent.

Third and finally, following a textualist approach to our governing documents promotes fundamental fairness. The PCA is fractured at the time of this writing. There are well known factions advocating for competing visions of the denomination. For us to forge a path forward together, the man who holds the gavel at a meeting of a court, committee, or commission, must be seen as truly impartial.[3] Otherwise, our Church will inadvertently – but unavoidably – risk falling into an ecclesiastical environment shaped by pragmatism and realpolitik, perpetuating our conflicts rather than healing our divisions. Strict adherence to a textual approach promotes the kind of impartiality, both in practice and in perception, the PCA needs. If the chair of a meeting can make ready reference to our blue BCO binder and rule accordingly, then every man present can have confidence that we are all subject to the same rules. When rulings are instead based on a supposed original intent deduced from disputable history and tradition notwithstanding the text, then there will naturally arise the temptation to harbor bad feeling and suspicion that a ruling has been made to drive a particular outcome. That is very damaging to the purity and peace of the church, and to risk such damage is, in my view, more significant than the outcome of most issues.

For example, the two instances cited above from the 49th Assembly shut out a minority from making their case for consideration by the Assembly as a whole, or even for the sake of merely stating their conviction. However, our system is meant to allow the temperate expression of minority positions (and arguments/cases), and to silence them introduces tension into our deliberations. Recalling the similar actions of the 41st General Assembly (cited in footnote 1, below), one presbyter at the time described the silencing of the minority as ultimately “unloving.” The unloving nature of silencing the minority is another reason, in cases such as these (and those like them), not to be ruled by unwritten intent rather than the plain reading of the text of our adopted rules.

If our documents do not accurately reflect the way we want to conduct the business of Christ’s church, then we should amend them to conform to our desired practice. If the text as written and adopted does not accomplish that which we know to be the original intent of the Assembly, then we need to bring our text in conformity to our original intent. We have a robust and well-understood process for doing so. But what we must not do is set aside the plain reading of the text in favor of uncertain and disputable understandings of original intent. Put another way, we must not disregard our documents in order to accommodate counter-textual practices.

[1] For a record of the cited actions of the 41st General Assembly, see the following:

41-39 Report of the Standing Judicial Commission: RE John White led the Assembly in prayer and presented the Report of the SJC (Appendix T, p. 551). TE Andrew Barnes sought to register an objection to the decision of the Standing Judicial Commission on Case 2012-05, Hedman v. Pacific Northwest Presbytery. A point of order was raised by TE David Coffin that a General Assembly commissioner’s registering an objection to an SJC decision on a case is out of order because only a member of the Standing Judicial Commission who did not have a right to vote on a case may register an objection (BCO 15-4; 39-2; 45-4). The Moderator ruled the point of order was well taken because the only person who could file an objection to the SJC’s judgment on Case 2012-05, Hedman v. Pacific Northwest Presbytery, was an SJC member who was disqualified under BCO 39-2.4 The ruling was appealed, and the Chair was sustained (Minutes of the 41st Stated Meeting of the General Assembly of the Presbyterian Church in America, 39).

41-40 Report of Committee on Constitutional Business: TE Mark A. Rowden, Chairman, led the Assembly in prayer. TE David Coffin raised a point of order that the exception of substance to the March 6, 2013, minutes of the SJC (2012-06 Bethel vs. SE Alabama), (Appendix O, p. 364), is out of order because in them the CCB takes exception to an SJC case and to its decision and therefore violates the prohibitions in RAO 17-1, final paragraph. The Moderator declared the point well taken, and ruled that the lines be struck. TE Art Sartorious made a parliamentary inquiry as to whether point of order was premature since the report had not yet come before the Assembly. The Stated Clerk reviewed the proper order of procedure, explaining that if an exception is ruled out of order, it is taken “off the table.” TE Sartorius inquired as to whether the ruling to strike would apply also to the exceptions of substance to the September 6, 2012, and November 29, 2012 minutes. The Moderator said that the question was out of order because the Assembly was dealing only with the removal of specific lines. The Moderator’s previous ruling was appealed, and the Chair was sustained. Chairman Rowden proceeded to presentation of the report (Appendix O, p. 361) as information. TE Art Sartorius made a parliamentary inquiry regarding the other exceptions of substance to the SJC minutes (Appendix O, p. 365), “one of which,” he thought, had been “covered by the previous ruling.” He asked how these would be handled. The Stated Clerk replied that it would go to the SJC officers for a response. TE David Coffin suggested that the exceptions to the SJC minutes for September 6, 2012, and November 29, 2012, should be included in the Moderator’s ruling on the March 6, 2013 ruling. The Moderator responded that his previous ruling should cover all three exceptions. TE Coffin commented that he had not addressed the minority report because, as the minority report is not the report of the CCB, it could never, regardless of its opinion, become the occasion for someone to move that a case be reconsidered (Minutes of the 41st Stated Meeting of the General Assembly of the Presbyterian Church in America, 40).

[2] N.B. After the ruling, in private conversation others noted that the Herron case was still in process and an action (i.e., decision) had not yet been made in total that would allow for the objection. This would have been a clearer reason for ruling TE Krulish’s attempted objection out of order, but that reason (i.e., the absence of an action against which a commissioner could lodge an objection) was not discussed during the Assembly’s deliberations.

[3] I humbly request that readers would note that I am not suggesting that any of the PCA’s General Assembly moderators have been anything other than impartial.

Matt Fender is a PCA Ruling Elder serving on the session of All Saints Presbyterian Church in Richmond, VA.

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