Constraining Choice of Counsel Contravenes Christ

By Daniel Thornton | June 12, 2023

Image: Public Domain

Please note that the Editorial Board of Presbyterian Polity does not necessarily endorse all views expressed on the blog of this site, but the editors are pleased to present well-crafted position papers on issues facing Presbyterian churches and denominations. What follows is one such paper for our readers’ consideration. ~ The Editors

Pending before the 50th General Assembly of the Presbyterian Church in America (PCA) are two proposals — Overtures 10 and 14 — that would cripple practicing attorneys’ ability to serve as counsel in cases of process. In a recent post on this site, my fellow attorney (and PCA Ruling Elder) Matt Fender raised a number of excellent points against these Overtures and in favor of a broader choice of counsel. I write to echo RE Fender’s well-reasoned arguments and to further illustrate through civil and constitutional examples the problems inherent in these Overtures.

In the civil context, courts of law generally avoid — as they should — interfering in the internal affairs of churches and other voluntary organizations. At the same time, where such an organization imposes on a member’s rights in a fundamentally unfair manner, civil courts can and will intervene.

Let’s take my Presbytery’s State as an example. In deciding whether to intervene in such situations, the State of New Jersey courts ask two questions: “(1) does the [member] have an interest sufficient to warrant judicial action, and (2) has that interest been subjected to an unjustifiable interference by the [organization]?” (Rutledge v. Gulian, 93 N.J. 113, 118 [1983]). A court can find “unjustifiable interference” where an organization has failed to follow its own procedures, or where those procedures are not fundamentally fair (fundamental fairness being a rarely-applied constitutional doctrine to backstop fundamental rights where other doctrines do not do so). For example, see Rutledge v. Gulian at 121. In other words, a civil court can review whether an ecclesial court followed its own procedures and treated the accused member with fundamental fairness.

In the ecclesial context, the New Jersey Supreme Court has long acknowledged its lack of jurisdiction over “spiritual matters or church doctrine” (Baugh v. Thomas, 56 N.J. 203, 207-08 [1970]). At the same time, the Court has asserted jurisdiction over the question of “whether established procedures of a religious organization, as proved, have been followed where a member is expelled from that organization,” recognizing that “expulsion from a church or other religious organization can constitute a serious emotional deprivation which, when compared to some losses of property or contract rights, can be far more damaging to an individual” (Id. at 208). As the Supreme Court of New Jersey further observed, “[t]he loss of the opportunity to worship in familiar surroundings is a valuable right which deserves the protection of the law where no constitutional barrier exists” (Id.).

Turning back to the proposals at hand, Overtures 10 and 14 threaten to subject our ecclesial courts to civil courts’ review and reversal. How so? These Overtures kick against the constitutional goads, in particular the fundamental right to counsel set forth in the Sixth Amendment to the United States Constitution:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

By its terms, this Amendment strictly applies only to criminal proceedings, but civil courts have extended it to various civil contexts where defendants face consequences of magnitude. This right to counsel implies and includes the right to free choice of counsel — otherwise it would be meaningless. By encroaching on members’ free choice of counsel, and by doing so in a way that will prevent competent professional attorneys from serving as counsel in church courts and ecclesiastical trials, Overtures 10 and 14 contravene the principles set forth in the Sixth Amendment and would open the door to greater civil judicial review of church courts’ procedures and outcomes.

Beyond the legal liabilities outlined above, there are far more significant spiritual considerations at play. After all, we all need counsel. Throughout Scripture, both the Spirit and the Son serve in this role. The Spirit intercedes for us, speaking on our behalf where we cannot speak for ourselves: “Likewise the Spirit helps us in our weakness. For we do not know what to pray for as we ought, but the Spirit himself intercedes for us with groanings too deep for words” (Rom. 8:26). Christ is the first and greatest attorney, intermediating on our behalf in the case of God v. Man: “For there is one God, and there is one mediator between God and men, the man Christ Jesus” (1 Tim. 2:5).

Let me conclude with one more civil example drawn from beyond the American context. As aptly summarized by the Wall Street Journal, the Chinese Communist Party (CCP) prevented Hong Kong publisher Jimmy Lai from utilizing his chosen counsel:

Now comes the delay in his national security trial—the result of the Hong Kong government’s determination to fight Mr. Lai’s hiring of a British lawyer, King’s Counsel Timothy Owen, to represent him. Although it’s been standard practice for lawyers from common-law jurisdictions to practice in Hong Kong, the government now wants to prevent this in national security cases. Apparently it’s not enough that Mr. Lai’s trial will feature three national security judges instead of a jury.

But the Hong Kong government lost its bid to keep Mr. Owen out of court, then lost again on appeal, then lost again at the Court of Final Appeal. Rather than accept the decision of its own courts, Hong Kong then asked the Standing Committee of the National People’s Congress in Beijing to overrule Hong Kong courts.

All of which brings us to the question presented by these Overtures:

Does the PCA really want to resemble the CCP at this point?

Daniel Thornton is a PCA Communing Member serving as Music Leader at Covenant Presbyterian Church (PCA) in Cherry Hill, NJ. In his civil vocation, he practices law with Jackson Lewis in Philadelphia, PA.  The views expressed herein are his own.