Sunday, February 19, 2006

Ignore the Constitution at great peril

Let me tell you a true story.

An Indiana church was founded by a pastor, and then the pastor’s son eventually became co-pastor. The church so appreciated the two that they wrote into an employment agreement that they would continue to pay them salaries after retirement, as a form of pension. Then, they further solidified that agreement by writing an even more generous pension agreement into the bylaws of the church.

The pastors fell out of grace—the son by having a questionable relationship with a female parishioner and then divorcing his wife, the father by coming out of retirement to start another church close-by, taking most of the staff and leadership and about half of the members of the original church. Badly crippled and disgusted with their former pastors, the first church quit paying their pensions.

Father and son had the audacity to bring suit, saying that they still ought to have the monthly salary from the first church as pensions due to them according to the bylaws of the church. The church, struggling financially by the church split, didn’t have the $17,000 per month to give to the fallen pastors no longer serving the church.

What happened in court? Because the pension agreement had been written into the bylaws of the church, the court ruled that the church owed $732,000 back pension payments to the pastors, plus $17,000 a month for the rest of the pastors’ lives! Obviously, this illustrates that it is a bad idea not to follow the church’s constitution. (See Calvary Temple Church v. Paino, 827 N.E.2d 125 (Ind. App. 2005).)

Why am I telling you this church horror story that should send you to take a good look at your congregation’s constitution and bylaws? Because the courts take very seriously what is written in a nonprofit corporation’s governing documents—for Presbyterians, our Book of Order.

Attorney and CPA Richard Hammar is the author of Pastor, Church & Law, considered the “bible” of church legal advice, and is senior editor of Church Law and Tax Report. He is hailed by many as the nation’s top authority on church legal matters. Commenting on this case in Church Law and Tax Report, Hammer noted this relationship between church documents:

A charter is the state-approved articles of incorporation of an incorporated church. Most rules of internal church administration are contained in a constitution or bylaws. Specific and temporary matters often are addressed in resolutions. If a conflict develops among these documents, the order of priority generally is as follows—charter, constitution, bylaws, and resolutions.

Okay, so what am I getting at?

The recommendations in the report of the Theological Task Force on Peace, Unity, and Purity of the Church contain Recommendation #5. This recommendation would fall under the term “resolution” in the hierarchy Hammar describes above. An Authoritative Interpretation is not part of the charter, constitution, or bylaws of the Presbyterian Church (U.S.A.). It is a resolution passed by a single General Assembly—the document with the least weight.

Recommendation #5, if approved, would thoroughly nullify the force of the Constitution, turning the “shall not” language of the Constitution into a relative “shall not unless local ordaining bodies would rather do otherwise.” (See a series of articles by attorney and elder William A. Bradford, where this case is made quite thoroughly.)

Okay, if a resolution such as Recommendation #5 is found to contradict the Book of Order, guess which document secular courts would hold up as authoritative—the Constitution or the Authoritative Interpretation? The secular courts would say that as a matter of law, the Constitution would have precedence.

The church in Indiana found that out the hard way. They’d made a resolution that the church was trying to argue was operative. The court said, in effect, “Not so fast! Your constitution is what counts.” Wouldn’t the PCUSA be making the same mistake as the Indiana church, if it were to ignore the plain meaning of its Constitution and follow willy nilly the contradictory wording of the proposed new Authoritative Interpretation?

A church ignores or contradicts its constitution at great peril. Ask the church in Indiana how it will come up with hundreds and hundreds of thousands of dollars for its erring pastors. We Presbyterians dare not break our Constitution in a fumble-fingered attempt to adjust it. Commissioners to General Assembly must not approve Recommendation #5 from the Theological Task Force.


Anonymous Anonymous said...

I have this question though: Who can stop us from passing this form (PUP #5)of institutional suicide?

You raise important concerns for us all to consider, but in this current administration and climate, where are the voices of dissent in our church government.

Are you not a "voice in the wilderness" on these issues? Are they even listening in Louisville?

The WCC apostasy mess is just one more example of this utter cluelessness at our highest levels.

Again---who can stop this train wreck?

8:53 AM, February 22, 2006  
Blogger Rob said...

For my part, maybe I'm foolish, but I'm pinning my hopes on GA PJC, which it seems to me has shown itself willing in the past to put the constitution above desired political outcomes. I think GA will pass this, it will be challenged, and the constitutionally proper outcome will be for GA PJC to throw it out--and I'm cautiously optimistic that they will do as they should.

1:10 PM, February 22, 2006  
Blogger Jim said...

To Classical Presbyterian:

Take heart. Roadblock after roadblock is showing up in the path of what once looked like a Task Force juggernaut racing toward Birmingham in June.

Several overtures--some from middle-of-the-road presbyteries--have been approved and will be standing in the way of the Task Force report at G.A. More are coming. Article after article to explain and interpret the report is being written. People are taking a close look and not liking what they see.

There are folks who actually seek the ordination of practicing homosexual persons but are conscientious church leaders who would NOT want to see our polity so radically wrecked as Recommendation #5 would do. They will oppose that recommendation, too, out of a sense of Presbyterian integrity.

It will be increasingly hard for the approval train to steam down the tracks to Birmingham if it has to stop and let people out to remove another pile of logs every few feet. I would encourage those who have read and understood the negative consequences of the report to pile on the log jams!

Approval of the report as it is written is in no way inevitable. Let's not treat it as a done deal.

Jim Berkley

8:55 PM, February 22, 2006  
Anonymous Anonymous said...

Thanks for that Jim!

I often sound a bit like a pre-millenialist pessimist these days, I guess...

I just hope that what we DON'T see this summer is the kind of thing that Rob predicted above---some unfaithful vote that is overturned on a technicality. I want to win big, or lose big!

But then again, I am from Texas!

12:36 PM, February 23, 2006  
Blogger Rob said...

Well, it wouldn't be on a technicality, unless being grossly unconstitutional qualifies as a technicality. And Jim might well be right--I certainly hope he is, and he has good reason; I've been impressed with the tidal wave of arguments building against R-5. It's just that when I look at GA, what I see is a rotating body that tends to do what the non-rotating staff want it to do. If Cliff Kirkpatrick et al. were to be convinced that R-5 will cause more problems than it solves, I'd be confident of winning this one, but I don't see that happening.

That said, I don't think my projected outcome is at all a bad one, because it would establish the principle that GA can't try to amend the constitution via AI--and I think that's something which badly needs to be established. (I wonder if there would be any way to produce an overture to that effect . . .)

8:57 AM, February 27, 2006  

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