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A majority of the presbyteries of the Presbyterian Church (U.S.A.) have now approved Amendment B, the so-called fidelity and chastity amendment, which prohibits ordination and installation of persons who (a) have engaged in any practice which "the confessions call sin," (b) acknowledge such conduct to themselves, and (c) refuse to repent thereof. It is readily apparent that this wording includes a great deal more than sexual sin, although the Amendment has been sold to a misinformed constituency as (sub silentio) "solving" the "problem" of gay and lesbian ordination.
No doubt concerned about the potential backlash of Amendment B, the Stated Clerk of the Presbyterian Church (U.S.A.) has published a list of 13 questions about the Amendment, together with his answers. The legal problems with the Amendment will not go away, however, despite the Stated Clerk's best efforts. These problems relate to ambiguous wording, inconsistency with major themes of the Book of Order, and misuse of the confessions as "law" rather than as guidance. Moreover, the Stated Clerk's "Polity Reflection" fails to grapple with the problem of the enormous scope of Amendment B.
Candidly, the best way to sink this Amendment is to insist that it be enforced to its fullest extent, which will bring the process of ordination and installation of ministers and elders to a standstill. There is no honest person in the Presbyterian Church (U.S.A.) who has not engaged in at least one of the practices called "sin" in the Book of Confessions, nor is there any honest person who can say that he or she repents of all such conduct.
So what does the Amendment really say, and how does that compare with the Stated Clerk's advice?
1. Practices Called "Sin"
The Stated Clerk's "Polity Reflection" skirts this issue entirely. The Amendment's plain wording prohibits ordination and installation of persons who acknowledge that they have engaged in "practice[s] which the confessions call sin" and do not repent thereof.
My guess is that the drafters of Amendment B did not mean to initiate an inquiry into non-sexual sins. I think they were saying something like: "by the way, our rule is good because it is supported by the various confessions of our Church [which we have not read in any detail, but trust us]." While they were focused on, or obsessed by, sexual sin, their Amendment must be interpreted on the basis of its plain meaning under proper standards of statutory interpretation. The general rule is that a statute must be interpreted in accordance with the plain meaning of its words, and evidence outside the statute (such as the drafters' intent) may only be adduced if there is ambiguity on the face of the statute. As statutes go, Amendment B is quite clear.
No one explained to the presbyters who supported this legislation that they were adopting an omnibus sin amendment. Depending on punctuation, and how many practices are lumped together, the Book of Confessions calls 225 to 300 or more practices (many multiple and some duplicative) "sin." These range across an entire spectrum from truly serious conduct, like murder, to acts which are now in general practice among Christians ("needless works, words, and thoughts about our worldly employments and recreations" on the Lord's Day), to conduct the exact nature of which is not clear ("bold and curious searchings into God's secrets").
Most of the hundreds of practices which are called "sins" in our Book of Confessions are actually discussed in the various catechisms. It is not clear whether or not the drafters of the Amendment intended to incorporate all of these sins into the ordination process as well. However, I would guess that the reference is meant to be to the entire Book of Confessions, and not only to the texts therein which are specifically called "confessions."
In fact, only one document called a "confession" in our Book of Confessions calls any practices "sin." This is the Scots Confession, adopted by the Scottish parliament in 1560. Omitting duplications, there are 28 practices called sin, in addition to the "original sin" of separation from God, of which we all are guilty. Interestingly, this confession prohibits only adultery (sexual intercourse by or with a married person), but not same-sex relationships or fornication. Several of these practices may present a problem to a modern Christian seeking ordination or installation, such as the confession's prohibition of disobeying or resisting any whom God has placed in authority, so long as they do not exceed the bounds of their office, or its prohibition of works which have no other warrant than the invention and opinion of man.
What began as an endeavor to prevent ordination of gays and lesbians has become a nightmare of legalism. On the other hand, if in its present form it is used only against gays and lesbians, it should fall to an argument of discriminatory enforcement. The drafters' intent is deplorable, but their overreaching product is both bad theology and bad legislation.
2. "Self-Acknowledged Practice"
There is a Titanic-sized loophole in Overture B, which requires that the sin of a candidate for ordination or installation be "self-acknowledged." It is fairly preposterous to disqualify only those who are honest and not in denial, but this seems to me to be the plain meaning of the Amendment. The Stated Clerk's office has toyed with the idea that this phrase means "intentional" (see The Presbyterian Outlook, December 2-9, 1996, p. 6), an argument which is in the "nice try" category from a legal viewpoint. His latest interpretation is that even if the practice is not self-acknowledged, if it becomes known it can be considered by a committee on ministry or session. To the contrary, the Amendment seems to apply only to those who admit their "guilt." It is difficult to think that a fair minded permanent judicial commission would enforce legislation so clearly flawed in its concept.
A self-acknowledged sinner must repent in order to be ordained or installed, says Amendment B. How is the quality and sincerity of this repentance to be tested? Can one sincerely repent, for example, of sexual expression that arises out of love and is in accord with one's nature? Can a cat repent of being a cat? Perhaps we need to institute a regimen of acts which outwardly signify repentance, and put a Jesuit in charge of this function in each presbytery. Of course, some of us might think that the quality of and necessity for repentance is judged by God, rather than the presbytery.
Regrettably, neither Amendment B nor the Stated Clerk addresses the issue of call. Amendment B comes into play only after a nominating committee has made an initial determination that a person is called by God to be a minister, deacon, or elder. If, as I believe, God calls us to service the way God called Isaiah, I would be very hesitant to second-guess that call. In Isaiah 6:8, the young Isaiah is called by God as he responds to God's broadly directed question, "Whom shall I send, and who will go for us?" I find it difficult to believe that God does not call persons who are in violation of Amendment B.
Neither Amendment B nor the Stated Clerk's reflection mentions Jesus Christ and the covenant of grace which he established. "Jesus is Lord" is our earliest confession. The clear message of Jesus' teachings is that we are saved by our faith, not by conformity to law, and that God is graciously pleased to save all who will confess their faith that Jesus is Lord, the Son of God. The Gospels have a message of acceptance that should have given our neo-pharisees pause: "Indeed, God did not send the Son into the world to condemn the world, but in order that the world might be saved through him." (John 3:17, NRSV)
In his answer to Question 10, the Stated Clerk opines that Amendment B cannot be found "unconstitutional." With respect, I think this cannot be a correct answer. It is entirely possible that Amendment B is invalid on its face because it violates the historic principles of church order set forth in the Book of Order, particularly the "right of judgment" announced by G-1.0301 and the protection of different theological viewpoints stated in G-1.0305. It seems that any attempt to change these basic principles of church order would need to be overt, and that conforming amendments in the following parts of the Book of Order, among others, which are radically at odds with Amendment B, would need to be adopted.
"It belongs to Christ alone to rule, to teach, to call . . ."
In affirming with the earliest Christians that Jesus is Lord, the Church confesses that he is its hope and that the Church, as Christ's body, is bound to his authority and thus free to live in the lively, joyous reality of the grace of God."
"God alone is lord of the conscience . . ."
"the duty both of private Christians and societies to exercise mutual forbearance toward each other" where there are sincere differences of views.
Authority of church officers comes from Scripture, "yet the exercise of this authority, in any particular society, is in that society."
"These confessional statements are subordinate standards in the church, subject to the authority of Jesus Christ, the Word of God, as the Scriptures bear witness to him."
These and other passages of the Book of Order are fundamentally inconsistent with the thrust of Amendment B. While the Stated Clerk seems to say that a provision is "constitutional" if the presbyteries adopt it, this is a British, rather than an American, understanding of constitutional law, and ought not to prevail in our church courts, when there are fundamental differences between a newly-adopted provision and other, long-standing provisions of our Constitution.
Presbyterians have not historically viewed the confessions as "law." Those of us who have been ordained have undertaken to be "guided" by the confessions, but not to "obey" them. Indeed, even that titan of confessions, the Westminster Confession, acknowledges that there is the possibility of error:
All synods or councils since the apostles' time, whether general or particular, may err, and many have erred; therefore they are not to be made the rule of faith or practice, but to be used as a help in both. (Book of Confessions 6.175.)
Amendment B errs in ascribing to the confessions a legalistic authority they do not have or claim. It is so far from the Reformed view of the authority of the confessions that one wonders if that fact alone would not give a court of our church pause in any enforcement effort.
Those opposed to Amendment B ought not to abandon the theological higher ground. The "authority of scripture" argument has been used in the past to deny ordination of women and to justify slavery and racial discrimination. I do not read the Scriptures as mandating the result enjoined by Amendment B. Rather, I read the Scriptures as condemning Amendment B. In my judgment, Amendment B is flawed because it ignores the saving grace of Jesus Christ, forces on me a theologically suspect, pharisaic interpretation of the Bible and the confessions, and seeks to impose man's judgment over God's in the matter of calling to office. I sincerely doubt that faithful same-sex relations are sinful. In contrast, it does seem to me sinful to deny what God has made and to evade Christ's call to love our neighbors as ourselves.
I encourage anyone who is charged (or expects to be charged) with an offense under Amendment B, or any lawyer retained to represent such a person, to be in touch. I will try to maintain a clearinghouse of information on the legal arguments and strategies in opposition to Amendment B. Obviously, it would be unwise to provide advance notice of these strategies as part of this Hesed Home Page, although I do believe that general discussion of the legal issues raised by Amendment B should properly appear here. Please contact me as follows:
Frank B. Baldwin, III is a lawyer admitted to practice in Pennsylvania and California and an Elder at the Bryn Mawr Presbyterian Church, Bryn Mawr, Pennsylvania. He also serves as legal counsel to the Presbytery of Philadelphia, but nothing in this article should be construed as representing the legal position of that presbytery on Amendment B.
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