These overtures have the outrageous practical effect of chilling the participation in ecclesiastical proceedings of PCA officers who happen to be lawyers, serving the very courts in which they are members and in the very type of matters for which they are specially gifted and trained.  This proposal is not only prejudicial to such brothers, but also detrimental to the Church. 
“The first thing we do, let’s kill all the lawyers.” Shakespeare’s line from Henry VI has passed through the lips of generations, and perhaps the disdain for lawyers is well deserved, but most people like having an advocate when they are in trouble, and that includes in ecclesiastical cases.  In The Gulag Archipelago, Aleksander Solzhenitsyn said that having a lawyer “means having beside you in the most difficult moment of your life a clear-minded ally who knows the law.” I think that is a satisfactory practical definition of a lawyer, whatever the context, and in the interest of full disclosure, I confess that I am a lawyer myself.
This year two overtures have been presented to the PCA General Assembly proposing amendments that seek to limit lawyers from representing parties in ecclesiastical proceedings: Overture 10 from Northern New England Presbytery (O10) and Overture 14 from Northern California Presbytery (O14). Both proposals suggest changes to BCO 32-19, which presently reads:
No professional counsel shall be permitted as such to appear and plead in cases of process in any court; but an accused person may, if he desires it, be represented before the Session by any communing member of the same particular church, or before any other court, by any member of that court.  A member of the court so employed shall not be allowed to sit in judgment in the case. 
The new proposal would substitute, in part, the following for the above:
In cases before any church court, no professional representative (attorney admitted to the bar or employee of a law firm) shall be permitted to appear on behalf of any party, assist with oral or written arguments, or engage in communications regarding the case, when
i. the representative is functioning in an attorney/client relationship; orii. the representative is remunerated in any form, including, but not limited to, fees, billings, reimbursement, or other non-monetary compensation; oriii. the representative is engaged as a “pro bono” case; oriv. the representative is otherwise utilizing corporate resources.
This article humbly suggests that we should keep this provision as it is.
Why the Current Prohibition Against “Professional Counsel” is Sufficient
Of course, licensed civil attorneys have operated in our Presbyterian Church courts both as advocates and as judges for generations, and this although for about 165 years there has been a prohibition of “professional counsel” in our ecclesiastical proceedings.  As best as I can tell this prohibition first emerged in 1821:
No professional counsel shall be permitted to appear and plead in cases of process in our ecclesiastical courts.  But if an accused person feel unable to represent and plead his cause to advantage, he may request any minister or elder, belonging to the judicatory before which he appears, to prepare and exhibit his cause as he may judge proper.  But the minister or elder engaged shall not be allowed, after pleading the cause of the accused, to sit in judgment as a member of the judicatory. ROD Chapter 4, Sec XXI: The Constitution of the Presbyterian Church in the United States of America. (1821), page 399.
This longstanding ban on “professional counsel” has never targeted attorneys as such up to now.  The phrase “professional counsel,” after all, might be broad enough to include any person, whether licensed to practice law or not.  But proposed O10 and O14 would abandon the current phrase “professional counsel” in favor of the phrase “professional representative,” specifically defined as “attorney admitted to the bar or employee of a law firm,” removing any doubt that lawyers particularly (and people who happen to work for them) are the distinct class of persons in view.
Is there something wrong with the phrase “professional counsel?”  I admit that the phrase may be criticized as vague.  Surely our longstanding prohibition against “professional counsel,” has presumably not meant that only unprofessional counsel is permitted. Our Constitution prescribes no specific definition of “professional counsel,” although apparently in 1999, the Committee on Constitutional Business (CCB) was asked by the Stated Clerk:
Does BCO 32-19 forbid parties in cases on appeal or complaints taken to a higher court to secure the professional services of attorneys (either members of the PCA or not members of the PCA) to prepare their appeal or complaint, prepare briefs, and handle correspondence and communications with an ecclesiastical court or its clerk?
The answer provided by CCB was as follows:
Yes BCO 32-19 forbids professional counsel from formal involvement (that is, acting in an attorney/client relationship) in cases of process in the courts of the church. Parties in such cases may, of course, seek help anywhere they can find it, but the parties should not be “represented” by professional counsel “as such” in any case, including correspondence about the case  (M27GA, page 148).
But alas, the Rules of Assembly Operation 8-2(b) prescribe that the CCB shall “function as advisor to the Stated Clerk when requested by him” and “such advice shall be for information only and without binding authority.”
I would propose that the exclusion of “professional counsel” does not prohibit financial compensation or other remuneration as such — the present rule does not mention financial remuneration — but rather prohibits a class of persons effectively functioning as a settled professional cadre of “ecclesiastical lawyers” operating in our church courts, persons who are not themselves members of those courts, but non-members authorized to function as advocates or representatives within the courts of the Church.   This is in direct contrast to the courts of the Roman Catholic Church in the medieval era where a professional class of ecclesiastical lawyers operated, men who made an art and a living out of mastering ecclesiastical law and procedure as a field of endeavor.  See, The Profession of Ecclesiastical Lawyers: An Historical Introduction, R.H. Hemholz (Cambridge University Press, 2019).   In this way, the Presbyterian judicial system was fundamentally different from the court polity in the Roman Catholic system.
In Presbyterian polity, as reflected from the 1821 amendment to the present day, a qualified representative for a party must, generally speaking, be a volunteer member of the church court before whom the case is to be heard.  In taking up the role of representative the court member agrees to relinquish his right to vote in the court’s proceedings for the sake of assisting an accused who may have difficulty representing himself. The one exception is that any member of a local church may represent another member in proceedings before their church Session, presumably for the very practical reason that some church Sessions are not large enough to spare one of its members to represent the accused.
Unlike the Presbyterian system, the lawyer representatives operating in the medieval Roman Catholic ecclesiastical courts were not members of the courts in which they served. They were trained professionals and outsiders who served as legal counsel licensed to operate in those courts.
Ordained church officers, whether Ruling or Teaching Elders, who thus serve in Presbyterian courts are not “professional counsel.”  They are members of the very court called to adjudicate the charge or dispute and, but for relinquishing their right to vote in the matter by virtue of the representation, would otherwise be entitled to participate in the decision on the case.  In judicial proceedings before a Session, a fellow church member may appear as non-professional counsel in analogous fashion.  The fellow member representative in that case is not a member of the court in question, but like the officers described above, is similarly a volunteer, is subject to the jurisdiction of and accountable to the Session that will hear the case and is not a person who is generally licensed as an advocate to appear regularly before other courts of the PCA. These features represent the essence of persons who are not “professional counsel.”  Thus, under the PCA’s current system, it is generally expected that court members will serve the needs of the court and the parties as members of the court (rather than as professionals), excluding the need for hired outsiders.
Therefore, the notion of “professional counsel” under our present system is not fundamentally guided by the presence (or absence) of remuneration as has been supposed.  The prohibition of “professional counsel” is chiefly the prohibition of persons serving as a regular class of representatives who are not members of and are therefore not subject to the qualifications, requirements, jurisdiction, and discipline of the church courts before whom they appear.
I would add that it is unlikely that such members of ecclesiastical courts, being Ruling and Teaching Elders who already volunteer their services to that court, will make a practice of developing and imposing fee schedules and rate systems for their services in ecclesiastical judicial cases, and as far as I know, such has not been the case.  Most officers of the PCA do not serve the ecclesiastical courts for pecuniary gain, and most presbyteries don’t have enough judicial business to justify such a “practice” in economic terms anyway.  In fact, the greatest likelihood for an economically justifiable ecclesiastical practice is at the General Assembly level because of the higher volume of cases produced in that court, but even this is not likely to be profitable enough to foster a “professional practice” if “professional” is understood as persons who yield a viable financial profit out of the work.
Current BCO 32-19 is sufficient as it stands today, prescribing as it does that advocates must be members of the courts before whom they appear and are therefore elders of the PCA, an office “of dignity and usefulness,” men who are responsible to “be spiritually fruitful, dignified, and prudent, an example to the flock, and to govern well in the house and Kingdom of Christ.”   (BCO 8-1).  Such men, as members of our judicatories, do not pose any inherent risk to our ecclesiastical judicial system when they function as advocates, whether they be lawyers, doctors, architects, engineers, contractors, plumbers, or even pastors.  If we need special rules to exclude from advocacy some category or another of such persons ordained to service in Christ’s Church, then we have lost already.  Such men are not “professional counsel.”  They are servants of the courts in which they function.  Thus, O10 and O14 seek to “fix” a problem that is not there, and for the reasons set out below, will create new sets of problems.
What Kind of Cases?
Current BCO 32-19 prohibits “professional counsel as such to appear and plead in cases of process in any court.”  O10 and O14 propose to drop the phrase “cases of process” in favor of the broader description “cases.”  In fact, our Rules of Discipline permit a variety of classes of “cases” that may arise for consideration by our church courts: (1) “Cases of Process,” which are governed by BCO Chapters 27-37 and involve a charge, an accuser, and an accused; (2) “Cases Without Process” governed by BCO Chapter 38; (3) “Review and Control;” governed by BCO Chapter 40; (4) “References,” governed by BCO Chapter 41; (5) “Appeals,” governed by BCO Chapter 42; (6) and “Complaints,” governed by Chapter 43.  The new formulation of the proposed overtures to govern “cases” rather than merely “cases of process,” would seem to spread the net of the new attorney regulations over every species of our ecclesiastical proceedings.  One may reasonably question whether this broadened scope is truly intended or even wise.
BCO 43-5 specifically permits a complainant in complaint proceedings to either represent himself “or he may obtain the assistance of a communing member of the Presbyterian Church in America, who is in good standing, in presenting his complaint.”  The proposed amendment would prohibit attorneys and their employees (but no one else) from acting as such assistants under the prescribed regulations even if they are members in good standing of the PCA.  Inexplicably, it appears that the proposed change would not in any way prohibit or regulate the “remuneration” or “corporate resources” of such assistants who are not “attorneys admitted to the bar” or who do not work for attorneys.
The Prohibition of “Functioning in an Attorney/Client Relationship” is Unworkable
Both overtures prohibit lawyers and their employees from serving when they are “functioning in an attorney/client relationship.”  But, formally speaking, employees of a law firm who are not lawyers never function in an “attorney/client relationship” because they are not attorneys.  Moreover, whenever a lawyer (or a non-lawyer employee) is representing someone in an ecclesiastical case he is, by definition, not “functioning in an attorney/client relationship” because no license to practice law is required to represent a person in an ecclesiastical case, and representing or assisting a person in an ecclesiastical case is, by definition, not the practice of law.  Therefore, by definition, a lawyer is not “functioning in an attorney/client relationship” when he is representing a person in an ecclesiastical matter.  This yields the underwhelming result that, on their face, this aspect of the proposed overtures regulates nothing at all.
On the other hand, if what is intended is to prohibit, for example, a Ruling Elder lawyer who has ever had (or currently has) an “attorney/client” relationship with the party he represents in an ecclesiastical case (e.g., he prepared or is preparing his pastor’s estate plan and therefore has an “attorney/client relationship” with him), then this rule is simply misguided.  Why should a Ruling Elder lawyer be prohibited from representing his pastor in an ecclesiastical case because he made a will or performed some other legal work for him?  Such a rule is manifestly unfair, unreasonable, and prejudicial.
And what if a lawyer Session member were representing his pastor in a criminal sexual assault case arising from allegations by a church member?  By what biblical principle should the same elder lawyer be prohibited from “appearing on behalf of,” “assisting with oral or written arguments,” or “engaging in communications regarding the case” of his pastor’s parallel ecclesiastical proceedings merely because the elder lawyer has an “attorney/client relationship” with his pastor?  Indeed, the actions of an incompetent non-lawyer representative in the ecclesiastical proceedings could lead the pastor into criminal legal jeopardy in the secular courts, even when he was in fact innocent of the charges.
The Prohibition Against the Representative Being “Remunerated in Any Form, Including, But Not Limited to, Fees, Billings, Reimbursement, or Other Non-monetary Compensation” is Unworkable. 
I see no biblically based principle supporting why such compensation should be prohibited.
If the accused buys his representative (lawyer or otherwise) dinner or gives him a Starbucks gift card for his efforts, is that prohibited?  How about if the accused lets the representative and his wife stay for a week in his condominium at the beach?
What if the attorney elder representative was temporarily impoverished (because he had to give up his livelihood to help in the ecclesiastical proceedings), so the accused let the representative and his family live in his house with him?  Are we to suppose that the representative should be disqualified under such circumstances because he is being “remunerated in any form” with “non-monetary compensation?”
If the accused pays his representative money or other compensation, is that immoral?  By what biblical principle?
Do Teaching Elders who are not attorneys effectively get a “free pass” to be paid representatives compensated (as they are) as professional church officers so that arguably all the duties they undertake for the church, whether locally, in their presbytery or in the General Assembly — including their work in ecclesiastical judicial cases — are by definition part of their paid work?  Why is compensation for some ecclesiastical work — like that of the pastor – laudable, but compensation for judicial ecclesiastical work so dangerous and reprehensible that it must be prohibited?  And if so, how can we ever allow any paid Teaching Elder to serve in a judicial matter because, by the strange apparent logic at hand, he is merely beholden to his paying constituency and is collecting unseemly mammon for his ecclesiastical work in a judicial case? For example, if an accused wants his pastor to represent him in his ecclesiastical case, how could it possibly be said that the accused is not remunerating the pastor “in any form?”  Must the accused suspend paying his tithe during the case? And by what defensible principle should the sums the accused has already paid as a tithe, and which were used for his minister’s salary be exempt from consideration as a form of “remuneration?”
What is the biblical justification for the prohibition of remuneration “of any kind?”  Not only is this proposal not reasonably policeable, but it would also be indefensible to suggest that favors “in any form” cannot be given to a representative.  It runs contrary to the most basic principles of fairness to suppose that all remuneration “of any kind” is prohibited and is not supported by any apparent Scriptural rule.
The Prohibition of a Representative Being Engaged in a “Pro Bono” Case is Unworkable.  
First, why would we even care if the case was truly a “pro bono” case?  That just means the lawyer is getting no remuneration and is serving the “public good.” What therefore would be the justification for the prohibition?
Secondly, while I have not studied the matter, I doubt that lawyer pro bono hours can necessarily be fulfilled by serving in an ecclesiastical case, since serving in an ecclesiastical case is not the practice of law, as noted above.
The Prohibition of the Representative “Otherwise Utilizing Corporate Resources” is Unworkable.
Incidentally, the adverb “otherwise” assumes that all the preceding proposed prohibitions are aspects of “corporatism,” but that is not evident in any way.  Neither being a lawyer nor being compensated for services has anything inherently to do with being a “corporation” or using “corporate resources.”  Indeed, corporations cannot be lawyers because corporate entities cannot obtain a license to practice law; only individuals can.
This prohibition seems to express nothing more than a reflexive aversion to “corporations,” whatever that might mean.  For example, if the representative’s law firm is a classic partnership (and therefore not a corporation) will that mean he can, with impunity, use all his business’s “resources?”
What if a lawyer representative forms a partnership (as opposed to a corporation) specifically for the purpose of taking on an ecclesiastical case?  Will that evade the limitation?  The partnership is not a “corporation” after all!
If the law firm is a “Professional Association” or a “Limited Liability Partnership or a “Limited Liability Company,” will that make it a “corporation” for purposes of this limitation?  Is a professional association composed of one lawyer (who barely makes enough income to pay his bills) prohibited from using his “corporate resources” in the ecclesiastical representation?  What if he had one partner?  Would that be prohibited?  Three partners?  Four?  At what point exactly does a lawyer’s business form become a “corporation” with “corporate resources?”  Is the one- or two-man firm prohibited from using his work computer to read an email about the case — that’s a “corporate resource” after all?  What if he uses an office pen or notepad to jot down a message or a provision of the Book of Church Order? He’s using “corporate resources!” What if the lawyer is working for a 150-attorney law firm?  Does the use of his “corporate” pen and legal pad make any substantial difference than if it was a firm of two lawyers?
And why should this prohibition be limited to lawyers?  If the representative is an accountant who works for a corporately formed accounting firm, are we to suppose that he can, with impunity, use his “corporate resources” to help demonstrate that his pastor is not guilty of embezzlement?  Or can a contractor who operates in the corporate form and wants to use the corporation’s copier or computer safely do so while representing a church member in an ecclesiastical case?  Under the instant proposals, only a lawyer or someone who works for a lawyer is prohibited to use “corporate resources.”  Strangely, accountants, contractors, and any other non-lawyer can use all the “corporate resources” they want under the proposals.
Perhaps most strikingly, pastor representatives are permitted under the proposals to use church copiers, computers, pens, or notebook paper even though we know most PCA churches are incorporated, and therefore every time that the pastor advocate works on the case from his church office, he is using a “corporate resource.”  A pastor’s use of his church’s “corporate resources” is, without further explanation, perfectly acceptable under the proposals if he is not an attorney.
Limiting Representatives to Any Communing Member of The Court of Original Jurisdiction is Ill Advised 
O10 states: “Representatives for either party shall be any communing member of the same particular church if before a Session, or before any other court, any communing member of the court of original jurisdiction…”
There is no sound reason to limit the representative to be a member of the court of “original jurisdiction” in a higher court.  That would mean, for example, that a man who was represented by an elder in his church before his Session would not be able to utilize a member of Presbytery on his appeal.  There is no reason for that limitation at all, and in fact it is prejudicial to the cause of fairness since the accused may need the assistance of a man who is more familiar with, competent, and respected by the Presbytery, and who better understands the Book of Church Order.  This rule would limit the representatives to men from the accused’s own Session, which in some churches might be a mere one or two men, perhaps even men who are not competent or familiar with the rules of ecclesiastical discipline. Furthermore, in some scenarios these men may be prejudiced against the accused, for perhaps they convicted him of the offense at issue in the first place, but now, by the unbending rule proposed, these same men that convicted the accused are the only men even qualified to represent him in the higher courts should the accused think the result they reached was unjust. This is not a reasonable procedure likely to produce the best results.
O14’s Proposal to Grant Discretion to Sessions to Request a Representative for the Accused from Its Presbytery is Ill Advised.  
O14 states: “If the Session judges that a party will not be well-served by representation from that body, the session may request a representative from its presbytery. The presbytery shall not approve such a representative without concurrence from both the party and the Session.”
Again, this appears well intended, but is probably not helpful for a couple of reasons: (1) it will cause delays  — Presbyteries meet infrequently and have a hard time doing anything quickly at the pace that a disciplinary case may need and (2) the member of Presbytery is not subject to the discipline of the Session, which for the reasons stated above is not a good situation because the Session cannot really control his conduct — he is not accountable to the Session for his conduct in the representation before that very court. Moreover, the fact that the “presbytery shall not approve such a representative without concurrence from both the party and the Session,” further demonstrates that this procedure risks consuming large amounts of time, leaving the case languishing for indefinite periods.
Parity of Representation
Perhaps one impetus for these overtures is the risk of disparity of representation between parties in cases, particularly trials in cases of process where one side is represented by an experienced lawyer litigator and the other is not.  However, the risk of disparity is not best solved by lowering standards reducing lawyer involvement but by raising them, both encouraging and incentivizing church courts and the parties in disputed matters to obtain the most skilled elders to manage the matter at hand.  In some cases, the best persons to serve the courts in their work will be Ruling Elders or Teaching Elders who happen to also have legal training.  And in those cases where there is a disparity of the quality of representation, whether with elders who are also lawyers or otherwise, we should presume our church courts, by God’s grace, will act with wisdom and integrity to discern the truth in matters coming before them, seeing past any apparent advantage or disadvantage posed by the skill level of one side or another in a case of process.  Disparity of the quality of representation is, after all, a risk in any proceeding, whether lawyers are involved or not.  We do not expect the elders serving as judges in our church courts to be hoodwinked by flashy advocacy, whether from lawyer representatives or others.  When the church courts adjudicate a case, we expect that they will remain impartial arbiters of the truth.  We also expect that the Ruling and Teaching Elder representatives, whether lawyers or otherwise, as members of such courts will advocate honorably, always subject of course to the discipline of the church courts in which they appear.  In the end, we trust in the Lord to help the church courts to see clearly and to deliberate carefully and fairly, and that the Lord will use the proceedings, however imperfect, to open the truth and preserve right judgment in His Church.
Conclusion
These proposals implicitly disfavor lawyers and favor non-lawyers as if lawyers are less qualified to serve or are suspect. The proposals make no effort to eliminate compensation or corporate resources from representatives who are not lawyers.  Indeed, it regulates only a “professional representative (attorney admitted to the bar or employee of a law firm),” thus limiting the very scope of regulation in the text to lawyers and lawyer employees.  These provisions are discriminatory on their face to brothers in Christ in the PCA who happen to be lawyers or who happen to work for them.
Many Presbyterian lawyers are officers in the Church of Jesus Christ, and such lawyers have long and well served the PCA.  Ruling Elder lawyers were both present and guided our denomination’s founding.  Such Ruling Elders serve their communities in an honorable profession and are competent to serve in ecclesiastical cases. They are as competent (sometimes more competent) and helpful to the cause of ecclesiastical discipline and the glory of Christ than many Teaching Elders and other officers who lack legal training and skills to present evidence and help make judicial proceedings efficient, fair, and comprehensible.  Our book should not single them out by profession for separate treatment.
These overtures have the outrageous practical effect of chilling the participation in ecclesiastical proceedings of PCA officers who happen to be lawyers, serving the very courts in which they are members and in the very type of matters for which they are specially gifted and trained.  This proposal is not only prejudicial to such brothers, but also detrimental to the Church.
For all these reasons, we should keep BCO 32-19 as it is.
Jim Eggert is a Ruling Elder in Westminster Presbyterian Church (PCA) in Brandon, Fla.
Related Posts:

Ecclesiastical cases are fundamentally intramural proceedings brought in and for the church.  The proposed changes seek to expand the jurisdiction of our ecclesiastical courts into an area that, under the framework of our historic polity, has been the province of the civil magistrate.  Expanding the jurisdiction of our ecclesiastical courts by accepting unbelievers as witnesses would undermine the principle that our church courts’ authority is solely moral and spiritual, not civil.  We should defer to the civil magistrate the adjudication of those matters that are especially suited to his jurisdictional powers in matters that turn on the testimony of persons who are neither Christians nor otherwise subject to the discipline of the church. 

Two overtures to the 2023 PCA General Assembly pertain to who can be a witness in ecclesiastical cases.  Changes are proposed to BCO 35-1 and BCO 35-7 of the Book of Church Order: Overture 2021-41 from Tennessee Valley Presbytery (carried over from last year) and Overture 2023-13 from Northern California Presbytery.
The current language of the Book of Church Order reads as follows:
35-1. All persons of proper age and intelligence are competent witnesses, except such as do not believe in the existence of God, or a future state of rewards and punishments. The accused party may be allowed, but shall not be compelled to testify; but the accuser shall be required to testify, on the demand of the accused. Either party has the right to challenge a witness whom he believes to be incompetent, and the court shall examine and decide upon his competency. It belongs to the court to judge the degree of credibility to be attached to all evidence.
The Tennessee Valley Overture proposes to eliminate the first sentence, thereby removing belief in the existence of God or a future state of rewards and punishments as a qualification to testify.  The Northern California Overture makes the same redaction but adds “All persons generally are competent to testify as witnesses.”  The Northern California Overture also adds that the court “shall give consideration to age, intelligence, belief in God, relationship to the parties involved, and other like factors in judging testimony.”
The current oath of witness provision (BCO 35-6) reads this way:
The oath or affirmation to a witness shall be administered by the Moderator in the following or like terms: Do you solemnly promise, in the presence of God, that you will declare the truth, the whole truth, and nothing but the truth, according to the best of your knowledge in the matter in which you are called to witness, as you shall answer it to the great Judge of the living and the dead? If, however, at any time a witness should present himself before a court, who for conscientious reasons prefers to swear or affirm in any other manner, he should be allowed to do so.
The Northern California proposal would retain the form of oath but adds that the witness may also swear or affirm “with other language” – like writing one’s own wedding vows — “provided such oath or affirmation impresses the solemnity of this duty upon the witness’s conscience.”
The proposed changes would remove belief in God and belief in heaven and hell as theological preconditions for witness eligibility in PCA judicial trials.  The new rule would presume that any and every person is eligible to testify in our ecclesiastical proceedings, the only relevant consideration being that person’s credibility. Such a witness’s belief in God or of a future state, it is proposed, is merely a “factor” in judging the reliability or trustworthiness of the witness’s testimony, not a precondition to the testimony being heard or considered at all.
At first blush this may seem like a reasonable change.  After all, isn’t witness credibility the most relevant consideration?  We should assume that the judges of our church courts are wise and competent to sort out truth from falsehood and assign that degree of credibility to any witness’s testimony that is appropriate under all the circumstances, whether the witness is a believer or not. Why should we refuse to hear someone at all just because he doesn’t “believe in the existence of God” or in heaven and hell?
Of course, the changes proposed should lead us to think carefully about why our Rules of Discipline have long maintained belief in God and in a future state of rewards and punishments as a precondition for witness eligibility.  I believe those reasons remain sound, and they argue against the present proposals.
Preserving The Function of Oaths
Oaths bear an honored place not only in our polity, but our theology.  WCF 22.2 tells us:
The name of God only is that by which men ought to swear, and therein it is to be used with all holy fear and reverence; therefore to swear vainly or rashly by that glorious and dreadful name, or to swear at all by any other thing, is sinful, and to be abhorred. Yet, as, in matters of weight and moment, an oath is warranted by the Word of God, under the New Testament, as well as under the Old, so a lawful oath, being imposed by lawful authority, in such matters ought to be taken.
Thus, not merely tradition but theological principle informs the conclusion that oaths ought to be taken “in matters of weight and moment” such as in testifying in ecclesiastical cases.  The theologian James Bannerman spoke of the oath as “the bond and seal of civil society,” a concept once commonly understood but that has gradually eroded from the national memory.   James Bannerman, The Church of Christ: A Treatise on the Nature, Powers, Ordinances, Discipline, and Government of the Christian Church (Edinburgh, 1868), Volume 1, page 137.  The oath is a “solemn appeal to God” Bannerman said, “as the present Witness of the truth, and the future Avenger of falsehood.”  (Page 140).
We remember that God took an oath to Abraham (Heb. 6:13-17), renewed His sworn promise to Moses (Dt. 1:8), and swore David an oath (Ps, 131).  We find that Israel was warned not to swear by the Lord’s name falsely (Lv. 19:12); an oath was used to determine the truth in cases where a witness’ veracity was all that could be relied upon (Nm. 5:16-28); Paul in Romans calls on God as “his witness” (Rm. 1:9 & 2 Cor 1:23); Paul took vows during his ministry (Acts 18:18).  John records his vision of an angel who swore an oath (Rev. 10:5-6).  Thus, the Bible repeatedly recognizes the appropriateness of oaths as solemn statements made in the presence of the Lord as witness, invoking as they do an increased liability for bearing false witness when solemnly invoking His presence in weighty matters of consideration.  The oath is grounded on the Divine Presence and Divine Righteousness.
However, we should recognize that the proposed change is mirroring a process of secularization that has eroded oath taking in the general culture.  I see no reason to disagree with the conviction of our presbyterian forebears that those who do not believe in the existence of God, or a future state of rewards and punishments are not competent witnesses in formal judicial proceedings.  After all, if the ecclesiastical courts will not insist on taking an oath in the presence of God, then who will? But a person who does believe in the existence of God cannot possibly take an oath that comports with our theological conception of them.
The secularization of oath taking took root in the national mind and civil law courts more than 100 years ago.  Thomas Rayburn White narrated this story in his Oaths in Judicial Proceedings And Their Effect Upon the Competency of Witnesses, The American Law Register, Volume 51 OS, 42 NS, July 1903, No. 7.  An evident twentieth century secularist, White declared it a “mystery” how Christian oaths became solemnized in English proceedings, ascribing the practice “to the spirit of intolerance which unfortunately seemed to dominate most religious people of early times,” and supposing that the Church, having come to dominate secular affairs, presumed “that all ‘heathen’ were wholly unfit to be believed.” .
Id. at 387. The idea that an atheist is ineligible to serve as a witness was instantiated in the common law of England:
The oath having become firmly incorporated into the machinery of the English courts, it was the theory of the common law that no witness ought to be allowed to give evidence unless he did so under the sanctity of an oath, which was thought to be the strongest possible guarantee of truth. It follows that if a man did not possess the necessary qualifications of an oath taker, heretofore mentioned, he would be excluded from the witness stand; that is, if he did not believe in a supernatural being who would, when called upon, witness the words spoken and punish a deviation from the truth. The only essential was that the witness should relate his evidence under the sanctity of a belief on his part in some superior power (no matter what) which was taking note of his words for the purposes mentioned.
Id. at 388-389.  The common law exclusion was later softened to allow “infidels” (atheists were still excluded) to testify.  Id.
In the civil arena fostered by historic Christendom it was first maintained that one must be a Christian to take an oath at all, and thus be eligible to participate in the judicial process.  Then, as the culture became more pluralistic, those who were not Christians but who still at least believed in a “Supreme Being” and a state of future rewards and punishments (like Jews and Muslims) were permitted to testify.  Eventually the significance of the oath, and the faith beliefs of the one who took it, disappeared altogether.  White represented for us the final step of full secularization when he said:
[A]n oath is avowedly but an imposition upon the ignorance or superstition of the witness. No intelligent man at this day pretends to believe that it is any greater sin to tell an untruth upon oath than upon affirmation —- it is the lie not the violation of the ceremony that is wicked. Page 436
That, of course, was more than a hundred years ago.  I fear the church is following the world slowly at a distance.   The instant overtures, as framed, propose a step toward secularization in our ecclesiastical courts by relinquishing the requirement of belief in the existence of God or hell in connection with taking an oath in ecclesiastical proceedings. If we adopt the proposal, we will be acceding to the logic of, and even imitating, our surrounding godless culture that has eviscerated the necessity of belief in God and the Final Judgment as a condition of witness eligibility.
Oaths as Gauges of Truth Telling
In our church courts the requirement of an oath is a way that we have historically assured ourselves that witnesses tell the truth in judicial proceedings.
Someone who does not believe in the existence of God or in a future state of rewards and punishment has no reason to have regard for the church’s ecclesiastical power when it comes to telling the truth in the church’s judicial proceedings.
The power of ecclesiastical courts is “exclusively spiritual” whereas the power of the state “includes the exercise of force.”  (BCO 3-4).  This disparity of remedy disadvantages church courts in incentivizing truth telling by witnesses in court proceedings.  Our ecclesiastical courts, lacking the “force” of secular courts, have no means to punish perjury in the way that the Civil Magistrate can. Lacking such power, our ecclesiastical courts have traditionally received only witnesses who believe in God, and therefore who at least exhibit the ground for a healthy fear of divine punishment for lying under oath.   Additionally, in the case of witnesses who are church members, the ecclesiastical courts possess the power of censuring them for bearing false witness, another assurance of and incentive to truth telling.
But neither of these incentives applies to those persons whom the new overtures propose to nominate as eligible to testify in ecclesiastical proceedings, namely persons who neither “believe in the existence of God” nor a “future state of rewards and punishments.”
Some might object that the oath is unreliable because believers and unbelievers alike can take oaths falsely, and we really have no means of measuring a person’s sincerity merely by virtue of their having taken an oath.
But taking this position would require us to renounce (or at least minimize) the place of oaths in our theological system as set out in WCF 22.2.  Believing in the theological propriety of oaths, our church courts rightly take assurance that a witness who has shown his or her willingness to invoke judgment upon his or her own head by taking the oath is more likely telling the truth.  Such a witness at least professes belief in the divine disapprobation of bearing false witness. By doing this our church courts both subscribe to and practice the important place of oaths in God’s government and in our theological system.  A witness’s willingness to invoke divine judgment on his or her head through an oath is really worth something to ecclesiastical courts, which is why it has long been a qualifier or a precondition to witness eligibility or competence to testify.
The adoption of the present proposal to allow a person who does not “believe in the existence of God” to take our oath will necessarily require a dilution of our theology and integrity of oaths together with the corresponding idea of witness eligibility or competence in a theological and ecclesiastical sense, leaving in place only to the already existing judicial task of measuring the credibility of witnesses. But if credibility is truly all that matters, why require or practice any kind of oath or affirmation at all?  The oath, like so many other post-Christian relics in our society, will eventually become only an echo of a Christian view of the world.  And indeed, that is what it is becoming or has become in our civil courts.  Such secularization ought not to be the trend in the courts of the PCA.
The Spiritual Nature of Church Courts
Another factor to consider in favor of insisting that a witness “believe in the existence of God” and a “future state of rewards and punishments” is the very nature of the power of church courts. “The power of the Church is exclusively spiritual”  (BCO 3-4). Of course, from one perspective the power of the church courts are very great indeed because they represent Jesus Christ.  Thus, their exercise of ecclesiastical power “has the divine sanction when in conformity with the statutes enacted by Christ, the Lawgiver, and when put forth by courts or by officers appointed thereunto in His Word” (BCO 3-6).  While that is a profound fact to the members of the church, it is not to persons who do not “believe in the existence of God.”
The spiritual nature of the church courts implies certain limitations on their authority. The apparent (and understandable) impetus for changing the oath requirement is to widen the scope of who may participate in ecclesiastical proceedings so that the ecclesiastical courts can adjudicate matters that might be out of its reach under our present polity.  Perhaps the overtures particularly have in mind matters that might involve key testimony from unbelieving witnesses as in cases involving sexual impropriety or abuse, and especially in cases where individuals victimized by members of the church may have resultantly abandoned the faith, rendering them ineligible to testify under present BCO 35-1.  Allowing unbelievers to testify would enable our church courts to take on cases in which proof may fail, under the existing rules, because an unbelieving witness is ineligible to inform the court of relevant facts.
It might be objected that If we don’t allow unbelieving victims to testify, then the church courts can’t do full justice.  But strictly speaking, our church courts are not called upon to do full justice.  Our church courts serve several functions, including “the rebuke of offenses, the removal of scandal, the vindication of the honor of Christ, the promotion of the purity and general edification of the Church, and the spiritual good of offenders themselves”  (BCO 27-3).  Our church courts are imperfect forums, and the “right” result is not guaranteed in any case.  Rules like the two-witnesses rule (BCO 35-3), founded in Scripture, sometimes work to prevent our church courts from discovering or declaring the truth, even assuming that the sole witness to a sexual crime, for example, is credible, reliable, and trustworthy.
The requirement that a witness must “believe in the existence of God” to be eligible to testify in our courts is like the two-witness rule.  As profound as any sin is, including sexual sin or abuse, it is also a sin to not believe in God’s existence, a denial that, if you think about it, is an unequivocal renunciation of the jurisdiction of the courts of Christ’s Church.  According to the unbeliever, the King of our courts does not even exist. Christ’s under shepherds serving in His ecclesiastical courts cannot coherently ignore unbelievers’ denial of the very premise of their jurisdiction and entertain such a person’s testimony in church proceedings against souls who, although charged with having committed an offense, at least profess belief in God and are still under both the jurisdiction and care of the church.
Thus the de facto renunciation of ecclesiastical jurisdiction by unbelievers who would otherwise be determinative witnesses in an ecclesiastical case against a member of the church leaves the courts of the civil magistrate as the courts of exclusive jurisdiction in such matters.   It is not the church but the victim, by virtue of his or her unbelief, that has placed such matters out of the reach of ecclesiastical adjudication. The matter can be adjudicated, just not in the ecclesiastical courts.
Ecclesiastical cases are fundamentally intramural proceedings brought in and for the church.  The proposed changes seek to expand the jurisdiction of our ecclesiastical courts into an area that, under the framework of our historic polity, has been the province of the civil magistrate.  Expanding the jurisdiction of our ecclesiastical courts by accepting unbelievers as witnesses would undermine the principle that our church courts’ authority is solely moral and spiritual, not civil.  We should defer to the civil magistrate the adjudication of those matters that are especially suited to his jurisdictional powers in matters that turn on the testimony of persons who are neither Christians nor otherwise subject to the discipline of the church.
Jim Eggert is a Ruling Elder in Westminster Presbyterian Church (PCA) in Brandon, Fla.
Related Posts: