An ARPA Three-Part series on Church and State in Canada

By John Sikkema and André Schutten

Two weeks ago, in the first of our three-part series, we discussed foundations. We explained that God divides human authority between at least three institutions: the family, the church, and the state. Their authority or power comes from God and is limited by Scripture. The church must defer to the state in matters of state jurisdiction but cannot defer to the state in matters of ecclesiastical jurisdiction, particularly the preaching of the gospel and the exercise of church discipline (known as the two keys to the kingdom of heaven).

Next week, in our third installment, we will discuss the local church as a legal entity – an entity that owns property, enters contracts, hires employees, buys insurance, and so on. Is there a preferred model for setting up and governing our churches as legal entities?

In this, our second instalment, we examine the how of church discipline. What procedures are fair? We do not, however, intend to offer a comprehensive procedural guide to church discipline. Rather, in keeping with this series’ focus on the relationship of church and state, our focus is more specifically on this question: Can the civil courts supervise the procedure of church discipline, provided they don’t interfere with the substance of a church’s decisions?

So, let’s continue the discussion.

PART II: Scripture, not state law, instructs us how to do church discipline

About a month before the Supreme Court heard oral arguments in the Wall case (see more on that case in Part I of this series), the Gospel Coalition Canada published an article by Pastor Paul Carter titled “How to Do Church Discipline (Without Getting Sued)”. Pastor Carter explains the importance of church discipline, particularly, the importance of doing it well. His article contains several important points and plenty of practical wisdom. We’re grateful for his thoughtful engagement on this important matter. Nevertheless, we thought he raised a few issues that merit further discussion and nuance.

Pastor Carter suggests that Wall is a unique case because it examines the “economic impact of church discipline on the disciplined member, separate and apart from issues relating to procedural fairness.” In fact, however, the case is very much a dispute about whether courts can review a church’s decision, and its decision-making procedure in particular, in the absence of a legal claim, such as a property dispute or lawsuit for breaching a contract. (An allegation that a church decision impacted you economically or emotionally is not a legal claim.)

But Pastor Carter still sees Wall as a reminder “for churches to remember that when they conduct formal church discipline, they are required to abide by the principles of natural justice.” Otherwise, he warns, “[T]hey may find their decisions being reviewed and overturned by the courts.” He then outlines four principles and explains why they are important to the church discipline process, namely: (1) the need for adequate notice, (2) the principle of impartiality, (3) the opportunity for self defence, and (4) the need for any decision or action by the church to be clearly explained.

Pastor Carter explains the dual intent of discipline as “(1) protecting the integrity of the ministry of the Church and the name of the Lord in the community (Romans 2:24; 2 Peter 2:2) and (2) restoring the individual into fellowship pursuant to Luke 17:3 and Galatians 6:1.” He concludes, “Church discipline is a good and helpful thing when it is done wisely and in accordance with the teaching of Scripture and the principles of natural justice. Done correctly it is an expression of loving concern for our brother or sister in Christ. Done incorrectly it exposes the church to the judgment and censor of the courts.”

Adding nuance to Pastor Carter’s argument

We agree, of course, that discipline must be “in accordance with the teaching of Scripture,” but would caution about teaching that churches are also bound by “natural justice”, as it begs the question: Who or what is the authority on what natural justice requires? In the context in which Pastor Carter uses the term, the answer appears to be: civil judges. And according to civil judges, the requirements of natural justice vary significantly depending on the circumstances. Principles of natural justice as articulated by judges may line up with biblical principles of fairness. However, it is also possible that they diverge. This may become more of a concern as our legal culture pushes for new approaches to fairness that demand special treatment and differentiated rules depending on the identity of the person in question.

Therefore, two points need to be made clear. First, the Church is answerable to Christ, not the courts, for both the substance and the procedure of church discipline decisions. Second, the Word is sufficient for teaching us how to do church discipline.

The courts, in fact, have recognized this and have consistently declined to interfere with church discipline per se, recognizing it as an ecclesiastical matter, as we explain in more detail in our factum to the Supreme Court. Pastor Carter affirms that, “irrespective of Wall”, civil courts “have the right to review the actions and decisions of church councils”. With great respect to Pastor Carter, that statement is somewhat misleading. We don’t take Pastor Carter to mean that civil courts have a God-given right to review church decisions. So we take him to be saying that, rightly or wrongly, the common law of Canada recognizes the courts’ right to review church decisions – but even that would only be true in a very limited sense.

Courts may review church decisions where a legal right is at stake. So, for example, if your right to live in your church’s parsonage depended on your remaining the pastor, but your church fired you, a court may then review the church’s decision to resolve the legal issue of whether you still have a right to live in that house. But even then, according to leading case law, you would first have to exhaust the church’s internal appeal processes before you came to the court alleging that the church has breached your legal rights. (See this article for more on that point.) And the court should defer to the church on questions of doctrine or Christian morality.

The Wall case is, in large part, a dispute about whether a religious body is legally obligated to follow the requirements of natural justice (as determined by the courts) where a person was emotionally and economically impacted by a church’s decision, but where a legal right did not hinge on that decision. Mr. Wall had no substantive legal claim against the church – no employment relationship, no contract for services that the church had breached, no property of his that was in the church’s possession, or any other recognized legal claim.

Where Pastor Carter writes, “Done incorrectly, [discipline] exposes the church to the judgment and censor [sic] of the courts,” he appears to suggest that the courts determine whether discipline has been done correctly. However, it is also possible that discipline done correctly (according to the Word) will expose the Church to court censure, or that church discipline done incorrectly (not according to the Word), or not done at all, will avoid court censure. Pastor Carter may be right that the worse the procedure, the more likely you’ll end up in court. Our concern here, however, as in our intervention in Wall, is to be clear on who should decide whether a church’s procedures are right and by what standard.

Principles of notice, impartiality, and hearings are rooted in Scripture

Churches would neglect their calling by allowing the state to define the parameters or procedures of proper discipline. We don’t need the courts to tell the Church to give a person notice that he is under discipline. Christ gives that requirement clearly in Matthew 18, though that process will look different in different circumstances (for example, in instances of egregious sin, as Paul demonstrates in his response to a public incestuous affair).

We also don’t need to look to the state to define requirements of impartiality: God is clear again and again and again that we must judge uprightly, favouring neither rich nor poor, nor native or immigrant, nor widow or orphan, nor straight talker or flatterer, and listening to both sides and giving an opportunity to defend against allegations.

What then? In writing our church orders and establishing procedural rules, do we not employ a practical wisdom that many unbelievers, including unbelieving civil judges, share with us? Yes. Is it not then going a bit far to claim that church discipline should be based on Scripture alone? No. Though all men may share some basic sense of fairness, we are also easily deceived and prone to suppress the truth about what is right and just (Romans 1:18-32). Yet God has given to believers both the Word and the Spirit to overcome this sinful tendency (Romans 8:9-11, 26-27; 2 Timothy 3:16-17; John 20:21-23). We believe that, as with its Confessions, the Church should endeavour to make its teaching on and procedures for discipline nothing more and nothing other than a faithful interpretation, organization, and application of what the Bible teaches.

Pastor Carter is right to emphasize the importance of good procedures. We do well to put in place careful procedures that guard against man’s sinfulness and biases, as Scripture teaches. If our churches need reform in that respect, that reform should come from within the Church and be rooted in Scripture. The solution is not to force procedures on the Church from the outside or (worse) to review specific outcomes from the outside – from another sphere of authority.

State authority on church discipline is counterfeit

What if a court declares a church discipline to be void? Whom does the congregation obey, their elders or the state? Should the elders welcome this unrepentant brother to the communion table the next Sunday morning? Should your church permit him to serve as an elder or even to lead a Bible study? We believe that the Bible teaches that civil judges have no jurisdiction to decide such matters.

Does Christ mean it when He says to the apostles and through them, the Church: “Whatever you bind on earth will be bound in heaven, and whatever you loose on earth shall be loosed in heaven”? Calvin comments:

That no one may stubbornly despise the judgement of the church […] the Lord testifies that such judgment by believers is nothing but the proclamation of His own sentence […]. For they have the Word of God with which to condemn the perverse; they have the Word with which to receive the repentant into grace.

So the power of both keys of the kingdom – the preaching of the gospel and the exercise of church discipline – is in the Word of God, of which men are merely ministers. Calvin comments further, “[The] promise to Peter concerning binding and loosing ought to be referred solely to the ministry of the Word, because when the Lord committed his ministry to the apostles, he also equipped them for the office of binding and loosing.” See also John 20:21-23 on this point. The Spirit equips true Church leaders for this task. Church discipline, like gospel preaching, is “the ministry of the Word” and its substance and authority comes from the Word alone.

Ultimately, Calvin explains, the power to bind and loose, or to forgive or not forgive sins, does not lie within mere men. Rather, Christ speaks through those whom He chooses as His instruments, the office-bearers of His Church. Who then is a civil judge to declare a declaration of excommunication – or forgiveness and restoration! – to be void?

Submit for the Lord’s sake to every human institution

To be clear, we are not arguing that the Church is immune from the rule of the state – on the contrary, the Church has erred in the past in thinking this. Criminal law is properly enacted and enforced by the state. Civil judges can arbitrate disputes over civil rights, including disputes over contract or property in which a church or church member is a party (though Paul’s warning to Christians suggests that we ought rarely to make use of these means). Likewise, even a judge, prime minister, or king is subject to the Church’s spiritual authority.

We know that if the Supreme Court gets the answer wrong in Wall, the principle established in law will directly impact faithful churches in Canada. That is why we intervened in this case, even though we disagree with the theology of the Jehovah’s Witnesses. As Christian lawyers and as Christian lay people, we must respectfully but firmly remind the courts and legislatures that they have no authority here. We ask for your prayers for the Supreme Court Justices as they consider this matter and work towards rendering a decision. May God grant them wisdom.

To discuss the subject matter of this article with us and help us understand these issues better, write to us at [email protected] & [email protected].