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ICJ No. 4

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May 01 1968
In Re: Constitutionality of a recommendation by the uniting conference to the Council of Bishops that an investigating committee authorized by the Uniting Conference include not less than a certain number of Negroes.

Digest of Case

The Uniting Conference may recommend to the Council of Bishops that a certain number of appointees to an investigating committee that it has been empowered to appoint shall be Negroes. This ruling is based on the assumption that the recommendation is intended to be advisory rather than mandatory and that it will be so construed by the Council of Bishops.

Statement of Facts

At a session of the Uniting Conference of The United Methodist Church held on April 29, 1968, during the consideration of legislative reports of its Committee on Publishing Interests, the following resolution was presented for adoption by the Uniting Conference: "WHEREAS, During and previous to this Conference there have been circulated charges, both verbal and appearing in certain periodicals and other printed forms, criticisms and accusations widely disseminated which definitely question and impugn the integrity, motives, and practices of the administration of the Publishing Interests of the Church; and WHEREAS, This agency through the one hundred and seventy-nine years of its history has always endeavored to be the pliant instrument of the Church in accordance with the Discipline in the proclamation of the Word; and WHEREAS, The General Conference of the Church, now The United Methodist Church, has traditionally intrusted the oversight of these facilities to the board of Publication, whose members are elected by due and democratic process created by the General Conference; THEREFORE, in the light of these questions and criticisms, the President and Publisher and the Chairman and the other officers of the Board of Publication do hereby earnestly request this General Conference to empower the Council of Bishops to appoint a committee to thoroughly investigate all such charges which are to be properly documented with supporting evidence. We request that the committee be composed of one bishop who shall be the President of the Council of Bishops, with two pastors and two laymen appointed by the Council of Bishops, none of whom should be members of the Board of Publication. We further request that this committee report to the Council of Bishops at their next scheduled meeting in the fall of 1968. We further respectfully request that the Council of Bishops make the findings of this committee available to the Church." During discussion on the above resolution, an amendment was proposed and adopted by the Uniting Conference to change the composition of the proposed committee so that the portion of the resolution dealing with such composition would read as follows: "We request that the committee be composed of one bishop who shall be the President of the Council of Bishops, with sixteen persons appointed by the Council of Bishops, equally divided between laymen and ministers and with the recommendation that at least five members be Negroes." Following the adoption of the amended resolution, the Uniting Conference voted by the requisite number of delegates to refer the amended portion of the resolution to the Interim Judicial Council for a decision as to its constitutionality insofar as it recommends that five members be of the Negro race. JURISDICTION Jurisdiction is based upon the creation of the Interim Judicial Council and the grant of authority given to it by the Uniting Conference (D.C.A. 190-192); and the request to the Council by the Uniting Conference for an advisory opinion on the matters herein discussed (D.C.A. 447, 450). ANALYSIS The constitutionality of the motion to empower the Council of Bishops to appoint a committee of seventeen to investigate charges against the Publishing Interests of the church is not in dispute. But the inclusion in that motion of the "recommendation" that at least five members of the committee shall be Negroes has been referred to us for an advisory opinion as to whether this constitutes an unconstitutional racial structuring of an instrumentality of the Uniting Conference. The Constitution of the church contains two safeguards on racial inclusiveness that were not found in the Constitutions of either of the constituent churches. Paragraph 4 of the new Constitution states in part: "In the United Methodist Church no conference or other organizational unit of the church shall be structured so as to exclude any member or any constituent body of the church because of race, color, national origin or economic condition." In Paragraph 15, the General Conference is given full legislative power over all matters distinctively connectional, including authority. . . "14. To secure the rights and privileges of membership in all agencies, programs and institutions in the United Methodist Church regardless of race or status." These are sweeping directions that our church shall be racially inclusive in membership, in structure, and in operation. There are no exceptions. They apply to the structuring of any organizational unit of the church; and they grant legislative authority to insure that membership in all agencies, programs, and institutions of the church shall be [held] regardless of race or status. This certainly applies to a commitee of the Uniting Conference, temporary or permanent, and whatever its duties. Such an instrumentality is an organizational unit of the church; and the privileges of membership thereon may be secured "regardless of race," but certainly not because of race. If this committee is being so structured, we have no choice but to advise that it is being racially structured in contradiction to the Constitution of the church. But it is not clear that such is the case. The resolution requests the Council of Bishops to appoint an investigating committee of seventeen "with the recommendation that at least five members shall be Negroes." The crucial question before us is whether a "recommendation" from The Uniting Conference to the Council of Bishops is intended by the Conference, or will be construed by the Council, to be mandatory. If mandatory, Decision No. 5, this day determined, would be decisive. A recommendation from The Uniting Conference or a General Conference to the Council of Bishops or any other instrumentality of The United Methodist Church must necessarily carry great weight in view of the position of a General Conference in Methodism. Only time can tell us whether there is a distinction between a recommendation and a mandate from that body. If it becomes a pattern in The United Methodist Church for authorizing bodies to "recommend" racially structured agencies and committees, and if experience teaches us that these "recommendations" are normally treated as binding mandates, we will have hit upon a device to bring about a de facto racial structuring of the agencies of our church in violation of a sweeping condemnation of that practice in our Constitution. If, however, "recommendations" of the authorizing body are treated as no more than advisory by the appointing power, the structuring of agencies of the church will then be based upon the qualifications of individuals even though the appointing power gives consideration to the desire of the church that its agencies and instrumentalities be broadly representative of its membership and that much is to be gained by a living demonstration that racial inclusiveness is both a reality and a deeply satisfying Christian experience. We are faced with an initial instance of a practice that may or may not develop into a device for evading the constitutional requirement of racial inclusiveness. Only time can tell us whether the "recommendation" that we this day sustain is an advisory technique that will help but not control the appointing power or whether it is an order, politely phrased, that will lead to a racial structuring of the church. Until experience has taught us the content read into such a "recommendation" by The United Methodist Church we shall assume that it is advisory rather than mandatory; and that the Council of Bishops will so construe the "recommendation" now before it. It will be a sorry day for The United Methodist Church if the ultimate consequence of our long struggle to end the Central Jurisdiction and integrate our Annual Conferences is a racial structuring of the boards, agencies, and committees of the church. The mandate of the Constitution is that the church be color blind, not color conscious.

Decision

The action of the Uniting Conference in empowering the Council of Bishops to appoint a committee of seventeen to investigate charges against the Publishing Interests of the church "with the recommendation that at least five members shall be Negroes" is not in violation of the Constitution of The United Methodist Church.

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