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ICJ No. 5

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April 30 1968
In Re: The request of the Uniting Conference for a Declaratory Decision to determine the constitutionality of the establishment and composition of the Commission on Religion and Race as approved by the Uniting Conference in the adoption of Report No. 7 of the Committee on Conferences.

Digest of Case

Provisions for the composition of a General Conference commission mandating membership by racial and ethnic group classifications constitute improper structuring on racial lines in violation of Paragraph 4 and 15.14 of the Constitution of The United Methodist Church. Accordingly, the composition of the Commission on Religion and Race established by the Uniting Conference is improper and violative of the Constitution.

Statement of Facts

The Secretary of the Uniting Conference informed the Interim Judicial Council that Report No. 9 of the Committee on Conferences, requesting a Declaratory Decision, had been adopted by the Uniting Conference as follows: "It is hereby requested that the Interim Judicial Council determine the constitutionality of the establishment and composition of the Commission on Religion and Race, [and] render to this Uniting Conference in session at the earliest possible date and not later than such time as will permit the enacting of corrective legislation if such should be judged necessary." (D.C.A. 227). Report No. 7 of the Committee on Conferences, entitled "Commission on Religion and Race" was adopted by the Uniting Conference. It reads in part as follows: "The General Conference of The United Methodist Church hereby establishes for this next quadrennium the Commission on Religion and Race. This Commission will be composed of two Bishops appointed by the Council of Bishops plus five persons from each jurisdiction to be elected by the Jurisdictional Conferences, at least two of whom shall be Negroes and at least one of whom shall be of another racial or ethnic minority group; and seven members at large to be elected by the Commission, at least three of whom shall be Negroes and least one of whom shall be of another racial or ethnic minority group. The Commission will assume general church responsibility for such matters: . ." (D.C.A. 226). There follows a nine-point program designed to develop a racially inclusive church. JURISDICTION Jurisdiction is based upon the creation of the Interim Judicial Council and the grant of authority given to it by the Uniting Conference (Daily Christian Advocate, 190-192) ; and upon request to the Council by the Uniting Conference for an advisory opinion on matters herein discussed (D.C.A. 193-210, Calendar items 50, 52, pp. 226-227). ANALYSIS This case presents a situation unlike that before us in Decision No. 4, in which we upheld the constitutionality of a Uniting Conference recommendation that in the composition of a special investigative committee of the Conference a specified number of persons of the Negro race should be considered for appointment. Here we are asked to determine whether a commission of The United Methodist Church may be mandatorily structured so that rights and privileges of membership shall be determined on the basis of race, color, or ethnic group relationship. Aside from this question of racial classification, it is clear the Uniting Conference had authority and power to create the Commission on Religion and Race as it did by resolution adopted April 29, 1968. The powers of a General Conference are enumerated in Paragraph 15 (Art. IV, Division One, Part I) of the Constitution. Subparagraph 13 thereof expressly empowers a General Conference "to establish such commissions for the work of the church as may be deemed advisable." Even more specifically related to the problem of mandatory racial structuring of a General Conference commission, such as the Commission on Religion and Race, is subparagraph 14 of Paragraph 15 of the Constitution, reading: "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 ." (Emphasis supplied) Paragraph 15.14 of the Constitution had no counterpart in the Constitution of the former The Methodist Church. Together with a similar restriction added to subparagraph 1 governing legislation affecting rights and privileges of general church membership, the inclusion of subparagraph 14 represents a major change made in the article granting the legislative power of a General Conference (cf. Par. 8, 1964 Discipline of The Methodist Church). In the context of the long and continuous effort of The Methodist Church to eliminate racially structured institutions, such as the Central Jurisdiction and its segregated Annual Conferences, and the evident desire of both churches to attain an inclusive church as soon as possible after union, the purpose of these new provisions in Par. 15 of the Constitution is manifest. That purpose was to prevent establishment, at any future time, of an agency, program or institution of The United Methodist Church structured with regard to "race or status." The new church was not to return to the racially structured state in which The Methodist Church found itself years ago and from which it has long sought escape. It is obvious that the mandated racial and ethnic composition of the Commission on Religion and Race, specifying as it does minimal percentages of representation, respectively, for persons of the Negro race and persons of other racial and ethnic minority groups, is contrary to the restriction on the General Conference power stated in subparagraph 14 of Paragraph 15 of the Constitution. While the classification would be improper no matter the particular percentage applied, it is illustrative to note that as presently provided three of five members of the Commission to be selected from each jurisdiction and four of seven of those to be selected at-large must be racially chosen. This is precisely the converse of a Commission on which "the rights and privileges of membership" would be "regardless of race or status," as contemplated by the Constitution. It is equally clear that the racial structuring of the Commission is in violation of Paragraph 4 (Art. IV-Division One, Part I) of the Constitution, which reads as follows: "4. Art. IV. Inclusiveness of the Church. The United Methodist Church is a part of the Church Universal which is one Body in Christ. Therefore all persons, without regard to race, color, national origin, or economic condition, shall be eligible to attend its worship services, to participate in its programs, and, when they take the appropriate vows, to be admitted into its membership in any local church in the connection. 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." That the Commission is "an organizational unit of the Church" within the meaning of Paragraph 4 of the Constitution is hardly debatable considering the scope and importance of its duties. A restrictive interpretation of "organizational unit" excluding General Conference boards, agencies and commissions would not only be unreasonable but would largely defeat the purpose of Paragraph 4 and achievement of the goal of an inclusive church. The next question is whether a commission structured to include specific percentages of one race or minority ethnic groups, in operative effect, excludes from such commission any member of the church "because of race, color, national origin or economic condition." It seems obvious that mandated inclusion by race necessarily results in enforced exclusion because of race. Again this is demonstrated by the formula enacted to determine the composition of the new commission. Persons of the Caucasian race (not of any ethnic minority group) are barred from at least 19 of the 32 positions on the commission open to persons other than bishops. If these same commission positions had been reserved and guaranteed to Caucasians no one would be questioning the patent unconstitutionality of such a measure. Thus we travel together on a "two-way" highway. Any contention that Decision No. 242 of the Judicial Council of The Methodist Church opens anew the way to racially structured agencies, boards, commissions or institutions of the new church, evidences only a patent misunderstanding of the history, meaning and effect of Decision No. 242. When in 1966 the General Conferences of the two denominations met to consider union there existed certain racially structured Annual Conferences of The Methodist Church. To that time it had proven difficult if not virtually impossible to effect the merger of those Annual Conferences with non-Negro Annual Conferences although The Methodist Church was embarked on a program believed to permit their elimination by 1972. The alternatives open to the two General Conferences of 1966 were either (a) to mandate merger of such Annual Conferences at the moment of union, as Paragraph 4 of the new Constitution would have done, standing alone, or (b) to adopt the Enabling Legislation, with full constitutional effect, thereby making available during a transitional period the procedures under Par. 9 of the Enabling Legislation for the termination of all racially structured Annual Conferences. The decision to choose the second of these alternative courses was that of the two churches themselves and certainly not of the Judicial Council. All that the former Judicial Council did in Decision No. 242 was to rule on the propriety and effect of that choice whereby the constitutional law of the new church would consist of both the so-called Constitution of Part I of the Plan of Union and the Enabling Legislation of the Plan of Union. Decision No. 242 fully accorded with established American constitutional law and practice. In almost every state of the Union in which new constitutions have been adopted, they have contained attached "schedules" providing a bridge during a transitional period to move from the old law to the new. The Enabling Legislation of the Plan of Union is essentially such a schedule. That Decision No. 242 was most limited in its effect, permitting for the immediate future only the existing racially structured Annual Conferences and in no manner opening the door to new racial structures within the church, is clear from Decision No. 246, interpreting the effect of Decision No. 242, in which it was said: "While certain Annual Conferences which were established on the basis of race may continue to exist for the immediate future, race may no longer be used as a basis for establishing new Annual Conferences or other units within the church." (Emphasis supplied) The arguments of those who would now have the Interim Judicial Council ignore the express and unequivocal commands of the Constitution in Paragraphs 4 and 15.14, reflect a grave misconception of the nature and function of a constitution. We are urged to consider "the extraordinary times -in which we are not conducting business as usual." We are told that the Constitution should be made to "bend" in recognition of the will of a majority of delegates and "the pulse" of the Uniting Conference. Also it is asserted that the racial structuring in question is "provisional" and therefore only necessary "at this instant." Were we to approach in such manner our duties in interpreting and enforcing the Constitution we would be grossly derelict. It would not be long before the Constitution of the new church would be a dead letter, subverted and openly evaded by means of such arguments of short-term expediency. As we see it, the members of the two denominations in voting union and adopting the Constitution intended that it should constitute a statement of basic principles to serve the church in its historic mission, not a document for the passing hour with its meaning and application shifting with the passing winds. We therefore advise the Uniting Conference that while the establishment of the Commission on Religion and Race is within the power and authority of the Uniting Conference, the mandated composition of the membership thereof on conditions of race, color, or ethnic origin, violates the Constitution of The United Methodist Church.


While the action of the Uniting Conference in establishing the Commission on Religion and Race was within the constitutional authority and power of the Uniting Conference, the mandated structuring of the composition of said Commission so that membership thereon is conditioned on race, color, or ethnic group relationship violated the Constitution of The United Methodist Church. PAUL R. ERVIN, President Interim Judicial Council J. RUSSELL THROCKMORTON, Secretary Interim Judicial Council Dissenting Opinion We are in full accord with and concur in the majority opinion that the Uniting Conference of The United Methodist Church has constitutional authority and legislative power under Article IV-Division Two (Par. 15.13) to establish the Commission on Religion and Race for the purposes and to implement the programs defined in the legislation. It is with the rationale and judgment of the majority opinion that the composition of this Commission is unconstitutional as violative of Article IV-Division One (Par. 4) of the Constitution of The United Methodist Church that we sharply disagree and vigorously dissent. In preface to the burden of our dissent, we believe the Judicial Council, given the awesome power to render final decisions as to the law of the Church, should exercise that power with restraint. It should diligently avoid substituting its wisdom for the judgment of the broadly representative legislative body of the Church. Particularly, should this restraint be manifest when judicial wisdom is based on the interpretation of words and there is not a clear disparate departure from the constitutional language and purpose. The purpose of Paragraph 4 of the Constitution and the basis for its language must be found in the history of the Church and its determination to rid itself of racial discrimination in the form of racially separated worship, churches, conferences, or other organizational units. The term "organizational unit" must refer to the structures into which the Church is constitutionally organized as set forth in Division Two, namely Conferences (General, Jurisdictional, Central, Annual, District, and Charge), the Episcopacy, and the Judiciary. It may not be applied to special purpose agencies. This distinction is supported by the definition of general agencies in the Methodist Church Discipline (Par. 1071) and Part IV of The United Methodist Church (Par. 702) approved in principle. It is therein provided that general agencies of The United Methodist Church do not include "boards of trustees, inter-agency committees, such commissions and committees as are created by the General Conference to fulfill a special function within the ensuing quadrennium, ecumenical groups on which The United Methodist Church is represented, or committees related to the quadrennial sessions of the General Conference." (Emphasis added) Thus, it is our view that the ideal and objective of a racially inclusive and racially blind church is devoutly to be sought and worked toward as set forth in Par. 4. But the prohibition contained therein that "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," does not bar or foreclose the General Conference from giving consideration to race in making certain that ethnic, national, and other groups are included in the work of achieving an inclusive color blind church. (Emphasis added). This principle was recognized and established in Decision No. 232. The drafters of the Constitution of The United Methodist Church recognized this important fact by granting to the General Conference full legislative power "to secure the rights and privileges of membership in all agencies, programs, and institutions in The United Methodist Church regardless of race or status." (Par. 15.14). Therefore, Paragraphs 4 and 15.14 must be construed together, the constitutional powers should be accorded liberal interpretation, and the integrity of legislative purpose recognized until or unless that purpose is patently contrary to or subverts the Constitution. It is not realistic to conclude that, by the written declaration of the ideal of a racially inclusive church and a prohibition against exclusion, the result will be accomplished without positive, and in some instances, special action to correct the racial exclusion and separation historically created and currently existent in some aspects of the Church's life. That power and discretion are reserved to the legislative body of the Church-namely the General Conference. The legislative history pertaining to the establishment of the Commission on Religion and Race, as recommended by the Commission on Interjurisdictional Relations, clearly indicates the intent to establish a commission for the special purposes of completing the work of eliminating racial separateness and fostering racial inclusiveness during the ensuing quadrennium. When the present racially defined Annual Conferences have been merged with the overlapping geographical Annual Conferences of The United Methodist Church-which is a major objective of the new commission-or when the inhibiting effect of the Enabling Legislation on Par. 4 of the Constitution has ended, whichever occurs first, for the first time, Pars. 4 and 15.14 will come into full effect. Thus, if all Annual Conferences of the former Central Jurisdiction of the former The Methodist Church shall have been merged with non-Negro Annual Conferences by the time of the 1972 General Conference, the General Conference might terminate or continue the existence of a Commission on Religion and Race for another quadrennium. In such event the use of a benign quota for composition of its membership would be of doubtful legality. Thus it is a reasonable assumption that the General Conference of 1972, upon reviewing the required report of this Commission, may well determine that its purposes have been accomplished and terminate the Commission. This, too, is a power reserved to the General Conference and not to be preempted or anticipated by judicial decree. In order to make the Commission effective for its present mission the legislative judgment may well have determined that a larger number of racially identified members were essential to demonstrate by example and to quicken the conscience and pace for inclusion and participation of all minorities in the work of the Church. There is an increasing public recognition and a growing body of authority for the position (1) that there is an obligation to overcome the present effects of past discrimination; (2) that this obligation exists even if the discrimination was not illegal and was accepted at the time it was committed; and (3) that the effects may and should be overcome despite hardship to innocent parties. Equality is too significant to be outbalanced by efficiency or comfort. Those who have suffered discrimination over a long period need special evidence that they are being treated as full equals; while those who have benefited by the advantage of discrimination may be brought to understanding and compassion. The right, power, and authority of the General Conference to correct racial separateness in the Church is clear and should not be impaired. The opinion of the majority in our judgment is in serious error. THEODORE M. BERRY We concur in the conclusion of the dissenting opinion, but do not necessarily agree with all of the argument. WILLIAM K. MESSMER MURRAY H. LEIFFER

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