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Decision No. 1366

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October 26 2018
In Re: IN RE: Petition for Declaratory Decision from the Council of Bishops regarding the constitutionality of three sets of legislative petitions known as the One Church Plan, Connectional Conference Plan, and Traditional Plan.

Digest of Case

View a PDF of Decision 1366

The Judicial Council has jurisdiction to determine the constitutionality of any proposed legislation when such declaratory decision is requested by the General Conference or by the Council of Bishops but lacks the authority to scrutinize proposed constitutional amendments under ¶ 2609.2. To trigger jurisdiction and be properly before the Judicial Council, a petition for declaratory decision must contain proposed legislation that prima facie requires no constitutional amendment(s) for implementation and can be tested directly against the constitutional provisions in effect at the time of filing. The Connectional Conference Plan contains proposed constitutional changes and does not pass this jurisdictional test. The One Church Plan and the Traditional Plan meet those criteria to be properly before the Judicial Council. The task of the Judicial Council is to pass upon the constitutionality of the legislative petitions without expressing an opinion as to their merits or expediency. It is up to the General Conference to determine the wisdom of each plan.

With respect to the One Church Plan, the Judicial Council makes the following ruling:

As a primary principle in any organizational structure of The United Methodist Church, connectionalism denotes a vital web of interactive relationships—multi-leveled, global in scope, and local in thrust—that permits contextualization and differentiation on account of geographical, social, and cultural variations and makes room for diversity of beliefs and theological perspectives but does not require uniformity of moral-ethical standards regarding ordination, marriage, and human sexuality. Full legislative power of the General Conference includes the authority to adopt a uniform, standardized, or a non-uniform, differentiated theological statement. Our Constitution commands not that all church policies enacted by the General Conference be uniform but that all uniform church policies be enacted by the General Conference. It assigns the legislative function to set standards related to certification, commissioning, ordination, and marriage to the General Conference and the administrative responsibility for applying them to the annual conferences, local churches, and pastors within their missional contexts. The legislative branch of the Church is constitutionally free to set the standards for entrance into the ministry wherever and whenever it sees fit. Regardless of where that threshold may be at any given time, the annual conference may enact additional requirements that are not in conflict with the letter or intent of the minimum standards set by the General Conference.

Petition 1 is constitutional. 

Petition 2 is constitutional. 

Petition 3 is constitutional. 

Petition 4 is constitutional, except for the second sentence:

The bishop may choose to seek the non-binding advice of an annual conference session on standards relating to human sexuality for ordination to inform the Board of Ordained Ministry in its work.

This part violates the separation of powers, is contrary to ¶ 33 and, therefore, unconstitutional.

Petition 5 is constitutional. 

Petition 6 is constitutional. 

Petition 7 is constitutional.

Petition 8 is constitutional, except for the sentence:

Similarly, clergy who cannot in good conscience continue to serve a particular church based on unresolved disagreements over same-sex marriage as communicated by the pastor and Staff-Parish Relations Committee to the district superintendent, shall be reassigned.

This part is in conflict with ¶ 54 and is unconstitutional.

Petition 9 is constitutional.

Petition 10 is constitutional.

Petition 11 is constitutional. 

Petition 12 is constitutional

Petition 13 is constitutional, except for the second sentence:

Provided, however, that any clergy session of an annual conference that votes on such matters shall not, without the consent of the presiding bishop, take up any subsequent motion on that issue during any called or special session of annual conference held within 30 full calendar months from the date of such vote regardless of the outcome.

This part infringes upon an annual conference’s reserved rights under ¶ 33 and is unconstitutional.

Petition 14 is constitutional.

Petition 15 is constitutional.

Petition 16 is constitutional.

Petition 17 is constitutional.

 

With respect to the Traditional Plan, the Judicial Council makes the following decision:

Impartiality and independence of decision-making bodies are the hallmarks of due process and bedrock principles of procedural justice in our constitutional polity. No process can be fair and equitable if the body bringing the complaint is also empowered to determine its merits. The fundamental right to fair and due process of an accused bishop is denied when the complainants are also among those tasked with reviewing and making the final decision. The Council of Bishops was not designed to function as an inquisitional court responsible for enforcing doctrinal purity among its members.

As a tenet of United Methodist constitutionalism, the principle of legality means that all individuals and entities are equally bound by Church law, which shall be applied fairly and without regard to race, color, national origin, status, or economic condition. It forbids selective or partial enforcement of Church law at all levels of the connection and demands that The Discipline in its entirety be followed without distinction. All decisions and actions by official bodies and their representatives must be based on and limited by the Constitution and The Discipline. Individuals must be informed with specificity and clarity as to what is prescribed and proscribed by Church law. No person or body can be required to act contrary to Church law or prohibited from engaging in lawful conduct. No person can be punished for actions and conduct that are permitted or required by Church law. Clergy persons whose credentials and conference membership are at stake have the right to know what to expect when they choose a course of action or take a particular stance on ordination, marriage, and human sexuality. To pass constitutional muster, any proposed legislation affecting clergy rights must define with sufficient clarity and specificity the standards to guide future actions of all concerned persons and entities.

Under the principle of legality, the General Conference can prescribe or proscribe a particular conduct but cannot contradict itself by prescribing prohibited conduct or prohibiting prescribed conduct. It can require bishops, annual conferences, nominees, and members of boards of ordained ministry to certify or declare that they will uphold The Discipline in its entirety and impose sanctions in case of non-compliance. But it may not choose standards related to ordination, marriage, and human sexuality over other provisions of The Discipline for enhanced application and certification. The General Conference has the authority to require that the board of ordained ministry conduct a careful and thorough examination to ascertain if an individual meets all disciplinary requirements and certify that such an examination has occurred. But it cannot reduce the scope of the board examination to one aspect only and unfairly single out one particular group of candidates (self-avowed practicing homosexuals) for disqualification. Marriage and sexuality are but two among numerous standards candidates must meet to be commissioned or ordained; other criteria include, for example, being committed to social justice, racial and gender equality, and personal and financial integrity, that all should be part of a careful and thorough examination.

Petition 1 is constitutional.

Petitions 2, 3, and 4 deny a bishop’s right to fair and due process guaranteed in ¶¶ 20, 58 and are unconstitutional.

Petition 5 is constitutional.

Petitions 6, 7, 8, and 9 violate the principle of legality and are unconstitutional.

Petition 10:

¶¶ 2801.1-7 violate the principle of legality and are unconstitutional;
¶ 2801.8, the first sentence:

Clergy who find themselves for reasons of conscience unable to live within the boundaries of ¶¶ 304.3, 341.6, 613.19, and 2702.1a-b are encouraged to transfer to a self-governing church formed under this paragraph.

is unconstitutionally vague and violates the principle of legality;

¶ 2801.9 is constitutional;
¶¶ 2801.10-12 and the “local churches” reference in ¶ 2801.13 are in conflict with ¶ 41 and unconstitutional;
¶¶ 2801.14-23 are constitutional.

Petition 11 is constitutional.

Petition 12 is constitutional.

Petition 13 is constitutional.

Petition 14, the second sentence:

In cases where the respondent acknowledges action(s) that are a clear violation of the provisions of the Discipline, a just resolution shall include, but not be limited to, a commitment not to repeat the action(s) that were a violation.

violates ¶¶ 20, 58 and is unconstitutional.

Petition 15 is constitutional.

Petition 16 is constitutional.

Petition 17 is constitutional insofar as it refers to self-governing Methodist churches formed by annual conferences under the provisions of proposed ¶ 2801.9.

Statement of Facts

On July 10, 2018, the Council of Bishops [hereinafter COB] submitted a request asking the Judicial Council to rule “on the constitutionality of the three plans submitted by the Commission on a Way Forward to the 2019 Special Session of the General Conference.”[1] The Petition for Declaratory Decision, including cover letter, judicial form, the request, and five exhibits, totaled 230 pages.

In addition, four interested parties and fourteen amici curiae filed 28 briefs. The relevant parts of the COB request read:

The Council of Bishops of The United Methodist Church (“the Council”) respectfully requests the Judicial Council to issue a declaratory decision on the constitutionality of three sets of petitions submitted by various members of the Commission on a Way Forward, one set relating to the One Church Plan attached hereto as Exhibit A (“One Church Plan Petitions”), the next relating to the Connectional Conference Plan attached hereto as Exhibit B (“Connectional Conference Plan Petitions”), and another relating to the Traditional Plan attached hereto as Exhibit C (“Traditional Plan Petitions”). Attached hereto as Exhibit D for informational purposes is the entire report of the Commission on a Way Forward.

[…]

 

The Council requests the following declaratory decisions:

Is the proposed legislation known as the One Church Plan constitutional?
If any petition included within the proposed legislation known as the One Church Plan is not constitutional, may the other proposed petitions constituting the One Church Plan be enacted without violating the constitution
Do any of the petitions comprising the proposed legislation known as the One Church Plan violate other provisions of the 2016 Book of Discipline?
Is the proposed legislation known as the Connectional Conference Plan constitutional?
If any petition included within the proposed legislation known as the Connectional Conference Plan is not constitutional, may the other proposed petitions constituting the Connectional Conference Plan be enacted without violating the constitution?
Do any of the petitions comprising the proposed legislation known as the Connectional Conference Plan violate other provisions of the 2016 Book of Discipline?
Is the proposed legislation known as the Traditional Plan constitutional?
If any petition included in the proposed legislation known as the Traditional Plan is not constitutional, may the other proposed petitions constituting the Traditional Plan be enacted without violating the constitution?
Do any of the petitions comprising the proposed legislation known as the Traditional Plan violate other provisions of the 2016 Book of Discipline?

 

            An oral hearing was conducted on October 23, 2018 at the Placid Hotel in Zurich, Switzerland. Appearing on behalf of the COB were Bishops Kenneth H. Carter and Cynthia Fierro Harvey and William Waddell, Esq., and on behalf of the Commission on the Way Forward [hereinafter COWF], Rev. Thomas Berlin for the One Church Plan, Patricia Miller for the Connectional Conference Plan, and Rev. Thomas Lambrecht for the Traditional Plan. Amici curiae Rev. Keith Boyette and Thomas Starnes, Esq. requested and were granted privilege to speak at the oral hearing.

 

[1] Cover Letter of Bishop Cynthia Fierro Harvey, President Designate COB, of July 10, 2018.

Jurisdiction

I.          Object of Review

This Petition for Declaratory Decision was submitted by the Council of Bishops under ¶ 2609.2 of The Book of Discipline 2016 [hereinafter The Discipline], which reads:

2. The Judicial Council shall have jurisdiction to determine the constitutionality of any proposed legislation when such declaratory decision is requested by the General Conference or by the Council of Bishops.

As one of two bodies expressly authorized to request a declaratory decision on proposed legislation, the Council of Bishops has standing to file this request.

An important question was raised concerning the proper object of judicial review. Specifically, do proposed constitutional amendments qualify as “any proposed legislation” under ¶ 2609.2 and can the Judicial Council determine the constitutionality of constitutional proposals?[1] Among the three plans, the Connectional Conference Plan [hereinafter CCP] is the only one that proposes constitutional amendments in addition to disciplinary changes. The entire plan is said to depend on the enactment and ratification of all nine amendments. “Failure to adopt any of the constitutional amendments would jeopardize the whole plan,” asserted the submitter of the CCP.[2] Ruling out piecemeal consideration, she emphasized that “the legislation should therefore be considered as a whole, rather than in isolated parts.”[3] This is an admission that it is legally and practically impossible to isolate legislative proposals requiring constitutional changes from the rest of the CCP. Her brief argues that the Judicial Council has jurisdiction to review the constitutionality of proposed constitutional amendments because they “start out as legislation and would certainly qualify as an ‘act’ of the General Conference.”[4]

The starting point of legal interpretation is “the text of the relevant provisions in The Discipline, particularly the words used therein and their plain meaning.” JCD 1328. The Discipline distinguishes between proposed legislation and constitutional amendment and uses the former to the exclusion of the latter. The plain meaning of “any proposed legislation” cannot be construed to include constitutional amendment, since each requires separate processes for implementation that yield different outcomes. Under our constitutional system and polity, the legislative process is entrusted exclusively to the General Conference, which “shall have full legislative power over all matters distinctively connectional,” Constitution, ¶ 16, whereas the power to scrutinize constitutional proposals belongs to both General Conference and annual conferences as part of the amendment process. Constitution, ¶ 59 - 61. Contrary to the CCP proponent’s contention, it is our opinion that constitutional proposals do not start out as “legislation” and do not become “acts” of the General Conference until their enactment by two-thirds of the delegates present and voting. Constitution, ¶ 59. The Judicial Council cannot be asked to “assume that all the amendments have been adopted,”[5] for this would require us not only to answer hypothetical questions but also to violate the separation of powers by tacitly endorsing constitutional proposals prior to deliberation and action of the General Conference and ratification by the annual conferences. Consequently, we construe the term “any proposed legislation” narrowly to refer to proposed disciplinary changes, since they are the only appropriate object for constitutional review under ¶ 2609.2.

 

Scope of Review

Paragraph 2609.2 limits the scope of review to “the constitutionality” of proposed legislation. This is markedly different from the language in ¶ 2610.1 where the Judicial Council is authorized to make a ruling “as to constitutionality, meaning, application, or effect” of The Discipline. Our task here is to determine only the constitutionality of the legislative proposals contained in the Petition for Declaratory Decision. Conversely, this means that we are not to determine their meaning, application, and effect. It is also evident from the meaning of the term “constitutionality” in ¶ 2609.2 that the legal authority against which “any proposed legislation” may be tested are the constitutional provisions effective at the time of filing of this request, i.e. July 10, 2018, thereby excluding constitutional proposals that have not been adopted and ratified.[6]

Consistent with past precedents, it is our opinion “that the Judicial Council was not set up as an interpreter of doctrine but as an interpreter of law from the strictly legal standpoint,” JCD 59, and that “the Judicial Council has no jurisdiction to pass upon the wisdom of any General Conference legislation [in the extant case, proposed legislation].” JCD 81. Ours is not the discretion to weigh the merits of each petition, nor does it behoove us to judge the expediency of each plan. For that we must defer to the full legislative authority of the General Conference.

 

Timeliness

In JCD 1303, the Judicial Council determined that the questions presented in the petition were not "timely" and thus not appropriate for declaratory decision. We deferred ruling on the proposed legislation on the ground that “by making a declaratory decision on one item of proposed legislation prior to the time when the Church will have access to all proposed legislation, the Judicial Council potentially risks intruding into the 'full legislative authority' of the General Conference.”  We are not faced with such a situation in this case.

The church needs clear and cogent rulings from the Judicial Council before the delegates to General Conference commence their work. Waiting until the General Conference enacts legislation to address its constitutionality will heighten the denomination's difficulties even more. This means that, at a critical juncture like this, the Judicial Council must assume its constitutional role and assist the delegates to the special session of General Conference in the preparation of their legislative work. We, therefore, find that the facts and questions presented in this Petition are timely for declaratory decision.

 

Jurisdictional Test

It is established precedent that the “Judicial Council has only such jurisdiction as is expressly granted to it by the Constitution and by the General Conference. Our lodestar principle has been that we may not assume jurisdiction to render a declaratory decision unless jurisdiction has been clearly vested in the Judicial Council. Our long-standing policy is to construe our jurisdiction strictly and with restraint.” JCD 1354, citing JCD 29, 255, 535, 1160. As previously discussed, it is beyond our power to review proposed constitutional amendments, nor do we have the authority to test proposed legislation against a set of hypothetically or presumably enacted and ratified constitutional amendments in violation of the separation of powers.

For purposes of ¶ 2609.2, to trigger jurisdiction and be properly before the Judicial Council, a petition for declaratory decision must meet the following two-part test: the request must contain proposed legislation that (1) prima facie[7] requires no constitutional amendment(s) for implementation and (2) can be tested directly against the constitutional provisions in effect at the time of filing.

The One Church Plan [hereinafter OCP] contains seventeen petitions all of which seek to change disciplinary provisions only. The COWF’s introduction to the OCP ends with the statement: “No Constitutional Amendments are needed for the One Church Plan as far as we can determine.”[8] Likewise, none of the seventeen petitions of the Traditional Plan [hereinafter TP] seek constitutional changes. Since they propose only disciplinary changes, the petitions in the OCP and TP could undergo constitutional review and, therefore, pass the jurisdictional test. As mentioned above, of the fourteen petitions of the CCP, nine propose constitutional amendments. Having been advised by the submitter of this plan that its implementation depends on those amendments,[9] we hold that the CPP fails the jurisdictional test. Consequently, only the OCP and TP are properly before us.

 

Questions Properly Before the Judicial Council

We will address only the following questions presented in the Petition for Declaratory Decision:

Question 1:     Is the proposed legislation known as the One Church Plan constitutional?

Question 2:     If any petition included within the proposed legislation known as the One Church Plan is not constitutional, may the other proposed petitions constituting the One Church Plan be enacted without violating the constitution?

Question 7:     Is the proposed legislation known as the Traditional Plan constitutional?

Question 8:     If any petition included in the proposed legislation known as the Traditional Plan is not constitutional, may the other proposed petitions constituting the Traditional Plan be enacted without violating the constitution?

Question 3 and 9 ask us to interpret the meaning, application, and effect of the OCP and TP. They are not properly before us because the Judicial Council has jurisdiction to determine only the constitutionality of proposed legislation under ¶ 2609.2. 

Questions 4, 5, and 6 concern the CCP and are not properly before the Judicial Council for the reasons stated above.

 

[1] See Opening Brief of Patricia Miller, p. 1 (“There may be a question whether the Judicial Council has the authority to rule on the constitutionality of proposed constitutional amendments.”) [hereinafter Miller Opening Brief]

[2] Reply Brief of Patricia Miller, p. 1 [hereinafter Miller Reply Brief].                                                                                                                                             

[3] Id.

[4] The Miller brief asserted: “Discipline ¶ 2610.1 gives the Council the authority to rule on “the constitutionality, meaning, application, or effect of the Discipline or any portion thereof or of any act or legislation of a General Conference. Proposed constitutional amendments start out as legislation and would certainly qualify as an “act” of the General Conference.” Miller Opening Brief at 1.

[5] Miller Reply Brief at 1.

[6] The Black’s Law Dictionary defines constitutional as: “Consistent with the constitution; authorized by the constitution; not conflicting with any provision of the constitution…” Black’s Law Dictionary, p. 311 (6th ed. 1990). Constitutionality is the “quality or state of being consistent with the constitution” or “accordance with the provisions of a constitution.” Merriam-Webster Dictionary at https://www.merriamwebster.com/dictionary/constitutionality.

[7] “Prima facie” means that the stipulations of a proposed legislation contained in the record are sufficient at first impression and accepted as correct until determined otherwise by the Judicial Council.

[8] Report of the Commission on the Way Forward, Exhibit D, p. 18. [hereinafter COWF Report].

[9] Miller Opening Brief at 1 (“It is necessary for the Judicial Council to consider the proposed constitutional amendments in conjunction with the whole plan, since those amendments make the plan possible.”).

Analysis and Rationale

One Church Plan

OCP Petition 1

This Petition adds the following sub-paragraph to ¶ 105:

We agree that we are not of one mind regarding human sexuality. As we continue to faithfully explore issues of sexuality, we will honor the theological guidelines of Scripture, reason, tradition and experience, acknowledging that God’s revelation of truth and God’s extension of grace as expressed in Jesus Christ (John 1:14) may cause persons of good conscience to interpret and decide issues of sexuality differently. We also acknowledge that the Church is called through Christ to unity even amidst complexity. We affirm those who continue to maintain that the Scriptural witness does not condone the practice of homosexuality. We believe that their conscience should be protected in the church and throughout society under basic principles of religious liberty. We also affirm those who believe the witness of Scripture calls us to reconsider the teaching of the church with respect to monogamous homosexual relationships.

The concern raised here is that the proposal, instead of developing a uniform position of the Church on human sexuality, “enacts a non-uniform statement which undercuts connectionalism.”[1] But this begs the question whether connectionalism requires uniformity in terms of our theological stance on marriage and human sexuality and whether diversity of beliefs and opinions is antithetical to our connectional covenant and, therefore, unconstitutional.

            The Judicial Council said that the “Constitution clearly provides that the principle of connectionalism should be always primary in any organizational structure of The United Methodist Church.” JCD 411. It would, however, be a stretch and contrary to any rule of construction to say that, as a “primary” organizational principle, connectionalism hinges on uniformity of moral-ethical standards.  Further, ¶ 132 of The Discipline provides:

¶ 132. The Journey of a Connectional People—Connectionalism in the United Methodist tradition is multi-leveled, global in scope, and local in thrust. Our connectionalism is not merely a linking of one charge conference to another. It is rather a vital web of interactive relationships. We are connected by sharing a common tradition of faith, including Our Doctrinal Standards and General Rules (¶ 104); by sharing together a constitutional polity, including a leadership of general superintendency; by sharing a common mission, which we seek to carry out by working together in and through conferences that reflect the inclusive and missional character of our fellowship; by sharing a common ethos that characterizes our distinctive way of doing things.  [emphasis added]

If connectionalism by definition were to dictate standardization in all things theological, as some amicus briefs argued,[2] it would preclude any kind of contextualization and differentiation on account of geographical, social, and cultural variations, and, by implication, prohibit central conferences from making “such changes and adaptations of the General Discipline as the conditions in the respective areas may require.” Constitution, ¶ 31.5. But if connectionalism is understood in terms of “a vital web of interactive relationships” multi-leveled and multi-faceted in nature (as expressed in ¶ 132 quoted above), it would allow room for diversity of theological perspectives and opinions.[3] Undoubtedly, the Constitution grants the General Conference the power to establish a uniform system of moral-ethical standards for our ministers. See JCD 1341. But that does not mean that the General Conference must do so, for this would be contrary to the “full legislative power…to define and fix the powers and duties of” clergy members. Constitution, ¶ 16.2. Our Constitution commands not that all church policies enacted by the General Conference be uniform but that all uniform church policies be enacted by the General Conference. Full legislative power includes the power to adopt a uniform, standardized, or a non-uniform, differentiated theological statement. Therefore, we conclude that Petition 1 is within the legislative discretion of the General Conference under ¶ 16 of the Constitution.  

 

OCP Petitions 2, 3, and 5

The changes to ¶¶ 161.C, 161.G, and the footnote to ¶ 310.2(d) seek to change the definition of marriage by substituting the phrase “between two adults” for “between a man and a woman” and “heterosexual,” while affirming the traditional understanding of marriage. The issues boil down to two main arguments levelled against the constitutionality of these amendments: (1) they change the definition of marriage in violation of the first and second Restrictive Rules (¶¶ 17-18)[4] and, particularly, are contrary to John Wesley’s Explanatory Notes Upon the New Testament because the General Conference in 1972 voted to use Wesley’s Explanatory Notes as “a new context of interpretation” for the Articles of Religion and Confession of Faith;[5] (2) they delegate the authority to define marriage to civil authorities, local churches, and pastors,[6] thereby creating non-uniform and inconsistent standards across the denomination.[7]

The Judicial Council, in JCD 1027, established a two-prong test for determining whether a question brought before it is doctrinal or legal in nature:

In addressing such challenges, the Judicial Council has applied a two-step process. First, the Judicial Council determines whether the language used in the challenged disciplinary provision revokes, alters, or changes the Articles of Religion (¶ 103 of the 2004 Discipline). In making such a determination, the Judicial Council has held that the questioned language must be placed in the Articles of Religion or must be in direct conflict with language of the Articles of Religion.  See Decisions 86 and 142…. Second, where language used in a challenged disciplinary provision is not placed in the Articles of Religion and is not in direct conflict with language of the Articles of Religion, we have held that it does not have jurisdiction to pass on the constitutionality of such language, even though the language may be theological or doctrinal in nature, because to do so would be to engage in the interpretation of doctrine, an act which is beyond our authority. See Decisions 86 and 243. 

We must determine first if the proposed legislation in question revokes, alters, or changes or otherwise is in direct conflict with the Articles of Religion and Confession of Faith, and second, absent modification and direct conflict, if it is theological or doctrinal in nature so as to place it beyond constitutional scrutiny. Petitions 2, 3, and 5 contain amendments to disciplinary provisions but no textual changes or “insertion of any word or phrase into one of our Articles of Religion [and Confession of Faith].” JCD 86. Nor can they be said to be in direct conflict with the language of said documents, since none of the doctrinal statements define marriage as being a “heterosexual” union “between one man and one woman.”

Upon closer look at JCD 468, the claim that the General Conference’s adoption of Wesley’s Explanatory Notes as “a new context for interpretation” of the Articles of Religion and Confession requires legislative changes of the marriage definition to be consistent with the Explanatory Notes does not hold up to scrutiny. The phrase “a new context of interpretation” in JCD 468 is part of an extended quotation from the Daily Christian Advocate and refers to the report of the Theological Study Commission on Doctrine and Doctrinal Standards, not Wesley’s Explanatory Notes, as providing a new context for reading the doctrinal documents, since the purpose of the report was “to clarify the contextual relationships between the Articles, the Confession, and Wesley's Sermons and Notes and Rules.”[8] This cannot be construed as saying that Wesley’s Explanatory Notes “are included among our ‘established standards of doctrine’ covered by the First Restrictive Rules,” and effectively given constitutional status.[9] Nor does this directly support the assertion that the Explanatory Notes “establish the contextual meaning for same-sex practice” as far as the Articles and the Confession are concerned.[10]

“On the basis of a narrowly construed interpretation of the question,” JCD 358, we find that there is nothing concerning traditional marriage or homosexuality in the Articles and Confession and that the amended ¶¶ 161.C, 161.G, and footnote to ¶ 310.2(d) do not alter, revoke, or change, nor are they in direct conflict with the language of those foundational documents. As to whether the proposed legislation in question may be theological or doctrinal in nature, any endeavor to legislatively define marriage or human sexuality draws on beliefs, convictions, and a priori positions that clearly fall outside the traditional realm of jurisprudence. Since Petitions 2, 3, and 5 propose “language which, even though doctrinal or theological in nature, is not placed in the Articles of Religion and which does not directly conflict with the Articles of Religion, only the General Conference is competent to determine whether its  enactment establishes a new standard or rule of doctrine contrary to our present existing and established standards of doctrine.” JCD 1027, citing JCD 243. For this reason, Petitions 2, 3, and 5 pass the Restrictive Rules test.

            The second argument (“lack of uniformity and inconsistent standards”) uses JCD 1185 as authority. In that case, the Judicial Council struck down a New York Annual Conference policy allowing same-sex marriage for clergy and upheld ¶ 2702.1 of The Discipline 2008 on constitutional grounds. The briefs advancing this position quote the following statement in support:

The recognition or non-recognition of same sex marriage by civil authorities has no effect on our analysis. The Church has a long tradition of maintaining its standards apart from those recognized or permitted by any civil authority. The Church’s definition of marriage as contained in the Discipline is clear and unequivocal and is limited to the union of one man and one woman. Consequently, the Church’s definition of marriage must take precedence over definitions that may be in operation in various states, localities and nations or that may be accepted or recognized by other civil authorities. To do otherwise would allow the Church’s polity to be determined by accident of location rather than by uniform application. JCD 1185 [emphasis added]

But they also conveniently skip over the preceding portion of the opinion, which reads:

Though not explicitly stated, the New York Annual Conference resolution and policy is aimed at permitting clergy who wish to enter into a same sex marriage to do so at their discretion. Paragraph 604.1 provides that an annual conference, “for its own government, may adopt rules and regulations not in conflict with the Discipline of The United Methodist Church.” The action of the New York Annual Conference in adopting Resolution 2010-305 is a violation of ¶ 604.1 of the Discipline. […] An annual conference has no authority to offer clergy immunity from administrative or judicial complaint processes by adopting a resolution and policy that is clearly contrary to the Discipline. Judicial Council jurisprudence has long held that an annual conference may not legally negate, ignore, or violate provisions of the Discipline, even when the disagreements are based upon conscientious objections to those provisions.  JCD 1185, citing JCD 96, 886, and 911.

The overlooked excerpt of JCD 1185 makes it abundantly clear that annual conferences are constitutionally prohibited from enacting policies contrary to the standards established by the General Conference. JCD 7. The problem of disharmony is tied to annual conferences passing inconsistent regulations, not civil authorities defining marriage on behalf of and for the Church. Put differently, permitting annual conferences to adopt their own policies on same-sex marriage would lead to lack of uniformity and inconsistent standards, and it is this scenario (i.e.  conflicting annual conference legislation in the area of marriage) that “would allow the Church’s polity to be determined by accident of location rather than by uniform application.” JCD 1185. Contrary to the assertion in amicus briefs, this opinion has no bearing on the issue of Church-State separation. At its core, JCD 1185 restated the constitutional division of powers between General Conference and annual conferences by affirming the former’s full and exclusive authority to set uniform standards for marriage, a distinctly connectional matter.

            Petitions 2, 3, and 5 are also alleged to delegate the power to define marriage to local churches and pastors. Yet, nowhere does the language of the proposed legislation suggest that local churches and ministers are authorized to do so. On the contrary, the rationale of the proposed legislation is to honor the “traditional understanding of marriage” and protect the “Religious liberty…for those whose consciences would be impinged if they celebrated a same-sex union in societies where it is allowed.”[11] As was said above, the General Conference has full legislative power to establish uniform moral-ethical standards for our clergy members. But it can also choose, under the same constitutional warrant, to enact non-uniform, differentiated standards. These petitions fall under the latter category. It cannot be said that the proposals delegate the power to define marriage to local churches and ministers because they lack any standards. They do define marriage and establish standards, albeit non-uniform and differentiated in nature, and entrust churches and pastors with their application. Therefore, this unconstitutional-delegation argument is without merit.

 

OCP Petition 4

Petition 4 seeks to amend ¶ 304.3 as follows:

3. While persons set apart by the Church for ordained ministry are subject to all the frailties of the human condition and the pressures of society, they are required to maintain the highest standards of holy living in the world. The responsibility for determining how standards, including standards related to human sexuality, may apply to certification or ordination in a given annual conference falls to the Conference Board of Ordained Ministry and the clergy session of the annual conference. The bishop may choose to seek the non-binding advice of an annual conference session on standards relating to human sexuality for ordination to inform the Board of Ordained Ministry in its work. The practice of homosexuality incompatible with Christian teaching. Therefore self-avowed practicing homosexual persons are not to be certified as candidates, ordained as minister or appointed to serve in the United Methodist Church.

 

 

It retains the first sentence of the current provision but removes the prohibition on ordaining, certifying and appointing self-avowed practicing homosexual persons. The legislation assigns the responsibility for determining how to apply the disciplinary standards, including those concerning human sexuality, to boards of ordained ministry and the clergy members of annual conferences. The same provision also creates the bishop’s authority to seek the non-binding advice of an annual conference regarding the ordination of self-avowed practicing homosexuals for the benefit of the board of ordained ministry. The COWF Report explains that the “One Church Plan removes the language from The Book of Discipline used in the United States that restricts…annual conferences from ordaining self-avowed practicing homosexual persons” and that this “plan provides United Methodists the ability to address their missional contexts in different ways.”[12]

The crucial issue here is whether the Petition improperly transfers the authority to set minimum standards on ordination, certification, and appointment of ministers from the General Conference to the board of ordained ministry and clergy session of a given annual conference, thus effectuating an unconstitutional delegation of powers.[13] The COB Brief defends Petition 4 on the grounds that, with the deletion of the last sentence of the current ¶ 304.3, “there will be no statement by the General Conference on the issue of human sexuality as it relates to certification or ordination.”[14] The removal of this prohibitive language results in “the absence of any standard by the General Conference,” which essentially means that “there is no distinctively connectional issue that an annual conference Board of Ordained Ministry cannot address regarding human sexuality” within its authority under ¶ 33.[15]

Most frequently cited authorities on this issue are JCD 542 and 544. The relevant portion of JCD 542 reads:

…the General Conference under Par. 15 of the Constitution has the power to establish standards, conditions and qualifications for admission to the ministry. Under Par. 37 of the Constitution, however, it is the Annual Conference, as the basic body of the church, that decides whether those standards have been met. Reserved to it is the right to vote on all matters relating to the character and conference relations of its ministerial members and on the ordination of ministers.

 

Decision 544 states in relevant part:

The Constitution, Par. 15, [now ¶ 16] gives the General Conference the power to fix the basic requirements for ministry, while it becomes the responsibility of the Annual Conference, as set forth in Par. 36 [now ¶ 33], to measure, evaluate, and vote upon candidates, as regards the minimum standards enacted by the General Conference. Ordination in The United Methodist Church is not local, nor provincial, but worldwide. While each Annual Conference is a door through which one may enter the ministry of the entire church, the Annual Conference cannot reduce nor avoid stipulations established by the General Conference which must be met by the church's ministry everywhere. An Annual Conference might set specific qualifications for its ministerial members, but does not have the authority to legislate in contradiction to a General Conference mandate or requirement. 

In those two leading cases, the Judicial Council, reading ¶ 16 in conjunction with ¶ 33, distinguished between legislative and administrative functions. The legislative function belongs to the General Conference (i.e. “the power to establish standards, conditions and qualifications for admission to the ministry” and “the power to fix the basic requirements for ministry”), whereas the administrative responsibility is given to the annual conference (i.e. “decides whether those standards have been met” and “to measure, evaluate, and vote upon candidates, as regards the minimum standards”). Unauthorized delegation of powers occurs when the legislative function is assigned to annual conferences, namely the power to establish standards, conditions, and qualifications for admission to the ministry. But this is not the case with Petition 4. What Petition 4 does is codify the controlling principle in JCD 542 and 544 by giving the board of ordained ministry and clergy session the “responsibility for determining how standards, including standards related to human sexuality, may apply to certification or ordination in a given annual conference.” [underlines omitted]. In other words, Petition 4 reaffirms the administrative role of the annual conference in regard to the General Conference’s full legislative authority to establish minimum standards on ordination and human sexuality and is, therefore, within the boundaries set by ¶¶ 16 and 33 of the Constitution.

Further, eliminating the prohibitive language in ¶ 304.3 does not lead to a lack of standards, nor does it create a legislative “vacuum” the annual conferences have to fill.[16] The Petition removes only one among numerous requirements a clergy person must meet for ordination, certification, and appointment, leaving all other standards intact for annual conferences to apply. The ban on the ordination of self-avowed homosexual persons was added to the Discipline in 1984. If the General Conference had the power to enact the ban in 1984, it will certainly have the authority to repeal it in 2019 if it so wishes. The legislative branch of the Church is constitutionally free to set the standards for entrance into the ministry wherever and whenever it sees fit. Regardless of where that threshold may be at any given time, the “annual conference may enact additional requirements that are not in conflict with the letter or intent of” the minimum standards set by the General Conference. JCD 1341. By striking the prohibitive language, Petition 4 brings the threshold back to the pre-1984 level.

The sentence authorizing a bishop “to seek the non-binding advice of an annual conference session on standards relating to human sexuality for ordination to inform the Board of Ordained Ministry in its work” is constitutionally problematic. It was argued that there is no constitutional basis for this kind of authority.[17] The issue here is not the creation of a special episcopal authority per se, since the General Conference has the constitutional warrant to “define and fix the powers, duties, and privileges of the episcopacy,” Constitution, ¶ 16.5, but the purpose for which it may be exercised, namely to inform the board of ordained ministry in its work. The manifest objective of soliciting a non-binding annual conference opinion by the bishop on issues related to the ordination and certification of self-avowed practicing homosexual persons is to help the board of ordained ministry make informed decisions. This arrangement bears the risk of crossing the line between episcopal and administrative functions, thus violating the doctrine of separation of powers. “The operative principles of United Methodist polity and law include the authority of the Annual Conference; the separation of powers of the Episcopacy, the Superintendents, and the Board of Ordained Ministry; and due process.” JCD 689 [emphasis added]. Further, the Judicial Council held that “the bishop has no authority to make substantive rulings on judicial or administrative matters…To do otherwise would violate the principle of separation and balance of powers between the legislative, executive and judicial branches as set forth in the Constitution.” JCD 799, aff’d, JCD 1092. The separation of powers prevents bishops not only from ruling on administrative matters but also exerting improper influence over the administrative process. In JCD 1156, the Judicial Council stated the principle of non-interference as follows:

The separation of authority and decision making is integral to the United Methodist Constitution and law. Procedures that govern action with respect to matters of conference relations are carefully set forth in the Discipline and are to be followed by the Board of Ordained Ministry without interference from the bishop or the district superintendents acting individually in that role or collectively through the cabinet. [emphasis added]

By allowing a bishop to inform the work of the board of ordained ministry, the proposed legislation promotes precisely the kind of interbranch contact JCD 1156 prohibits, i.e. “interference from the bishop or the district superintendents acting individually in that role or collectively through the cabinet.”  Needless to say, the General Conference is free to authorize the use of non-binding opinions by bishops to inform the work of the cabinet and district superintendents. The special episcopal authority may be granted and exercised for any but unconstitutional purposes. In other words, the grant of this special authority expressly for the purpose of informing the work of the board of ordained ministry is constitutionally objectionable. For this reason, we conclude that Petition 4 is constitutional, except for the added sentence: “The bishop may choose to seek the non-binding advice of an annual conference session on standards relating to human sexuality for ordination to inform the Board of Ordained Ministry in its work.” [underlines omitted].

 

 

OCP Petitions 6 and 7

Under The Discipline, elders and deacons have the freedom to perform or not perform marriage, union or blessing ceremonies for heterosexual couples. By adding new ¶¶ 329.4 and 334.6, Petitions 6 and 7 would extend this freedom to these services for same-sex couples where they are legal. An elder’s or deacon’s “right to refuse such a service due to conscience is expressly protected.”[18] Objections to these proposals concern the lack of uniformity and unconstitutional delegation of the power to define the boundaries of marriage to ministers.[19] There is no delegation of policy-setting authority involved because standards on marriage, human sexuality, and ordination have already been established and covered by Petitions 1-5. To recall, the General Conference is free to enact non-uniform, differentiated standards and entrust local churches as well as clergy members to exercise their religious liberty in the application of those standards.

Another concern is that Petitions 6 and 7 allow pastors to officiate worship services not included in The Book of Worship and rituals not sanctioned by the Church.[20]  Paragraph 16.6 of the Constitution reads:

6. To provide and revise the hymnal and ritual of the Church and to regulate all matters relating to the form and mode of worship, subject to the limitations of the first and second Restrictive Rules.  [footnote omitted]

The Judicial Council, in Memorandum 694, dealt with the issue of whether a Minnesota Annual Conference resolution allowing reconciling congregations to offer services of blessing and celebration of committed relationships of same-sex couples was out of order. It came to the following conclusion:

The General Conference is the legislative body which has prerogative over matters distinctively connectional (Par. 15) [now ¶ 16], as well as the Hymnal and Ritual of the Church (Par. 15.6) [now ¶ 16.6]. The Annual Conference does not have authority either to establish or to alter the official rites and rituals of The United Methodist Church. It is the responsibility and duty of the pastor to “oversee the total ministry of the local church in its nurturing ministries and in fulfilling its mission of witness and service in the world ...” (Par. 439) [now ¶ 340]. Par. 439.1(a) [now ¶ 340.2(a)] further states it is the responsibility of the pastor “to preach the Word, oversee the worship life of the congregation, read and teach the Scriptures, and engage the people in study and witness.” It is the responsibility of pastors in charge to perform their duties in compliance with the Discipline and be obedient to the Order and Discipline of the Church.  [emphasis added]

Memorandum 694, however, has no direct bearing on this case because in that case the resolution in question was adopted by an annual conference. By passing that policy, the Minnesota Annual Conference intruded upon General Conference’s full legislative authority under then ¶ 15.6 of the Constitution. Since the annual conference lacked the authority to pass the resolution in the first place, local churches and ministers would contravene The Discipline if they acted in accordance with the resolution by offering those services to same-sex couples. In the extant case, however, the policy permitting those services will be a legislation of the General Conference if it votes to enact it in 2019. Local churches and clergy persons who choose to conduct those services will be in compliance with The Discipline because they will simply select from among available options offered by the General Conference legislation.  For those reasons, Petitions 6 and 7 pass constitutional muster.

 

OCP Petition 8

Similar to Petition 7, this Petition affirms a clergy person’s “right to exercise his or her conscience when requested to perform such marriages, unions or blessings as a matter of his or her individual religious liberty.” Amended ¶ 340.3(a) [underlines omitted]. Under this provision, no pastor shall be required or compelled to perform services for same-sex couples or prohibited from doing so. But it goes further in guaranteeing the right of a clergy member “who cannot in good conscience continue to serve in a conference based upon that conference’s standards for ordination regarding practicing homosexuals” to transfer to a different annual conference. Amended ¶ 340.3(b) [underlines omitted]. The second sentence of amended ¶ 340.3(c) states:

Similarly, clergy who cannot in good conscience continue to serve a particular church based on unresolved disagreements over same-sex marriage as communicated by the pastor and Staff-Parish Relations Committee to the district superintendent, shall be reassigned.

If clergy persons “shall be reassigned” in the event of irreconcilable differences with the local church, the question arises as to whether this provision infringes upon a bishop’s appointment authority.[21] Constitution, ¶ 54. Defending this provision, the submitter of the OCP maintained that “it remains the bishop—the bishop alone—who retains the constitutional mandate and prerogative both to ‘make and fix’ the departing pastor’s new assignment.”[22] A distinction must be made, the brief argued, between the bishop’s constitutional authority to appoint ministers under ¶ 54 and the General Conference’s power to determine the process leading up to pastoral appointments, namely the power to “define and fix the powers, duties, and privileges of the episcopacy” under ¶ 16.5. “In other words, just as our bishops’ constitutional powers include the power to ‘make and fix’ pastoral appointments, that same power is among the ‘episcopal powers’ that the General Conference has complementary constitutional authority to ‘define and fix.’”[23] This provision is touted as striking the proper balance between episcopal authority and the full legislative authority of the General Conference.

            This argument, however, ignores the fact that, although the General Conference may “determine what must happen before the bishop exercises that power,”[24] it must also ensure that the process leading up to the appointment decision be outcome-neutral. In JCD 1307, the Judicial Council said:

This authority grants the General Conference the right to shape the nature of the consultation process that must be followed as bishops carry out their constitutional responsibility to make and fix appointments, as long as this does not alter the necessity of consultation with superintendents and the final authority of bishops to make and fix pastoral appointments.  [emphasis added]

By prescribing a particular outcome (reassignment) for a particular instance (unresolved disagreements) determined by particular persons (pastor and local church SPRC), the legislation makes the exercise of the appointment power contingent on certain factors and actors and, by the same token, restricts the bishop’s “final authority” to only one possible choice.[25] Under this mandatory-reassignment arrangement, a bishop would have no alternative if he or she had reason to believe that the SPRC of a local church under the cover of “unresolved disagreements” discriminates against a pastor on account of race, culture, ethnicity, age, or gender. Even where the involved parties disagree over what the disagreement is actually about, a bishop has no choice but to move the pastor to a different church. One way or another, he or she is limited to one option only. To fully preserve a bishop’s final authority, any process established by the General Conference prior to the appointment decision must (1) avoid predetermining the outcome and (2) leave room for alternatives. For this reason, the language in amended ¶ 340.3(c) mandating reassignment (“shall be reassigned”) violates ¶ 54 and is unconstitutional.

We must now determine whether the remainder of Petition 8 can be upheld if one part of it is declared invalid. In other words, the question is whether amended ¶¶ 340.3(a), (b), and (c) can be separated from and enacted without the invalid part. For constitutional purposes, separation is inappropriate when the remaining part is so inextricably connected to the part declared invalid that what remains cannot independently survive. In such event, the operative presumption is that the author of the legislation would not have proposed the remaining part by itself.

The invalid portion of ¶ 340.3 deals with a substantively different, though similar, subject. Sub-paragraph (a) protects the freedom of clergy persons to perform or not perform services for same-sex couples; sub-paragraph (b) affirms the principle that no clergy shall be compelled, required to or prohibited from performing those services; and sub-paragraph (c), first sentence, gives clergy persons the option to transfer for reasons of conscience. All these parts can stand alone and be separated from the impugned sentence in ¶ 340.3(c). Consequently, we come to the conclusion that Petition 8 is constitutional, except for the following sentence:

“Similarly, clergy who cannot in good conscience continue to serve a particular church based on unresolved disagreements over same-sex marriage as communicated by the pastor and Staff-Parish Relations Committee to the district superintendent, shall be reassigned.”  [underlines omitted]

 

OCP Petition 9

Petition 9 seeks to amend ¶ 341.6 as follows:

6. Ceremonies that celebrate homosexual unions same-sex marriage shall not be performed conducted by clergy our ministers and shall not be conducted in our churches on church-owned property unless the church decides by a majority vote of a Church Conference to adopt a policy to celebrate same-sex marriage on church property.

Amicus briefs raised here the same concerns as in Petitions 6 and 7. We already addressed them there. See supra OCP Petitions 6 and 7. Another question is whether the General Conference can allow a church to conduct same-sex wedding services if the majority of a “Church Conference” votes to adopt such policy, when the constitutional provision expressly speaks of “charge conference.”

The Constitution, in ¶¶ 43 and 44, provides:

¶ 43. Article I.—There shall be organized in each charge a charge conference composed of such persons and invested with such powers as the General Conference shall provide.

 ¶ 44. Article II. Election of Church Officers—Unless the General Conference shall order otherwise, the officers of the church or churches constituting a charge shall be elected by the charge conference or by the professing members of said church or churches at a meeting called for that purpose, as may be arranged by the charge conference, unless the election is otherwise required by local church charters or state or provincial law.  [footnote omitted]

These constitutional paragraphs stipulate the existence of the charge conference and establish the election of church officers by the charge conference as a default mode, leaving the details for General Conference to determine. Under Constitution, ¶ 16.3, the full legislative power of the General Conference includes the authority to “define and fix the power and duties…of charge conferences, and congregational meetings,” and this means, also the power to adopt regulations for the governance of local churches, provided that there be a charge conference for each charge, and to establish a different process for electing church officers. Short of eliminating the charge conference, the General Conference can do whatever it pleases when it comes to the organization and administration of the local church. Nowhere does the Constitution explicitly prohibit the use of church conferences in lieu of charge conferences for a limited and specific purpose such as voting on a same-sex wedding policy. The amended provision does not change, restrict, or repeal in any way the powers and duties of the charge conference.[26] Consequently, we find that Petition 9 is within General Conference’s legislative authority under ¶¶ 43 and 44 of the Constitution.

 

OCP Petition 10

This Petition protects the religious liberty of bishops who cannot in good conscience commission, license, or ordain self-avowed practicing homosexuals. The addition to ¶ 415.6 reads:

No bishop shall be required to ordain an elder or deacon, commission a deaconess, home missioner, or missionary, or license a local pastor who is a self-avowed practicing homosexual. The Jurisdictional College of Bishops shall provide for the ordination, commissioning, and licensing of all persons recommended by the Board of Ordained Ministry and the clergy session of the annual conference in the bounds of its jurisdiction. All clergy with security of appointment shall continue under appointment by the bishop of the annual conference.

Similar concerns were raised against Petitions 1-4. We addressed them there. See supra OCP Petitions 1-4. Further, it was asserted that this Petition improperly allows bishops to preside outside their assigned area without direction from the COB and without permission from a resident bishop in violation of ¶ 52 of the Constitution.[27] This argument is without merit. The first and second sentences are interdependent in the sense that the second is preconditioned by the first, while the effectiveness of the first depends on the implementation of the second one. The protection of a bishop’s right to religious liberty requires that provision be made by the respective college of bishops for the ordination and commissioning of self-avowed practicing clergy candidates in the event that one or more of its members exercise that right,[28] with the implicit understanding that a bishop from outside the episcopal area will come and preside only if the residential bishop (1) indicates his or her intention to exercise that right and (2) consents to such an arrangement. Even in that scenario, the bishop is not giving up his or her constitutionally assigned role but remains the presider over the annual conference session for purposes of ¶ 52. The General Conference has the power to “define and fix the powers, duties, and privileges of the episcopacy” under ¶ 16.5 of the Constitution. This Petition affirms one of the “privileges” and at the same time establishes new “powers, duties” for bishops acting individually or as members of a jurisdictional college of bishops. It is not in conflict with ¶ 52 because this constitutional provision speaks to the presidential role of bishops in the broadest terms and leaves plenty of room for the General Conference to legislate. The Constitution does not require the direction of the COB for any plan set up by a college of bishops for the ordination and commissioning of self-avowed practicing homosexual persons, nor does it prohibit bishops from outside the episcopal area to preside upon the consent of a residential bishop who exercises his or her religious right under amended ¶ 415.6. We, therefore, conclude that Petition 10 is in harmony with the Constitution.

 

OCP Petitions 11 and 12

Nearly identical in wording, these Petitions seek to amend ¶¶ 416 and 419 by setting boundaries for bishops and district superintendents who shall not:

require any pastor to perform or prohibit any pastor from performing any marriage, union, or blessing for same-sex couples on church property;
require any church to hold or prohibit any church from holding a same-sex marriage service on church property.

Petition 12 is different from Petition 11 in that it adds a clause to the district superintendents’ prohibited conduct that reads: “or otherwise coerce, threaten, or retaliate against any pastor who exercises his or her conscience to perform or refuse to perform a same-sex marriage.”[29] Arguments against these Petitions were also made against Petitions 4, 6, 7, and 8, which we addressed above. See supra OCP Petitions 4, 6, 7, and 8. The concern raised here is that these proposals are unconstitutional because they interfere with the work of bishops as general superintendents and of district superintendents as the extension of the episcopacy and effectively destroy “the plan of our itinerant general superintendency” protected by the Third Restrictive Rule (Constitution, ¶ 19).[30]

While bishops acting individually or collectively do their work as itinerant general superintendents, it is the role of the General Conference to “define and fix the powers, duties, and privileges of the episcopacy.” Constitution, ¶ 16.5. In the exercise of this broad power, the General Conference can dictate what bishops and superintendents must not do to local churches and pastors who decide one way or another with regard to same-sex weddings. Whenever the General Conference has spoken legislatively on matters distinctively connectional, the COB is responsible “for carrying into effect the rules, regulations, and responsibilities prescribed and enjoined by the General Conference,” Constitution, ¶ 47 [emphasis added], and a “bishop presiding over an annual, central, or jurisdictional conference shall decide all questions of law coming before the bishop in the regular business of a session,” Constitution, ¶ 51 [emphasis added], and “ensure that the annual conference and general church policies and procedures are followed” as well as “ensure fair process for clergy and laity…in all involuntary administrative and judicial proceedings.” The Discipline, ¶ 415.2-3 [emphasis added]. Far from a carte blanche for episcopal authority, the plan of itinerant general superintendency is circumscribed by constitutional and disciplinary law. Therefore, Petitions 11 and 12 are within those constitutional boundaries.

 

OCP Petition 13

This Petition adds a new sub-paragraph to ¶ 605 that reads:

10. At any clergy session of an annual conference, the chairperson of the Board of Ordained Ministry shall, if directed by a vote of the Board of Ordained Ministry, present a motion regarding certification, ordination, and appointment of self-avowed practicing homosexuals. Provided, however, that any clergy session of an annual conference that votes on such matters shall not, without the consent of the presiding bishop, take up any subsequent motion on that issue during any called or special session of annual conference held within 30 full calendar months from the date of such vote regardless of the outcome.

The constitutionality of this proposed legislation is questioned on the grounds that it (1) unlawfully delegates authority concerning the certification, ordination, and appointment of self-avowed practicing homosexuals to the board of ordained ministry and clergy session of annual conferences,[31] and (2) allows a bishop to determine the frequency of an annual conference’s discussion and decision on matters related to the certification, ordination, and appointment of self-avowed practicing homosexuals.[32]

The first concern is unfounded because it is the General Conference, in exercising its full legislative authority over a distinctively connectional matter, “that is permitting change and the potential for non-uniformity in regard to human sexuality.”[33] As said above concerning OCP Petition 1, the Constitution does not require that all church policies enacted by the General Conference be uniform but that all uniform church policies be enacted by the General Conference. Its constitutional authority includes the power to adopt non-uniform, differentiated standards regarding human sexuality. Similar to Petition 4, the first sentence of this Petition codifies the controlling principle in JCD 542 and 544 by affirming the administrative role of annual conferences in determining how to apply non-uniform, differentiated disciplinary standards by way of a motion of the board of ordained ministry presented to the clergy session regarding certification, ordination, and appointment of self-avowed practicing homosexuals.

We find, however, that the second sentence of this Petition is constitutionally flawed. Under the amended provision, the annual conference is barred from considering and voting on any motion regarding certification, ordination, and appointment of self-avowed practicing homosexuals within thirty months, unless this time period is waived by the presiding bishop.[34] Whether labeled “waiver” or “consent,” this special episcopal authority amounts to a veto power.  If bishops are constitutionally prevented from seeking the non-binding advice of the annual conference for the purposes of informing the board of ordained ministry in its work (See supra OCP Petition 4), they should not be in the position to disallow any motion brought by the clergy session within that time period. In allowing the bishop to control the agenda, discussion, and decision of an annual conference by withholding his or her consent, this legislation essentially turns an annual conference’s autonomous right to vote on all matters relating to the character and conference relations and the ordination of clergy into a conditional right, depending on the consent of the bishop, in violation of ¶ 33 of the Constitution. Immaterial is the question of whether and why a bishop might actually exercise this veto power, for the constitutional guarantee of an annual conference’s reserved rights does not tolerate speculations about episcopal actions and their underlying motives. We conclude that the second sentence of Petition 13, to the extent that it authorizes the bishop to waive the thirty-month period, infringes upon an annual conference’s reserved rights and is, therefore, unconstitutional.

 

OCP Petition 14

This Petition seeks to strike language from ¶ 2702.1 to reflect proposed changes in ¶¶ 161.C, 161.G, 304.3, and 341.6.[35] The legislation would change the definition of immorality to “not being celibate in singleness or not faithful in a monogamous marriage” and strike “being a self-avowed practicing homosexual” as well as “conducting ceremonies which celebrate homosexual unions; or performing same-sex weddings” from the chargeable offense of practices declared by The United Methodist Church to be incompatible with Christian teachings. The prohibitive language first appeared in The Discipline 2004 and went into effect on January 1, 2005. In May 2004, prior to the entry into effect of the legislation, the Judicial Council ruled that ¶ 304.3 “of 2000 Discipline was a declaration of the General Conference…that ‘the practice of homosexuality is incompatible with Christian teaching’” and construed it to be “a chargeable offense under ¶ 2702.1(b) of the 2000 Discipline.” JCD 984, aff’d, JCD 1027, 1341.

The concerns raised against this Petition were discussed in connection with Petitions 1-5 above. The objective of Petition 14 is to roll back the legislative changes to the pre-2004 status. If the General Conference had the constitutional authority to enact those chargeable offenses in 2004, it will certainly have the full legislative power to repeal them in 2019, should it decide to do so. Consequently, Petition 14 passes constitutional muster.

 

OCP Petition 15

This Petition proposes to amend ¶ 543.17 by extending the time for central conferences to enact adaptations and translate legislation passed by a General Conference from 12 to 18 months. According to the rationale, “[a]n additional six months give the central conferences the appropriate time to meet, translate the legislation and consider whether they want to make adaptations.”[36] Importantly, Petition 15 does not say that the central conferences shall meet within 18 months after the close of the General Conference, for this would be clearly in conflict with ¶ 30, which provides that “central conferences shall meet within the year succeeding the meeting of the General Conference.”[37] The language of the proposed change only provides that legislation passed by a General Conference “shall not take effect” until 18 months after the close of that General Conference and essentially is an exception to the rule that all “legislation of the General Conference of The United Methodist Church shall become effective January 1 following the session of the session of the General Conference at which it is enacted.” The Discipline, ¶ 508. Under ¶ 16.3, the General Conference has full legislative power to “define and fix the powers and duties of…central conferences.” Consequently, Petition 15 is authorized by that constitutional provision.

 

OCP Petition 16

This Petition adds a new § 23 to ¶ 1504, which reads as follows:

If a local church or charge in the United States changes its relationship to The United Methodist Church through closure, abandonment, or release from the trust clause pursuant to ¶2548, ¶2549, or otherwise, notwithstanding whether property with title held by the local church is subject to the trust (under the terms of ¶2501), the local church shall contribute a withdrawal liability in an amount equal to its pro rata share of any aggregate unfunded pension obligations to the annual conference. The General Board of Pension and Health Benefits shall determine the aggregate funding obligations of the annual conference using market factors similar to a commercial annuity provider, from which the annual conference will determine the local church’s share.

The stated purpose of this legislation is to have local churches intending to exit the Church

pay a proportional fair share of the annual conference’s aggregate unfunded pension liability using market factors similar to a commercial annuity provider to account for the investment, longevity, and other risks they leave to the Church.[38]

            The General Conference has full legislative power to “enact such other legislation as may be necessary, subject to the limitations and restrictions of the Constitution of the Church.” Constitution ¶ 16.16 [emphasis added]. Under this “necessary-legislation” power, it can set the financial terms and conditions, including a calculation basis, for local churches desiring to exit the Church, subject to the limitations and restrictions of ¶ 41, which regulates the process for transferring local churches. Petition 16 does not change the process but defines the financial obligations of transferring local churches and is a proper exercise of General Conference’s necessary-legislation power under ¶ 16.6. It is, therefore, constitutional.

 

OCP Petition 17

This last Petition intends to change the Clergy Retirement Security Program “so active clergy who change their covenant are removed from the defined benefit and annuity risk pools for their former annual conference and the Church, and are provided an actuarially equivalent account balance benefit.”[39] Although “Clergy Retirement Security Program” is not expressly listed among the enumerated powers in ¶ 16, it certainly constitutes a distinctively connectional matter over which the General Conference has full legislative authority. In regard to bishops, the legislative branch of the Church is authorized “to adopt a plan for the support of the bishops, to provide a uniform rule for their retirement,” Constitution, ¶ 16.5, and with respect to clergy persons, to “define and fix the powers and duties of elder, deacons, supply preachers, local preachers, exhorters, deaconesses, and home missioners.” Constitution, ¶ 16.2. The regulation and definition of clergy retirement benefits may also be regarded as “other legislation as may be necessary” under ¶ 16.16 of the Constitution. For this reason, we conclude that Petition 17 is constitutional.

 

Traditional Plan

 

Is the Traditional Plan “in harmony”?

Several amici curiae challenged the constitutionality of the TP on the basis that it is neither “in harmony” with the purpose of the amended call letter of the COB nor is it the work of the COWF.[40] One particular amicus brief asserted that the TP “pays no heed to the clearly stated purpose and objective of the Way Forward process as it was defined in the Council of Bishops’ ‘Offering on a Way Forward’,” and, for that reason, is “fundamentally out of harmony—flatly inconsistent—with the purpose of upcoming called session of the General Conference.”[41]

First, we find no evidence in the amended call letter indicating that the purpose of the special session of General Conference “was to consider and act on proposals that would aim to preserve the unity of The United Methodist Church notwithstanding its diverse perspectives on human sexuality issues.”[42]

Second, in JCD 1360, we ruled on the question of “in harmony” under ¶ 14:

Petitions to the special session of the General Conference 2019 may be filed by any organization, clergy member and lay member of the United Methodist Church as long as the business proposed to be transacted in such petition is in harmony with the purpose stated in the call. It is the obligation of the General Conference to determine, in the first instance, through its committees, officers and presiders, acting in accordance with The Discipline and the rules and procedures of the General Conference, whether any such petition is “in harmony.” However, business not in harmony with the purpose as stated in the call is not permitted unless the General Conference by a two-thirds vote shall determine that other business may be transacted. See ¶ 14.  [emphasis added]

Whether all petitions submitted or, particularly, the ones concerning the TP are in harmony with the purpose stated in the amended call is not a matter for constitutional adjudication, but content-based evaluation expressly assigned to the “committees, officers and presiders, acting in accordance with The Discipline and the rules and procedures of the General Conference.” Id. It is immaterial that, “judged strictly by the terms of Bishop’s call, or by the terms of that call as amplified by the clearly expressed intent of the 2016 General Conference (as drawn from the record of those proceedings),” the Traditional Plan is alleged to be inconsistent “with the intended purpose of the Called Special Session scheduled for 2019.”[43] The question was asked and answered in JCD 1360 and remains for the appropriate committees to make a final determination.

 

TP Petition 1

This Petition seeks to add language to footnote 1 of ¶ 304.3 as follows:

“Self-avowed practicing homosexual” is understood to mean that a person openly acknowledges to a bishop, district superintendent district committee of ordained ministry, Board of Ordained Ministry, or clergy session that the person is a practicing homosexual; or is living in a same-sex marriage, domestic partnership or civil union, or is a person who publically [sic] states she or he is a practicing homosexual. See Judicial Council Decisions 702, 708, 722, 725, 764, 844, 984, 1020, 1341.

The Rationale states:

The added language identifies other means by which an individual openly acknowledges that they are engaged in the practice of homosexuality and can be determined by access to public records or declarations made in public forums. It incorporates Judicial Council Decision 1341 in the Discipline.[44]

The 1996 General Conference added this footnote to ¶ 304.3 in response to JCD 702. If the General Conference had the power to enact the footnote in 1996, it will certainly have the authority to add language to it in 2019 if it so wishes. As we noted above under OCP Petition 4, the legislative branch of the Church is constitutionally free to set the standards for entrance into the ministry wherever and whenever it sees fit. This proposed legislation falls within General Conference’s full legislative power over distinctively connectional matters and is, therefore, constitutional.

 

TP Petitions 2, 3, and 4

These legislative petitions propose to amend ¶¶ 408, 410, and 422 by establishing “a process by which the Council of Bishops may hold one another accountable, based on the constitutional amendment to ¶ 50 that was ratified in 2017.”[45] The centerpiece of this new process are the proposed changes to ¶ 422, particularly, the new additional § 5, which reads in relevant part:   

¶ 422.5. The Council of Bishops shall establish from its membership a Council Relations Committee of at least three persons to hear requests for involuntary leave of absence, involuntary retirement, as may be referred to it by the Council of Bishops or any seven active bishops.

When there is a recommendation for an involuntary status change to be referred to the Council Relations Committee, the Council Relations Committee shall conduct an administrative hearing following the provisions of fair process. The Council of Bishops shall designate the person to present the recommendation to the committee. The respondent shall be given an opportunity to address the recommendation in person, in writing, and with the assistance of a clergyperson in full connection, who shall have voice. Once the committee has heard the person designated to represent the recommendation, the respondent, and others as determined by the chairperson of the committee, it shall report its decision to the Council of Bishops. The Council of Bishops may affirm or reverse the decision of the committee. The Council of Bishops shall refer to the Council Relations Committee any bishop who is unwilling to certify that he or she is willing to uphold, enforce and maintain The Book of Discipline relative to self-avowed practicing homosexuals. When the Council Relations Committee reaches a positive finding of fact that the bishop has not so certified, the Council Relations Committee shall recommend either involuntary leave or involuntary retirement to the Council of Bishops after conducting a Fair Process Hearing.

Under this provision, the Council Relations Committee [hereinafter CRC], composed of three members of the COB, receives complaints referred to it by the COB or by seven active members, conducts administrative hearings, and reports its decision to the COB, which may affirm or reverse the decision. Although it may be warranted by ¶ 50 under a broad construction of the phrase “hold its individual members accountable for their work,”[46] this process runs afoul of other provisions in the Constitution.  There is no separation of prosecutorial and adjudicative functions because they are combined in one and

Ruling

The Judicial Council has jurisdiction to determine the constitutionality of any proposed legislation when such declaratory decision is requested by the General Conference or by the Council of Bishops but lacks the authority to scrutinize proposed constitutional amendments under ¶ 2609.2. To trigger jurisdiction and be properly before the Judicial Council, a petition for declaratory decision must contain proposed legislation that prima facie requires no constitutional amendment(s) for implementation and can be tested directly against the constitutional provisions in effect at the time of filing. The Connectional Conference Plan contains proposed constitutional changes and does not pass this jurisdictional test. The One Church Plan and the Traditional Plan meet those criteria to be properly before the Judicial Council. The task of the Judicial Council is to pass upon the constitutionality of the legislative petitions without expressing an opinion as to their merits or expediency. It is up to the General Conference to determine the wisdom of each plan.

With respect to the One Church Plan, the Judicial Council makes the following ruling:

As a primary principle in any organizational structure of The United Methodist Church, connectionalism denotes a vital web of interactive relationships—multi-leveled, global in scope, and local in thrust—that permits contextualization and differentiation on account of geographical, social, and cultural variations and makes room for diversity of beliefs and theological perspectives but does not require uniformity of moral-ethical standards regarding ordination, marriage, and human sexuality. Full legislative power of the General Conference includes the authority to adopt a uniform, standardized, or a non-uniform, differentiated theological statement. Our Constitution commands not that all church policies enacted by the General Conference be uniform but that all uniform church policies be enacted by the General Conference. It assigns the legislative function to set standards related to certification, commissioning, ordination, and marriage to the General Conference and the administrative responsibility for applying them to the annual conferences, local churches, and pastors within their missional contexts. The legislative branch of the Church is constitutionally free to set the standards for entrance into the ministry wherever and whenever it sees fit. Regardless of where that threshold may be at any given time, the annual conference may enact additional requirements that are not in conflict with the letter or intent of the minimum standards set by the General Conference.

Petition 1 is constitutional. 

Petition 2 is constitutional. 

Petition 3 is constitutional. 

Petition 4 is constitutional, except for the second sentence:

The bishop may choose to seek the non-binding advice of an annual conference session on standards relating to human sexuality for ordination to inform the Board of Ordained Ministry in its work.

This part violates the separation of powers, is contrary to ¶ 33 and, therefore, unconstitutional.

Petition 5 is constitutional. 

Petition 6 is constitutional. 

Petition 7 is constitutional.

Petition 8 is constitutional, except for the sentence:

Similarly, clergy who cannot in good conscience continue to serve a particular church based on unresolved disagreements over same-sex marriage as communicated by the pastor and Staff-Parish Relations Committee to the district superintendent, shall be reassigned.

This part is in conflict with ¶ 54 and is unconstitutional.

Petition 9 is constitutional.

Petition 10 is constitutional.

Petition 11 is constitutional. 

Petition 12 is constitutional

Petition 13 is constitutional, except for the second sentence:

Provided, however, that any clergy session of an annual conference that votes on such matters shall not, without the consent of the presiding bishop, take up any subsequent motion on that issue during any called or special session of annual conference held within 30 full calendar months from the date of such vote regardless of the outcome.

This part infringes upon an annual conference’s reserved rights under ¶ 33 and is unconstitutional.

Petition 14 is constitutional.

Petition 15 is constitutional.

Petition 16 is constitutional.

Petition 17 is constitutional.

 

With respect to the Traditional Plan, the Judicial Council makes the following decision:

Impartiality and independence of decision-making bodies are the hallmarks of due process and bedrock principles of procedural justice in our constitutional polity. No process can be fair and equitable if the body bringing the complaint is also empowered to determine its merits. The fundamental right to fair and due process of an accused bishop is denied when the complainants are also among those tasked with reviewing and making the final decision. The Council of Bishops was not designed to function as an inquisitional court responsible for enforcing doctrinal purity among its members.

As a tenet of United Methodist constitutionalism, the principle of legality means that all individuals and entities are equally bound by Church law, which shall be applied fairly and without regard to race, color, national origin, status, or economic condition. It forbids selective or partial enforcement of Church law at all levels of the connection and demands that The Discipline in its entirety be followed without distinction. All decisions and actions by official bodies and their representatives must be based on and limited by the Constitution and The Discipline. Individuals must be informed with specificity and clarity as to what is prescribed and proscribed by Church law. No person or body can be required to act contrary to Church law or prohibited from engaging in lawful conduct. No person can be punished for actions and conduct that are permitted or required by Church law. Clergy persons whose credentials and conference membership are at stake have the right to know what to expect when they choose a course of action or take a particular stance on ordination, marriage, and human sexuality. To pass constitutional muster, any proposed legislation affecting clergy rights must define with sufficient clarity and specificity the standards to guide future actions of all concerned persons and entities.

Under the principle of legality, the General Conference can prescribe or proscribe a particular conduct but cannot contradict itself by prescribing prohibited conduct or prohibiting prescribed conduct. It can require bishops, annual conferences, nominees, and members of boards of ordained ministry to certify or declare that they will uphold The Discipline in its entirety and impose sanctions in case of non-compliance. But it may not choose standards related to ordination, marriage, and human sexuality over other provisions of The Discipline for enhanced application and certification. The General Conference has the authority to require that the board of ordained ministry conduct a careful and thorough examination to ascertain if an individual meets all disciplinary requirements and certify that such an examination has occurred. But it cannot reduce the scope of the board examination to one aspect only and unfairly single out one particular group of candidates (self-avowed practicing homosexuals) for disqualification. Marriage and sexuality are but two among numerous standards candidates must meet to be commissioned or ordained; other criteria include, for example, being committed to social justice, racial and gender equality, and personal and financial integrity, that all should be part of a careful and thorough examination.

Petition 1 is constitutional.

Petitions 2, 3, and 4 deny a bishop’s right to fair and due process guaranteed in ¶¶ 20, 58 and are unconstitutional.

Petition 5 is constitutional.

Petitions 6, 7, 8, and 9 violate the principle of legality and are unconstitutional.

Petition 10:

¶¶ 2801.1-7 violate the principle of legality and are unconstitutional;
¶ 2801.8, the first sentence:

Clergy who find themselves for reasons of conscience unable to live within the boundaries of ¶¶ 304.3, 341.6, 613.19, and 2702.1a-b are encouraged to transfer to a self-governing church formed under this paragraph.

is unconstitutionally vague and violates the principle of legality;

¶ 2801.9 is constitutional;
¶¶ 2801.10-12 and the “local churches” reference in ¶ 2801.13 are in conflict with ¶ 41 and unconstitutional;
¶¶ 2801.14-23 are constitutional.

Petition 11 is constitutional.

Petition 12 is constitutional.

Petition 13 is constitutional.

Petition 14, the second sentence:

In cases where the respondent acknowledges action(s) that are a clear violation of the provisions of the Discipline, a just resolution shall include, but not be limited to, a commitment not to repeat the action(s) that were a violation.

violates ¶¶ 20, 58 and is unconstitutional.

Petition 15 is constitutional.

Petition 16 is constitutional.

Petition 17 is constitutional insofar as it refers to self-governing Methodist churches formed by annual conferences under the provisions of proposed ¶ 2801.9.

 

 

Ruben Reyes was absent.  Warren Plowden, first lay alternate, participated in this decision.

Beth Capen participated fully in the deliberation of this matter.  Kent Fulton, Second Lay Alternate, cast the vote. 

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