A Legal Case for Removing Karen Oliveto as UMC Bishop (Part 2 of 2)

The United Methodist Church’s Judicial Council, the denomination’s supreme court, meets this week to consider specific questions raised to challenge the attempt by the Western Jurisdiction to elect openly partnered lesbian activist Karen Oliveto as a United Methodist bishop, as well as other important cases.

I shared here my initial amicus curiae (“friend of the court”) brief in which I made a case why Dr. Oliveto’s election should be considered null and void, according to the biblical standards of our church law.

 I and others who submitted briefs were then offered a chance to submit written responses to each other’s arguments. This is standard procedure. What follows is the essential content of my second-round brief, replying to the arguments of those others who shared their own legal briefs.

I.  Introduction

II.  Arguments about Jurisdiction

A.  There are two fundamental steps that must characterize the final rulings of the Judicial Council here. 

B.  The facts sufficiently show how the request relates directly to the Western Jurisdiction’s election of Karen Oliveto. 

C.  Arguments about timing. 

D.  The relevant facts related to Dr. Karen Oliveto are sufficiently clear in this case. 

E.  The multi-part question is sufficiently relevant to the SCJ for it to make this request. 

F.  The Judicial Council has a recent history of acting upon requests for declaratory decisions that explicitly concerned specific issues within completely different regions of the church from the petitioning body. 

G.  Accountability procedures within annual conferences must be exercised in compliance with the standards of the general church. 

H.  United Methodism’s connectionalism means that every region of our denomination has legitimate interest in such a major decision made by the Western Jurisdiction. 

I.  Stare decisis is helpful, but not absolute. 

III.  Arguments about Judicial Processes

IV.  Arguments about the Permissibility of Homosexual “Marriages” for United Methodist Clergy

V.  Arguments about Nominating, Electing, and Consecrating Bishops

VI.  Conclusion

Reply by John Lomperis to Briefs Submitted for Docket #0417-1

I.  Introduction

I, John Lomperis, have received copies of briefs submitted for this case by Keith Boyette (on behalf of Dixie Brewster), Tom Griffith, Jeffrey Kuan, Simon Mafunda, Richard Marsh, Kevin Nelson, Jonathan Razon, and Robert Zilhaver. I have shared electronic copies of my own original brief with all of these individuals, as well as with everyone else named in Secretary Lui Tran’s February 14, 2017 e-mail.  Many of the concerns raised in other briefs have already been addressed or rebutted in my original brief.  I will try to avoid redundancy in this reply.

I tried to carefully follow the format in Appendix C of the Judicial Council’s updated Rules of Practice and Procedure.  This meant I had to cut many pages of material from my original brief to fit within the limits of being double-spaced and no more than 30 pages.  I hope that all submitters will be held to these same limits.

All Disciplinary references remain to the 2012 edition, unless otherwise noted.

II.  Arguments about Jurisdiction

A.  There are two fundamental steps that must characterize the final rulings of the Judicial Council here. First, the Judicial Council must issue declaratory answers to each part of the unified, multi-part question before it. Secondly, after making such a general clarification of church law, then the Judicial Council must indicate how it is to be applied in the specific case of Dr. Karen Oliveto, which played a key role in prompting the request for a declaratory decision.

Arguments that the entire substance of this request should be dismissed on the grounds that it did not specifically mention Karen Oliveto by name miss the reality of these two fundamental parts to the ruling sought.  Such arguments also miss the ways in which the request has much wider implications beyond Dr. Oliveto, as discussed in my original brief and demonstrated by there having been at least three openly partnered gay bishop candidates in at least two jurisdictions during the 2016 jurisdictional conferences.[i]  Such arguments also misunderstand key differences between declaratory decisions and decisions of law, such as how the former can be requested on a wider scope of matters, since the bar is set higher for requesting them (majority vote of the body vs. request of a single individual).

B.  The facts sufficiently show how the request relates directly to the Western Jurisdiction’s election of Karen Oliveto. An official report noted that the request for the declaratory decision was made at least in large part in response to the impending elevation of Dr. Oliveto to the episcopacy, and was thus characterized by the maker of the motion.^[ii] A video of the discussion of the request motion is available online.^[iii] Beginning at around the 12:40 mark, it records one of the main “in favor” speeches, in which the Rev. John Miles urged adoption of this motion explicitly in response to Dr. Oliveto, saying, “Karen Oliveto is clearly going to be elected, right perhaps as I’m speaking,” and noted how this would impact churches across our connection.

The wording of the question of law, focusing on the meaning of specific Disciplinary provisions rather than on the name of any particular one of the aforementioned partnered gay bishop candidates, was the proper framing for a request for a declaratory decision.  But the brief submitted by the maker of the original motion in the South Central Jurisdiction (SCJ), through her counsel, makes clear that a major part of her own intent was the election of one of these candidates.  None of the above at all limits the numerous other ways in which each part of the request before the Council relates directly to the work of the SCJ itself.

C.  Arguments about timing. In the original version of his brief, Thomas Griffith argued that because the SCJ’s “request was made six or more hours prior to the election of any Bishop in the Western Jurisdiction” (emphasis Griffith’s), a substantial ruling on all matters in this case would somehow be invalid.[iv]  Now in his updated brief, he is appears to argue the exact opposite, that because the adoption of the SCJ request “has officially been proven to have occurred after the election” in the West, a substantial ruling on all matters in this case would somehow be invalid.  This is the very definition of “heads I win, tails you lose” logic.

The actual record, noted above and with the aforementioned video, indicates that the SCJ request was discussed and debated at about the same time as Oliveto’s election, and that Bishop Harvey announced to that jurisdictional conference, immediately after the vote results on the request were announced, that Oliveto had just been elected.[v]  At this point, our church is unlikely to be served well by further entertaining attempts to disqualify this motion based on quibbling comparisons of a few minutes or seconds here or there.  In any case, this motion was unambiguously made well before Oliveto was consecrated, as an affirmation of her election.

D.  The relevant facts related to Dr. Karen Oliveto are sufficiently clear in this case. Briefs submitted in defense of Dr. Oliveto characterize certain facts as “unsubstantiated” and claim that some questions therefore fall beyond the Judicial Council’s role as “not an evidentiary body” under Decision #702.  However, this seems to be one of several previous decisions that briefs submitted in defense of Oliveto’s election seem to misunderstand.   First of all, the Judicial Council made that quoted statement about itself in concluding a listing of several ways in which no or insufficient evidence was presented to the Judicial Council for it to make certain determinations in the matter then before it.  So in saying, “The Judicial Council is not an evidentiary body,” Decision #702 seemed to indicate that it was perfectly appropriate for the Judicial Council to review evidence presented to it through the proper channels, but that when insufficient evidence has been thus presented for certain conclusions, the Judicial Council’s members are not required to go out and gather evidence themselves.  Secondly, that case dealt most pointedly with questions about the meaning of “self-avowed practicing homosexual” at a time when the clarifying footnote had not been added to what is now ¶304.3.  In that 1993 ruling, the Judicial Council called for the General Conference to add greater clarification to the meaning of this phrase, which the General Conference did by adding that footnote in 1996.  Thus, any attempts to apply Decision #702 to our present case will be misleading if they fail to account for the significant differences in the current state of church law from that in 1993.  (The same would apply to other cases addressing this Disciplinary provision before the 1996 General Conference).  And while Decision #702 did indeed decline to clarify “the meaning of words passed by the General Conference,” after General Conference added the footnote, the Judicial Council asserted its authority in Decision #920 to issue a very substantial clarification of (one possible) meaning of the same “words passed by the General Conference” that were in question in Decision #702.

While Decision #702 involved the Judicial Council characterizing key factual matters as unsettled due to insufficient evidence, the most relevant facts about Dr. Oliveto are not at all “unsubstantiated,” but rather are not seriously in question nor the subjects of contrary evidence.  What remains in question are instead matters of legal interpretation of the established facts.  While Marsh’s brief faults the request for not “contain[ing] any record” of Oliveto’s self-avowal of homosexuality (never minding the difficulties of somehow directly incorporating such records into the request itself), this argument is invalidated by the brief of the motion’s submitter including as Exhibit 1 the public marriage record of Karen Oliveto, solemnized by the Rev. Angela Brown.  The former president of the Judicial Council has said that this would be sufficient evidence for at least a complaint.[vi]  As demonstrated in my original brief and in Section IV below, this also sufficiently constitutes a self-avowal of practicing homosexuality.

I respectfully contend that Mr. Marsh’s brief also misunderstands Decision #1286.  That decision did not establish in church law that the Judicial Council can never take notice of whatever Marsh means by “undemonstrated public reports.”  Rather, in that decision of law, the Judicial Council declined to take certain actions when there would have been no clear basis in proven fact, in church law, or in any “demonstrated relationship” between the two for it to have done so.  This present request for a declaratory decision is a very different matter.

In any case, it well established that “The Judicial Council has authority to determine factual matters which are essential to decide the legal questions involved” (Decision #595).

E.  The multi-part question is sufficiently relevant to the SCJ for it to make this request. Much of this argument was already made in Section III of my original brief.

Rev. Griffith argues against the SCJ’s standing to make this request on the basis of how the Judicial Council’s answers “would not affect the actions of the South Central Jurisdiction at its 2016 session.” But the wording of ¶2610.2(f) does not limit the scope of such requests to matters impacting only the one session of the one jurisdictional conference making the request. Rather, it allows all South Central Jurisdictional Conferences to request decisions “on matters relating to or affecting … jurisdictional conferences” (which would include future sessions of the South Central Jurisdictional Conference), jurisdictions (which exist continually between jurisdictional conference sessions), and “the work therein” (a rather broad category).  Nothing would be more directly relevant to these listed entities than the nomination, election, assignment, and qualifications of bishops.

Furthermore, there is a contrast with the self-referential language of ¶2610.2(g) allowing other bodies to only seek declaratory decisions “on matters relating to or affecting the work of such body” (singular) and the lack of the similar self-referential, singular language in ¶2610.2(f).  When the Discipline nowhere explicitly limits the right of jurisdictional conferences to request declaratory decisions on only matters within the petitioning body, rather than within jurisdictions in general, it is inappropriate for the Judicial Council, whether in its Rules of Practice and Procedure or in any ruling, to impose this non-Disciplinary restriction of Disciplinary rights.

There is an understandable desire to limit the scope of permissible requests for declaratory decisions, for fear of annual conferences overwhelming the Council with too many requests too often.  But requests from jurisdictions (and central conferences) come much less frequently.  There are only twelve of these larger regional structures of our church, rather than the many dozens of annual conferences, and they meet only one-quarter as often.  Given these realities, the relative dearth of jurisdictional requests for declaratory decisions, and the extreme importance of this case, the Judicial Council should be hesitant to limit the already rarely exercised right of jurisdictional conferences to make requests for declaratory decisions.

Furthermore, this request meets the standards for review set by key Judicial Council precedents.  Decision #463 ruled that for an annual conference’s request for a declaratory decision to be answered, (1) “The question must involve the constitutionality, meaning, application or effect of the Discipline or any portion thereof” (Cf. ¶2610.1) and (2) the question must be shown to be a matter that “affects the Annual ConferenceS” (emphasis added). Note the exactly parallel wording of ¶2610.2(f) and ¶2610.2(j), respectively governing such requests from jurisdictional and annual conferences. The SCJ’s request meets the first criterion as a unified, multi-part request for a ruling on the application, meaning, and effect of the Discipline, especially certain sections, with each sub-question relating to the specified paragraphs. As for the second criterion, the above arguments address how the inquiries affect jurisdictions.

F.  The Judicial Council has a recent history of acting upon requests for declaratory decisions that explicitly concerned specific issues within completely different regions of the church from the petitioning body. So the claims by some other briefs that the Judicial Council’s practice has been to only consider requests for declaratory decisions that “arise from an action or event that occurred in the requesting body” are not completely true.  Two important Judicial Council decisions, which may have established new precedents, are #1272 and #1275.  In #1272, the Judicial Council established jurisdiction to make a substantial, major, and perhaps controversial ruling in response to a request for a declaratory decision from a U.S. annual conference on questions with no immediate or tangible impact upon the petitioning body, but which rather focused on merely potential actions of other regional bodies (central conferences).  This was justified by a “need for some definite interpretation of law,” which is hardly less urgent in our present case.  In Decision #1275, the Judicial Council established its jurisdiction to issue substantive rulings on requests for a declaratory decision from one regional body about specific matters of episcopal accountability arising from a specific situation in another part of the world. The record of relevant resolutions of the Western Pennsylvania Conference makes clear that this request was in response to a very particular situation within the East Africa Episcopal Area.^[vii]

G.  Accountability procedures within annual conferences must be exercised in compliance with the standards of the general church. Some argue that under ¶¶11 and 33 of the Constitution, it is basically the annual conference’s business, and nobody else’s, to see about the proper review, accountability, and disciplining for clergy within it.  But our church law is clear that the General Conference has the right to establish uniform ordination standards in the Discipline and that no annual conference (and therefore no jurisdiction), may legally negate, ignore, violate, or seek to replace these (see ¶16 and Decisions #7, 96, 155, 536, 544, 823, 886, 1321).

H.  United Methodism’s connectionalism means that every region of our denomination has legitimate interest in such a major decision made by the Western Jurisdiction. Decision #544 says “Ordination in The United Methodist Church is not local, nor provincial, but worldwide.”  This principle is so fundamental to our polity that Decision #155 ruled that not even the Constitutional right of central conferences to regionally adapt the Discipline could be used to change ordination standards in so major a way as to categorically exclude women.  If ordination is a fundamentally global matter, how much more that must be true for the election of bishops!

If the Judicial Council were to rule that the SCJ has no right to request a declaratory decision on the actions of another jurisdiction, it would be hard to overstate how fundamentally this would redefine United Methodism.  Such a ruling would effectively replace our long-standing connectional system with a much more fractured, disunited, and chaotic system in which every jurisdiction would be as autonomous as it wanted to be, effectively free to unilaterally ignore and replace the policies of General Conference, as long as the leaders of that jurisdiction were in as strongly unanimous agreement on a matter as in the final ballot electing Dr. Oliveto.  It would be obviously self-defeating to say the only body who could request such a Judicial Council ruling to challenge an action supported unanimously by a regional body is a majority vote in that same regional body.  (Especially considering the unlikeliness of even a single voting member of the Western Jurisdictional Conference requesting a ruling of law to challenge a decision for which s/he had just voted in favor.)

I.  Stare decisis is helpful, but not absolute. For a case of this magnitude, it would be entirely appropriate, perhaps even expected, for the Judicial Council to reverse or modify its own past precedents, in whole or in part, to the extent necessary.

III.  Arguments about Judicial Processes

Robert Zilhaver’s brief outlines the minimum process that the Judicial Council should, according to Decision #920, mandate be followed (including the Judicial Council mandating a suspension of Dr. Oliveto from all episcopal duties) if either (1) Dr. Oliveto’s self-avowal of her “marriage” had occurred only after her election, or (2) if the request’s focus was on questioning her status as an elder.  But this situation is rather different (although as a very secondary matter, review of Dr. Oliveto’s standing as elder should also be mandated, per ¶363).

First of all, my original brief (along with the public record supplied by the Brewster/Boyette brief) documents how Dr. Oliveto’s self-avowal of her homosexual “marriage” has been an ongoing matter, before and after her election.  It may be worth noting that being a self-avowed, practicing homosexual is categorically different from other chargeable offenses listed in ¶2702.1.  Others can be committed as a one-time occurrence, involving particular moments that can be isolated at the point at which someone committed adultery, a same-sex union ceremony, a crime, an act of discrimination or abuse, etc.  In contrast, this offense specifically refers to an offender’s choices about an ongoing way of “being.”

Secondly, removing an elder from a particular office is fundamentally different from defrocking her altogether.  Our present case involves a question of whether or not an elder’s elevation to a particular office could have been lawful under the 2012 Discipline in the first place.  Elsewhere in church law, we see such examples as ¶¶ 710.7, .9, and .10 providing minimum requirements for individuals to be elected and assigned as members of agencies.  If an agency becomes aware of clear facts showing that one of its clergy (or lay) members did not meet these Disciplinary requirements at the time or her election, she is simply removed from the position automatically, with no right to trial or right to appeal for this removal.  Nor is there any “presumption of innocence” once the member’s ineligibility has moved from the level of unsubstantiated allegation to confirmed, unquestioned fact.  There is no question of such longstanding standards in church law (in ¶710 and parallel eligibility requirements elsewhere) violating the Fourth Restrictive Rule (¶20), since such a member’s fundamental status as an clergy- or lay-person in good standing would not be automatically taken away with such a removal.  So this Restrictive Rule simply would not apply.  By parallel logic, the “presumption of innocence” for which Zilhaver’s brief calls would not apply to established, unquestioned facts in this case, and ¶20 would not apply to ruling that such facts of a particular nature could make the election of someone like Dr. Oliveto null and void.  By their inherent nature, most legal “presumptions” (of innocence, paternal legitimacy, or other things) are not to be maintained indefinitely and unconditionally, even beyond the bounds of basic reasonableness—but rather, are to be abandoned upon the establishment of clear facts to the contrary.

Furthermore, even if the Judicial Council for some reason insists on ruling that the non-Disciplinary standard of established homosexual “genital sexual contact” is absolutely necessary for any clergy being held in violation of ¶304.3, the established fact of them being in a homosexual “marriage” is sufficient to replace the “presumption of innocence” with a rebuttable presumption of such genital sexual contact, as outlined in my original brief.  It may be true, as some briefs say, that there are some marriages in which both spouses are living together—as Dr. Oliveto has publicly admitted to doing with Robin Ridenour (Section II.D of my original brief)—so that there is no doubt about sexual access, in which no genital sexual activity of any sort ever takes place (not just infrequently, but never).  But such instances are so extraordinarily rare that it is neither realistic nor reasonable to deny that genital sexual activity is at the very least a rebuttable presumption about any co-habiting married couple.

IV.  Arguments about the Permissibility of Homosexual “Marriages” for United Methodist Clergy

A positive answer to the final sub-question before the Judicial Council would not, as some briefs suggest, amount to the Judicial Council somehow creating a new chargeable offense.  Rather, it would simply provide desperately needed clarity for the boundaries of one of these already-listed chargeable offenses of ¶2702.1 (as well as ¶304.3).  And the fact of the matter is that there is no United Methodist clergyperson who would have entered a same-sex “marriage” of public record while honestly believing they were “blamelessly” honoring the spirit, letter, intent, and underlying values of this already-existing prohibition of their “being a self-avowed practicing homosexual.”  The argument of some briefs that the Judicial Council has no right to issue any substantial clarification of the definition, for church-law purposes, of the phrase “self-avowed practicing homosexual” are fatally undermined by the reliance of these very same briefs on Decision #920, in which the Judicial Council did precisely that.  (It bears repeating that that landmark ruling outlined only one possible way in which a clergyperson could meet the definition for this phrase, not the only possible way.  Relatedly, Griffith’s brief mischaracterizes Decision #984 as making any direct mention of genital sexual activity, while both his and Nelson’s briefs mischaracterize Decision #1027 as similarly limiting the only possible definition of this key phrase to explicit self-avowals of genital sexual activity.)

The briefs submitted by myself along with the Brewster/Boyette, Razon/Layugan/Rigos, and Mafunda briefs confirm that the plain-sense definition of “self-avowed practicing homosexual” would obviously include anyone in a homosexual “marriage” of public record, in the understanding of United Methodist leaders in Africa, the Philippines, and our denomination’s North Central, South Central, and Southeastern Jurisdictions in the USA.  (I see in the 2016 Advanced Daily Christian Advocate that Brewster, Mafunda, Razon, as well as I were all elected by our annual conferences to be 2016 General Conference delegates, while Boyette was an elected reserve delegate.)  This along with the record supplied in my original brief confirms the widespread understanding of this phrase’s definition by United Methodists in Europe, Asia, every central conference in Africa, and every U.S. jurisdiction.  The Judicial Council should be extremely hesitant to construe Disciplinary language as meaning something very different from how the words are widely understood across our global connection. 

Alternatively, the Brewster/Boyette brief points to how ¶¶304.2 and 2701.1(a) make clear that there are only two permissible marital statuses for our clergy: celibately single or heterosexually married.  Ministers whose marital status is neither of these two (i.e., married, not single, but not heterosexually married), would be in violation of these Disciplinary provisions.  Since these provisions were first enacted, the laws of many Western societies as well as South Africa were changed to invent the new marital status of “same-sex marriage.”  However, the General Conference has consistently declined to extend church recognition or affirmation to these relationships, and rejected numerous petitions that would have changed our Discipline to have made room for church acceptance of such “marriages.”

Attempts to dismiss the relevance of other key Discipline paragraphs miss some key considerations. The Social Principles limiting marriages to only those between one man and one woman (¶161B) and broadly deeming all homosexual practice “incompatible with Christian teaching” (¶161F) is legally binding insofar as other sections of the Discipline separately enshrine these standards.  The ordination covenant – the violation of which is a chargeable offense (¶2702.1[d]) – includes commitment to live within these boundaries (¶310.2[d]).  The chargeable offense of “immorality” (¶2702.1[b]) would certainly include practices, like homosexual “marriages,” the church’s Social Principles have characterized as immoral.  When church law so strongly disapproves of same-sex wedding ceremonies that no minister is allowed to perform and no congregation is allowed to host them, under any circumstances (¶¶ 341.6 and 2702.1[b]), it would be quite a logical stretch to accept Marsh’s argument that it can nevertheless be acceptable for our clergy to be direct participants in prohibited same-sex weddings/marriages.

Other briefs effectively argue that (1) the General Conference’s repeatedly legislating and consistently re-affirming categorical disapprovals of all homosexual unions are somehow not clear enough and (2) according to Decision #920, clergy can basically get away with widely publicizing their own violation of ¶304.3 as long as they simply refuse to answer certain awkward direct questions about their own genital sexual practices and/or if ideologically sympathetic individuals involved in review processes avoid asking such questions.

Among the clear indications of the legislative intent of ¶304.3 to bar clergy from being in homosexual “marriages” is the official record of the 2008 General Conference, the last one to take a direct plenary vote on this provision.  The submitted rationale for a petition to retain the current language of ¶304 (the substance of which the General Conference effectively accepted by a large majority^[viii]) framed keeping all current language, including in ¶304.3, as a matter of limiting our clergy’s marriages to those between one man and one woman.^[ix]  That same General Conference rejected proposed changes to ¶2702.1 which, according to the rationales of their Submitted Texts, were designed to allow homosexual clergy to be partners in “homosexual unions,”^[x] or spouses in “other than heterosexual marriages.”^[xi]

One of the more high-profile examples of (2) was when the Rev. Mark Williams publicly announced to his Pacific-Northwest Annual Conference that he was, in his own words, “a practicing gay man,”[xii] but then after a complaint was filed, he declared his unwillingness “to discuss my sexual behavior in any specifics,” and so the committee on investigation dismissed the complaint due to allegedly insufficient evidence.  This prompted a Reconciling Ministries Network spokesman to cite this as a deliberate strategy to make ¶304.3 “very hard” to enforce.[xiii]  A few years later, the Rev. Amy DeLong was in a same-sex domestic partnership of public record[xiv] and openly self-avowed to the committee on investigation that she was in a long-term lesbian relationship,[xv] but she repeatedly refused to answer direct questions about her engagement in genital sexual contact with her lesbian partner,[xvi] and this served as an excuse for those in her liberal annual conference entrusted with enforcement claiming that there was insufficient evidence that she was really a self-avowed practicing homosexual.

My original brief has already outlined why sexual activity is at least a rebuttable presumption within any sort of “marriage,” and commonsense ways of understanding church law that can avoid detailed questioning about clergy’s genitals.  But the Judicial Council should be very skeptical about arguments that only the most explicit self-avowals of clergy’s genital activities can be sufficient for enforcing ¶304.3, and/or that bishops and their appointees must have free rein to decide such matters on a case-by-case (and regionally inconsistent) basis.  Such arguments are part of this larger history of the “Reconciling” movement continually seeking ways to empower dissident officials in certain annual conferences to effectively disregard parts of the Discipline which they personally oppose, and making effective enforcement impossible in some regions.  This has gone on for long enough.

The impractical nature of setting too high a bar for proof of violating ¶304.3 can be seen if we apply the same logic to other offenses.  According to the logic of some other briefs, if a married clergyman was to very publicly announce that he was having an affair, repeatedly publicly identify a woman other than his wife as “my mistress,” and also publicly share records of his regular overnight visits in a romantic hotel with this “mistress” (three things that are neatly analogous to some of what Dr. Oliveto has publicly self-avowed), he must unquestionably remain in good standing and can never be held accountable for his marital unfaithfulness unless and until he directly told his conference’s bishop or committee on investigation the precise words, “I am not faithful in heterosexual marriage,” and also described in detail the sexual aspects of his adulterous relationship, because the earlier-mentioned evidence would somehow be insufficient.

V.  Arguments about Nominating, Electing, and Consecrating Bishops

Several briefs argue that since Dr. Oliveto was an elder in good standing at the time of her election, there are no grounds for ruling her election null and void.  But such arguments disregard how it has been a longstanding principle of church law that it is not relevant to the due-process rights of ¶20 to impose further restrictions upon elders’ eligibility to assume and keep certain special positions.  For example, I have already noted such restrictions of ¶710 in Section III above and in my original brief.  And someone could be a 70-year-old elder under appointment in good standing (¶358.1), while still being ineligible, due to age, for being elected, consecrated, or assigned as bishop (¶408.1[a]).

Such arguments defending Dr. Oliveto’s eligibility also disregard a crucially important factor the Judicial Council cannot ignore: that Dr. Oliveto’s election was itself an extension of a culture of “ecclesial anarchy” that has developed in the Western Jurisdiction, with regional United Methodist leaders ignoring, negating, and violating our Disciplinary standards on sexuality in all sorts of ways.  I noted some examples in II.E of my original brief.  Some other examples from the previous quadrennium include the California-Pacific Conference bishop publicly inviting into the conference a minister who had recently been defrocked in a distant conference for disobedience to the Discipline’s standards on human sexuality (in a statement in which the bishop both conceded that this accountability was consistent with the Discipline and strongly critiqued the Discipline’s standards),[xvii] there evidently being no reason for clergy in the San Francisco or Mountain Sky Episcopal Areas to worry about facing any accountability for very public violations of the Discipline’s sexuality standards,[xviii] a district superintendent in the Greater Northwest Area personally performing a same-sex wedding ceremony for two area United Methodist clergywoman,[xix] and a clergywoman in this same area characterizing the lack of accountability for clergy violations of the Discipline’s sexuality standards as the annual conference asserting its “autonomy” from the rest of our global church.[xx]  Indeed, Oliveto’s election has been widely celebrated by supporters as a bold extension of such ecclesial disobedience and a great victory for the movement to liberalize church teachings on homosexual practice.[xxi]  This would make little sense if Dr. Oliveto were actually committed to honoring our moral standards with lifelong celibacy.

And of course, this case would have never come before the Judicial Council if the proper authorities in the California-Nevada Conference had properly followed the accountability standards of Decision #920 in response to Dr. Oliveto’s public self-avowals of her lesbian marriage for two years preceding her election, and if the same proper processes had been followed in the California-Pacific Conference with the open acknowledgements of a clergyman and other bishop candidate that he is in a homosexual “long-term covenanted relationship.”[xxii]

It would be grossly unfair to fault the General Conference for failing to have specifically established a separate Discipline paragraph specifying that “no clergy who are self-avowed practicing homosexuals and/or spouses in same-sex marriages are eligible to be elected bishop.” If there was not this culture of ecclesial anarchy in the Western Jurisdiction, the Discipline’s current provisions would have been more than sufficient to prevent Dr. Oliveto’s candidacy from ever getting so far.  While church law does not allow annual conferences and jurisdictions to substitute their own contrary standards for those of our Discipline, this is precisely the de facto reality that annual conferences in the Western Jurisdiction, and now with this election, that entire jurisdiction have been establishing.  In this unprecedented situation, the Judicial Council should look to its own key precedent of Decision #363.  In that case, the Judicial Council established a precedent of going slightly beyond (without contradicting) the specific words of the operative Discipline to limit eligibility for the episcopacy as bishop based on a very reasonable understanding of the intent and implications of church law.  With the much greater urgency of this present case, the Judicial Council should similarly limiting eligibility for the episcopacy based on the clear intent and implications of church law (in this case, by barring candidates who ineligible for appointment by being spouses in homosexual “marriages”).

VI.  Conclusion

The relevant facts and church law are so overwhelming that the Judicial Council could easily discount or disregard large portions of what I have presented in this submission and my original brief, and would be left with more than enough material to conclusively establish: that the Judicial Council has jurisdiction to issue substantial rulings on the both the general questions asked and their specific application to the case of Dr. Karen Oliveto, that Dr. Karen Oliveto (well before her election) self-avowed her still-ongoing homosexual “marriage” to both the general public as well as more directly to multiple individuals listed in the first footnote to ¶304.3, that entering such a same-sex “marriage” of public record constitutes self-avowal of homosexual practice as set forth in ¶304.3 and related church law, and that Dr. Oliveto’s election and consecration as bishop should be ruled null and void.

One of the harmful possible rulings for our beloved church would be if the Judicial Council heeds the call from the Western Jurisdiction College of Bishops to simply defer substantive decisions on this case to the Way Forward Commission.  Over the years, multiple other denomination-wide groups have convened to study disagreements about sexual morality, faced similar scrutiny, and seen their work make little impact in the end.  While many of us would like to hope that this Commission will somehow be different, such hope has no legal standing.  Nothing at this point guarantees that this Commission’s work will ultimately produce much of substance, or even that there actually will be a specially called General Conference to consider its recommendations.  Justice Reyes’s preference for “a temporary hold on a non-urgent, highly controversial matter,” that may have resulted in the Judicial Council ruling on the matters of Decision #1321 as early as October 2016 (rather than while a high-tension General Conference remained in session), was not the same as calling for an indefinite avoidance by the Council of even the most urgent sexuality-related matters in its charge.  While the Commission is in a process of reviewing various legislative proposals that would change the Discipline, this case simply involves desperately needed clarification of what we already have in the Discipline.  As an elected delegate to the 2016 General Conference, the body that created the Way Forward Commission, it is certainly not my understanding that with that motion we were calling for suspension of enforcing our Disciplinary standards – which is what any Judicial Council decision to avoid a substantive ruling in this case would amount to.  Bishops across the theological spectrum have instead made clear that our standards must still be enforced as we wait on the commission, and characterized the motion creating the Commission as calling for a sort of cease-fire in our conflict, which those committing acts of “non-conformity” are failing to honor.[xxiii]  While the Commission has important work to do, for the Judicial Council to dodge any substantive issues now before it would effectively reward those who are refusing to honor the cease-fire and would invite chaos and anarchy from increasingly schismatic acts of “non-conformity,” perhaps to the point where the Commission’s work may become impossible.

Along with invalidating Dr. Oliveto’s election, the Judicial Council should rule “YES” on the final sub-question, to confirm already widely shared understandings of the meaning, application, and effect of our existing church law.  Given the demonstrated lack of majority support for deleting ¶304.3 altogether, this ruling could be expected to stand until a future General Conference amended this provision to explicitly specify that clergy cannot be “self-avowed practicing homosexuals” but they can be “spouses in homosexual marriages.”  The transparently oxymoronic nature of such an amendment makes clear that the ruling sought here is perfectly harmonious with and confirmatory of the already-present letter and spirit of ¶304.3.

Across the world, United Methodists have been waiting on the Judicial Council since July with great apprehension.  The reality we face is that Dr. Oliveto’s election has already spurred faithful members, effective pastors, and fruitful congregations to leave our denomination. Many have been pleading with brothers and sisters with one foot out the door to stay United Methodist at least long enough to wait on the Judicial Council.  But many more can be expected to leave if the Judicial Council does not act swiftly and decisively to restore accountability in a publicly clear way.  This most urgent of cases could literally save or break our denomination forever.  I respectfully urge the Council to restore biblical covenant integrity in this matter.

Respectfully Submitted,

John Lomperis, M.Div.

Lay Member, Indiana Conference

Notes

[i] http://www.umc.org/news-and-media/3-gay-pastors-among-nominees-for-bishop; accessed 21 February 2017.

[ii] http://www.greatplainsumc.org/newsdetail/jurisdiction-votes-to-seek-declaratory-judgement-about-election-of-gay-bishop-5366666; accessed 21 February 2017.

[iii] https://vimeo.com/176664651; accessed 17 February 2017. Downloaded file of this video available upon request.

[iv] Griffith posted his original brief to the UM-Insight website in August.  Most relevant are pages 2-3: http://um-insight.net/in-the-church/finance-and-administration/brief-challenges-south-central-s-petition-to-nullify-oliveto/; accessed 17 February 2017.  To be fair, a comment later posted to that article in the name of Thomas H. Griffith did acknowledge that this factual claim was based on “erroneous information.”

[v] Begin at the 21:30 mark here: https://vimeo.com/176664651; accessed 17 February 2017.

[vi] http://www.umc.org/news-and-media/western-jurisdiction-elects-openly-gay-united-methodist-bishop

[vii] “Response to Judicial Decision 1238 and Judicial Decision 1241”and P105, 2014 Western Pennsylvania Conference Journal, pages 242-248; http://www.wpaumc.org/files/resource/journal/2014/2014journal.pdf

[viii] See http://calms.umc.org/2008/Menu.aspx?type=Petition&mode=Single&number=19

[ix] The petition record: http://calms.umc.org/2008/Menu.aspx?type=Petition&mode=Single&number=41 and the submitted text: http://calms.umc.org/2008/Text.aspx?mode=Petition&Number=41

[x] The petition record: http://calms.umc.org/2008/Menu.aspx?type=Petition&mode=Single&number=1318 and the submitted text: http://calms.umc.org/2008/Text.aspx?mode=Petition&Number=1318

[xi] The petition record: http://calms.umc.org/2008/Menu.aspx?type=Petition&mode=Single&number=1095 and the submitted text: http://calms.umc.org/2008/Text.aspx?mode=Petition&Number=1095

[xii] http://web.archive.org/web/20010721175541/http://king5.com/detailtopstory.html?StoryID=21125

[xiii] http://www.seattlepi.com/news/article/Gay-Methodist-pastor-will-keep-pulpit-church-1088422.php

[xiv] http://archive.jsonline.com/news/religion/124292004.html; accessed 21 February 2017.

[xv] http://loveontrial.org/pages/2-statement_to_coi.html; accessed 21 February 2017.

[xvi] http://www.umc.org/news-and-media/blogs-commentaries/post/2-p.m.-edt-june-22-delong-testifies

[xvii] http://www.calpacumc.org/bishop-carcano/bishop-carcanos-invitation-to-rev-frank-schaefer/

[xviii] http://www.rmnetwork.org/newrmn/california-nevada-rums-launch-season-love/ and https://loveprevailsumc.com/2013/09/27/alison-wisneski/; both accessed 21 February 2017.

[xix] http://umcconnections.org/2013/12/16/sex-clergy-couple-marries-seattle/; accessed 21 February 2017

[xx] http://www.umc.org/news-and-media/2-clergy-face-24-hour-suspension-for-gay-weddings

[xxi] E.g., http://www.rmnetwork.org/newrmn/bishopkarenoliveto/ and https://loveprevailsumc.com/2016/07/19/july-18-2017-letter-to-the-bishops-of-the-umc/; accessed 21 February 2017.

[xxii] http://www.umc.org/news-and-media/3-gay-pastors-among-nominees-for-bishop; accessed 21 February 2017.

[xxiii] E.g., see http://www.umc.org/news-and-media/3-gay-pastors-among-nominees-for-bishop and http://susumc.org/files/about_us/our_bishop/07.22.16OnCurrentDevelopmentsInTheUMC.pdf