This upcoming week, the United Methodist Church’s Judicial Council will meet in Switzerland to examine whether the UMC constitution is in conflict with any parts of the three main plans seeking a “Way Forward” in the denomination’s sexuality debates.
Several people, including myself, have submitted legal briefs to the Judicial Council presenting various arguments for or against the constitutionality of the liberalizing “One Church Plan” or the orthodox “Traditional Plan.” One of these submitters, Lonnie Brooks of Alaska, posted all of these briefs online.
Yesterday, I posted on this website my own opening brief, which outlines several constitutional problems with the One Church Plan. I am now posting here my reply brief, which argues against both defenses others make of the One Church Plan and against allegations that the Traditional Plan is unconstitutional.
Since Brooks has already made this reply brief publicly available nearly two months ago, I see no problem with my sharing its main contents on this site. I hope that this can help readers understand some of the legal issues at stake.
As a fair warning, this delves deep into the weeds of our church law. The use of the paragraph symbol (¶) refers to sections within the UMC’s Book of Discipline, our book of church law. The UMC constitution consists of ¶¶1-61 of the Discipline. At several points, I reference previous Judicial Council decisions, which are binding church law and are all available here. My brief also extensively references the official docket listing for this case, which is available online, includes the seventeen petition of the One Church Plan as Exhibit A on pages 7-33, includes the seventeen petitions of the Traditional Plan as Exhibit C on pages 82-130, and helpfully assigns a handy reference number to each of these petitions.
Amicus Curiae Reply Brief of John Lomperis on Docket #1018-12
I. General Remarks
This reply brief is submitted in response to concerns raised by other briefs about both the One Church Plan (OCP) and the Traditional Plan. Some briefs suggest that the Traditional Plan is out of order and/or that the OCP is constitutional, on the basis of the unproven assertion that the latter will somehow advance Church “unity.” But I have discussed elsewhere how, based on all available evidence, the OCP would maximize the splintering of our church, while it is the Traditional Plan that would actually preserve the greatest extent of unity possible. Brian Atkins, a Way Forward Commission member endorsing the OCP, has said that the UMC will not remain united but will lose people no matter which decision is made in 2019.[i] Each of the report’s three plans tie into the core values identified from the start, but balance them in different ways. These are ultimately legislative and political questions that are beyond the scope of a judicial review.
II. The Traditional Plan
- May delegates legislate with a genuine range of options at the 2019 General Conference? Thomas Starnes as well as the Brim-Caterson-Holland brief argue that the 2019 General Conference must be prevented from considering petitions offering a traditionalist alternative to the OCP, that the options of us delegates must be limited to accepting or rejecting proposals coming from a more liberal perspective, and that if we want to enact anything different, then the only possibility (other than a difficult two-thirds vote to expand the 2019 business) is to spend millions of dollars doing nothing in 2019 and then wait until the next General Conference.
Such questions need to be definitively put to rest. These same basic arguments were already advanced by Mr. Starnes and others, and Judicial Council Decision #1360 declined to accept them. This present case is not a proper venue for re-litigating this earlier case. If the expectation of the Council of Bishops (COB) now was that the Traditional Plan’s petitions would not be before us delegates, then asking for a ruling on their constitutionality would be pointless, and would make ¶2609.2 inapplicable to this whole part of this present case (as these petitions would not really be “proposed legislation”). Bishop Sandra Steiner-Ball, one of the Commission’s co-moderators, has recently released a video on the Traditional Plan, in which she (beginning at the 1:24 mark) reports that the Commission agreed to include it, so that its legislation is now “a part of the Commission’s report as a whole.” She goes on (around 5:10) to frame the Traditional Plan as part of a “body of work” which is now “the property of General Conference,” and says that “any one of these [three] plans” will be eligible to be considered and amended on the floor of General Conference.[ii] And Bishop Debra Wallace-Padgett, another Commission member, has publicly framed the petitions for all three plans as being genuinely proposed to the 2019 General Conference.[iii] More simply, the call for the 2019 Conference is now framed as “receiving and acting upon a report from the Commission on a Way Forward…” and the Traditional Plan’s petitions are part of this 93-page report. It is not helpful now to try to second-guess the Commission, elevate certain sections of the report as more canonical than others, or delve into the now legally irrelevant minutiae of the Commission’s processes.
- The word “certify.” Rev. Paul Fleck asserts that provisions in the Traditional Plan that include the word “certify” must “be rejected” by the Judicial Council, because these are allegedly “unconstitutionally vague and ambiguous,” due to the petitions’ failure to provide a detailed explanation of what exactly is meant by this term.
But this would not be a serious constitutional problem, even if “certify” was as ambiguous as claimed. As the COB opening brief notes, per Judicial Council Decision #42, “ambiguous legislation that might have been written more clearly is not unconstitutional solely because of the ambiguity.” The Council would do well to avoid ruling in a way that could invite future challenges to legislation by potentially endless series of questions along the lines of, “What exactly is meant by this key term or phrase? What about this other one?” For General Conference to function effectively, it has had to routinely adopt legislation hinging on key words without providing a precise definition for each and every one, beyond the plain-sense meanings.
As a general rule, if there is uncertainty about a key word or phrase in any legislation, it is the responsibility of the entities charged with implementation to decide how exactly to implement it, within the limits of reason and of honoring General Conference’s intent.
- Mandatory minimum penalties. Both the COB and Fleck briefs argue that Petition #11 (mandatory minimum penalties for performing same-sex union ceremonies) violate Judicial Council Decisions #1201 and 1318, with the latter arguing that this would also violate ¶20.
But there is no conflict between our constitution and this proposal. This petition would do nothing to fundamentally deny a respondent’s right to a trial by jury. Respondents would still have the right to a trial by jury, each jury would retain its role as the ultimate judge of the case’s facts, and juries would still have discretion to implement a range of penalties for a guilty verdict.
Decision #1201 invalidated an attempt by a body other than General Conference or a trial court to intrude upon the rights and privileges granted by Discipline ¶2711. This is very different from General Conference amending ¶2711. Because ¶2711 does not establish any constitutional rights, General Conference has a broad constitutional right to amend it by simple-majority vote.
Decision #1318 addressed a very different matter of a suspension being mandated in all “just resolutions,” and did not directly address trials. A main concern expressed in that case was that the legislation in question would “require the same penalty to be assessed” for all chargeable offenses, so that “the ability to deal individually with each chargeable offense listed is denied” (emphases added). But Traditional Plan Petition #7 very narrowly addresses only one chargeable offense, without impacting enforcement of any other portion of ¶2702.1.
Mandating minimum consequences for one particular offense is not unprecedented. Decision #985 declared that if a clergyperson “has been found by a trial court to be a self-avowed, practicing homosexual” then they must lose their right to be appointed.
4. Minimum standards for “Just Resolutions.” The COB and Fleck briefs raise questions about the Traditional Plan’s Petition #14, particularly the addition of this sentence to govern all future non-trial just resolutions: “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.”
While ¶20 grants a constitutional right to a trial, there is NO “right to a just resolution” anywhere in the UMC Constitution. Therefore, while such a move would be ill-advised (in my humble opinion), there is no constitutional barrier to a future General Conference deleting all Disciplinary provisions for complaints potentially being resolved through non-trial just resolutions. If there is no constitutional barrier to completely abolishing just resolutions, then there cannot be many constitutional barriers to how General Conference may merely amend these provisions to provide greater clarity to how our Church defines “just resolutions.”
The enhanced definition which the quoted sentence would provide for just resolutions is hardly a severe limitation. In response to the COB’s question, this sentence is NOT “a minimum penalty provision.” The plain-sense meaning of a “penalty” is some extraordinary hardship or deprivation forcibly imposed, when someone is singled out for paying a cost while most others face no such burden. But this petition would not require of the respondent any restitution, suspension, forfeiture of rights, or even a basic apology. It would leave such potential details to be worked out on a case-by-case basis, as under our current Discipline. It would simply say that just resolutions shall involve the respondent pledging to not violate the Discipline in the future.
We must remember that this would only apply to those cases in which the respondent has voluntarily admitted to committing a chargeable offense. Although the Disciplinary provisions addressed by this petition primarily affect clergy, “disobedience to the order and discipline of The United Methodist Church” is a chargeable offense for both clergy and laity (¶¶2702.1[d] and 2702.3[c]). Furthermore, to become a United Methodist minister, one must pledge to uphold the standards of our Discipline (¶304.1j, 336.13, etc.). Therefore, the pledge required by this proposed sentence in question would NOT be a “penalty” of imposing any new burden, but simply is a recommitment to the standards to which all United Methodists are already subject, and which clergy respondents have already vowed to uphold. To construe this as a “penalty” would suggest that the ordination vows made by all elders and deacons in full connection should now also be legally defined as a “penalty”!
An actual penalty may be added to some just resolutions. But the pledge required by this petition would be restorative rather than punitive. When a respondent has admittedly violated our Church covenant, and the basic facts are not in question, this petition’s clarifications would ensure that just resolutions will help restore the offender back into the covenant of our Church. This is entirely consistent with how the Discipline now defines a just resolution as “one that focuses on repairing any harm to people and communities, achieving real accountability by making things right in so far as possible and bringing healing to all parties” (¶2701.5).
Some other objections raised by Fleck are simply not relevant. No one is ever required to submit to any particular just resolution agreement (whether or not this petition is adopted). If a respondent dislikes any terms in a proposed just resolution, s/he can reject them and then face a trial. Therefore, the respondent’s right to a trial, if desired, would be in no way infringed by this petition, and so Fleck’s citation of the Fourth Restrictive Rule (¶20) is irrelevant.
Secondly, again, the sentence in question would ONLY apply to those cases in which the respondent has chosen to admit to having committed a chargeable offense. The petition is quite explicit on this point. So the concerns Fleck raises about situations in which “it may be in fact that no violation occurred at all” or about “the trier of fact” needing to determine facts which remain in dispute (such as when the respondent denies the allegations) are also not relevant.
Thirdly, contrary to Fleck’s apparent suggestion, it is hardly unprecedented for respondents, during the course of a just resolution process, to admit to allegations of their wrongdoing. We have seen recent cases of respondents publicly admitting to having committed a chargeable offense while negotiations seeking a just resolution of a complaint over this incident were still underway. Admissions by respondents have often been key parts of just resolution negotiations and final statements. So this provision would not introduce any fundamentally new, alien element into our current practice of just resolutions.
5. Church Right to Appeal. Rev. Fleck contends that Petition #16 would violate the right to trial (¶20) and constitute double jeopardy. However, despite the fact that the majority faction of the Council of Bishops openly supports the One Church Plan and opposes the Traditional Plan, the COB’s own opening brief has no constitutional or legal objections to this petition.
The wording of this petition takes great care to address details in ways that meticulously preempt potential constitutional concerns. The proposed new church right to appeal is very limited in several important ways. The petition entirely excludes a trial court’s “findings of fact” from this new avenue of appeal, limits such appeals to extreme (and hopefully rare) cases of only “egregious errors of Church law or administration” (emphasis added), further limits this to only such errors “that could reasonably have affected the findings of the trial court,” and then upholds the constitutional right to trial by making clear that the final decision of any new verdict must still rest with a new trial court rather than any appellate body.
The phrase “double jeopardy” appears only five times in the 2016 Discipline: ¶¶ 2701.2d, 2706.5c(2), 2706.5c(3), 2708.3, and 2715.10. The key defining use, referenced by three of the other four instances, is ¶ 2701.2d, which only applies the principle of a “right against double jeopardy” to narrow circumstances involving committees on investigation certifying charges. I found no instance of the Discipline explicitly applying a “double jeopardy” principle to cases for which a trial process has concluded. Thus, the “right against double jeopardy” in our Church law applies primarily and directly to the processes of committees on investigation. If it applies to church trials, it is necessarily in a more secondary and derivative way.
This petition would refine the definition of “double jeopardy” in our Church law by adding greater clarity to what it is and is not. It is within General Conference’s “full legislative power” (¶16) to define what key words mean for our Church law (within reason). In Decision #1185, the Judicial Council affirmed the exclusive right of General Conference “to define legislatively” the meaning for our Church of key words found in the Methodist Articles of Religion, and effectively said that adopting a sentence in the Social Principles, by simple majority vote, was all that is needed to define even constitutional terms. General Conference has already refined our definition of “double jeopardy” by enacting ¶¶ 2706.5c(2), 2706.5c(3), 2708.3, and 2715.10. If these are constitutionally acceptable, it is no less acceptable to adopt this petition’s further refinement our Church’s definition of “double jeopardy.”
In fact, the last of these provisions, current ¶2715.10, offers a precedent for a Church right to appeal “egregious errors of Church law or administration” and for adopting a provision while stating that “This is not to be double jeopardy.” These two just-quoted phrases are now being challenged in Petition #16, but these same key phrases are already part of our Discipline in current ¶2715.10, which decrees a limit to how far the “right against double jeopardy” can be applied in our Church law. In Decision #980, the Judicial Council at least implicitly accepted the constitutionality of this already-enacted restriction of the right against double jeopardy, by issuing a substantive ruling on an appeal made under it. And again, for our Church, the right against double jeopardy applies primarily to committees on investigation and only secondarily to trials. So if it violated no constitutional value when General Conference restricted our definition of “double jeopardy” in the context for which this concept is most applicable (of committees on investigation), then it would be no more out of order to restrict our Church’s definition of “double jeopardy” for a secondary context (of church trials). In fact, this new proposal is more limited than what is already in ¶2715.10, in that Petition #16 would exclude from this new right of appeal any “egregious errors” deemed to have not affected the jury’s findings.
I note that the right against double jeopardy is not as absolute as it may seem in U.S. law. In one famous case, the U.S. Supreme Court let a defendant face a second trial for the same act of murder of which he had been acquitted by a trial court 20 years earlier, on the grounds that evidence of a bribed judge showed that the defendant was never seriously at risk in the first trial, and so this new trial did NOT constitute double jeopardy.[iv] If it could similarly be proven that in a church trial, jurors and/or the presiding bishop had their impartiality so compromised, or were unwilling to allow a guilty verdict regardless of the facts so that the respondent was never truly in “jeopardy” of facing punishment, then a new trial would not constitute double jeopardy.
Fleck is rightly concerned for the constitutional right to trial (¶20). But the plain-sense meaning of the words is that this is a right to a church trial conducted according to the standards of our Church law. If a trial was conducted with the sorts of problems suggested above, so that this process was demonstrably not administered according to the standards of our Church law, and disregarded our Church’s law in very “egregious” ways, then such a process would not meet the minimum definition of a church trial conducted according to the standards of our Church law. This process would not have really been a completed trial, but rather a mistrial. In such cases, potentially requiring a new trial would NOT undermine the respondent’s right to trial, because s/he never had a legitimate trial in the first place. Respondents in such cases who refused attempts at just resolutions would maintain their right to have their case heard by a proper trial.
6. Concerns about Implementing Gracious Accountability. Perhaps the most complex concerns about the Traditional Plan are those raised about Petition #10 (adding a new ¶2801). For several parts of this petition, there are precedents in past actions and legislative enactments. While these may not have the same legal weight as the UMC Constitution or Judicial Council rulings, great caution should be exercised before invalidating parts of this petition as unconstitutional, when such rulings would effectively also judicially invalidate the constitutionality of significant past actions and/or key parts of current Church law.
A. Lonnie Brooks says that some provisions would “expel an annual conference from the Church,” Thomas Starnes accuses this Plan of “evicting a conference or church” from the UMC, and the COB brief warns that allowing clergy to transfer out of the UMC may somehow undermine security of appointment. But this is not at all what the petition actually says. Upon careful reading, one sees that it avoids forcing people to leave The United Methodist Church without a proper church trial. It does not “evict” or “expel” anyone, or remove the security of appointment from any clergy who remain in the UMC. Rather, it simply provides those who would like to leave the UMC a voluntary option for doing so. Providing people with an option for leaving, even with some non-binding recommendation or “encouragement,” is categorically different from taking unilateral action to remove them without their having any choice. Furthermore, restricting use of the United Methodist name and insignia by bodies which have formally committed themselves to living outside the boundaries of United Methodism’s official polity and values is not an “expulsion,” but rather a form of discipline for rather extreme circumstances. There is no absolute constitutional right to use the UMC insignia.
In response to the COB’s concern, our Church law already allows individual clergy to effectively transfer, voluntarily, to other denominations (¶¶ 327.6, 360.1). So sections 16 and 17 of this petition can be no more unconstitutional. Also, this petition takes pains to protect the security of appointment for clergy who want to remain in the UMC. Even if an annual conference leaves the UMC, Section 9f protects the right of any minister in this departing conference to remain United Methodist and to keep any security of appointment s/he had.
Starnes raises concern about due process for lay members of departing conferences or congregations, while the COB brief questions the constitutionality of allowing congregations or conferences to leave the UMC. Again, Starnes’s use of the word “evict” is just inaccurate, as conferences and congregations who departed would only do so of their own free will. And we laypeople have no equivalent to the “guaranteed appointment” rights which many UMC clergy enjoy. Also, the Discipline already allows a congregation to be closed completely or have its property given away (¶2548-2549), even when this effectively removes some laity from UMC membership without their consent, and these provisions have not been construed as denying laypeople’s due-process rights.
B. The question of if annual conferences can be allowed to leave the UMC is perhaps more complicated but no less certain. As the ultimate administrator of most United Methodist property (including that of every local congregation) in its area, the conference has broad authority to transfer part or all of its property out of the UMC if it so wishes.
Per ¶16.3, General Conference has a right to establish leaving the UMC as among the “powers” it defines and fixes for annual conferences. Discipline ¶572 already provides a process for conferences outside of the USA to leave the UMC to become their own denomination. The Judicial Council has reviewed this process in Decisions #793 and 1062, and found no constitutional problems, but instead ruled that this provision indeed gives conferences the right to leave the UMC, if proper procedure is followed. Decision #470 similarly ruled that the Puerto Rico Annual Conference had the right to “become an Affiliated Autonomous Church or an Affiliated United Church,” despite questions raised about Puerto Rico’s being within the USA. There is no constitutional reason why a similar process cannot be created for conferences within as well as beyond the United States to leave the UMC.
Recently, the Sweden Annual Conference left the UMC under this provision, even though not all members wanted this, and some congregations and pastors transferred back into the UMC.[v] This episode highlights how Petition #10’s provisions for conferences leaving plans for significantly less loss for the UMC than under ¶572, as only the former has explicit provisions entitling congregations as well as clergy in a departing conference to remain in the UMC.
C. Many of the challenges for reviewing these plans stem from how we are in a very new place in our denomination’s history. But we have some useful precedents. In response to the Brooks brief against the Traditional Plan, I note that there is precedent for the General Conference requiring annual conferences to take certain actions by voting on specified matters within a limited range of options, other than just constitutional amendments.
Decision #357 ruled that it was within General Conference’s constitutional authority to declare that a deadline for voluntary conference mergers (ending racial segregation) had ended and to “direct the Annual Conferences involved to negotiate mergers within a named deadline.” In reviewing ¶15 of the 1968 Discipline (operative at the time of Decision #357), I see only a few changes from present ¶16, and nothing in the 1968 version that goes further in giving General Conference the right to direct conferences to take certain actions by a set deadline.
Judicial Council Decision #548 ruled that the General Conference was within its rights to adopt Disciplinary legislation and an “Enabling Act” which ultimately led to each Filipino annual conference being forced to vote on two options (if they wanted to remain a central conference or to become an affiliated autonomous Methodist Church). This ruling also upheld a deadline set by General Conference for these annual conferences to make their decisions.
Finally, the wording of ¶16.3 could hardly be broader in authorizing General Conference “To define and fix the powers and duties of annual conferences….” So Part 1 of Petition #10 would be the General Conference exercising its constitutional right to give annual conferences a “duty” of voting on one of two alternative statements by a deadline, to give conferences the “power” to vote for either one, and to “define and fix” the wording of each option.
D. This leads to another question, raised by the COB and Brooks briefs, of if proposed ¶2801.1-3 would amount to unconstitutionally forcing conferences to vote on approving or disapproving of the Discipline. This objection confuses related but distinct categories.
The votes required by this provision would not be “ratification” votes, as Mr. Brooks contends. The Disciplinary provisions cited in the two statements to be put before each annual conference are already part of the Church law of every conference, and this reality will not be immediately affected by any of the conference votes. Even if a conference approves the second statement (¶2801.1b), from a strictly legal standpoint, the provisions of ¶¶ 340, 341, 613, and 2702 would become no less legally binding in that conference (as long as it remained United Methodist) and clergy who violated these provisions would remain subject to complaint.
This provision, and the whole of ¶2801, must be understood in light of the wave of schismatic disobedience the UMC now faces in some regions. Our Church’s prohibitions of same-sex unions and “self-avowed practicing homosexual” clergy are clear enough, as are Judicial Council rulings that “annual conferences may not legally negate, ignore, or violate” these or other Disciplinary provisions (Decision #886).
But in recent years, these clear standards have failed to prevent a reality of the leadership of several regions of our Church formally committing themselves to openly disregarding some or all of these standards. Within just the last two years, we have seen the New England and Pacific-Northwest Conferences declare that they “will not conform or comply with provisions of the Discipline which” address human sexuality in a manner with which they disagree,[vi] the California-Nevada Conference adopt a “Living into a Season of Grace” statement resolving that certain Disciplinary sexuality policies “should not be followed,”[vii] and the Oregon-Idaho Conference board of ordained ministry publicly indicate its longstanding unwillingness to screen ordination candidates for the standards of ¶304.3.[viii] This list is far from comprehensive. While some of these “non-conformity” resolutions have been appealed to the Judicial Council and invalidated (e.g., Decision #1343), in several conferences, such rulings have had little to no impact in actually stopping widespread, ongoing disobedience of ¶¶ 304.3, 341.6, and 613.19.[ix]
It is in the face of this dramatic level of disobedience that dramatic correction is necessary if conformity to the Discipline is to be restored. Earlier decisions preventing annual conferences from voting on Disciplinary provisions were expressly designed to prevent the “chaos” of conferences violating provisions with which they disagree (see Decision #886). But the votes called for by ¶2801.1 are in a very different category of restoring Disciplinary conformity, by asking each conference to confirm its commitment to the Discipline and taking appropriate disciplinary actions with any minority who refused. It would be rather self-defeating logic to rule that jurisprudence explicitly designed to stop conferences from disregarding the Discipline must now block efforts to restore conformity with the Discipline. Decisions #476 and 700, cited by the COB, are of limited relevance, as they both involved (1) annual conferences acting unilaterally rather than responding to a directive from General Conference, and (2) annual conferences adopting actual binding policies. But under Petition #10, a conference voting for ¶2801.1b would NOT establish an actual policy or grant any board or official within the conference any right to violate the Discipline. Decision #714, also cited by the COB, is inapplicable, as that ruling said an annual conference “may not impose its will,” while the statements in ¶2801.1 do not allow any conference to impose anything contrary to the Discipline.
E. Some charge that this petition unlawfully delegates authority to the General Council on Finance and Administration (GCFA). But the Lambrecht brief (page 12) lists some of the details of GCFA’s long accepted authority to police the use of our Church’s name and insignia, to which I would add ¶¶ 2502 and 2517.4b.
A closer look at the precedents cited by Brooks and the COB make clear why the jurisprudence against unlawful delegation of authority does not apply here. Decision #364 struck down legislation effectively authorizing “any board or agency of the Church, established by the General Conference and responsible to that conference, [to] change its policies, functions and structure as established by legislative act of the General Conference, subject only to the approval of the General Council on Ministries.” In other words, the invalidated legislation gave authority to entities other than General Conference to take actions, based on their own discretionary judgments, on essentially legislative matters. That decision warned: “The Constitution limits the General Conference in the authority it may delegate to the boards and agencies which it creates. This authority is limited to the work of promotion and administration.” In contrast, the only authority Petition #10 gives GCFA is one of permissible “administration,” of implementing matters already decided by General Conference, with GCFA being given no fundamentally new right to make its own judgments about any significant or legislative matter involved in ¶2801.
Petition #10 is also consistent with other jurisprudence cited in opposing briefs. The most relevant portions of Decisions #1210 and 1310 are derivative of Decision #364, and confirm the standard that General Conference may not delegate any of its legislative decision-making, but that it may indeed delegate to a general agency “work of promotion and administration,” such as implementing standards already decided by General Conference, with the agency having no discretionary judgment about the core content of these standards, as is the case with Petition #10, as well as much of what is already in ¶¶ 806-807. Decision #1320 invalidated a proposal because of how it would have established a new group with an extreme “lack of specificity” offered for its responsibilities and processes. In contrast, Petition #10 has no such problems of vagueness, but is very concrete, focused, and limited in the responsibilities assigned to GCFA.
Notably, this Petition’s timelines would give the 2020 General Conference some chance to make last-minute adjustments to the budget deemed necessary in response to this process.
III. The One Church Plan (OCP)
- The OCP unconstitutionally delegates the General Conference’s authority under ¶16.6. As the Boyette brief notes on page 11, ¶16.6 reserves to General Conference the exclusive right “to provide and revise the hymnal and ritual of the Church….” It exercised this right by adopting our Hymnal in 1988 and Book of Worship (BOW) in 1992.[x] For one key “ritual of the Church,” a service of Christian marriage, both volumes limit this ritual to unions between one man and one woman, speaking of “God, who created us male and female for each other,” identifying the couple as “the man and the woman,” specifying that the woman’s vows are to her “husband” and the man’s to his “wife,” and the officiant pronouncing the couple “husband and wife” (Hymnal pp. 864-868, BOW pp. 115-122). There is no matrimonial ritual provided by General Conference for “the man and the man” or for pronouncing a couple “wife and wife.” Therefore, several OCP petitions would authorize congregations and individual pastors to “provide and revise” their own Church rituals for marriage to supplant those provided by General Conference under ¶16.6.
2. Misunderstandings related to the Doctrinal Standards. The COB asserts that the Judicial Council must avoid taking any position related to “the interpretation of doctrine” in this case, citing only Decision #59. But the COB’s narrow focus on that single decision is highly misleading, as it ignores subsequent cases which significantly modified this precedent. One must consider the full body of relevant jurisprudence. In some cases, the Judicial Council declined jurisdiction to rule on alleged violations of the First Restrictive Rule, on the grounds that the Council is not “an interpreter of doctrine” (Decision #59; Cf. 243, 358). But at other times, the Council assumed jurisdiction to make substantial judgments of if certain actions were consistent with the standards of present ¶104, which in some cases meant upholding some enactments as not inconsistent, and in other cases mean invalidating actions as violating the First Restrictive Rule, including invalidating enactments that made no direct change to the actual documents of the Doctrinal Standards (Decisions #142, 176, 1027, *1109, and 1297).
A dividing line is found in the landmark Decision #86, which notably modified the precedent of Decision #59 by saying: “If it appears clear that the language used does ‘revoke, alter, or change our Articles of Religion,’ it becomes a legal matter of which the Judicial Council should take jurisdiction. On the other hand if the language used does not clearly constitute a violation of the First Restrictive Rule, it should not be regarded as of such a legal nature as to authorize the Judicial Council to take jurisdiction and pass upon its Constitutionality” (emphases added). So in subsequent cases, when the Council determined it could judge when a particular part of the Doctrinal Standards was CLEARLY violated, without much room for serious debates over interpretation of words, then it assumed jurisdiction to issue substantial rulings. But in Decisions #243 and 358 the Council declined jurisdiction over other alleged violations of the First Restrictive Rule, when it was asked to opine on complex, debatable interpretations of the compatibility of somewhat lengthy theological statements with the ENTIRETY of the Doctrinal Standards, (very significantly) without these decisions showing any record of anyone drawing attention to alleged conflicts between any clearly specified portion of the action in question and any clearly specified section of our Doctrinal Standards. But if there was ever a time when it was needed for the Judicial Council to rule substantially on matters related to ¶17, it is at this critical moment in the history of our Church, when very specific, focused contradictions of our Doctrinal Standards have been expressly brought to the Council’s attention by several briefs.
Mr. Starnes and I agree on the importance of protecting our doctrine from “reformulation by the ever-evolving whim of bare majorities of the delegates who might comprise the General Conference at any point in time” (Starnes, 11) and wanting ¶17 to protect against this. The COB, however, seems to suggest an absolute standard of the Judicial Council always avoiding any doctrinal matters, even related to doctrinal parts of the Church law on which rulings are sought. But as noted on page 3 of my opening brief, the Council MUST have authority to invalidate General Conference actions as violating the First Restrictive Rule, and similar authority for the other Restrictive Rules, if the Restrictive Rules are to have any practical effect.
The Zilhaver brief says that the incorporation of Wesley’s Sermons and Notes in ¶104 may be removed by “majority vote.” But ¶17 requires much more than that, if these are part of our Doctrinal Standards. I argued why they are on pp. 3-4 of my opening brief. Furthermore, the official UMC website identifies these documents as part of our “standards of doctrine.”[xi]
I and other brief submitters across the spectrum (including Berlin and Starnes) agree that the issues at the heart of the OCP are doctrinal. Of course, Berlin’s noting disagreements based on Church members’ respective personal doctrinal beliefs is very different from the identified ways in which the OCP contradicts particular passages in the UMC Doctrinal Standards.
It is quite inaccurate to describe the OCP as “simply delet[ing] the current provisions regarding human sexuality” (Berlin, 28). Several OCP petitions (especially #1) go much further than simple deletion, by adding Disciplinary language to positively affirm homosexual “marriages” as something to be recognized and celebrated in our Church (even if not universally). But as the Kiblinger brief shows, this means affirming the acceptability of a view of marriage that is inconsistent with ¶104.[xii] And in combination with ¶336.12-13, the OCP would effectively create a new “standard or rule of doctrine” by making acceptance of the OCP’s new, doctrinally-driven policies a condition of being ordained in the UMC.
- Further responses to the Rev. Thomas Berlin. Rev. Berlin portrays the OCP’s varying marriage policies according to differences in civil law as a matter of respect for the law (Berlin, 6). But this ignores how Church bans on “ceremonies that celebrate homosexual unions” were on the books, and targeted for removal by some, for many years before “same-sex marriage” was an institution recognized in the civil law of the USA or elsewhere. From the start, arguments about adding or removing such restrictions have been about the Church’s own standards, regardless of whether or not any significance in civil law was attached to such ceremonies.
On page 17, Berlin stresses the replacement of the word “qualifications” with “powers” in ¶16.2. But this distinction lacks much difference. ¶16.2 still lets General Conference define and fix such powers and duties of clergy as establishing that their “powers” do not extend to blessing same-sex unions, and that their “duties” include abstaining from homosexuality.
On pages 21-22, Berlin argues that the OCP does not really delegate authority to annual conferences, but rather that it sets the latter free to exercise its “right to vote . . . on all matters relating to the character and conference relations of its clergy members” (emphasis Berlin’s). But as shown, the OCP would indeed delegate to conferences the setting of ordination standards, which are standards for who one conference can make eligible to transfer into or become the bishop of another conference in our connection. And the OCP would also deny annual conferences’ right to vote on key matters related to its clergy’s conference relations. The conference’s right to vote on a judicial complaint can be ultimately exercised by this voting being delegated to a jury. But under the OCP, even if a conference formally bans homosexually active clergy, “being a self-avowed practicing homosexual” would be removed from the list of chargeable offenses. So if an already-ordained clergyman in such a conference announced that he had a homosexual partner, there would be no Disciplinary basis on which to hold him accountable. He would not be disobedient to the Discipline of the UMC, but only to his conference’s rules, which is not a chargeable offense. Thus, the OCP would deny clergy their current right to vote on the conference relations of such a colleague via a trial.
IV. Relief Requested
The Judicial Council should rule that all of the OCP, except for Petitions #15-17, are unconstitutional, affirm the constitutionality of the Traditional Plan, and declare that the Traditional Plan’s petitions are indeed among those properly before us delegates.
[iv] “Man Faces 2d Trial on Murder Charge,” New York Times, 22 September 1997; available from https://www.nytimes.com/1997/09/22/us/man-faces-2d-trial-on-murder-charge.html; accessed 20 August 2018.
[vi] https://www.neumc.org/newsdetail/conference-adopts-action-of-non-conformity-resolution-5074535 and http://www.pnwumc.org/news/passed-action-of-non-conformity-with-the-general-conference-of-the-united-methodist-church-pnwac16/
[ix] See this widely circulated “Schism map” of the UMC: https://peopleneedjesus.net/2017/07/13/what-schism-map-2-0-says-about-the-future-of-the-umc/
[xii] Wesley’s Explanatory Notes, cited by the Rev. Kiblinger, are available here: http://wesley.nnu.edu/john-wesley/john-wesleys-notes-on-the-bible/