This week, the United Methodist Church’s top court, the Judicial Council, is meeting in Zurich, Switzerland to review 14 cases.
The most closely watched is a review of the three comprehensive proposals submitted to the February 2019 General Conference by the Commission on a Way Forward – the Traditional Plan, the Connectional Conference Plan, and the misleadingly named “One Church” Plan – to determine if any part of any of these plans conflicts with the foundational section of our denomination’s governing Book of Discipline, the UMC Constitution.
If the Judicial Council rules that a part of one of these plans is unconstitutional, then supporters of that plan will face a choice. They could decide that this provision is too important to abandon, and devise a petition or two to add to their plan that would amend the UMC Constitution in order to make this provision constitutional. But it could be difficult to devise a constitutional amendment worded in just the right way, and would be uncertain how such a new amendment could be brought to the 2019 General Conference. And any constitutional amendment must be supported by a super-majority of at least two-thirds of General Conference delegates, and then another super-majority of two-thirds of all voting lay and clergy members of annual conferences around the world. In the divided climate of today’s UMC, this would be extraordinarily difficult. The other option would be to simply drop the invalidated section from the plan, and try to pass the rest of the plan with only a simple-majority vote at the 2019 General Conference. But this may not be an attractive option if supporters of the plan in question believe that the invalidated section is too important and central to abandon at this point.
This dilemma would occur for each separate instance of the Judicial Council ruling a part of these proposals unconstitutional.
I won’t spend much time here on the Connectional Conference Plan, since it is the only one of the three which already includes constitutional amendments (nine, to be precise). The 28 (!) legal briefs submitted on this plan focused mainly on debating the constitutionality of the other two plans. This includes two briefs submitted by Bishop Kenneth Carter, President of the Council of Bishops, on behalf of the Council of Bishops. Even though our bishops are divided, Bishop Carter takes a somewhat surprisingly strong stand in effectively defending the constitutionality of the “One Church” Plan (OCP) and raising questions about select parts of the Traditional Plan. I have now posted online my own opening brief outlining several constitutional problems with the OCP as well as my reply brief, in which I both defended the constitutionality of the Traditional Plan and argued further against the constitutionality of the OCP. I was disappointed to see places where Bishop Carter’s reply brief rather mischaracterizes my arguments, but my opportunity for submitting further arguments has now expired. Earlier, layman Lonnie Brooks of Alaska posted all submitted briefs online.
Despite my own obvious lack of neutrality, I hope I can provide a fair overview of some (not all) of the key questions for this Judicial Council review of the One Church and Traditional Plans. These questions could be worth keeping in mind if you watch the oral arguments on this case, which will be livestreamed online tomorrow in what will now be in just a few hours from when this article is scheduled for posting.
First and arguably foremost, will the Judicial Council even rule? There is precedent for the Judicial Council declining to issue substantial judgments on the constitutionality of merely proposed legislation this far ahead of a General Conference, for the sake of not appearing to give an extra level of preliminary review to only one “side” of any debate. At the start of my opening brief, I briefly argue that such concerns would NOT apply here, since the Judicial Council is asked to equally review a liberal plan, a centrist plan, and a traditionalist plan. If the Council declined to rule, it could create all kinds of chaos and angst, and perhaps make the folk who traveled all the way to Switzerland for oral arguments wonder why they were invited there in the first place. But if the Judicial Council chooses to delay any substantial ruling, then all the questions below will be put on hold.
Questions related to the “One Church” Plan
Will the Judicial Council address doctrinal arguments? I and several other brief submitters argue that the way that this plan would expand the UMC’s definition of marriage to include same-sex couples would contradict the UMC’s core Doctrinal Standards. ¶17 of the UMC Constitution (the First Restrictive Rule), stipulates that not even General Conference has the right to “establish any new standards of doctrine contrary to our present existing and established standards of doctrine.” However, it is quite possible that the Judicial Council may sidestep this entire area, and focus its final decision on implications of this plan other than questions of compatibility with our Doctrinal Standards.
If the Judicial Council considers doctrinal arguments, are John Wesley’s Standard Sermons and Explanatory Notes Upon the New Testament part of our Doctrinal Standards? It is clear that our denomination’s doctrinal standards at least include the Methodist Articles of Religion, to which the Confession of Faith of the Evangelical United Brethren Church was added in the 1968 merger. I have argued that the phrases “Doctrinal Standards” and “our established standards of doctrine” also include Wesley’s Sermons and Notes, and so these are also protected by the First Restrictive Rule. In his reply brief, Lonnie Brooks argues that this is not the case. Rev. Zilhaver argues for a somewhat middle way, by arguing that adopting the OCP would require removing reference to Wesley’s Sermons and Notes from Discipline ¶104 (“Our Doctrinal Standards and General Rules”), but that this would only need a simple-majority vote at General Conference.
Very interestingly, briefs supporting the OCP have not directly rebutted the ways I and others have highlighted of how this plan would clearly contradict the teachings on marriage and sexual morality found in John Wesley’s own foundational Sermons and Notes. As I understand them, these counter-arguments do not dispute that the OCP would indeed contradict these core Wesleyan teachings, but respond that we would not want to be bound by John Wesley’s teachings on other matters, such as remarriage after divorce. On this specific example, cited by both Pastor Tom Berlin (lead submitter of the OCP) and Bishop Carter, there are nuanced ways to carefully view the standards of both the present UMC Discipline and John Wesley’s canonical teachings on divorce and remarriage that do not see as much conflict as Berlin and Carter seem to assume. But more fundamentally, questions of whether or not we should be bound by Wesley’s Sermons and Notes are really legislative questions, and somewhat different from strictly legal questions of whether or not these Wesleyan standards are part of our Doctrinal Standards.
May our denomination adopt a “congregationalist” approach to the doctrinal and moral questions surrounding whether or not marriage can be redefined to include same-sex relationships? This concerns the parts of this plan that would effectively leave it up to each congregation to vote on how they want to locally approach such questions.
Relatedly, what relevant limits are set by ¶16.6 of the Constitution, which authorizes General Conference alone to “provide and revise the hymnal and ritual of the Church and to regulate all matters relating to the form and mode of worship,” within the limits of our Doctrinal Standards? Some of us argue that the General Conference has fulfilled this constitutional role by previously authorizing our official United Methodist Hymnal and Book of Worship, in which the only rituals for marriage are between one man and one woman, and that it is therefore illegitimate for our congregations to have an inconsistent approach to marriage.
May the bishop’s power of appointment be restricted? A plain-sense reading of Constitution ¶54 (“The bishops shall appoint … ministers to the charges”) could seem to be that it gives broad rights to bishops alone to have the final say in appointments. Several have asked if this would be contradicted by Petition #8 of the OCP, which requires bishops to re-assign clergy who “cannot in good conscience continue to serve a particular church based on unresolved disagreements over same-sex marriage.” Defenders of this plan argue that this provision is constitutional, as this would apply only to narrow and “hopefully infrequent” situations, and would still maintain the bishop’s ultimate right to determine the next pastor for such a congregation and the next appointment for such a pastor.
Regardless of what else happens with these plans, if the Judicial Council accepts this particular argument, then this would encourage new proposals to restrict bishops’ appointment powers in other ways. While I personally can see how this could be very helpful, it is worth noting that this could be a rather notable shift for our denomination.
May United Methodist annual conferences set mutually contradictory ordination standards on key moral questions, which admittedly flow from differing theological foundations? Supporters of this plan argue that this would be similar to how one annual conference may require an extra course in Clinical Pastoral Education (CPE) and is consistent with previous Judicial Council decisions. I and others argue, also citing previous case law, that setting ordination standards on something as globally important as sexual morality and marriage is constitutionally limited to General Conference alone, to be done on a uniform basis.
If annual conferences are allowed to set their own ordination standards on such matters, must these ultimately be determined by only the clergy session, or instead by the full annual conference, which in theory has equal numbers of clergy and laity? This plan ultimately restricts these decisions to the clergy session, excluding laity from the final decision. It allows the full annual conference session to vote on such matters, but makes clear that any such votes equally representing clergy and laity can only be mere “non-binding advice.” In my opening brief, I tried to offer some benefit of the doubt, seeing this as a choice by this plan’s supporters to abide by some current constitutional limits and to avoid seeking to amend the Constitution. But in his reply brief, the Rev. Tom Berlin, chief submitter of this plan, actually appears to argue (on page 18) that the annual conference as a whole, including “lay and clergy alike,” is perfectly within its rights to set a general policy on ordination standards, provided that only clergy vote on whether or not particular candidates meet such standards.
This raises some interesting questions. If the whole annual conference, lay and clergy alike, have a right to determine such policies, then is it unconstitutional for this plan to restrict this to only clergy? And in any case, if the architects of this plan believed all along that clergy and laity alike have the right to vote on setting such policies, then why did they choose to write this plan in a way that denies a vote to any laypeople on the final decisions on such matters?
How would this effect the itinerancy of bishops? Bishops are subject to potentially being moved every four years to another area within their respective jurisdictions or central conferences. Constitution ¶19 (the Third Restrictive Rule) stipulates that this system of “itinerant general superintendency” cannot be abandoned by General Conference. But if this plan is adopted, what would happen if only one annual conference in a jurisdiction allowed homosexually active clergy, but then a homosexually active minister from that conference got elected as bishop in that jurisdiction? Could such a bishop become the bishop of an annual conference whose ordination standards explicitly deemed openly practicing homosexuality to be unacceptable for its clergy? If so, how could a bishop be entrusted with enforcing standards she herself does not follow? If not, then wouldn’t this restrict the Third Restrictive Rule, by preventing such a bishop from moving between conferences?
Can the doctrinal and moral standards of our global denomination vary from place to place, depending solely on the values of secular governments in different areas? I argue that the way this plan allows United Methodist same-sex union ceremonies (with no direct provision for an annual conference keep prohibiting them), but makes this hinge on whether or not the secular government in a particular land calls any same-sex relationships “marriages” amounts to “letting Caesar dictate the Church’s internal morals.” A counter-argument offered is that this shows a proper respect for civil authorities. (But I also observe that our denomination’s ban on such unions was enacted years before “same-sex marriage” became a legally affirmed institution in civil law.)
Does this plan unconstitutionally concentrate too much power in the hands of bishops? In my brief, I outlined how this plan would give a single person in an annual conference (the bishop) a great deal of unilateral power to effectively determine the annual conference’s ordination standards. If this plan passes, a conference would have no way to establish a standard requiring clergy candidates to abide by traditional sexual morality, unless and until the majority of the conference’s board of ordained ministry approved such a proposal. But if a liberal bishop did not want such a traditionalist policy in the conference, s/he would have power to effective appoint all of the members of the board of ordained ministry in such a deliberately stacked way so as to ensure that a majority opposed traditionalist standards. And this plan would also give such liberal bishops the unilateral right to prevent any voting on such motions for up to two-and-a-half years, which could potentially give them enough time to appoint new members to the board in order to shift the ideological majority in a direction more to their liking.
Bishop Carter’s reply does not really rebut this characterization of these new rights bishops would be given by this plan, but instead appears to dismiss as “hypothetical” such concerns about bishops actually exercising their new rights in such a way. Confusingly, Bishop Carter claims, without explanation, that even giving bishops the unilateral right to forcibly prevent the board of ordained ministry from presenting a motion to the clergy session on this matter for up to “30 full calendar months” would not in any way “take away any powers or bind the clergy or the Board of Ordained Ministry.”
Does this Plan’s allowing a church conference of a local congregation the right to determine whether or not the pastor may perform same-sex union ceremonies in the sanctuary conflict with the broad right current Discipline ¶2533.1 gives to pastors to use the church property “for religious services or other proper meetings” without being facing interference from the congregation’s trustees?
Questions related to the Traditional Plan
Should delegates be prevented from even considering the Traditional Plan? Some liberal supporters of the previous plan argue this. Some of us counter that this would be needlessly heavy-handed, legally unfounded, and an improper attempt to re-litigate the Judicial Council’s most-recent decision.
Can annual conferences be required to vote on whether or not they will comply with the Discipline? Some of us argue yes, still others argue no.
Does General Conference have the right to require mandatory minimum penalties when a church trial finds a minister guilty of a specific chargeable offense? One petition in this plan would require a mandatory-minimum penalty of a one-year suspension for a minister found guilty of violating our ban on performing same-sex union ceremonies. Some argue that this is unconstitutional, as it violates a clergy’s right to trial and previous Judicial Council decisions. Some of us counter that this petition would maintain everyone’s fundamental right to trial and that the previous cases addressed fundamentally different matters.
May “just resolutions” require pledges to follow the Discipline in the future? “Just resolutions” are the equivalent in our church law to out-of-court settlements. When a clergy is accused of violating some standard of the Discipline, our church law allows for “just resolutions” – agreements signed by the accused, the bishop, and others – as an alternative to a church trial. However, in recent years, some bishops who personally disagree with our denomination’s standards for sexual morality have used just resolutions as a way to effectively allow clergy to openly violate these standards with no real accountability.
One petition of the Traditional Plan would require that, “[i]n 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.” Some argue that this would violate people’s right to trial and due process, and violate a previous Judicial Council decision which ruled that General Conference cannot require minimum penalties in all just resolutions. Others of us counter that this would maintain the right to trial, highlight how it would only apply to cases when the accused freely admits to violating the Discipline, and argue that concerns about “minimum penalties” would not apply here.
Would the new responsibilities this plan gives to the General Council on Finance and Administration (GCFA) to enforce our sexuality standards throughout our denomination amount to an unlawful delegation of authority? Previous key Judicial Council decisions have ruled that certain discretionary determinations must be made by General Conference alone, and that General Conference has no right to delegate authority for such decisions to any other group. However, some of us argue that these limits would not apply to this plan, as it would involve General Conference alone setting the specific standards, and giving GCFA a purely administrative function of implementing these set standards, without GCFA being granted any new authority to make its own discretionary decisions on such matters.
Are the Traditional Plans’ provisions for pastors, congregations, and annual conferences leaving our denomination constitutional? If this plan passes, it does seem likely that a number of liberal United Methodists would then choose to leave our denomination (although probably far less than those who would leave if anything like the “One Church” Plan was adopted). But contrary to some misunderstandings, the Traditional Plan would NOT force any individual clergy nor any congregation or conference to fully, permanently leave the denomination. Instead, it provides options for those who desire to do so, within some parameters.
But one charge raised against the Traditional Plan is that the Fourth Restrictive Rule in the Constitution (¶20) gives all of our clergy as well as laity a “right to trial,” and that allowing an entire group of United Methodists like a congregation or annual conference to leave the UMC would amount to “in effect evicting individual church lay members” without a trial. There are, of course, key differences between putting an individual lay member on trial for alleged wrongdoing and removing from membership a whole group who has collectively decided to leave us.
Hypothetically, any congregation voting to leave the UMC may include at least a tiny minority of members who disagreed. But even in this scenario, there would still be provisions allowing such UMC loyalists to remain United Methodist. They could transfer their membership to another United Methodist congregation in their area. Or if they cannot find one nearby, ¶223 allows United Methodists who find themselves “present where a local church is not available” to join the UMC’s “General Church Membership Roll.”
Furthermore, if the Judicial Council would accept this argument against the Traditional Plan, it would also invalidate longstanding, repeatedly used provisions to close down local churches or give them to another denomination, or to allow annual conferences outside of the USA to leave the UMC, all without requiring the consent of each and every individual member. For that matter, if the Judicial Council accepted such an absolutist stance against removing any lay members without a trial, this could also pave the way invalidating current non-constitutional provisions for congregations to remove inactive (or even dead!) people from their membership rolls.
Any fellow Methonerds interested in delving deeper into any of these arguments are welcome to read my own opening brief against the “One Church” Plan, as well as my reply brief addressing both the “One Church” and Traditional Plans, and/or any of the other briefs Brooks has posted online. For the sake of convenient reference, here is a basic characterization of the briefs:
Defending the “One Church” Plan (5): Rev. Tom Berlin (a “Uniting Methodists” caucus leader as well as the chief submitter of this plan), Lonnie Brooks, Bishop Kenneth Carter (President of the Council of Bishops), Lonnie Chafin (jointly with Neil Alexander and Jim Harnish, submitted on behalf of the “Uniting Methodists” caucus), Thomas Starnes (on behalf of a group of unnamed annual conference chancellors).
Questioning the constitutionality of the “One Church” Plan (9): Rev. Keith Boyette (President of the Wesleyan Covenant Association), Lonnie Brooks, Nathanael Fugate, Rev. Ryan Kiblinger, Rev. Dr. William Lawrence (former president of the Judicial Council), John Lomperis (Indiana delegate as well as director of UMAction), Rev. Dr. Tim McClendon (South Carolina delegate), Keith H. Mcilwain, Rev. Robert Zilhaver (Western Pennsylvania delegate).
Defending the Traditional Plan (2): Rev. Tom Lambrecht (Vice President & General Manager of Good News as well as chief submitter of the Traditional Plan) and John Lomperis (Indiana delegate as well as director of UMAction).
Questioning the constitutionality of the Traditional Plan (4): Jay Brim of the Rio Texas Conference (jointly with fellow delegates Evelyn Caterson of Greater New Jersey and Mark Holland of Great Plains, the latter of whom is also Executive Director of the new Mainstream UMC caucus), Lonnie Brooks of Alaska, Rev. Paul Fleck, Thomas Starnes (on behalf of a group of unnamed annual conference chancellors)
Addressing the Connectional Conference Plan (2): Bishop Ken Carter (President of the Council of Bishops) and Senator Patricia Miller (Executive Director of the Confessing Movement).