The United Methodist Church’s Judicial Council has completed its examination of any possible conflicts between the Traditional Plan submitted to the special February 2019 General Conference and the UMC Constitution.
Decision #1366 upheld several significant proposals within the Traditional as constitutional, including:
- On screening for new clergy: strengthening the definition of “self-avowed practicing homosexual,” and requiring bishops to actively intervene in order to prevent people unwilling to abstain from homosexual practice from being made bishops or elevated into any lower clergy status.
- On accountability for clergy: forbidding bishops from arbitrarily dismissing complaints, making some (but not all) reforms to the “just resolution” process, requiring minimum, deterrent penalties for clergy convicted of performing pastorally harmful same-sex union ceremonies, and (sort of) church right to appeal.
- On gracious exits and realignment: allows annual conferences to leave the UMC with their collective property, as long as provision is made for clergy and congregations wishing to remain United Methodist.
There were several other provisions that were ruled unconstitutional but may still be possible to salvage. For some accountability petitions, this ruling did not object to imposing extra scrutiny and possible sanctions over people’s compliance with the UMC Discipline, but only objected to selectively doing this for compliance with just certain portions of the Discipline rather than with the entirety of our denominational covenant. While much of the Traditional Plan’s strengthened accountability for bishops was ruled unconstitutional, this should draw more attention to the alternative petition for episcopal accountability submitted by the Rev. Dr. Maxie Dunnam. Even the fate of the core requirement of forcing annual conferences to make a choice may not be as doomed as it initially seemed to some traditionalists.
Other parts of the ruling were more disappointing. This is particularly true of how the Judicial Council relied on a blatantly inaccurate misrepresentation of an irrelevant part of the UMC Constitution to strike down the Traditional Plan’s gracious exits offered for congregations. But even this does not rule out other ways in which congregations could be offered gracious exits.
After much anticipation, the United Methodist Church’s Judicial Council has released Decision #1366, an examination of whether or not any of the three main plans for a “Way Forward” on sexual morality—the liberal “One Church” Plan, the creative-compromise Connectional Conference Plan, or the orthodox Traditional Plan—impermissibly conflict with the UMC’s Constitution. The decision was reportedly unanimous.
I was very involved in this legal process, submitting two “friend of the court” briefs and closely following the details for some time.
I was disappointed by their ruling to uphold most (but not all) of the liberal, radically anti-Wesleyan, and misleadingly named “One Church Plan.” I will have more to say on that later. But for now, it is important to understand that these rulings do NOT by themselves establish any plan, and if the majority of delegates to the 2019 General Conference remain opposed to the values of this plan of the liberal U.S. bishops, then we are no less able to vote it all down than we were before this ruling.
What follows is my initial review of the basic facts of what this ruling means for the Traditional Plan. I reserve the right to further refine and adjust this analysis after I have had more time to examine the ruling in detailed relation to other parts of church law and in consultation with others.
As a general matter, Thomas Starnes, the chancellor for Bishop Latrelle Easterling of the Baltimore-Washington Conference, along with the Rev. Mark Holland, leader of the new liberal “Mainstream UMC” caucus, and others, had urged the Judicial Council to rule that the Traditional Plan was “not in harmony” with the specific purposes of the 2019 General Conference. This would have had the effect of preventing delegates from even considering and voting on this plan. But the Judicial Council once again declined to accept these arguments, just as it did when Starnes and others made similar arguments last May.
In a previous article, I wrote that the Traditional Plan can be understood as having five main components:
- Screening for New clergy.
- Accountability for Clergy.
- Accountability for Bishops.
- Accountability for Annual Conferences.
- Gracious Exits for Congregations.
This remains a helpful framework for understanding how this latest legal ruling affects the Traditional Plan.
For each of these five parts, the Judicial Council judged some provisions of the Traditional Plan to be unconstitutional. So for each part, supporters of the Traditional Plan face a choice between three possible responses of what to do about the invalidated provisions.
One possibility would be to give up on trying to do anything in the particular areas of the specific ideas now ruled to be unconstitutional. In some ways, this would be the simplest solution. But it could also mean abandoning key concerns of the Traditional Plan.
A second possibility would be to find a way to get a proposed constitutional amendment before the delegates of the 2019 General Conference which would make the invalidated provision become constitutional. This would effectively allow the Judicial Council to be overturned, so that the provision in question could be enacted. However, amending the UMC Constitution requires clearing the difficult hurdle of getting the approval of at least two thirds of General Conference delegates and then getting the aggregate support of at least a two-thirds vote of all lay and clergy members of annual conferences around the world. Depending on the specific proposal, these are not impossible requirements, as seen, for example, in the recent passage of a constitutional amendment on global accountability for bishops. But it would be a challenge.
The third possibility would be to think of some way to modify an invalidated provision so that it will no longer raise the same constitutional concerns for the Judicial Council. As a general rule, this may not be possible in every case. But in the “What’s next” sub-sections below, I have noted outlines of some (but not all) of my very initial thoughts, based on the Judicial Council decision’s text, of the ways in which this third possibility may potentially be pursued.
1. Screening for new clergy.
What’s upheld: The Judicial Council declared that several key provisions in this area are indeed constitutional. These include:
Petition #1, amending ¶304.3 of the UMC’s governing Book of Discipline. For over three decades, this part of the Discipline has already prohibited “self-avowed practicing homosexuals” from being ministers in our denomination. However, officials in liberal-dominated areas have played all kinds of word games to make it virtually impossible to prove that someone is actually a “self-avowed practicing homosexual,” and such word games have effectively allowed clergy in some areas to openly violate this traditional biblical standard of sexual morality. This petition would clarify that this key phrase includes anyone who “is living in a same-sex marriage, domestic partnership or civil union, or is a person who publically states she or he is a practicing homosexual.” While this basically affirms some recent Judicial Council decisions, such language would be very key for closing what many liberal officials have treated as a loophole in our church law.
Petition #5, amending Discipline ¶ 415.6. This is a very significant petition that would basically require bishops to actively intervene in situations in which a defiant clergy session has voted to approve someone to be commissioned or ordained as clergy, or if a defiant jurisdiction has voted to elect someone as bishop, who is clearly violating our rules against clergy practicing homosexuality. This petition would say that in such situations, these persons cannot be commissioned or ordained at annual conference as clergy, they cannot be made bishop, and bishops are required to ultimately prevent either from happening.
Petition #12, amending ¶304.5. This explicitly requires both district committees on ministry as well as boards of ordained ministry to make a “full examination” of clergy candidates’ compliance with ¶304.1-3 (which include abstinence from homosexual practice and all other extra-marital sex), forbids them from approving anyone at any stage of the candidacy process if they do not meet these standards, and requires the bishop to prevent such candidates from being voted on at the annual conference clergy session.
What’s struck down: This decision invalidates several petitions of the Traditional Plan (Petitions #6-9, respectively modifying ¶¶ 635.1, 635.2, 806.9, and 613.19). Together, these petitions would have created a new system in which all bishops would be required to nominate to their annual conference boards of ordained ministry (the main group charged with screening ordination candidates) only individuals who pledge to uphold the Discipline’s standards against “self-avowed practicing homosexual” clergy, these boards would be required to conduct full examinations of candidates to make sure that they do not violate this standard, the board and conference must certify that this is being done, and any conference failing to provide such certification would result in the annual conference being sanctioned by being cut off from receiving funding from our denomination and being prohibited from using the UMC’s cross-and-flame logo until this matter can be resolved.
While this strikes down four of the 17 Traditional Plan petitions, it is not as big a blow to the Traditional Plan as it may seem at first.
It is worth noting what the Judicial Council did not say in this part of the ruling. This decision acknowledged, but then declined to accept the arguments from the Rev. Paul Fleck of the New York Conference that the word “certify” was impermissibly vague. More significantly, this decision did not accept arguments that annual conferences could not be placed under such sanctions as being cut off from funding or denied use of the official UMC logo. In fact, the Judicial Council offered a positive declaration that collective sanctions CAN be legitimately imposed, in the right circumstances.
The basis for the Judicial Council judging these petitions to be unconstitutional was the “selective” nature of how these petitions singled out the ordination standards related to homosexuality. The decision countered that boards or ordained ministry instead “ought to scrutinize all candidates on all applicable disciplinary standards” (emphasis original). Of course, the reason why these particular standards were singled out was because these are the particular standards over which there is a widespread disobedience campaign.
In any case, the key part of the ruling for this section, echoed elsewhere, is: “Under ¶ 16, the General Conference can require that bishops, members, and nominees to boards of ordained ministry certify their commitment to uphold The Discipline in its entirety and impose sanctions in case of non-compliance. But it may not choose some over other provisions of The Discipline for special certification.” (emphasis added)
What’s next: The two sentences just quoted hold a lot of potential. It would seem that the constitutional concerns could be sufficiently addressed if each of these petitions was simply amended by replacing a few key phrases to say that bishops must name board of ordained ministry members who will uphold the standards of the entire Book of Discipline (including but not limited to those concerned with sexual morality, anti-racism, anti-sexism, integrity, indebtedness, etc.), that these boards must certify that they have screened candidates for all of these relevant Disciplinary standards.
2. Accountability for clergy.
What’s upheld: Most of the Traditional Plan’s provisions in this particular area were upheld as constitutional. The ruling specifically upheld the constitutionality of these provisions:
- Petition #11 (amending ¶2711), requiring minimum penalties for clergy found guilty by a church trial of having performed a same-sex union (even though this particular provision was particularly targeted by opponents);
- Petition #13 (amending ¶¶362.1 and 413.3), preventing bishops from arbitrarily dismissing complaints against clergy accused of wrongdoing;
- The first sentence of Petition #14 (amending ¶¶362.1, 413.3, 2701.5, and 2706.5), requiring any “just resolutions” to say how all identified harms will be addressed; and
- Petition #15 (amending ¶¶362.1, 413.3, 2701.5, and 2706.5) requiring involvement of the person who filed the complaint in any “just resolution” process.
If all of these were passed, if someone files a complaint against a minister who clearly violated the Discipline, the bishop would have to process the complaint, the bishop would have to include the person filing the complaint in any negotiations seeking a “just resolution,” such just resolution agreements could not ignore the concerns of the person filing the complaint, and any church trial finding that clergy did, in fact, perform a same-sex union ceremony must impose a minimum penalty that would be serious enough to deter others from following this bad example. All of this would be a huge improvement over what we have seen in recent years
What’s struck down: The second sentence of the aforementioned Petition #14 would require that when a minister faces a complaint and voluntarily admits to having violated the Discipline, any “just resolution” must include such clergy pledging to not repeat a similar violation of the Discipline in the future. Disappointingly, this was invalidated. The ruling seemed to accept the arguments submitted by me as well as Tom Lambrecht (Vice President and General Manager of Good News as well as the lead submitter of the Traditional Plan) that such a pledge was not a “penalty.” But they nevertheless invalidated this sentence because of how it would involve bishops in making determinations of law and fact. I did not find the Judicial Council’s reasoning to be terribly clear and convincing here, but you can read it for yourself.
Interestingly, the ruling deems this provision unconstitutional “to the extent that it requires the respondent to make such commitment upon admission of wrongdoing.” Could this mean that this petition would be constitutional if it would require a pledge to honor the Discipline in the future to be a part of ALL just resolutions, regardless of if there was any admission of guilt?
The ruling also invalidates a single sentence in Petition #10 (in proposed new ¶2801.8) saying that clergy unwilling to uphold our Discipline’s sexuality standards “are encouraged to transfer” to a new self-governing Methodist denomination formed according to other provisions of the Traditional Plan. However, the practical consequences are limited by how this ruling at the same time upholds the constitutionality of other parts of the Traditional Plan authorizing the creation of such new self-governing Methodist denominations (within some limits) and explicitly giving United Methodist clergy the right to transfer into such denominations.
What’s weird: With most of the provisions reviewed, this decision renders an explicit judgment of “this is constitutional” or “this is unconstitutional.” But they took a more confusing approach with Petition #16 (amending ¶2715.10). This provision would basically say that if there is a church trial, and there are “egregious errors of church law,” particularly which involve a minister escaping any accountability for violating the Discipline, then the counsel for the church (the UMC equivalent of the prosecuting attorney) shall have the right to appeal this matter, ultimately to the Judicial Council. This could result in a new trial being ordered. In current church law, only the defendant may appeal to a higher body after a church trial.
This ruling describes this as “fall[ing] within the commonly understood definition of double jeopardy.” In doing so, the Judicial Council seems to ignore arguments I submitted outlining how this characterization does not quite get the nuances of how double jeopardy is understood in U.S. civil law (such as when a first trial was so corrupted that the defendant was never truly at risk or “in jeopardy” of facing punishment there) or of how the church may set its own definitions of such phrases, or other arguments advanced by Tom Lambrecht.
Nevertheless, the ruling admits that this is not enough, if there is no right against double jeopardy in the UMC Constitution. The ruling further admits that “[t]he prohibition against double jeopardy is not explicitly mentioned in the Constitution of the United Methodist Church” and that previous Judicial Council cases have found no such right to exist even implicitly in the Constitution, and so “Petition 15 appears constitutional on its face.” And yet the Judicial Council insists that it could still potentially be challenged later as violating due process for the accused. And after saying all that, the ruling says that the constitutionality of the relevant portions of Petition #16 “is not addressed in this proceeding.”
In any case, although there were opponents of the Traditional Plan and perhaps some Judicial Council members who wanted this “church right to appeal” petition to be ruled unconstitutional, it seems that at the end of the day, they could find neither clear arguments nor the required two-thirds super-majority of the Judicial Council needed to do so.
3. Accountability for bishops.
What’s struck down: As previously reported, our denomination has only very recently enacted a new system for bishops to be held accountable by the full Council of Bishops, a global body, rather than limiting accountability for bishops to their respective home regions. We have particularly seen problems with bishops in the U.S. Western Jurisdiction blatantly violating and refusing to enforce our denomination’s covenantal standards, but then there is little that can be done as long as they only remained accountable to like-minded leaders in their radicalized region. The foundation of this new system was the adoption of a one-sentence amendment to the UMC Constitution allowing the Council to exercise global accountability functions over bishops. The actual system for how exactly this may be implemented was overwhelmingly passed by the 2016 General Conference, but does not appear in print editions of our current Book of Discipline and was only recently made public.
Petitions #2, 3, and 4 of the Traditional Plan would have made a few tweaks to this new global accountability system. However, the Judicial Council ruled that these three petitions are all unconstitutional, primarily based on the argument than it is unfair how this system would put members of the Council of Bishops in charge of initiating, investigating, AND making final determinations in response to accusations against someone.
The logic of the Judicial Council’s ruling would also seem to invalidate many of the changes that have already been recently made to ¶¶ 408, 410, and 422 of the Discipline. So we are left without a legally well-established system for how the Council of Bishops can actually exercise its now constitutional right to implement accountability on a global basis.
This part of the ruling also includes some of this decision’s most unhelpfully combative-sounding language: “The COB was not designed to function like an inquisitional court tasked with enforcing doctrinal purity within its ranks.”
In a separate part, the ruling strikes down a provision in the Traditional Plan requiring every bishop to certify their willingness to uphold the Discipline’s prohibitions on “self-avowed practicing homosexual clergy,” same-sex unions, and the use of apportionment funds “to promote the acceptance of homosexuality”—and those who failed to commit to these standards would be subject to review. This part of the ruling is a bit confusing in its wording, but it seems to be largely based on the same selectivity concerns noted in the Screening for New Clergy section above, in terms of how it asks bishops to certify their willingness to uphold certain parts of the Discipline rather than the whole thing.
What’s upheld: The recently passed Constitutional amendment allowing the global Council of Bishops “to hold its individual members accountable for their work” remains intact.
All of the upheld parts of this plan would effectively add to the different ways in which bishops would be subject for accountability for “obedience to the order and Discipline of The United Methodist Church.”
Amidst all that we have seen of bishops undermining the Discipline here is something VERY important to understand: Outside of the extreme case of the Western Jurisdiction, liberal U.S. bishops generally follow the letter of the law when it is crystal-clear, even if they are undermining its spirit and intent. So most of the cases we have seen in recent years of liberal bishops allowing disobedience to the Discipline have involved them hiding behind the sometimes obscure provisions giving boundaries for how they are to enforce the Discipline. And so when they have been challenged for running accountability processes in ways that have allowed clergy to get away with violating the Discipline, such bishops have protested, “Well, TECHNICALLY there’s nothing in the Discipline outlining the boundaries for this particular process that says I cannot do what I did!”
So provisions in the Traditional Plan to more specifically spell out what bishops must and must not do in certain situations WOULD have a significant effect in improving the way accountability matters are handled in a number of cases, at least outside of the U.S. Western Jurisdiction.
But the question still remains of who would hold bishops accountable and how this could be done. Which leads to…
What’s next: Supporters of the Traditional Plan widely agree that for covenant accountability to be restored, it is essential to have some sort of meaningful global accountability for bishops, given the shortcomings of current church law in this area. This could be addressed in a variety of ways.
As previously noted, the Rev. Dr. Maxie Dunnam has submitted a petition to the 2019 General Conference, supported by UMAction and other renewal groups, that would basically amend the Traditional Plan by creating a new group called the Global Episcopacy Committee to oversee at least some complaints against bishops. This may now be the simplest “way forward” for establishing meaningful global accountability for bishops. But delegates supportive of this direction should take care that this plan does not raise its own constitutional problems, and should be open to amendments that could avoid this. Note that the Judicial Council only ruled on the originally submitted versions of the three main alternative plans, and not on any other petitions submitted by Dunnam or others.
Another possibility, which may not necessarily be exclusive of adopting the Dunnam petition, would be to see if there is some way that Petitions #2, 3, and 4 of the Traditional Plan could be amended to address the Judicial Council’s concerns.
The details suggest that the Judicial Council’s concerns could perhaps be met if there was an explicit statement that bishops punished by this process would have the right to appeal (which supporters of this plan had understood to be implied), and if there were clear provisions requiring different bishops to recuse themselves to ensure that different people would be handling different stages of accountability processes within the Council of Bishops.
4. Accountability for annual conferences.
What’s upheld: Very significantly, this ruling upholds the constitutionality of provisions in the Traditional Plan establishing a process through which any annual conference may leave the UMC to become “a self-governing church.” By itself, this particular provision lacks explicit reference to our sexuality controversies. Nevertheless, this gives the 2019 General Conference a green light to be able to allow annual conferences to leave with their property, and the fuller context makes clear that this is particularly intended for those whose leadership is unwilling to honor United Methodist standards. Importantly, this upheld proposal would also require such a departing annual conference to let any of its congregations and clergy leave the conference to remain United Methodist, if they wished. Also upheld is Petition #17 (amending ¶¶570 and 574.1), which would enable such new denominations to form “concordat” agreements of continuing cooperation with the UMC, as we have done with other Methodist denominations.
The Judicial Council also upheld as constitutional related proposals requiring that such self-governing new denominations have no right to receive funding from the UMC or to use our exact same cross-and-flame logo.
What’s struck down: The most outside-the-box, ambitious, and perhaps controversial part of the Traditional Plan would have sought to move beyond holding individual wayward ministers accountable one at a time, by boldly confronting the reality of how some entire annual conferences have openly made a policy of (illegally) violating our denomination’s covenantal standards. At the heart of this was requiring every annual conference around the world to take a one-time vote on the question of whether or not within that annual conference, regardless of people’s personal beliefs, they would uphold the Discipline’s rules prohibiting “self-avowed practicing homosexual,” clergy, same-sex union ceremonies, and the use of annual conference funds “to promote the acceptance of homosexuality”.
This entire section was ruled unconstitutional.
But again, it is notable what the ruling did not say. It did not accept the argument made by some that General Conference is fundamentally unable to force annual conferences to vote on whether they will uphold the Discipline from now on. Nor did it accept the arguments that no sanctions could be imposed on annual conferences for not upholding the Discipline. In fact, the Judicial Council declared just the opposite, saying “Under ¶ 16.3, the General Conference can require annual conferences to declare that they will uphold The Discipline in its entirety and impose sanctions in case of non-compliance.”
As with the petitions struck down in the area of Screening for New Clergy, noted above, the Judicial Council’s concern was in the selectivity of focusing “Are you going to follow the Discipline or not?” questions exclusively on homosexuality-related policies. But the ruling even says “the same objective can be achieved without reference to particular disciplinary provisions.”
What’s next: Enacting a provision to let annual conferences leave to become self-governing denominations would be huge by itself.
But questions remain about how annual conferences could be forced to face a choice of taking this gracious exit or else recommitting to our denomination’s standards.
Again, there are good reason for focusing restoring compliance on the particular parts of the Discipline for which compliance needs to be restored. But while it would be a bit less clear and pointed, the Judicial Council seems to be saying that the Traditional Plan could be modified so that it would be perfectly constitutional for it to require every annual conference to vote on whether it was going to follow the whole Discipline (which includes sexuality standards) or not and impose sanctions for those failing to say YES, provided only that reference was made to the entirety of the Discipline rather than only referencing certain provisions.
Furthermore, as mentioned in the Screening for New Clergy section above, the General Conference would also now be within its constitutional rights to separately enact another means of disciplining annual conferences, by sanctioning those who failed to certify the commitment of their boards of ordained ministry to upholding the Discipline. (See the ruling on petitions #8 and 9, with particular reference to the question of if annual conferences may be cut off from denominational funding and from use of the UMC logo.)
5. Gracious Exits for Congregations
What’s upheld: This is the most embarrassingly flawed part of this rulings’ review of the Traditional Plan. It did not uphold any significant proposal regarding gracious exits for congregations.
What’s struck down: Petition #10, creating a new Discipline ¶2801, includes sub-sections that would allow any group of at least 50 congregations to leave the UMC to become their own self-governing denomination (under limited circumstances), and allow any lone congregation to leave the UMC and join a self-governing new denomination already formed, either through this provision for 50 departing congregations or through the aforementioned provision allowing annual conferences to leave the UMC.
However, the Judicial Council’s reasoning here is amazingly contrary to basic facts and logic. During the oral arguments, Bill Waddell, an attorney hired to work on behalf of liberal U.S. bishops in this case, advanced an argument against this part of the Traditional Plan which he admitted had not previously surfaced in the written arguments submitted earlier. However, Tom Lambrecht did a good job in quickly pointing out how Constitution ¶41, on which Waddell’s argument solely relied, was completely irrelevant. That paragraph requires a difficult process for a congregation to leave an annual conference, but the wording makes clear that this process only applies to a congregation transferring from one UMC annual conference into another UMC annual conference. As Tom noted, this part of the Traditional Plan is NOT talking about congregations transferring into another UMC annual conference, but about them transferring into another denomination, so ¶41 would not apply.
And yet without explanation, the Judicial Council claims that that this part of the Traditional Plan is “in direct conflict with the process established by the Constitution for the transfer of local churches from one annual conference to another.”
A related provision, governing the legal and financial details of congregations leaving the UMC to join a self-governing Methodist church, was also invalidated. Here, the reasoning of the Judicial Council was even less clear. It claimed that this provision “fail[ed] the constitutional test,” but primarily cited Disciplinary provisions outside of the Constitution.
What’s next: This seems like the most bizarre, confusing, and indefensible part of the rulings on the Traditional Plan. I am not sure if this was a matter of extreme judicial activism or of the Judicial Council members, in their human limitations, being so overwhelmed with this case that they made an embarrassingly sloppy oversight. If further clarifications do not emerge, then it would initially seem that as a basic matter of honesty and good governance, this decision’s blatant misrepresentation of the UMC Constitution cannot be allowed to stand, in the long run.
In the short run, there are other ways that congregations could be offered gracious exits within limited circumstances. This part of the ruling did not categorically say that General Conference cannot allow individual congregations to leave the UMC, only that it cannot let them transfer into a new denomination created by the Traditional Plan. So perhaps General Conference could pass a petition to allow a congregation to simply leave the UMC, and after that congregation was no longer subject to United Methodist control, it could join any denomination who would take it.
Some of the ruling’s wording indicates that some of the alleged problems with the details of congregations leaving could be resolved if references to the bishop were replaced with references to the annual conference board of trustees.
Like other traditionalists, I found several parts of this ruling to be confusing, unconvincing, and/or frustrating. But the bottom line is that (1) the Judicial Council (once again) rejected heavy-handed attempts to prevent the Traditional Plan from even being considered at the 2019 General Conference, (2) a great portion of the Traditional Plan now has the seal of approval of being judged to be not in conflict with the UMC Constitution, and (3) of the rest of the Plan, it looks like there may be much that could be salvaged, without necessarily needing difficult constitutional amendments.