Judicial Council Rules

By Thomas Lambrecht –

Bishop Cynthia Fierro Harvey observes the results from a Feb. 26 vote for the Traditional Plan at the 2019 General Conference in St. Louis. Photo by Paul Jeffrey, UMNS.

In its recent Decision 1378, the Judicial Council has properly ruled that many parts of the Traditional Plan are constitutional and can go into effect. They will take effect on January 1, 2020. United Methodists around the globe can be gratified that the Judicial Council has upheld the direction and will of the General Conference. These rulings are consistent with the Council’s previous rulings and provide a stable understanding of how the church can move forward with a traditional position on marriage and sexual ethics. The church is now in a position to more faithfully uphold biblical teaching.

In addition, the Council ruled in Decision 1379 that the option for local churches to disaffiliate from The United Methodist Church is constitutional. As enacted by the General Conference, this option goes into effect immediately. It provides a way for those who simply cannot abide by the decisions of the church to find their own path in ministry.

What are the consequences and implications of these decisions by the Judicial Council? Our analysis will look at the details and flesh out the implications.

Would the entire Traditional Plan be ruled unconstitutional?

That is the question raised by opponents of the Traditional Plan. They argued that the plan was enacted as a single plan, and that if any part of it were found unconstitutional, the whole plan must be thrown out. In support, they noted that the General Conference voted NOT to consider the petitions of the Traditional Plan one by one, but rather vote on the whole plan as one piece of legislation. There was reason to believe that the Judicial Council might agree with that argument and rule out the whole plan, leaving the church back at square one.

However, the Judicial Council ruled that the Traditional Plan was a series of discrete proposals that had no effect on each other and could therefore be ruled on separately. Decision 1378 states, “the TP consists of a series of petitions that were separately numbered, dealing with completely different paragraphs of The Discipline. One petition does not affect the other. These petitions are not so closely related that a change in one affects the others. The petitions held unconstitutional have no effect on the petitions declared constitutional. The constitutional petitions are not dependent on the unconstitutional petitions and can survive without the unconstitutional petitions.”

This ruling is what we expected and hoped for. It is consistent with the previous Judicial Council rulings that identified some provisions as constitutional and others as unconstitutional.

Definition of “self-avowed practicing homosexual”

The Traditional Plan reasonably expands the definition of “self-avowed practicing homosexual” to include persons “living in a same-sex marriage, domestic partnership or civil union, or is a person who publicly states she or he is a practicing homosexual.” Previously, someone had to acknowledge that they were a practicing homosexual to a bishop, district superintendent, district committee of ordained ministry, Board of Ordained Ministry, or clergy session. This meant that if the person did not say the exact right words to the exact right people, there was no way to disqualify them from ministry. The trial of the Rev. Amy DeLong in Wisconsin in 2011 was a case where a woman who was legally married to another woman could continue to serve in ordained ministry because she refused to answer the question of whether or not she was a practicing lesbian.

This expanded definition creates what the Judicial Council calls a “rebuttable presumption” that if a person is married to another person (or in a domestic partnership or civil union), they are engaging in sexual relations. They could testify that they are not doing so, and therefore they would not be disqualified from ministry. But no additional evidence of their practice would be required under this expanded definition, making it more straightforward to disqualify someone from ministry who is violating the ethical requirements of our church.

The role of bishops

The Traditional Plan prohibits bishops from consecrating as a bishop someone who is a self-avowed homosexual. Bishops are prohibited from commissioning those on the deacon or elder track if the Board of Ordained Ministry has determined the individual is a self-avowed homosexual or has failed to certify it carried out the disciplinarily mandated examination. Bishops are prohibited from ordaining deacons or elders if the Board of Ministry has determined the individual is a self-avowed homosexual or has failed to certify it carried out the disciplinarily mandated examination.

This new provision makes bishops accountable if they violate the Discipline by commissioning, ordaining, or consecrating someone who is not qualified. The bishops who consecrated Karen Oliveto to her current office as bishop would have been subject to charges if this provision had been in effect in 2016. Any bishop who ordains or commissions a self-avowed practicing homosexual would now be subject to charges, as well.

Minimum penalty for same-sex weddings

Clergy who perform a same-sex wedding and are convicted in a church trial of doing so would be subject to a mandatory minimum penalty of one year’s suspension without pay for a first offense and termination of clergy status for a second offense. In the past, there have been numerous examples of pastors performing same-sex weddings and receiving a 24-hour suspension or no consequences at all.

When there are no consequences, the standards become unenforceable. This new rule will make clergy think twice about violating the Discipline that they vowed to uphold.

The role of district committees and conference boards of ministry

The Traditional Plan provides that the District Committee on Ordained Ministry and the Conference Board of Ordained Ministry shall not approve or recommend any person for candidacy, licensing, commissioning, or ordination who does not meet the qualifications. Bishop must rule such recommendations out of order.

This provision addresses the growing trend in progressive annual conferences for these groups to ignore the Discipline’s requirements for candidacy, commissioning, and ordination when they disagree with them. A failure by the district committee or the annual conference board to fully evaluate candidates would also disqualify those candidates from being acted upon by the clergy session. The bishop would be required to rule such recommendations out of order. Failure to do so would subject the bishop to possible charges.

Members of the Judicial Council during the Feb. 23 morning of prayer at the 2019 Special Session of the United Methodist General Conference in St. Louis. Photo by Kathleen Barry, UMNS.

How bishops handle complaints

The Traditional Plan requires that bishops not dismiss a complaint unless it has no basis in law or in fact. In the past, bishops who did not want to deal with a complaint could simply disregard it by dismissing it. Now, they cannot dismiss a complaint unless it is false or does not violate church law. This enhances the integrity of the complaint process to bring about accountability.

The role of the complainant in a just resolution

When a complaint is filed against a person alleging a violation of the Discipline, a negotiated settlement (called a just resolution) is often attempted, so that a church trial is not required. The Traditional Plan requires that, no matter where in the process a just resolution is achieved, the complainant(s) shall be a party to the resolution process and every effort shall be made to have the complainant(s) agree to the resolution before it may take effect.

Previously, complainants have sometimes been shut out of the resolution process. Other times, the bishop would appoint a counsel for the church, who would then settle the complaint in a way favorable to the bishop, regardless of the wishes of the complainant. Under this new provision, complainants must be involved in any negotiation process for settling a complaint. And a good faith effort must be made to get the complainant to agree to the just resolution before it may take effect. The just resolution could still happen without the complainant’s agreement, but no longer will the complainant be excluded from the process.

This is only just when a “resolution” should result in a reconciliation between the complainant and the respondent. It prioritizes restoration of relationship and ensures that the voice of the victim (the complainant) is heard throughout the process.

An additional new provision requires that just resolutions state all identified harms and how they shall be addressed by the Church and other parties to the complaint. Again, the emphasis is on repairing relationship.

The right to appeal

Finally, the Church now has a right of appeal to the committee on appeals and then to the Judicial Council from findings of a trial court based on egregious errors of Church law or administration that could reasonably have affected the findings of the trial court. In a system run by dedicated people who may be inexperienced in the law or legal procedures, this provision offers a key protection against mistakes that could jeopardize justice for the complainant and the church.

Local church disaffiliation

In Decision 1379, the Judicial Council found that the process for local churches to leave the denomination adopted by General Conference is constitutional. Disaffiliation would require a two-thirds vote by a church conference. The congregation would need to pay its fair share of unfunded pension liabilities, as well as two years’ apportionments in order to leave. Following consent by a simple majority vote of the annual conference, the local church could depart with all its property, assets, and liabilities.

What was not approved

The Judicial Council declared a number of Traditional Plan provisions unconstitutional.

1. An enhanced episcopal accountability process was declared still unconstitutional because no appeal process was specifically mentioned in the petitions.

2. The requirement that nominees to the Board of Ordained Ministry certify their willingness to uphold and enforce the Book of Discipline was declared unconstitutional because it was too vaguely worded.

3. The explicit requirement that Boards of Ordained Ministry carry out a full examination of candidates and not recommend any who are practicing homosexuals was declared unconstitutional because it limits the examination to that one requirement. However, that requirement was also contained in the petition on district committees and conference boards of ordained ministry and the petition on the role of bishops (see above), as well as Judicial Council Decision 1344, so it is in effect.

4. The requirement that persons who sign a just resolution must commit to upholding the Discipline on the aspect in which they acknowledged a violation was declared unconstitutional because it requires the bishop to determine whether a violation occurred, which is beyond the authority of a bishop to do.

Conclusion

Out of twelve provisions of the Traditional Plan enacted by the special General Conference, eight were found to be constitutional and will take effect beginning January 1, 2020. (For United Methodists outside the U.S., the provisions take effect May 10, 2021.) And one of the provisions ruled unconstitutional was similar to one that was ruled constitutional, so it is fair to say only three provisions could not be implemented.

Some simple language changes can rectify the problems found with the provisions that were disallowed. With more time available at the 2020 General Conference, the remaining provisions can be adopted in a way that conforms to the Constitution of the church.

In addition, the disaffiliation provision forms the basis for churches that cannot live with the decisions of General Conference to exit from the denomination with their property and without massive legal bills. Traditionalist churches are encouraged not to use this provision, but to stay in a denomination that continues to stand for what we believe in, so that we can work together to make our beloved church both more faithful to Scripture and more effective in ministry.

Thomas Lambrecht is a United Methodist clergyperson and the vice president of Good News.

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