Is the Protocol Constitutional?

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By Thomas Lambrecht  –

The Protocol for Reconciliation and Grace through Separation provides a way for amicable separation to resolve The United Methodist Church’s conflict over the authority and interpretation of Scripture, particularly related to ministry to and with LGBT persons. Some within the institution of United Methodism are fighting tooth and nail to prevent separation from occurring. After all, the nature of an institution is to do whatever possible to maintain its existence.

These institutionalists have raised questions about whether the Protocol is constitutional under United Methodist Church law. They raise the valid concern that we do not want to pass a plan at General Conference that later turns out to be unconstitutional and unenforceable. Many General Conference veterans remember the 2012 General Conference passing “Plan UMC,” only to be told on the last afternoon of the conference that the comprehensive plan to reorganize the church was unconstitutional.

Therefore, it is important to consider the possible ways that the Protocol could be unconstitutional and try to assess whether that is indeed the case. The Rev. Dr. William B. Lawrence, professor of American Church History and former dean of Southern Methodist University’s Perkins School of Theology, has written a paper arguing that the Protocol is indeed unconstitutional.

Practical Considerations

First, it is important to note that the Judicial Council – United Methodism’s supreme court – would be the body that would rule on the Protocol’s constitutionality. It would take a two-thirds vote, six of the nine members of the Judicial Council, to rule it unconstitutional. This is a fairly high bar, not easily achieved. This is especially true when one considers the Judicial Council’s goal: “When reviewing legislation for constitutionality, we defer to the legislative authority of the General Conference. In reviewing acts of the General Conference for constitutionality, our first inclination is to save legislation, if at all possible, and not destroy” (Decision 1210).

The Council of Bishops requested the Judicial Council to rule in advance on the constitutionality of the Protocol. In Memorandum 1407, however, the Judicial Council declined to rule, citing the fact that it might intrude on the legislative authority of General Conference by placing its “constitutional seal of approval on one proposed legislative item.” The Bishops could ask again for a ruling (with stronger arguments) or, more likely, the delegates of General Conference could themselves ask for a preliminary ruling on the first day of General Conference. Such a request would have to be honored, and it could provide important guidance to the legislative committee working on the Protocol.

Can an Annual Conference Withdraw?

The primary objection by Lawrence and others to the Protocol’s constitutionality is (they say) an annual conference is not permitted to vote to withdraw from The United Methodist Church. Lawrence argues that such a vote would infringe on the authority of the jurisdictional and central conferences to determine “the number, names, and boundaries of the annual conferences” (Discipline, ¶ 40).

However, if an annual conference were to withdraw, the jurisdictional or central conference would simply redraw the boundaries of existing annual conferences to include the vacated area or form a new annual conference to cover the vacated area. The withdrawal of an annual conference does not negate the constitutional powers of jurisdictional or central conferences.

The Constitution does not forbid annual conferences from withdrawing, nor does it explicitly permit it. The Constitution does say that “the annual conference is the basic body in the church and as such shall have reserved to it the right to vote on [several specific matters] and such other rights as have not been delegated to the General Conference under the Constitution” (¶ 33). Since the power to allow an annual conference to withdraw is not specifically delegated to the General Conference, it is reserved to the annual conference to do so.

Even if that were not the case, under ¶ 16.3, the General Conference has authority “to define and fix the powers and duties of annual conferences.” So the General Conference can give annual conferences the power to withdraw.

Importantly, the Judicial Council has already considered and ruled on this question. In Decision 1366 a ruling on the Traditional Plan, which originally contained a provision allowing annual conferences to withdraw, the Judicial Council said,

​​​​​​​An annual conference has the right to vote to withdraw from The United Methodist Church. This reserved right, however, is not absolute but must be counterbalanced by the General Conference’s power to “define and fix the powers and duties of annual conferences” in ¶ 16.3. … We agree with the submitter’s argument that the ‘withdrawal of an annual conference does not negate the constitutional powers of jurisdictional or central conferences.’ … While the General Conference, under the authority of ¶ 16.3, may regulate the process and set the conditions for an annual conference to leave The United Methodist Church, the annual conference, having ‘reserved to it…such other rights as have not been delegated to the General Conference under the Constitution,’ exercises autonomous control over the agenda, business, discussion, and vote on the question of withdrawal. Consequently, we find that amended ¶ 2801.9 is constitutional.

Lawrence argues that this decision does not count, since the provision in question was never adopted by General Conference. At the very least, however, it provides clear guidance to the Judicial Council’s thinking on this matter. Nearly the same members that decided 1366 are continuing members of the Judicial Council today. It would be very unusual for them to change their minds and overrule a previous finding of constitutionality. In accordance with Decision 1366, the Protocol “regulate[s] the process and set[s] the conditions for an annual conference to leave The United Methodist Church.” It thus complies with what the Judicial Council requires, making the ability of an annual conference to withdraw constitutional.

Lawrence further argues that annual conference withdrawal under the Protocol is unconstitutional because it allows lay members of the annual conference to vote on the membership of its clergy – presumably by voting the annual conference to align with another Methodist denomination, which would automatically take all its clergy members into that other denomination. Lawrence writes, “It would remove [clergy] from membership in the [UM] church by sending them involuntarily into some other church body.”

However, clergy membership in the new denomination would be strictly voluntary. Under the Protocol, clergy who wish to remain in the UM Church are able to do so, even if their annual conference withdraws, and they would continue to be eligible for a UM appointment. The laity would not be voting on whether or not clergy would be members of The United Methodist Church. That decision would be up to the individual clergy involved. Under the Protocol, clergy who agree with their annual conference’s alignment decision would automatically move into that chosen alignment, while clergy who disagree with that decision can choose a different alignment. So clergy who wish to remain United Methodist may do so, even if their annual conference votes to align with a new Methodist denomination.

Other Objections

Another objection raised to the Protocol is that it does not require an annual conference to vote to approve the withdrawal of a local church. This objection is derived from ¶ 41, where a two-thirds vote of the annual conference is required to allow a local church to transfer from one annual conference to another within The United Methodist Church. Judicial Council Decisions 1366 and 1377 ruled that the provision allowing a local church to withdraw and join a new or existing Methodist denomination was unconstitutional because it failed to require that annual conference approval.

Judicial Council Decision 1379, however, reversed the previous rulings in light of the fact that “Paragraph 41 of the Constitution governs the narrowly defined circumstance of a local church transferring from one annual conference to another but does not apply to a local church seeking to exit The United Methodist Church.” Decision 1379 still required a simple majority approval by the annual conference for any church disaffiliating from The United Methodist Church. This requirement is not specifically mentioned in the Constitution, but is extrapolated from the fact that the annual conference is the basic body of the church.

But proponents of the Protocol would argue that ¶ 16.3 in the Constitution gives the General Conference authority “to define and fix the powers and duties of annual conferences … charge conferences, and congregational meetings.” General Conference therefore has the authority to grant congregational meetings (church conferences) the power to disaffiliate and to specify that annual conferences do not have the power to approve of such disaffiliation. General Conference has the authority to limit the powers of an annual conference, just as it has the authority to grant powers to an annual conference, as long as the powers to be limited are not explicitly guaranteed in the Constitution. Therefore, the ability of a local church to disaffiliate (and align with a new Methodist denomination) without annual conference approval is indeed constitutional under this line of reasoning.

The final objection to the Protocol’s constitutionality is that it should require a two-thirds vote at all levels. (The Protocol requires a two-thirds vote for a central conference to align, a 57 percent vote for an annual conference to align, and either a simple majority or two-thirds vote for a local church to align.) The requirement for a two-thirds vote for such decisions is not found anywhere in the Constitution, other than in ¶ 41, which was already ruled to be irrelevant to the process for disaffiliation decisions. Some would argue on a prudential basis that a two-thirds vote is preferable, while others would argue that a majority vote is preferable. Either way, however, there is nothing in the Constitution that decides the question one way or another. The Protocol carefully balanced the needs and circumstances of different parts of the church in arriving at the percentages chosen.

The bottom line is that all the major objections to the Protocol’s constitutionality are either without a basis in the Constitution or have already been addressed by Judicial Council. Delegates can enact the Protocol with the fairly strong assurance that it is constitutional. Of course, no one can guarantee what the Judicial Council might rule. That is why a ruling in advance of General Conference would be so helpful to the legislative process. In the absence of such a ruling, delegates can still proceed with confidence to adopt the most comprehensive and balanced resolution to our church’s conflict. The church needs this conflict resolved

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