Decision Number 1361
IN RE: Petition for Declaratory Decision from the Council of Bishops regarding the constitutionality, meaning, application, and effect of ¶¶ 2718.3 and 2718.4 of The Book of Discipline 2016.
Paragraphs 2718.3 and 2718.4 of The Book of Discipline 2016 afford the right to file an interlocutory administrative appeal prior to and without the requirement of a final action of the clergy session. Until the completion of the appellate process, claims of procedural errors are not resolved and the disciplinary question is not sufficiently clear to allow the clergy members in full connection of an annual conference to make a fair and informed decision. The clergy session is barred from voting on a recommendation for involuntary change of status when the appellate process has not yet been completed. An administrative appeal filed in a timely manner stays a recommendation for involuntary leave of absence, administrative location, involuntary retirement but not for discontinuance from provisional membership. A clergy member remains in good standing and is entitled to an appointment pending the outcome of the appellate process, except when the challenged action is in relation to discontinuance from provisional membership.
Statement of Facts
On July 27, 2017, the Council of Bishops [hereinafter COB] voted to request a declaratory decision and, acting through its secretary at the time, Bishop Cynthia Fierro Harvey, filed it on the same day. It was not included in the October 2017 Docket because the filing date had already passed. Due to the cancellation of the regular Spring 2018 meeting, this docket item was automatically deferred to the Fall 2018 session of the Judicial Council.
The Petition states in relevant part:
A. Paragraph 2718.3 of the 2016 Book of Discipline provides as follows:
The order of appeals on questions of procedures in an administrative process shall be as follows: from the decision of the conference relations committee to the administrative review committee who has original jurisdiction over the administrative matter, and from the administrative review committee to the central conference or jurisdictional appeals committee in which the appellant holds membership, and from the jurisdictional appeals committee to the Judicial Council.
B. Paragraph 2718.4 of the 2016 Book of Discipline provides as follows in relevant part:
When an appeal is made on questions of procedure in an administrative process:
(a) In all cases of appeal, the appellant shall within thirty days give written notice of appeal and at the same time furnish to the officer receiving such notice a written statement of the grounds of appeal, and the hearing in the appellate body shall be limited to the grounds set forth in such statement.
(b) The appellant body shall return to the convening officer of the administrative hearing and to the appellant a written statement of the grounds of its action.
(e) The right to prosecute an appeal shall not be affected by the death of the person entitled to such right. Heirs of legal representatives may prosecute such appeal as the appellant would be entitled to do if living.
(g) The appellate body shall determine one question only: Were there such errors of Church law as to vitiate the recommendation and/or action of the administrative body? This question shall be determined by the records of the administrative process and the arguments of the official representatives of all parties. The appellate body shall in no case hear witnesses. It may have legal counsel present for the sole purpose of providing advice to the appellate body.
(h) If the appellate body determines that any error has occurred, it may recommend to the appropriate person or body that action be taken promptly to remedy the error, decide the error is harmless, or take other action. The appellate committee shall not reverse the judgment nor remand the case for a new hearing on account of error plainly not affecting the result. All decisions of the appellate committee shall require a majority vote.
C. The Council respectfully requests a decision of law on the following questions:
Requested Decision No. 1: Do ¶¶ 2718.3 and 2718.4 allow an administrative appeal on a question of procedure before there is action by the clergy session of annual conference either approving or disapproving the recommendation for involuntary change of status?
Requested Decision No. 2: If an administrative appeal is allowed pursuant to ¶¶ 2718.3 and 2718.4 before any action on the recommendation for involuntary change of status by the clergy session and an administrative appeal is timely filed, does the appeal automatically stay the recommendation pending a decision by the appellate committee(s)?
Requested Decision No. 3: If an administrative appeal pursuant to ¶¶ 2718.3 and 2718.4 is taken, does the clergy person remain in good standing and therefore entitled to an appointment pending the outcome of an appeal?
An oral hearing was conducted on October 23, 2018 at the Placid Hotel in Zurich, Switzerland. Appearing on behalf of the COB were Bishops Kenneth H. Carter and Cynthia Fierro Harvey and William Waddell, Esq., and other Interested Parties were Rev. Robert F. Zilhaver and Rev. Kimberly D. Reisman.
The Judicial Council has jurisdiction pursuant to ¶ 2610.1 of The Book of Discipline 2016 [hereinafter The Discipline]. The COB has standing to request a declaratory decision pursuant to ¶ 2610.2(b) of The Discipline.
Analysis and Rationale
One Church Plan
OCP Petition 1
This Petition adds the following sub-paragraph to ¶ 105:
We agree that we are not of one mind regarding human sexuality. As we continue to faithfully explore issues of sexuality, we will honor the theological guidelines of Scripture, reason, tradition and experience, acknowledging that God’s revelation of truth and God’s extension of grace as expressed in Jesus Christ (John 1:14) may cause persons of good conscience to interpret and decide issues of sexuality differently. We also acknowledge that the Church is called through Christ to unity even amidst complexity. We affirm those who continue to maintain that the Scriptural witness does not condone the practice of homosexuality. We believe that their conscience should be protected in the church and throughout society under basic principles of religious liberty. We also affirm those who believe the witness of Scripture calls us to reconsider the teaching of the church with respect to monogamous homosexual relationships.
The concern raised here is that the proposal, instead of developing a uniform position of the Church on human sexuality, “enacts a non-uniform statement which undercuts connectionalism.” 1 But this begs the question whether connectionalism requires uniformity in terms of our theological stance on marriage and human sexuality and whether diversity of beliefs and opinions is antithetical to our connectional covenant and, therefore, unconstitutional.
The Judicial Council said that the “Constitution clearly provides that the principle of connectionalism should be always primary in any organizational structure of The United Methodist Church.” JCD 411. It would, however, be a stretch and contrary to any rule of construction to say that, as a “primary” organizational principle, connectionalism hinges on uniformity of moral-ethical standards. Further, ¶ 132 of The Discipline provides:
¶ 132. The Journey of a Connectional People—Connectionalism in the United Methodist tradition is multi-leveled, global in scope, and local in thrust. Our connectionalism is not merely a linking of one charge conference to another. It is rather a vital web of interactive relationships. We are connected by sharing a common tradition of faith, including Our Doctrinal Standards and General Rules (¶ 104); by sharing together a constitutional polity, including a leadership of general superintendency; by sharing a common mission, which we seek to carry out by working together in and through conferences that reflect the inclusive and missional character of our fellowship; by sharing a common ethos that characterizes our distinctive way of doing things. [emphasis added]
If connectionalism by definition were to dictate standardization in all things theological, as some amicus briefs argued,2 it would preclude any kind of contextualization and differentiation on account of geographical, social, and cultural variations, and, by implication, prohibit central conferences from making “such changes and adaptations of the General Discipline as the conditions in the respective areas may require.” Constitution, ¶ 31.5. But if connectionalism is understood in terms of “a vital web of interactive relationships” multi-leveled and multi-faceted in nature (as expressed in ¶ 132 quoted above), it would allow room for diversity of theological perspectives and opinions.3 Undoubtedly, the Constitution grants the General Conference the power to establish a uniform system of moral-ethical standards for our ministers. See JCD 1341. But that does not mean that the General Conference must do so, for this would be contrary to the “full legislative power…to define and fix the powers and duties of” clergy members. Constitution, ¶ 16.2. Our Constitution commands not that all church policies enacted by the General Conference be uniform but that all uniform church policies be enacted by the General Conference. Full legislative power includes the power to adopt a uniform, standardized, or a non-uniform, differentiated theological statement. Therefore, we conclude that Petition 1 is within the legislative discretion of the General Conference under ¶ 16 of the Constitution.
OCP Petitions 2, 3, and 5
The changes to ¶¶ 161.C, 161.G, and the footnote to ¶ 310.2(d) seek to change the definition of marriage by substituting the phrase “between two adults” for “between a man and a woman” and “heterosexual,” while affirming the traditional understanding of marriage. The issues boil down to two main arguments levelled against the constitutionality of these amendments: (1) they change the definition of marriage in violation of the first and second Restrictive Rules (¶¶ 17-18)4 and, particularly, are contrary to John Wesley’s Explanatory Notes Upon the New Testament because the General Conference in 1972 voted to use Wesley’s Explanatory Notes as “a new context of interpretation” for the Articles of Religion and Confession of Faith; 5 (2) they delegate the authority to define marriage to civil authorities, local churches, and pastors,6 thereby creating non-uniform and inconsistent standards across the denomination. 7
The Judicial Council, in JCD 1027, established a two-prong test for determining whether a question brought before it is doctrinal or legal in nature:
In addressing such challenges, the Judicial Council has applied a two-step process. First, the Judicial Council determines whether the language used in the challenged disciplinary provision revokes, alters, or changes the Articles of Religion (¶ 103 of the 2004 Discipline). In making such a determination, the Judicial Council has held that the questioned language must be placed in the Articles of Religion or must be in direct conflict with language of the Articles of Religion. See Decisions 86 and 142…. Second, where language used in a challenged disciplinary provision is not placed in the Articles of Religion and is not in direct conflict with language of the Articles of Religion, we have held that it does not have jurisdiction to pass on the constitutionality of such language, even though the language may be theological or doctrinal in nature, because to do so would be to engage in the interpretation of doctrine, an act which is beyond our authority. See Decisions 86 and 243.
We must determine first if the proposed legislation in question revokes, alters, or changes or otherwise is in direct conflict with the Articles of Religion and Confession of Faith, and second, absent modification and direct conflict, if it is theological or doctrinal in nature so as to place it beyond constitutional scrutiny. Petitions 2, 3, and 5 contain amendments to disciplinary provisions but no textual changes or “insertion of any word or phrase into one of our Articles of Religion [and Confession of Faith].” JCD 86. Nor can they be said to be in direct conflict with the language of said documents, since none of the doctrinal statements define marriage as being a “heterosexual” union “between one man and one woman.”
Upon closer look at JCD 468, the claim that the General Conference’s adoption of Wesley’s Explanatory Notes as “a new context for interpretation” of the Articles of Religion and Confession requires legislative changes of the marriage definition to be consistent with the Explanatory Notes does not hold up to scrutiny. The phrase “a new context of interpretation” in JCD 468 is part of an extended quotation from the Daily Christian Advocate and refers to the report of the Theological Study Commission on Doctrine and Doctrinal Standards, not Wesley’s Explanatory Notes, as providing a new context for reading the doctrinal documents, since the purpose of the report was “to clarify the contextual relationships between the Articles, the Confession, and Wesley's Sermons and Notes and Rules.”8 This cannot be construed as saying that Wesley’s Explanatory Notes “are included among our ‘established standards of doctrine’ covered by the First Restrictive Rules,” and effectively given constitutional status. 9 Nor does this directly support the assertion that the Explanatory Notes “establish the contextual meaning for same-sex practice” as far as the Articles and the Confession are concerned.10
“On the basis of a narrowly construed interpretation of the question,” JCD 358, we find that there is nothing concerning traditional marriage or homosexuality in the Articles and Confession and that the amended ¶¶ 161.C, 161.G, and footnote to ¶ 310.2(d) do not alter, revoke, or change, nor are they in direct conflict with the language of those foundational documents. As to whether the proposed legislation in question may be theological or doctrinal in nature, any endeavor to legislatively define marriage or human sexuality draws on beliefs, convictions, and a priori positions that clearly fall outside the traditional realm of jurisprudence. Since Petitions 2, 3, and 5 propose “language which, even though doctrinal or theological in nature, is not placed in the Articles of Religion and which does not directly conflict with the Articles of Religion, only the General Conference is competent to determine whether its enactment establishes a new standard or rule of doctrine contrary to our present existing and established standards of doctrine.” JCD 1027, citing JCD 243. For this reason, Petitions 2, 3, and 5 pass the Restrictive Rules test.
The second argument (“lack of uniformity and inconsistent standards”) uses JCD 1185 as authority. In that case, the Judicial Council struck down a New York Annual Conference policy allowing same-sex marriage for clergy and upheld ¶ 2702.1 of The Discipline 2008 on constitutional grounds. The briefs advancing this position quote the following statement in support:
The recognition or non-recognition of same sex marriage by civil authorities has no effect on our analysis. The Church has a long tradition of maintaining its standards apart from those recognized or permitted by any civil authority. The Church’s definition of marriage as contained in the Discipline is clear and unequivocal and is limited to the union of one man and one woman. Consequently, the Church’s definition of marriage must take precedence over definitions that may be in operation in various states, localities and nations or that may be accepted or recognized by other civil authorities. To do otherwise would allow the Church’s polity to be determined by accident of location rather than by uniform application. JCD 1185 [emphasis added]
But they also conveniently skip over the preceding portion of the opinion, which reads:
Though not explicitly stated, the New York Annual Conference resolution and policy is aimed at permitting clergy who wish to enter into a same sex marriage to do so at their discretion. Paragraph 604.1 provides that an annual conference, “for its own government, may adopt rules and regulations not in conflict with the Discipline of The United Methodist Church.” The action of the New York Annual Conference in adopting Resolution 2010-305 is a violation of ¶ 604.1 of the Discipline. […] An annual conference has no authority to offer clergy immunity from administrative or judicial complaint processes by adopting a resolution and policy that is clearly contrary to the Discipline. Judicial Council jurisprudence has long held that an annual conference may not legally negate, ignore, or violate provisions of the Discipline, even when the disagreements are based upon conscientious objections to those provisions. JCD 1185, citing JCD 96, 886, and 911.
The overlooked excerpt of JCD 1185 makes it abundantly clear that annual conferences are constitutionally prohibited from enacting policies contrary to the standards established by the General Conference. JCD 7. The problem of disharmony is tied to annual conferences passing inconsistent regulations, not civil authorities defining marriage on behalf of and for the Church. Put differently, permitting annual conferences to adopt their own policies on same-sex marriage would lead to lack of uniformity and inconsistent standards, and it is this scenario (i.e. conflicting annual conference legislation in the area of marriage) that “would allow the Church’s polity to be determined by accident of location rather than by uniform application.” JCD 1185. Contrary to the assertion in amicus briefs, this opinion has no bearing on the issue of Church-State separation. At its core, JCD 1185 restated the constitutional division of powers between General Conference and annual conferences by affirming the former’s full and exclusive authority to set uniform standards for marriage, a distinctly connectional matter.
Petitions 2, 3, and 5 are also alleged to delegate the power to define marriage to local churches and pastors. Yet, nowhere does the language of the proposed legislation suggest that local churches and ministers are authorized to do so. On the contrary, the rationale of the proposed legislation is to honor the “traditional understanding of marriage” and protect the “Religious liberty…for those whose consciences would be impinged if they celebrated a same-sex union in societies where it is allowed.”11 As was said above, the General Conference has full legislative power to establish uniform moral-ethical standards for our clergy members. But it can also choose, under the same constitutional warrant, to enact non-uniform, differentiated standards. These petitions fall under the latter category. It cannot be said that the proposals delegate the power to define marriage to local churches and ministers because they lack any standards. They do define marriage and establish standards, albeit non-uniform and differentiated in nature, and entrust churches and pastors with their application. Therefore, this unconstitutional-delegation argument is without merit.
OCP Petition 4
Petition 4 seeks to amend ¶ 304.3 as follows:
3. While persons set apart by the Church for ordained ministry are subject to all the frailties of the human condition and the pressures of society, they are required to maintain the highest standards of holy living in the world. The responsibility for determining how standards, including standards related to human sexuality, may apply to certification or ordination in a given annual conference falls to the Conference Board of Ordained Ministry and the clergy session of the annual conference. The bishop may choose to seek the non-binding advice of an annual conference session on standards relating to human sexuality for ordination to inform the Board of Ordained Ministry in its work.
The practice of homosexuality incompatible with Christian teaching. Therefore self-avowed practicing homosexual persons are not to be certified as candidates, ordained as minister or appointed to serve in the United Methodist Church.
It retains the first sentence of the current provision but removes the prohibition on ordaining, certifying and appointing self-avowed practicing homosexual persons. The legislation assigns the responsibility for determining how to apply the disciplinary standards, including those concerning human sexuality, to boards of ordained ministry and the clergy members of annual conferences. The same provision also creates the bishop’s authority to seek the non-binding advice of an annual conference regarding the ordination of self-avowed practicing homosexuals for the benefit of the board of ordained ministry. The COWF Report explains that the “One Church Plan removes the language from The Book of Discipline used in the United States that restricts…annual conferences from ordaining self-avowed practicing homosexual persons” and that this “plan provides United Methodists the ability to address their missional contexts in different ways.”12
The crucial issue here is whether the Petition improperly transfers the authority to set minimum standards on ordination, certification, and appointment of ministers from the General Conference to the board of ordained ministry and clergy session of a given annual conference, thus effectuating an unconstitutional delegation of powers.13 The COB Brief defends Petition 4 on the grounds that, with the deletion of the last sentence of the current ¶ 304.3, “there will be no statement by the General Conference on the issue of human sexuality as it relates to certification or ordination.”14 The removal of this prohibitive language results in “the absence of any standard by the General Conference,” which essentially means that “there is no distinctively connectional issue that an annual conference Board of Ordained Ministry cannot address regarding human sexuality” within its authority under ¶ 33.15
Most frequently cited authorities on this issue are JCD 542 and 544. The relevant portion of JCD 542 reads:
…the General Conference under Par. 15 of the Constitution has the power to establish standards, conditions and qualifications for admission to the ministry. Under Par. 37 of the Constitution, however, it is the Annual Conference, as the basic body of the church, that decides whether those standards have been met. Reserved to it is the right to vote on all matters relating to the character and conference relations of its ministerial members and on the ordination of ministers.
Decision 544 states in relevant part:
The Constitution, Par. 15, [now ¶ 16] gives the General Conference the power to fix the basic requirements for ministry, while it becomes the responsibility of the Annual Conference, as set forth in Par. 36 [now ¶ 33], to measure, evaluate, and vote upon candidates, as regards the minimum standards enacted by the General Conference. Ordination in The United Methodist Church is not local, nor provincial, but worldwide. While each Annual Conference is a door through which one may enter the ministry of the entire church, the Annual Conference cannot reduce nor avoid stipulations established by the General Conference which must be met by the church's ministry everywhere. An Annual Conference might set specific qualifications for its ministerial members, but does not have the authority to legislate in contradiction to a General Conference mandate or requirement.
In those two leading cases, the Judicial Council, reading ¶ 16 in conjunction with ¶ 33, distinguished between legislative and administrative functions. The legislative function belongs to the General Conference (i.e. “the power to establish standards, conditions and qualifications for admission to the ministry” and “the power to fix the basic requirements for ministry”), whereas the administrative responsibility is given to the annual conference (i.e. “decides whether those standards have been met” and “to measure, evaluate, and vote upon candidates, as regards the minimum standards”). Unauthorized delegation of powers occurs when the legislative function is assigned to annual conferences, namely the power to establish standards, conditions, and qualifications for admission to the ministry. But this is not the case with Petition 4. What Petition 4 does is codify the controlling principle in JCD 542 and 544 by giving the board of ordained ministry and clergy session the “responsibility for determining how standards, including standards related to human sexuality, may apply to certification or ordination in a given annual conference.” [underlines omitted]. In other words, Petition 4 reaffirms the administrative role of the annual conference in regard to the General Conference’s full legislative authority to establish minimum standards on ordination and human sexuality and is, therefore, within the boundaries set by ¶¶ 16 and 33 of the Constitution.
Further, eliminating the prohibitive language in ¶ 304.3 does not lead to a lack of standards, nor does it create a legislative “vacuum” the annual conferences have to fill.16 The Petition removes only one among numerous requirements a clergy person must meet for ordination, certification, and appointment, leaving all other standards intact for annual conferences to apply. The ban on the ordination of self-avowed homosexual persons was added to the Discipline in 1984. If the General Conference had the power to enact the ban in 1984, it will certainly have the authority to repeal it in 2019 if it so wishes. The legislative branch of the Church is constitutionally free to set the standards for entrance into the ministry wherever and whenever it sees fit. Regardless of where that threshold may be at any given time, the “annual conference may enact additional requirements that are not in conflict with the letter or intent of” the minimum standards set by the General Conference. JCD 1341. By striking the prohibitive language, Petition 4 brings the threshold back to the pre-1984 level.
The sentence authorizing a bishop “to seek the non-binding advice of an annual conference session on standards relating to human sexuality for ordination to inform the Board of Ordained Ministry in its work” is constitutionally problematic. It was argued that there is no constitutional basis for this kind of authority.17 The issue here is not the creation of a special episcopal authority per se, since the General Conference has the constitutional warrant to “define and fix the powers, duties, and privileges of the episcopacy,” Constitution, ¶ 16.5, but the purpose for which it may be exercised, namely to inform the board of ordained ministry in its work. The manifest objective of soliciting a non-binding annual conference opinion by the bishop on issues related to the ordination and certification of self-avowed practicing homosexual persons is to help the board of ordained ministry make informed decisions. This arrangement bears the risk of crossing the line between episcopal and administrative functions, thus violating the doctrine of separation of powers. “The operative principles of United Methodist polity and law include the authority of the Annual Conference; the separation of powers of the Episcopacy, the Superintendents, and the Board of Ordained Ministry; and due process.” JCD 689 [emphasis added]. Further, the Judicial Council held that “the bishop has no authority to make substantive rulings on judicial or administrative matters…To do otherwise would violate the principle of separation and balance of powers between the legislative, executive and judicial branches as set forth in the Constitution.” JCD 799, aff’d, JCD 1092. The separation of powers prevents bishops not only from ruling on administrative matters but also exerting improper influence over the administrative process. In JCD 1156, the Judicial Council stated the principle of non-interference as follows:
The separation of authority and decision making is integral to the United Methodist Constitution and law. Procedures that govern action with respect to matters of conference relations are carefully set forth in the Discipline and are to be followed by the Board of Ordained Ministry without interference from the bishop or the district superintendents acting individually in that role or collectively through the cabinet. [emphasis added]
By allowing a bishop to inform the work of the board of ordained ministry, the proposed legislation promotes precisely the kind of interbranch contact JCD 1156 prohibits, i.e. “interference from the bishop or the district superintendents acting individually in that role or collectively through the cabinet.” Needless to say, the General Conference is free to authorize the use of non-binding opinions by bishops to inform the work of the cabinet and district superintendents. The special episcopal authority may be granted and exercised for any but unconstitutional purposes. In other words, the grant of this special authority expressly for the purpose of informing the work of the board of ordained ministry is constitutionally objectionable. For this reason, we conclude that Petition 4 is constitutional, except for the added sentence: “The bishop may choose to seek the non-binding advice of an annual conference session on standards relating to human sexuality for ordination to inform the Board of Ordained Ministry in its work.” [underlines omitted].
OCP Petitions 6 and 7
Under The Discipline, elders and deacons have the freedom to perform or not perform marriage, union or blessing ceremonies for heterosexual couples. By adding new ¶¶ 329.4 and 334.6, Petitions 6 and 7 would extend this freedom to these services for same-sex couples where they are legal. An elder’s or deacon’s “right to refuse such a service due to conscience is expressly protected.”18 Objections to these proposals concern the lack of uniformity and unconstitutional delegation of the power to define the boundaries of marriage to ministers.19 There is no delegation of policy-setting authority involved because standards on marriage, human sexuality, and ordination have already been established and covered by Petitions 1-5. To recall, the General Conference is free to enact non-uniform, differentiated standards and entrust local churches as well as clergy members to exercise their religious liberty in the application of those standards.
Another concern is that Petitions 6 and 7 allow pastors to officiate worship services not included in The Book of Worship and rituals not sanctioned by the Church.20 Paragraph 16.6 of the Constitution reads:
6. To provide and revise the hymnal and ritual of the Church and to regulate all matters relating to the form and mode of worship, subject to the limitations of the first and second Restrictive Rules. [footnote omitted]
The Judicial Council, in Memorandum 694, dealt with the issue of whether a Minnesota Annual Conference resolution allowing reconciling congregations to offer services of blessing and celebration of committed relationships of same-sex couples was out of order. It came to the following conclusion:
The General Conference is the legislative body which has prerogative over matters distinctively connectional (Par. 15) [now ¶ 16], as well as the Hymnal and Ritual of the Church (Par. 15.6) [now ¶ 16.6]. The Annual Conference does not have authority either to establish or to alter the official rites and rituals of The United Methodist Church. It is the responsibility and duty of the pastor to “oversee the total ministry of the local church in its nurturing ministries and in fulfilling its mission of witness and service in the world ...” (Par. 439) [now ¶ 340]. Par. 439.1(a) [now ¶ 340.2(a)] further states it is the responsibility of the pastor “to preach the Word, oversee the worship life of the congregation, read and teach the Scriptures, and engage the people in study and witness.” It is the responsibility of pastors in charge to perform their duties in compliance with the Discipline and be obedient to the Order and Discipline of the Church. [emphasis added]
Memorandum 694, however, has no direct bearing on this case because in that case the resolution in question was adopted by an annual conference. By passing that policy, the Minnesota Annual Conference intruded upon General Conference’s full legislative authority under then ¶ 15.6 of the Constitution. Since the annual conference lacked the authority to pass the resolution in the first place, local churches and ministers would contravene The Discipline if they acted in accordance with the resolution by offering those services to same-sex couples. In the extant case, however, the policy permitting those services will be a legislation of the General Conference if it votes to enact it in 2019. Local churches and clergy persons who choose to conduct those services will be in compliance with The Discipline because they will simply select from among available options offered by the General Conference legislation. For those reasons, Petitions 6 and 7 pass constitutional muster.
OCP Petition 8
Similar to Petition 7, this Petition affirms a clergy person’s “right to exercise his or her conscience when requested to perform such marriages, unions or blessings as a matter of his or her individual religious liberty.” Amended ¶ 340.3(a) [underlines omitted]. Under this provision, no pastor shall be required or compelled to perform services for same-sex couples or prohibited from doing so. But it goes further in guaranteeing the right of a clergy member “who cannot in good conscience continue to serve in a conference based upon that conference’s standards for ordination regarding practicing homosexuals” to transfer to a different annual conference. Amended ¶ 340.3(b) [underlines omitted]. The second sentence of amended ¶ 340.3(c) states:
Similarly, clergy who cannot in good conscience continue to serve a particular church based on unresolved disagreements over same-sex marriage as communicated by the pastor and Staff-Parish Relations Committee to the district superintendent, shall be reassigned.
If clergy persons “shall be reassigned” in the event of irreconcilable differences with the local church, the question arises as to whether this provision infringes upon a bishop’s appointment authority.21 Constitution, ¶ 54. Defending this provision, the submitter of the OCP maintained that “it remains the bishop—the bishop alone—who retains the constitutional mandate and prerogative both to ‘make and fix’ the departing pastor’s new assignment.”22 A distinction must be made, the brief argued, between the bishop’s constitutional authority to appoint ministers under ¶ 54 and the General Conference’s power to determine the process leading up to pastoral appointments, namely the power to “define and fix the powers, duties, and privileges of the episcopacy” under ¶ 16.5. “In other words, just as our bishops’ constitutional powers include the power to ‘make and fix’ pastoral appointments, that same power is among the ‘episcopal powers’ that the General Conference has complementary constitutional authority to ‘define and fix.’”23 This provision is touted as striking the proper balance between episcopal authority and the full legislative authority of the General Conference.
This argument, however, ignores the fact that, although the General Conference may “determine what must happen before the bishop exercises that power,”24 it must also ensure that the process leading up to the appointment decision be outcome-neutral. In JCD 1307, the Judicial Council said:
This authority grants the General Conference the right to shape the nature of the consultation process that must be followed as bishops carry out their constitutional responsibility to make and fix appointments, as long as this does not alter the necessity of consultation with superintendents and the final authority of bishops to make and fix pastoral appointments. [emphasis added]
By prescribing a particular outcome (reassignment) for a particular instance (unresolved disagreements) determined by particular persons (pastor and local church SPRC), the legislation makes the exercise of the appointment power contingent on certain factors and actors and, by the same token, restricts the bishop’s “final authority” to only one possible choice.25 Under this mandatory-reassignment arrangement, a bishop would have no alternative if he or she had reason to believe that the SPRC of a local church under the cover of “unresolved disagreements” discriminates against a pastor on account of race, culture, ethnicity, age, or gender. Even where the involved parties disagree over what the disagreement is actually about, a bishop has no choice but to move the pastor to a different church. One way or another, he or she is limited to one option only. To fully preserve a bishop’s final authority, any process established by the General Conference prior to the appointment decision must (1) avoid predetermining the outcome and (2) leave room for alternatives. For this reason, the language in amended ¶ 340.3(c) mandating reassignment (“shall be reassigned”) violates ¶ 54 and is unconstitutional.
We must now determine whether the remainder of Petition 8 can be upheld if one part of it is declared invalid. In other words, the question is whether amended ¶¶ 340.3(a), (b), and (c) can be separated from and enacted without the invalid part. For constitutional purposes, separation is inappropriate when the remaining part is so inextricably connected to the part declared invalid that what remains cannot independently survive. In such event, the operative presumption is that the author of the legislation would not have proposed the remaining part by itself.
The invalid portion of ¶ 340.3 deals with a substantively different, though similar, subject. Sub-paragraph (a) protects the freedom of clergy persons to perform or not perform services for same-sex couples; sub-paragraph (b) affirms the principle that no clergy shall be compelled, required to or prohibited from performing those services; and sub-paragraph (c), first sentence, gives clergy persons the option to transfer for reasons of conscience. All these parts can stand alone and be separated from the impugned sentence in ¶ 340.3(c). Consequently, we come to the conclusion that Petition 8 is constitutional, except for the following sentence:
“Similarly, clergy who cannot in good conscience continue to serve a particular church based on unresolved disagreements over same-sex marriage as communicated by the pastor and Staff-Parish Relations Committee to the district superintendent, shall be reassigned.” [underlines omitted]
OCP Petition 9
Petition 9 seeks to amend ¶ 341.6 as follows:
6. Ceremonies that celebrate homosexual unions same-sex marriage shall not be performed conducted by clergy our ministers and shall not be conducted in our churches on church-owned property unless the church decides by a majority vote of a Church Conference to adopt a policy to celebrate same-sex marriage on church property.
Amicus briefs raised here the same concerns as in Petitions 6 and 7. We already addressed them there. See supra OCP Petitions 6 and 7. Another question is whether the General Conference can allow a church to conduct same-sex wedding services if the majority of a “Church Conference” votes to adopt such policy, when the constitutional provision expressly speaks of “charge conference.”
The Constitution, in ¶¶ 43 and 44, provides:
¶ 43. Article I.—There shall be organized in each charge a charge conference composed of such persons and invested with such powers as the General Conference shall provide.
¶ 44. Article II. Election of Church Officers—Unless the General Conference shall order otherwise, the officers of the church or churches constituting a charge shall be elected by the charge conference or by the professing members of said church or churches at a meeting called for that purpose, as may be arranged by the charge conference, unless the election is otherwise required by local church charters or state or provincial law. [footnote omitted]
These constitutional paragraphs stipulate the existence of the charge conference and establish the election of church officers by the charge conference as a default mode, leaving the details for General Conference to determine. Under Constitution, ¶ 16.3, the full legislative power of the General Conference includes the authority to “define and fix the power and duties…of charge conferences, and congregational meetings,” and this means, also the power to adopt regulations for the governance of local churches, provided that there be a charge conference for each charge, and to establish a different process for electing church officers. Short of eliminating the charge conference, the General Conference can do whatever it pleases when it comes to the organization and administration of the local church. Nowhere does the Constitution explicitly prohibit the use of church conferences in lieu of charge conferences for a limited and specific purpose such as voting on a same-sex wedding policy. The amended provision does not change, restrict, or repeal in any way the powers and duties of the charge conference.26 Consequently, we find that Petition 9 is within General Conference’s legislative authority under ¶¶ 43 and 44 of the Constitution.
OCP Petition 10
This Petition protects the religious liberty of bishops who cannot in good conscience commission, license, or ordain self-avowed practicing homosexuals. The addition to ¶ 415.6 reads:
No bishop shall be required to ordain an elder or deacon, commission a deaconess, home missioner, or missionary, or license a local pastor who is a self-avowed practicing homosexual. The Jurisdictional College of Bishops shall provide for the ordination, commissioning, and licensing of all persons recommended by the Board of Ordained Ministry and the clergy session of the annual conference in the bounds of its jurisdiction. All clergy with security of appointment shall continue under appointment by the bishop of the annual conference.
Similar concerns were raised against Petitions 1-4. We addressed them there. See supra OCP Petitions 1-4. Further, it was asserted that this Petition improperly allows bishops to preside outside their assigned area without direction from the COB and without permission from a resident bishop in violation of ¶ 52 of the Constitution.27 This argument is without merit. The first and second sentences are interdependent in the sense that the second is preconditioned by the first, while the effectiveness of the first depends on the implementation of the second one. The protection of a bishop’s right to religious liberty requires that provision be made by the respective college of bishops for the ordination and commissioning of self-avowed practicing clergy candidates in the event that one or more of its members exercise that right,28 with the implicit understanding that a bishop from outside the episcopal area will come and preside only if the residential bishop (1) indicates his or her intention to exercise that right and (2) consents to such an arrangement. Even in that scenario, the bishop is not giving up his or her constitutionally assigned role but remains the presider over the annual conference session for purposes of ¶ 52. The General Conference has the power to “define and fix the powers, duties, and privileges of the episcopacy” under ¶ 16.5 of the Constitution. This Petition affirms one of the “privileges” and at the same time establishes new “powers, duties” for bishops acting individually or as members of a jurisdictional college of bishops. It is not in conflict with ¶ 52 because this constitutional provision speaks to the presidential role of bishops in the broadest terms and leaves plenty of room for the General Conference to legislate. The Constitution does not require the direction of the COB for any plan set up by a college of bishops for the ordination and commissioning of self-avowed practicing homosexual persons, nor does it prohibit bishops from outside the episcopal area to preside upon the consent of a residential bishop who exercises his or her religious right under amended ¶ 415.6. We, therefore, conclude that Petition 10 is in harmony with the Constitution.
OCP Petitions 11 and 12
Nearly identical in wording, these Petitions seek to amend ¶¶ 416 and 419 by setting boundaries for bishops and district superintendents who shall not:
require any pastor to perform or prohibit any pastor from performing any marriage, union, or blessing for same-sex couples on church property;
require any church to hold or prohibit any church from holding a same-sex marriage service on church property.
Petition 12 is different from Petition 11 in that it adds a clause to the district superintendents’ prohibited conduct that reads: “or otherwise coerce, threaten, or retaliate against any pastor who exercises his or her conscience to perform or refuse to perform a same-sex marriage.”29 Arguments against these Petitions were also made against Petitions 4, 6, 7, and 8, which we addressed above. See supra OCP Petitions 4, 6, 7, and 8. The concern raised here is that these proposals are unconstitutional because they interfere with the work of bishops as general superintendents and of district superintendents as the extension of the episcopacy and effectively destroy “the plan of our itinerant general superintendency” protected by the Third Restrictive Rule (Constitution, ¶ 19).30
While bishops acting individually or collectively do their work as itinerant general superintendents, it is the role of the General Conference to “define and fix the powers, duties, and privileges of the episcopacy.” Constitution, ¶ 16.5. In the exercise of this broad power, the General Conference can dictate what bishops and superintendents must not do to local churches and pastors who decide one way or another with regard to same-sex weddings. Whenever the General Conference has spoken legislatively on matters distinctively connectional, the COB is responsible “for carrying into effect the rules, regulations, and responsibilities prescribed and enjoined by the General Conference,” Constitution, ¶ 47 [emphasis added], and a “bishop presiding over an annual, central, or jurisdictional conference shall decide all questions of law coming before the bishop in the regular business of a session,” Constitution, ¶ 51 [emphasis added], and “ensure that the annual conference and general church policies and procedures are followed” as well as “ensure fair process for clergy and laity…in all involuntary administrative and judicial proceedings.” The Discipline, ¶ 415.2-3 [emphasis added]. Far from a carte blanche for episcopal authority, the plan of itinerant general superintendency is circumscribed by constitutional and disciplinary law. Therefore, Petitions 11 and 12 are within those constitutional boundaries.
OCP Petition 13
This Petition adds a new sub-paragraph to ¶ 605 that reads:
10. At any clergy session of an annual conference, the chairperson of the Board of Ordained Ministry shall, if directed by a vote of the Board of Ordained Ministry, present a motion regarding certification, ordination, and appointment of self-avowed practicing homosexuals. Provided, however, that any clergy session of an annual conference that votes on such matters shall not, without the consent of the presiding bishop, take up any subsequent motion on that issue during any called or special session of annual conference held within 30 full calendar months from the date of such vote regardless of the outcome.
The constitutionality of this proposed legislation is questioned on the grounds that it (1) unlawfully delegates authority concerning the certification, ordination, and appointment of self-avowed practicing homosexuals to the board of ordained ministry and clergy session of annual conferences,31 and (2) allows a bishop to determine the frequency of an annual conference’s discussion and decision on matters related to the certification, ordination, and appointment of self-avowed practicing homosexuals.32
The first concern is unfounded because it is the General Conference, in exercising its full legislative authority over a distinctively connectional matter, “that is permitting change and the potential for non-uniformity in regard to human sexuality.”33 As said above concerning OCP Petition 1, the Constitution does not require that all church policies enacted by the General Conference be uniform but that all uniform church policies be enacted by the General Conference. Its constitutional authority includes the power to adopt non-uniform, differentiated standards regarding human sexuality. Similar to Petition 4, the first sentence of this Petition codifies the controlling principle in JCD 542 and 544 by affirming the administrative role of annual conferences in determining how to apply non-uniform, differentiated disciplinary standards by way of a motion of the board of ordained ministry presented to the clergy session regarding certification, ordination, and appointment of self-avowed practicing homosexuals.
We find, however, that the second sentence of this Petition is constitutionally flawed. Under the amended provision, the annual conference is barred from considering and voting on any motion regarding certification, ordination, and appointment of self-avowed practicing homosexuals within thirty months, unless this time period is waived by the presiding bishop.34 Whether labeled “waiver” or “consent,” this special episcopal authority amounts to a veto power. If bishops are constitutionally prevented from seeking the non-binding advice of the annual conference for the purposes of informing the board of ordained ministry in its work (See supra OCP Petition 4), they should not be in the position to disallow any motion brought by the clergy session within that time period. In allowing the bishop to control the agenda, discussion, and decision of an annual conference by withholding his or her consent, this legislation essentially turns an annual conference’s autonomous right to vote on all matters relating to the character and conference relations and the ordination of clergy into a conditional right, depending on the consent of the bishop, in violation of ¶ 33 of the Constitution. Immaterial is the question of whether and why a bishop might actually exercise this veto power, for the constitutional guarantee of an annual conference’s reserved rights does not tolerate speculations about episcopal actions and their underlying motives. We conclude that the second sentence of Petition 13, to the extent that it authorizes the bishop to waive the thirty-month period, infringes upon an annual conference’s reserved rights and is, therefore, unconstitutional.
OCP Petition 14
This Petition seeks to strike language from ¶ 2702.1 to reflect proposed changes in ¶¶ 161.C, 161.G, 304.3, and 341.6.35 The legislation would change the definition of immorality to “not being celibate in singleness or not faithful in a monogamous marriage” and strike “being a self-avowed practicing homosexual” as well as “conducting ceremonies which celebrate homosexual unions; or performing same-sex weddings” from the chargeable offense of practices declared by The United Methodist Church to be incompatible with Christian teachings. The prohibitive language first appeared in The Discipline 2004 and went into effect on January 1, 2005. In May 2004, prior to the entry into effect of the legislation, the Judicial Council ruled that ¶ 304.3 “of 2000 Discipline was a declaration of the General Conference…that ‘the practice of homosexuality is incompatible with Christian teaching’” and construed it to be “a chargeable offense under ¶ 2702.1(b) of the 2000 Discipline.” JCD 984, aff’d, JCD 1027, 1341.
The concerns raised against this Petition were discussed in connection with Petitions 1-5 above. The objective of Petition 14 is to roll back the legislative changes to the pre-2004 status. If the General Conference had the constitutional authority to enact those chargeable offenses in 2004, it will certainly have the full legislative power to repeal them in 2019, should it decide to do so. Consequently, Petition 14 passes constitutional muster.
OCP Petition 15
This Petition proposes to amend ¶ 543.17 by extending the time for central conferences to enact adaptations and translate legislation passed by a General Conference from 12 to 18 months. According to the rationale, “[a]n additional six months give the central conferences the appropriate time to meet, translate the legislation and consider whether they want to make adaptations.”36 Importantly, Petition 15 does not say that the central conferences shall meet within 18 months after the close of the General Conference, for this would be clearly in conflict with ¶ 30, which provides that “central conferences shall meet within the year succeeding the meeting of the General Conference.”37 The language of the proposed change only provides that legislation passed by a General Conference “shall not take effect” until 18 months after the close of that General Conference and essentially is an exception to the rule that all “legislation of the General Conference of The United Methodist Church shall become effective January 1 following the session of the session of the General Conference at which it is enacted.” The Discipline, ¶ 508. Under ¶ 16.3, the General Conference has full legislative power to “define and fix the powers and duties of…central conferences.” Consequently, Petition 15 is authorized by that constitutional provision.
OCP Petition 16
This Petition adds a new § 23 to ¶ 1504, which reads as follows:
If a local church or charge in the United States changes its relationship to The United Methodist Church through closure, abandonment, or release from the trust clause pursuant to ¶2548, ¶2549, or otherwise, notwithstanding whether property with title held by the local church is subject to the trust (under the terms of ¶2501), the local church shall contribute a withdrawal liability in an amount equal to its pro rata share of any aggregate unfunded pension obligations to the annual conference. The General Board of Pension and Health Benefits shall determine the aggregate funding obligations of the annual conference using market factors similar to a commercial annuity provider, from which the annual conference will determine the local church’s share.
The stated purpose of this legislation is to have local churches intending to exit the Church
pay a proportional fair share of the annual conference’s aggregate unfunded pension liability using market factors similar to a commercial annuity provider to account for the investment, longevity, and other risks they leave to the Church.38
The General Conference has full legislative power to “enact such other legislation as may be necessary, subject to the limitations and restrictions of the Constitution of the Church.” Constitution ¶ 16.16 [emphasis added]. Under this “necessary-legislation” power, it can set the financial terms and conditions, including a calculation basis, for local churches desiring to exit the Church, subject to the limitations and restrictions of ¶ 41, which regulates the process for transferring local churches. Petition 16 does not change the process but defines the financial obligations of transferring local churches and is a proper exercise of General Conference’s necessary-legislation power under ¶ 16.6. It is, therefore, constitutional.
OCP Petition 17
This last Petition intends to change the Clergy Retirement Security Program “so active clergy who change their covenant are removed from the defined benefit and annuity risk pools for their former annual conference and the Church, and are provided an actuarially equivalent account balance benefit.”39 Although “Clergy Retirement Security Program” is not expressly listed among the enumerated powers in ¶ 16, it certainly constitutes a distinctively connectional matter over which the General Conference has full legislative authority. In regard to bishops, the legislative branch of the Church is authorized “to adopt a plan for the support of the bishops, to provide a uniform rule for their retirement,” Constitution, ¶ 16.5, and with respect to clergy persons, to “define and fix the powers and duties of elder, deacons, supply preachers, local preachers, exhorters, deaconesses, and home missioners.” Constitution, ¶ 16.2. The regulation and definition of clergy retirement benefits may also be regarded as “other legislation as may be necessary” under ¶ 16.16 of the Constitution. For this reason, we conclude that Petition 17 is constitutional.
II. Traditional Plan (TP)
Is the Traditional Plan “in harmony”?
Several amici curiae challenged the constitutionality of the TP on the basis that it is neither “in harmony” with the purpose of the amended call letter of the COB nor is it the work of the COWF.40 One particular amicus brief asserted that the TP “pays no heed to the clearly stated purpose and objective of the Way Forward process as it was defined in the Council of Bishops’ ‘Offering on a Way Forward’,” and, for that reason, is “fundamentally out of harmony—flatly inconsistent—with the purpose of upcoming called session of the General Conference.”41
First, we find no evidence in the amended call letter indicating that the purpose of the special session of General Conference “was to consider and act on proposals that would aim to preserve the unity of The United Methodist Church notwithstanding its diverse perspectives on human sexuality issues.”42
Second, in JCD 1360, we ruled on the question of “in harmony” under ¶ 14:
Petitions to the special session of the General Conference 2019 may be filed by any organization, clergy member and lay member of the United Methodist Church as long as the business proposed to be transacted in such petition is in harmony with the purpose stated in the call. It is the obligation of the General Conference to determine, in the first instance, through its committees, officers and presiders, acting in accordance with The Discipline and the rules and procedures of the General Conference, whether any such petition is “in harmony.” However, business not in harmony with the purpose as stated in the call is not permitted unless the General Conference by a two-thirds vote shall determine that other business may be transacted. See ¶ 14. [emphasis added]
Whether all petitions submitted or, particularly, the ones concerning the TP are in harmony with the purpose stated in the amended call is not a matter for constitutional adjudication, but content-based evaluation expressly assigned to the “committees, officers and presiders, acting in accordance with The Discipline and the rules and procedures of the General Conference.” Id. It is immaterial that, “judged strictly by the terms of Bishop’s call, or by the terms of that call as amplified by the clearly expressed intent of the 2016 General Conference (as drawn from the record of those proceedings),” the Traditional Plan is alleged to be inconsistent “with the intended purpose of the Called Special Session scheduled for 2019.”43 The question was asked and answered in JCD 1360 and remains for the appropriate committees to make a final determination.
TP Petition 1
This Petition seeks to add language to footnote 1 of ¶ 304.3 as follows:
“Self-avowed practicing homosexual” is understood to mean that a person openly acknowledges to a bishop, district superintendent district committee of ordained ministry, Board of Ordained Ministry, or clergy session that the person is a practicing homosexual; or is living in a same-sex marriage, domestic partnership or civil union, or is a person who publically [sic] states she or he is a practicing homosexual. See Judicial Council Decisions 702, 708, 722, 725, 764, 844, 984, 1020, 1341.
The Rationale states:
The added language identifies other means by which an individual openly acknowledges that they are engaged in the practice of homosexuality and can be determined by access to public records or declarations made in public forums. It incorporates Judicial Council Decision 1341 in the Discipline.44
The 1996 General Conference added this footnote to ¶ 304.3 in response to JCD 702. If the General Conference had the power to enact the footnote in 1996, it will certainly have the authority to add language to it in 2019 if it so wishes. As we noted above under OCP Petition 4, the legislative branch of the Church is constitutionally free to set the standards for entrance into the ministry wherever and whenever it sees fit. This proposed legislation falls within General Conference’s full legislative power over distinctively connectional matters and is, therefore, constitutional.
TP Petitions 2, 3, and 4
These legislative petitions propose to amend ¶¶ 408, 410, and 422 by establishing “a process by which the Council of Bishops may hold one another accountable, based on the constitutional amendment to ¶ 50 that was ratified in 2017.”45 The centerpiece of this new process are the proposed changes to ¶ 422, particularly, the new additional § 5, which reads in relevant part:
¶ 422.5. The Council of Bishops shall establish from its membership a Council Relations Committee of at least three persons to hear requests for involuntary leave of absence, involuntary retirement, as may be referred to it by the Council of Bishops or any seven active bishops.
When there is a recommendation for an involuntary status change to be referred to the Council Relations Committee, the Council Relations Committee shall conduct an administrative hearing following the provisions of fair process. The Council of Bishops shall designate the person to present the recommendation to the committee. The respondent shall be given an opportunity to address the recommendation in person, in writing, and with the assistance of a clergyperson in full connection, who shall have voice. Once the committee has heard the person designated to represent the recommendation, the respondent, and others as determined by the chairperson of the committee, it shall report its decision to the Council of Bishops. The Council of Bishops may affirm or reverse the decision of the committee. The Council of Bishops shall refer to the Council Relations Committee any bishop who is unwilling to certify that he or she is willing to uphold, enforce and maintain The Book of Discipline relative to self-avowed practicing homosexuals. When the Council Relations Committee reaches a positive finding of fact that the bishop has not so certified, the Council Relations Committee shall recommend either involuntary leave or involuntary retirement to the Council of Bishops after conducting a Fair Process Hearing.
Under this provision, the Council Relations Committee [hereinafter CRC], composed of three members of the COB, receives complaints referred to it by the COB or by seven active members, conducts administrative hearings, and reports its decision to the COB, which may affirm or reverse the decision. Although it may be warranted by ¶ 50 under a broad construction of the phrase “hold its individual members accountable for their work,”46 this process runs afoul of other provisions in the Constitution. There is no separation of prosecutorial and adjudicative functions because they are combined in one and
the same body. The same body that refers the complaint to the CRC is also the final arbiter in administrative matters. This is underscored by the provisional nature of the CRC's decision as shown in the sentence: "The Council of Bishops may affirm or reverse the decision of the committee." [emphasis added]. It does not make any difference that the language is permissive (i.e. "may" as opposed to "shall"), for the committee's "decision" (¶ 422.5(a)) or "recommendation" (¶¶ 408.3(c), 410.5) is subject to affirmation or reversal by the COB. In any event, the COB has complete control over the outcome of the administrative process, which it initiates. The COB was not designed to function like an inquisitional court tasked with enforcing doctrinal purity within its ranks.
This arrangement poses significant dangers to a person's right to a fair and unbiased determination of her or his case. There are no safeguards put in place to guarantee an impartial process carried out by an independent body. Not only is the CRC elected by and composed of members of the COB, but also the legislation does not explicitly bar a CRC member from voting on a COB motion to refer a complaint or from joining six other active members to recommend involuntary leave of absence or involuntary retirement; nor does the provisions contain any regulations regarding conflict of interests and recusal of CRC members. The equivalent would be to allow bishops to send cabinet members to bring administrative matters before the conference relations committee and, simultaneously, appoint district superintendents to serve on that body contrary to ¶ 635.1(d).57 Petition 4 adds a sub-paragraph (b), which establishes fair process rights of bishops in administrative proceedings: the right to be heard, to be notified of any hearing, to be accompanied by a clergyperson, to have access to records as well as the prohibition of ex parte communication. However, these procedural guarantees are ineffective without structural protections to ensure the right to have one's case heard and decided by an impartial and independent body. The closeness of the CRC to the COB, and vice-versa, makes them practically indistinguishable and inseparable.
There are similar concerns with the Administrative Review Committee [hereinafter ARC], created under amended ¶ 422.6, whose "only purpose shall be to ensure that the disciplinary procedure for any involuntary action recommended by the council relations committee are properly followed." [underlines omitted]. Although ARC members are expressly prohibited from serving on the CRC and Executive Committee, they are still voting members of the COB, the body responsible for initiating and resolving complaints.58 Absent provisions barring ARC members from voting on COB referral motions or at the least requiring them to recuse on account of conflict of interests, the neutrality of the ARC is questionable at best and compromised at worst.
Impartiality and independence of decision-making bodies are the hallmarks of due process and bedrock principles of procedural justice in our constitutional polity. No process can be fair and equitable if the body bringing the complaint is also empowered to determine its merits. "The United Methodist Church has a heritage of concern with the rights of persons. That concern has repeatedly made provision for the protection of the rights of its members and of its ministers." JCD 351, aff'd, JCD 459, 462, 522, 524, 852, 1226. "The separation of authority and decision making is integral to the United Methodist Constitution and law. While the boundaries can become hazy in any particular situation, the preservation of the separation of powers must be observed." JCD 689, aff'd, JCD 917. The fundamental right to fair and due process of an accused bishop enshrined in ¶¶ 20 and 58 is denied when the complainants are also among those tasked with reviewing and making the final decision. "Fair process is a constitutional, as well as a disciplinary, right and is protected by the judicial process. Fair process applies to administrative action as well as judicial process." JCD 830.
We also note the conspicuous lack of any provision granting a bishop the right to appeal the findings of the COB. The finality of the COB's decision is a clear violation of the constitutional guarantee of "a right to trial by a committee and an appeal." Constitution, ¶ 58. "It is a long-standing policy in The United Methodist Church to handle any administrative and judicial process within the guidelines of fair and due process. Fair process can never be presumed, but it must be clearly demonstrated at all times. The concept of fair process is one that has been engrafted upon the constitutional standards of our Church." JCD 1230. "At all times, a bishop's constitutional right to fair and due process must be protected." JCD 1341. We find Petition 4, particularly proposed ¶¶ 422.5(a) and 422.6, to be in conflict with ¶¶ 20 and 58, and, therefore unconstitutional.We must now determine whether Petitions 2 and 3 can be upheld if the main part of Petition 4 is declared invalid. In other words, the question is whether Petitions 2 and 3 can be
separated from and enacted without the invalid part. As said above, separation is inappropriate when the remaining part is so inextricably connected to the part declared invalid that what remains cannot independently survive. In such event, it may be presumed that the author of the legislation would not have proposed the remaining part by itself. The rationale of the proposals in those petitions states: "Additions to ¶¶ 408, 410, and 422 go together and create a process by which the Council of Bishops may hold one another accountable."59 Amended ¶ 408.3(c) authorizes the COB upon majority vote to place any bishop in the retired relation if such a relation is recommended by the CRC. Likewise, amended ¶ 410.5 provides that the COB by majority vote may place any bishop in an involuntary leave status if such a relation is recommended by the CRC, and approve annually after review and recommendation of the CRC. For all intents and purposes, these provisions relate to the administrative process proposed in ¶ 422.5(a), without which they would lose their meaning. Establishing a comprehensive procedural scheme, they build a coherent unit and cannot be separated from the constitutionally defective part. Since they are inextricably connected to Petition 4, Petitions 2 and 3 are unconstitutional.TP Petition 5
This Petition proposes to amend ¶ 415.6 by stating that bishops are prohibited (1) from consecrating bishops who are self-avowed practicing homosexuals, even if they have been duly elected by the jurisdictional or central conference, and (2) from commissioning or ordaining deacons and elders determined by the board of ordained ministry to be self- avowed practicing homosexuals, even if they have been recommended by the board and approved by the clergy session of the annual conference.
The Rationale reads:
Rationale: Clarifies that bishops are not allowed to consecrate, ordain, or commission persons who are not qualified under ¶304.3, even if they are elected or approved by the relevant jurisdictional conference or clergy session. This enhances the bishop's role in upholding the Discipline and makes him/her individually responsible to do so. Resolves a tension identified by Judicial Council Decision 1341 holding such acts illegal."60
Under ¶ 16.5, the General Conference has the full legislative power to "define and fix the powers, duties, and privileges of the episcopacy." We find that this Petition is authorized by that constitutional grant of power.TP Petition 6
This Petition seeks to amend ¶ 635.1(a) by addition:
Members shall be nominated by the presiding bishop after consultation with the chairperson of the board, the executive committee, or a committee elected by the ... board of the previous quadrennium, and with the cabinet. Prior to being nominated for membership on The Board of Ministry by the bishop, any individual must certify that he or she will uphold, enforce and maintain The Book of Discipline related to commissioning, ordination and marriage of self-avowed practicing homosexuals. Additionally, the bishop must certify that he or she only has nominated individuals who will uphold, enforce and maintain The Book of Discipline related to ordination and marriage of self-avowed practicing homosexuals. To ensure adequate board membership …
A concern raised here is that the Petition uses the term "certify" without providing clarity as to what constitutes proper certification for bishops, candidates and members of the board of ordained ministry and is, therefore, unconstitutionally vague.61 Referring to the dictionary meaning of the term "certify," the submitter of the TP contended that there "is nothing mysterious about attesting authoritatively to something, presenting something in formal communication…or attesting to something being true" and, therefore, there is no reason to explicitly define the term.62
However, the arguments of both opponent and defender of the plan miss the point. The problem with this legislation is not the vague but incomplete and selective nature of the certification. Under this amendment, individuals nominated by the bishop to the board of ordained ministry are required to certify that they will abide by the disciplinary provisions related only to commissioning, ordination, and marriage of self-avowed practicing homosexuals. By the same token, bishops must certify that they have nominated persons who will maintain The Discipline related only to commissioning, ordination and marriage of self-avowed practicing homosexuals. The certification is incomplete and selective because it relates to some but not all applicable standards of The Discipline and targets one particular group of candidates for disqualification, when there are other disqualifying factors that ought to be considered.
Incomplete or selective certification is in direct conflict with the principle of legality.
"Under the long-standing principle of legality, The Discipline contains the law of The United Methodist Church governing the conduct of lay and clergy members and regulating all aspects of Church life. No individual member or entity shall violate, ignore, or negate Church law." JCD 1341, citing JCD 96, 886, 920, 980, 1120, 1185. As a tenet of United Methodist constitutionalism, the principle of legality means that all individuals and entities are equally bound by Church law, which shall be applied fairly and without regard to race, color, national origin, status, or economic condition. It demands that all decisions and actions by official bodies and their representatives be based on and limited by the Constitution and The Discipline. To guide their actions, individuals must be informed with specificity and clarity as to what is prescribed and proscribed by Church law. No person or body can be required to act contrary to Church law or prohibited from engaging in lawful conduct. No person can be punished for actions and conduct that are permitted or required by Church law.
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. The principle of legality forbids selective or partial enforcement of Church law at all levels of the connection.
In JCD 1343, the Judicial Council ruled with respect to the application of disciplinary standards for candidates:
The Board's examination must include all paragraphs relevant to election of pastoral ministry, including those provisions set forth in paragraphs that deal with issues of race, gender, sexuality, integrity, indebtedness, etc. ¶¶ 304.2, 305, 306, 310. Candidates for licensed or ordained ministry in the United Methodist Church should be treated fairly and denial of entry must be based upon the evidence received from the results of the full examination. [emphases added]
The Judicial Council required a careful and thorough examination and investigation in JCD 1344:
Paragraph 635.2h of The Discipline imposes on the Board the duty "to examine all applicants as to their fitness for the ordained ministry and make full inquiry as to the fitness of the candidates…" (Emphasis supplied). This provision obviously aims to ensure that the Disciplinary standards are met. The duty of the Board is to conduct a careful and thorough examination and investigation, not only in terms of depth but also breadth of scope. There are a variety of methods to accomplish this investigative responsibility, ranging from evaluating written exams, conducting personal interviews, to reading social media postings of candidates. We recognize that the members of the Board often work with limited personnel, financial resources, and time. They are, nevertheless, required to fulfill the disciplinary mandate.
Under the rationale of those decisions, marriage and sexuality are but two among numerous standards candidates must meet to be commissioned or ordained; other criteria include, for example, being committed to social justice, racial and gender equality, and personal and financial integrity that should be part of a full examination. In other words, the board of ordained ministry is mandated to apply and enforce all relevant disciplinary provisions, not just those related to marriage and sexuality. Requiring the certification for standards related only to self-avowed practicing homosexuals is tantamount to selective and partial application of The Discipline, leading to a less than careful and thorough board examination as mandated by JCD 1343 and 1344. For those reasons, we determine that Petition 6 violates the principle of legality as well as judicial precedents and is unconstitutional.TP Petition 7
This proposed legislation seeks to amend ¶ 635.2(h) as follows:
To examine all applicants as to their fitness for the ordained ministry and make full inquiry as to the fitness of the candidate for: (1) annual election as local pastor; (2) election to associate membership; 93) election to provisional membership; and (40 election to full conference membership. The Board of Ministry shall conduct an examination to ascertain whether an individual is a practicing homosexual, including information on social media, as defined by The Book of Discipline. The board shall certify that such an examination has occurred and its results. If it is determined as a matter of fact that an individual is a practicing homosexual, the board shall not recommend the individual to the Clergy Session of the Annual Conference for commissioning or ordination.
The Rationale explains that this Petition "[i]ncorporates Judicial Council Decisions 1343, 1344, and 1352 in the Discipline, requiring boards of ordained ministry to fully examine candidates' qualifications under ¶304.3."63
This is a misreading of those rulings. In JCD 1352, we said that "Decisions 1341, 1343 and 1344 prevent a Board of Ordained Ministry from ignoring statements of self-disclosure about any action that violates any portion of church law as is the case of the candidate who acknowledged that she is a lesbian and married to another woman." But this statement must be placed in the context of the requirement of a careful and thorough board examination:
[JCD 1343 and 1344] held that the Board of Ordained Ministry is mandated to examine all applicants as to their fitness for the ordained ministry, and make full inquiry as to the fitness of the candidate for: (1) annual election to local pastor, (2) election to associate membership, (3) election to provisional membership, (4) election to full conference membership. The Board's examination must include all paragraphs relevant to election of pastoral ministry, including those provisions set forth in paragraphs that deal with issues of race, gender, sexuality, integrity, indebtedness, etc. […] In JCD 1344 the Judicial Council stated that it is the duty of the Board to conduct a careful and thorough examination and investigation, not only in terms of depth but also breadth of scope to ensure that disciplinary standards are met. Id. [emphasis added]
This Petition suffers from the same constitutional defect as Petition 6. The General Conference can require that the board of ordained ministry conduct a careful and thorough examination to ascertain if an individual meets all disciplinary requirements and certify that such an examination has occurred. But it cannot reduce the scope of the board examination to one aspect only and unfairly single out one particular group of candidates for disqualification in violation of the principle of legality. Directing the board to focus its examination on standards related to self-avowed practicing homosexuals, when it ought to scrutinize all candidates on all applicable disciplinary standards, and to certify that such focused examination has occurred is tantamount to selective and partial enforcement of Church law, leading to a less than careful and thorough board examination as mandated by the Judicial Council. Consequently, we conclude that Petition 7 is in conflict with the principle of legality and, therefore, unconstitutional.TP Petitions 8 and 9
Identically worded, these Petitions seek to amend ¶¶ 806.9 and 613.19 by adding the following language
"Every Annual Conference shall certify that the bishop has nominated only members of the Board of Ministry who will uphold, enforce and maintain The Book of Discipline related to ordination and marriage of practicing homosexuals. Failure to do so shall result in The General Council on Finance and Administration withholding all funds from the United Methodist Church and withdrawing the annual conference's ability to use the denominational cross and flame logo."
The first sentence of these two Petitions suffers not from the vague but incomplete and selective nature of the certification requirement. See supra TP Petition 6. In exercising its full legislative power over distinctively connectional matters, the General Conference can demand from every annual conference certification that the bishop has nominated members of the board of ordained ministry who will uphold, enforce and maintain The Discipline in its entirety and impose sanctions in case of non-compliance. But it cannot require them to provide certification solely "related to ordination and marriage of practicing homosexuals" to the exclusion of all other aspects that are integral part of a careful and thorough board examination. Compare JCD 1343, 1344, and 1352. The principle of legality forbids selective or partial enforcement of Church law at all levels of the connection. Here the certification requirement is incomplete and selective because it extends to some but not all parts of The Discipline and makes one particular group ("practicing homosexuals") the focal point of disciplinary fidelity in violation of the principle of legality, and, therefore, unconstitutional. The second sentence, which imposes sanctions for non- compliance is equally flawed since the General Conference cannot punish annual conferences for failure to do something that is constitutionally prohibited. We conclude that both sentences of Petitions 8 and 9 are unconstitutional.TP Petition 10
Entitled "Implementing Gracious Accountability," the new ¶ 2801, considered the "heart of the Traditional Plan,"64 establishes a new comprehensive system to ensure compliance with the doctrine, moral teachings, and requirements of The Discipline on the issues of human sexuality.
Section 1 of said paragraph imposes the following requirement on annual conferences: 1. Before March 31, 2020, each annual conference shall vote to approve one of the following two statements:
- "The Annual Conference and its subsidiary units will support, uphold, and maintain accountability to the United Methodist standards found in ¶ 304.3 'Qualifications for Ordination,' ¶ 341.6 'Unauthorized Conduct,' ¶ 613.19 'Responsibilities of the Council on Finance and Administration,' and ¶ 2702.1a-b 'Chargeable Offenses' of The Book ofDiscipline of the United Methodist Church (2016) in their entirety."
- "The Annual Conference and its subsidiary units will not support, uphold, and maintain accountability to the standards of The United Methodist Church found in ¶ 304.3 'Qualifications for Ordination,' ¶ 341.6 'Unauthorized Conduct,' ¶ 613.19 'Responsibilities of the Council on Finance and Administration,' and ¶ 2702.1a-b 'Chargeable Offenses' of TheBook of Discipline of the United Methodist Church (2016) in their entirety." [emphasis in original]
Basically, an annual conference must choose among two options: (1) declare that it will comply with specific provisions of The Discipline or (2) declare that it will not comply with specific provisions of The Discipline. By selecting the first option, it attests that it will uphold those, but not other parts of The Discipline. Conversely, by selecting the second option, the annual conference affirms that it will ignore those, but not other parts of The Discipline. In either scenario, the annual conference is forced to make a declaration of compliance or non-compliance in regard to some but not all portions of Church law.Both options are constitutionally flawed because they are repugnant to the principle of legality. See supra TP Petitions 6-9. 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. But it may not choose some over other provisions of The Discipline for enhanced application. The principle of legality forbids selective or partial enforcement of Church law at all levels of the connection. If, as claimed by the proponent of the TP, "[t]he effect of this
provision is not to permit an annual conference to negate or ignore the Discipline, but to discipline an annual conference that is determined to do so,"65 the same objective can be achieved without reference to particular disciplinary provisions under the fundamental rule that Church law in its entirety must be followed without distinction. The General Conference may not pursue constitutional ends by unconstitutional means. We find that amended ¶ 2801.1 violates the principle of legality and, therefore, is unconstitutional.
Section 7 of amended ¶ 2801 establishes the following requirement for bishops:
- By June 30, 2020, each bishop of The United Methodist Church shall return one of the following two statements to the President of the Council of Bishops and the General Council on Finance and Administration:
- I, (Name), certify that I will uphold United Methodist standards on marriage and sexuality in their entirety (¶ 414.5). I will enforce the requirements of the Book of Discipline forbidding same-sex weddings and the ordination of self-avowed practicing homosexuals (¶¶ 304.3, 341.6, 2702.1a-b, 414.9). I will further hold all those under my supervision accountable to those standards (¶ 415.2, 613.19).
- I, (Name), certify that for reasons of conscience, I cannot uphold United Methodist standards on marriage and sexuality in their entirety (¶ 414.5). I am unwilling or unable to enforce the requirements of the Book ofDiscipline forbidding same-sex weddings and the ordination of self-avowed practicing homosexuals (¶¶ 304.3, 341.6, 2702.1a-b, 414.9), or to hold all those under my supervision accountable to those standards (¶ 415.2, 613.19).
Bishops who submit the second option (in whole or in part), fail to respond, are unclear in their response, or qualify their commitment to the first option in any way shall be subject to review by the Council of Bishops' Council Relations Committee for possible action.
Complaints against bishops who are alleged to have not fulfilled their commitment under ¶ 2801.7a above, or who are alleged to have committed one of the chargeable offenses under ¶ 2702.1a- b, shall be automatically and immediately forwarded to the Council of Bishops Council Relations Committee, which shall administer the complaint. [emphasis in original]Parallel to § 1 discussed above, bishops are mandated to choose one of two options: (1) certify that they will uphold those standards and provisions of The Discipline, or (2) certify that they will not uphold those standards and provisions of The Discipline. By selecting the first option, bishops attest that they will uphold those, but not other standards and provisions of The Discipline. Conversely, by selecting the second option, they affirm that they dissent from those, but not other standards and provisions of The Discipline. Here too, bishops are required to certify compliance or non-compliance in regard to some but not all portions of Church law in violation of the principle of legality. As presiders in annual conferences, bishops have the duty "to ensure that the annual conference and general church policies and procedures are followed." The Discipline, ¶ 415.2. Needless to say, this episcopal responsibility extends to all parts and aspects of The Discipline, not just the standards on marriage, ordination, and human sexuality.
However, this proposed legislation creates another serious problem. Under amended ¶ 2801.7(b), bishops who declare their support for certain parts risk being accused of neglecting other parts of The Discipline, and those who "fail to respond, are unclear in their response, or qualify their commitment to the first option" are considered "to have not fulfilled their commitment under ¶ 2801.7a," and will be subject to complaints. On the other hand, "[b]ishops who submit the second option" by declaring their conscientious objection to certain disciplinary provisions will be subject to complaint as well. Whichever option they choose, bishops will face an inescapable dilemma because they must openly declare their support for or objection to some but not all parts of The Discipline, and, by implication, their intention to selectively and partially fulfill their episcopal obligations, and, in doing so, risk being charged with contravening ¶ 2702.1(d) (disobedience to the order and discipline of The United Methodist Church), which "prohibits a [bishop] from violating a corresponding obligation to perform certain acts required or to refrain from conduct prohibited by Church law." JCD 1341. To be sure, the General Conference can prescribe or proscribe a particular conduct. But it cannot contradict itself by prescribing prohibited conduct or prohibiting prescribed conduct. This is in effect what sub- paragraph (b) of § 7 seeks to accomplish.66 The principle of legality requires that standards of conduct be formulated in a way that allows the individuals concerned to comply without contradicting or violating other standards of Church law. We are of the opinion that ¶ 2801.7 does not satisfy this requirement and is, therefore, unconstitutional.
Section 8 is also constitutionally flawed. This proposed section reads in full:
8. Clergy who find themselves for reasons of conscience unable to live within the boundaries of ¶¶ 304.3, 341.6, 613.19, and 2702.1a-b are encouraged to transfer to a self-governing church formed under this paragraph. Clergy who remain United Methodist but do not maintain their conduct within the boundaries established by The Book of Discipline shall be subject to chargeable offenses. [emphasis in original]
Unlike bishops who disagree with the TP's stance on marriage and human sexuality, pastors are not required to sign a declaration but are encouraged to leave the denomination. The ambiguity of the language used in the first sentence of ¶ 2801.8, particularly the passive voice "clergy are encouraged," poses interpretive difficulties. The plain meaning of "to encourage" (i.e. "to attempt to persuade, urge"67 or "to make someone more likely to do something"68) leads to two different readings: non-complying clergy persons are (1) urged or (2) made to leave voluntarily.69 Though at first impression innocuous, the first reading lacks specifics as to who does the urging/persuading (e.g. bishop, district superintendents, board of ordained ministry, local church SPRC?), when it will happen (e.g. upon suspicion, social media posting, public statement, or initiation of administrative/judicial process?), and how it will happen (e.g. verbal, non-verbal, written, or online communication?), thus leaving the interpretation of such a consequential provision to a host of undefined factors and actors.
The second reading is more troublesome as it carries coercive connotations. If this phrase is understood to mean that non-complying pastors are made to leave (i.e. forced or pushed out), it would raise fair and due process concerns. The Discipline already provides for a process to review a clergy person's ordination and conference membership and to hold him or her accountable for misconduct. This is what the second sentence of amended ¶ 2801.8 refers to when it speaks of "Clergy who…do not maintain their conduct within the boundaries established by The Book of Discipline shall be subject to chargeable offenses." [underlines omitted] But if the first sentence is designed to merely repeat what the second prescribes, it is redundant at best and contrary to the welcoming ethos of The United Methodist Church at worst. However, there is no reason to presume that the author of the legislation intended redundancy. For this reason, the first sentence can also be read as saying: short of filing a complaint, other less drastic means (ranging from advice, persuasion, pressure tactics to open threats) can be used to "encourage" non-complying pastors to voluntarily exit the denomination, creating essentially a carte blanche to purge the denomination of undesirable ministers.
All of this is to say that any reasonable attempt at construing ¶ 2801.8 has to overcome a constitutionally unacceptable degree of ambiguity and vagueness. Clergy persons whose credentials and conference membership are at stake have the right to know what to expect when they choose a course of action or take a particular stance on ordination, marriage, and human sexuality. To pass constitutional muster, any proposed legislation affecting clergy rights must define with sufficient clarity and specificity the standards to guide future actions of all concerned persons and entities. Since it "encourages" the transfer (voluntary or otherwise) of clergy persons without providing clear standards and procedural safeguards, the first sentence of proposed ¶ 2801.8 is unconstitutionally vague and violates the principle of legality.
Section 9 raises the fundamental question of whether an annual conference can leave The United Methodist Church. The argument raised against this proposed legislation is that it violates the right of jurisdictional and central conferences to determine the boundaries of their annual conferences (¶¶ 27.4 and 31.4) and that annual conferences are not authorized to create or dissolve themselves.70 The submitter of this proposal defended it on the basis that (1) there is historical precedent (i.e. the 2012 General Conference voted to approve the withdrawal of the Swedish Annual Conference to merge with the Baptist Church of Sweden and the Mission Covenant Church of Sweden to form a new denomination) and (2) the Constitution neither allows nor expressly prohibits an annual conference from voting to exit the denomination.71
With respect to the first argument, an historical precedent may have symbolic and moral force for practical considerations but can hardly serve as legal authority to determine the validity of future decisions. If past actions of the General Conference are precedent-setting in the sense that they supply the constitutional justification for similar actions in the future, it would enable the General Conference to unilaterally modify the Constitution without going through the amendment process of ¶ 59 in violation of the separation of powers. Thus, any past, current, and future decision of the legislative branch of the Church is not a decisive factor in constitutional adjudication.
As to the second argument, the silence of the Constitution on this subject matter does not inevitably mean that the framers intended to legally bar an annual conference from leaving the denomination, nor does it lead to the automatic inference that the topic has been exclusively assigned to the General Conference under the umbrella of "all matters distinctively connectional." If a particular subject matter is not expressly listed under ¶ 16 or elsewhere in the Constitution, the inference under our system of "enumerated powers"72 must be that it falls under the category of "such other rights as have not been delegated to the General Conference under the Constitution" in ¶ 33. 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. The last sentence in ¶ 33 reaffirms this authority by stating that the annual conference "shall discharge such duties and exercise such powers as the General Conference under the Constitution may determine." Constitution, ¶ 33 [emphasis added].
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."73 Here too, a jurisdictional and central conference's right is not isolated and unfettered but juxtaposed with the legislative authority of the General Conference, as indicated by the identical phrase "shall have the following powers and duties and such others as may be conferred by the General Conference" contained in the constitutional provisions granting powers to jurisdictional and central conferences. Constitution, ¶¶ 27 and 31 [emphasis added].
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.
Sections 10 and 11 establish a procedure for groups of local churches and individual local churches to form new or join existing self-governing Methodist churches in the United States that requires a 55 percent majority vote by the church conference of each involved local church. If requested by a local church's pastor or church council, the "bishop and district superintendent shall facilitate the change of affiliation and shall preside over a church conference within 120 days" of such request. ¶ 2801.10b. Further, § 12 provides that any local church voting to join a new or existing self-governing church under §§ 10-11 "shall enter into a written agreement with the bishop setting an effective date and resolving any financial obligations to The United Methodist Church." The proposed ¶¶ 2801.10-12 are in direct conflict with the process established by the Constitution for the transfer of local churches from one annual conference to another. The relevant constitutional paragraph states:
¶ 41. Article V. Transfer of Local Churches—1. A local church may be transferred from one annual conference to another in which it is geographically located upon approval by a two-thirds vote of those present and voting in each of the following:
a) the charge conference;
b) the congregational meeting of the local church;
c) each of the two annual conferences involved.
The vote shall be certified by the secretaries of the specified conferences or meetings to the bishops having supervision of the annual conferences involved, and upon their announcement of the required majorities the transfer shall immediately be effective.
- The vote on approval of transfer shall be taken by each annual conference at its first session after the matter is submitted to it.
- Transfers under the provisions of this article shall not be governed or restricted by other provisions of this Constitution relating to changes of boundaries of conferences. [emphases added]
The proposed legislation improperly substitutes the 55-percent majority for the two-thirds supermajority requirement. It completely omits the annual conference as the body ratifying any local church vote to change affiliation. The role of bishop and district superintendent in facilitating the change of affiliation and presiding over the church conference is not sufficient to make up for the annual conference's involvement. By sidestepping the mandatory annual conference ratification, the proposed legislation infringes upon "such other rights [of the annual conference] as have not been delegated to the General Conference under the Constitution." Constitution, ¶ 33. While the process of local church transfer comes under the General Conference's legislative authority to "define and fix the powers and duties of annual conference," Constitution, ¶ 16.3, its constitutional power is restricted by ¶ 41, which expressly requires that the annual conference vote to approve such transfers "at its first session after the matter is submitted to it." Under ¶ 41, the change of affiliation becomes effective immediately upon certification "by the secretaries of the specified conferences or meetings to the bishops having supervision of the annual conferences involved, and upon their announcement of the required majorities" not, as stipulated by proposed ¶ 2801.12, by a specific date set by the bishop and each involved local church.
Section 12 creates the authority of a bishop to enter into a binding legal agreement with a transferring local church for which there is no constitutional warrant.74 "The bishops of the several jurisdictional and central conferences shall preside in the sessions of their respective conferences," Constitution, ¶ 52, but this presidential role does not extend as far as to include the power to sign "any contract, deed, bill of sale, mortgage, or other necessary written instrument needed to implement any resolution regarding annual conference property," ¶ 2512.3d, and to "intervene and take all necessary legal steps to safeguard and protect the interests and rights of the annual conference," ¶ 2512.4. This authority has already been assigned to the Conference Board of Trustees and its officers by the General Conference. We find that the proposed changes concerning the transfer of local churches (¶ 2801.10-12) fail the constitutional test.
Having found §§ 1, 7, 8, 10, 11, and 12 of ¶ 2801 to be unconstitutional, we proceed to determine whether separation is improper, particularly whether the remaining parts of ¶ 2801 are so inextricably bound up to the part declared invalid that they cannot be upheld and enacted independently. Section 2 grants an extension from the deadline in § 1. Section 3 deals with annual conferences that choose the second option or fail to respond, requiring the GCFA to place them on "a list of conferences ideally suited for the self-governing status." Section 4 prohibits the General Council on Finance and Administration [hereinafter GCFA] from receiving and sending funds to annual conferences listed under ¶ 2801.3 and is, thus, linked to § 1. Section 5 permits annual conferences that are not placed on the list in ¶ 2801.3 to vote to enter the self- governing status, and is also substantively connected to § 1. Section 6 mandates that the GCFA shall offer and facilitate a timeline for annual conferences moving into self-governing status and authorizes it to "grant a one-time delay to the restrictions in ¶ 2801.4" upon request, thereby establishing a direct connection to § 1. Section 13, which allows annual conferences and local churches outside the United States to join a self-governing Methodist church, refers to §§ 10-12 insofar as "local churches" are concerned.
The foregoing analysis has demonstrated that §§ 2 – 6 are inextricably connected to § 1 and the "local churches" portion of § 13 linked to § 10-12, and, therefore, cannot be upheld and enacted independently. The remaining portions can be separated and stand alone. In summary, we are of the opinion that ¶¶ 2801.1-8, 2801.10-12, and the "local churches" reference in ¶ 2801.13 in Petition 10 are unconstitutional.
TP Petition 11
This proposed legislation adds the following language to ¶ 2711.3:
Except, where the conviction is for conducting ceremonies which celebrate homosexual unions, or performing same-sex wedding ceremonies under ¶ 2702.1(b) or (d), the trial court does not have the power to and may not fix a penalty less than the following:
a) First (1st) offense – One (1) year's suspension without pay.
b) Second (2nd) offense - Not less than termination of conference membership and revocation of credentials of licensing, ordination, or consecration.
The concern raised here is that this Petition imposes minimum penalties upon a conviction for conducting same-sex wedding ceremonies in violation of ¶ 20 of the Constitution.75 In support of this position, another amicus brief quoted the following statement from JCD 1318: "Judicial Council 1201 makes it clear that the right to assess penalties resides only with the trial court." This legislation, asserted the amicus brief, restricts that power because the mandatory minimum penalty does not provide any latitude by the trial court for a lesser penalty and, by the same token, violates a respondent's full right to trial by a committee under ¶ 20.76
This argument does not stand up to scrutiny because it overlooks the fact that the ruling in JCD 1201 pertained to a resolution adopted by the Northern Illinois Annual Conference that contained "a suggested maximum penalty" for clergy members convicted of officiating civil unions for same-sex couples. Although framed as a suggested approach, the resolution was an attempt to modify and limit the range of options of a trial court. Put differently, the suggested maximum penalty scheme infringed upon the full power of the trial court to try a respondent. "Only the trial court has the authority to set a penalty, and it must do so within the range of options specified by the Discipline(¶ 2711.3)." JCD 1201 [emphasis added]. This means that, while the trial court's full power cannot be superseded by the clergy session's right to vote on character and conference relations, the authority to determine penalties was limited by the parameters set by The Discipline and, thus, by the General Conference, which has full legislative power to "define and fix the powers and duties of elders, deacons." Constitution, ¶ 16.2.
Further, JCD 1318 involved the constitutionality of three legislative petitions that imposed minimum penalty on a clergy person who acknowledged to a bishop within the course of the process seeking a just resolution that he or she committed a chargeable offense. The Judicial Council ruled them unconstitutional:
Unless the respondent voluntarily agrees to a Just Resolution to promote healing among all parties, a penalty may only be affixed after the respondent has been found guilty of an offense by a trial court. […] Thus, to add a specific penalty for any complaint at this point in the process is not constitutional as it denies the right to trial and appeal (¶ 20). […] The change of status of the clergy person (suspension) required by these petitions clearly negates the authority of the clergy session of the annual conference. These petitions transfer that authority from the annual conference to the General Conference and that transfer is unconstitutional. JCD 1318 [emphasis added]
The underlined phrase highlights the main difference. In the extant case, the amended version of ¶ 2711.3 imposes a minimum penalty not within the course of a just resolution process but after the respondent has been found guilty of an offense by a trial court. In other words, the minimum penalty is affixed only when a clergy person's constitutional right to trial by a committee has been preserved and completed through a judicial process. Paragraph 2711.1 states that the "trial court shall have full power to try the respondent." At this point, "the right to assess penalties resides only with the trial court," JCD 1318, and there is nothing for the clergy session of an annual conference to vote on in terms of character and conference relations. Therefore, we conclude that Petition 11 is constitutional.TP Petition 12
This Petition seeks to amend ¶ 304.5 as follows:
In all votes regarding license, ordination, or conference membership, the requirements set forth herein are minimum requirements. Each person voting is expected to vote prayerfully based on personal judgment of the applicant's gifts, evidence of God's grace, and promise of future usefulness for the mission of the Church. The District Committee on Ordained Ministry and the Board of Ordained Ministry shall not approve or recommend any person for candidacy, licensing, commissioning, or ordination who does not meet the qualifications of ¶ 304.1-3, based on the full examination and thorough inquiry into the person's fitness by the committee and board.1 The bishop presiding in the clergy session shall rule any such unqualified candidate out of order and not eligible to be acted upon.
Footnote 1 reads: "See Judicial Council Decisions 1343 and 1344."
The Rationale for this amendment states:
Rationale: Incorporates Judicial Council Decisions 1343, 1344, and 1352 in the Discipline, requiring district committees and boards of ordained ministry to fully examine candidates' qualifications under ¶304.3. Guarding against non-conforming committees and boards of ordained ministry, this forbids them from approving or recommending persons found to be unqualified under that paragraph.77
Although the Rationale may suggest an intention to selectively enforce a particular disciplinary requirement by highlighting an applicant's "qualification under ¶ 304.3," the language of the legislation makes it clear that the district committee and board of ordained ministry are prohibited from approving or recommending any applicant who fails to meet any of the "qualifications of ¶ 304.1-3." Conspicuously absent here is a singling out of self-avowed practicing homosexual candidates for disqualification. The decision to disqualify a candidate must "be based on the full examination and thorough inquiry into the person's fitness by the committee and board." [emphasis added] This is in accordance with JCD 1343, 1344, and 1352, which have already been discussed above. See supra TP Petition 7. Consistent with General Conference's full legislative power to "define and fix the powers, duties, and privileges of the episcopacy," Constitution, ¶ 16.5, the second sentence requires the bishop presiding in a clergy session to rule any candidate recommended by the board who is not qualified out of order, mentioning the generic term "unqualified candidate" without reference to any particular grounds for disqualification. This Petition codifies the controlling principle in those judicial precedents and is constitutional.TP Petition 13
This proposed legislation amends the complaint process set forth in ¶¶ 362.1(e) and 413.3(d) by providing that the bishop (1) may dismiss a complaint only "as having no basis in law or fact" with the consent of the cabinet and (2) must give the reasons in writing, "copies of which shall be placed in the clergyperson's file and shared with the complainant." [underlines in original] According to the Rationale, this "petition restores language from 2008, guarding against the arbitrary dismissal of complaints" and prevents "a bishop from deciding which parts of church law should be upheld in a given conference."78 Further, since "a cabinet is an extension of the office and ministry of the bishop, it is often unable to be an independent check on the bishop's decision to dismiss a complaint."79
Under the power of ¶ 16.5, the General Conference has a great deal of latitude in establishing guidelines for the handling of complaints by bishops. Simultaneously, it also has ample authority to "define and fix the powers and duties of [clergy members]" under ¶ 16.2, particularly to determine what should go into a clergy person's file and be shared with the complainant. If the General Conference was constitutionally authorized to adopt the original language in 2008, it will certainly be permitted to restore it in 2019 should it decide to do so. Consequently, Petition 13 is constitutional.TP Petition 14
This Petition seeks to amend ¶¶ 362.1, 413.3(c), 2701.5, 2706.5(c)(3) by adding the following language regarding just resolution:
Just resolutions shall state all identified harms and how they shall be addressed by the church and other parties to the complaint. 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.
The concern raised against this proposed legislation is that the commitment to not repeat actions that are a violation of The Discipline constitutes (1) a minimum penalty and (2) a determination of fact that should be reserved to the trial court.80
The first question is whether such a commitment in the just resolution process can be considered a minimum penalty, which was declared unconstitutional in JCD 1318. The submitter of this legislation correctly pointed out that a commitment is different from a penalty in that a "person who commits not to repeat an action that is a violation has suffered no disadvantage, loss, or hardship." 81
It is similar to a clergy person taking a vow to uphold The Discipline and conduct herself or himself in a certain way. But also instructive is the following statement from the opinion of the Judicial Council:
A Just Resolution process is an attempt by the church to deal with each complaint in a fair way and with the guarantee of confidentiality. Each Just Resolution takes into account the particularities of the individual case. […] The goal is to repair any harm to people and communities, to achieve accountability by making things right, and bring healing to all parties. A Just Resolution may be sought to prevent the situation from going to trial. "Church trials are to be regarded as an expedient of last resort" (¶ 2707). A Just Resolution is an alternative way of handling chargeable offenses. JCD 1318 [emphases added]
The commitment to not repeat the offense can be a way to achieve accountability and healing but also an effective means "to prevent the situation from going to trial," namely "an alternative way of handling chargeable offense." Id. The Rationale explains that refusal "to make such a commitment increases the likelihood of future offenses and complaints." 82 Therefore, commitment does not in any way resemble a penalty in the ordinary sense of the word.
The second question is whether the commitment entails an unconstitutional determination of fact. The language of the legislation stipulates that such commitment be made only "where the respondent acknowledges action(s) that are a clear violation of the provisions of the Discipline" or, in other words, the commitment to not repeat the offense requires an acknowledgment or admission of misconduct. Since a supervising bishop must "ensure fair process for clergy and laity as set forth in ¶ 2701," The Discipline, ¶ 415.3, he or she has the obligation to scrutinize any admission of wrongdoing by the clergy person. Regardless of whether the clergy person's acknowledgment is voluntary, the bishop in charge of any process seeking a just resolution has the obligation to independently verify whether the stipulated facts constitute "a clear violation of the provisions of the Discipline"—a question that requires a determination of both fact and law by the bishop. The only instance where the Constitution permits episcopal findings of law is when a "bishop presiding over an annual, central, or jurisdictional conference" decides "all questions of law coming before the bishop in the regular business of a session." Constitution, ¶ 51. In JCD 1318, a central problem was that under the "proposed legislation the bishop becomes the 'trier of fact', unilaterally determining a violation of church law and imposing the proposed penalty." In this case, under the proposed provision of Petition 14, the bishop does not impose a minimum penalty but determines on the basis of fact and law that the respondent is required to make such a commitment as a result of his or her admission of wrongdoing. As the Judicial Council held in JCD 1201, "the trial court alone has the authority to reach a determination with regard to a penalty in the circumstance where it has made a finding of guilt." [emphasis added] "The trial court shall have full power to try the respondent." The Discipline, ¶ 2711.1. The proposed scheme transfers this authority from the trial court to the supervising bishop, thereby violating a clergy person's right to a trial by a committee under ¶¶ 20, 58 and improperly expanding the episcopal authority under ¶ 51. Consequently, to the extent that it requires the respondent to make such commitment upon admission of wrongdoing, Petition 14 is unconstitutional.TP Petition 15
This proposed legislation seeks to amend ¶¶ 362.1(c), 413.3(c), 2701.5, and 2706.5(c)(3) by adding the same sentence to all four as follows:
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.
It would also add the complainant to ¶¶ 2701.5 and 2706.5(c)(3).
The Rationale offered here reads:
Rationale: The current practice of allowing the counsel for the church to enter into a just resolution without the participation or agreement of the complainant is unjust and circumvents the goal of restoration of relationship. In order for justice to be done and healing to take place, the complainants must be part of the process and, wherever possible, must agree to the just resolution. 83
As pointed out above in TP Petition 13, the General Conference has a great deal of discretion in establishing guidelines for the handling of complaints by bishops and in determining what should go into a clergy person's file and be shared with the complainant. Constitution, ¶¶ 16.5 and 16.2. Under ¶ 16.7, the General Conference has also full legislative power to "provide a judicial system and a method of judicial procedure for the Church." Petition 15 falls squarely within the grants of power in ¶¶ 16.2, 16.5, and 16.7 and is constitutional.TP Petition 16
This Petition proposes to amend ¶ 2715.10 as follows:
10. The Church shall have no right of appeal from findings of fact of the trial court. The Church shall have a right of appeal to the committee on appeals and then to the Judicial Council from findings of the trial court based on egregious errors of Church law or administration that could reasonably have affected the findings of the trial court. When the committee on appeals or the Judicial Council shall find egregious errors of Church law or administration under this part, it may remand the case for a new trial, along with a statement of the grounds of its action. This is not to be double jeopardy. In regard to cases where there is an investigation under ¶ 2702, but no trial is held, egregious errors of Church law or administration may be appealed to the jurisdictional or central conference committee on appeals and then to the Judicial Council by counsel for the Church. The committee on investigation's decision not to certify a bill of charges does not alone constitute an egregious error of Church law or administration. When the committee on appeals or the Judicial Council shall find egregious errors of Church law or administration under this part, it may remand the case for a new hearing, in which event it shall return to the chair of the committee on investigation a statement of the grounds of its action. This is not to be double jeopardy.
The concern raised against this proposal is that it eliminates the finality of the trial court proceedings and creates double jeopardy. 84 In response, the submitter of this legislation asserted that, under the current provisions of The Discipline, the respondent can appeal errors of law that favor the Church but not vice-versa and that the purpose is to level the playing field for both the Church and respondent. 85
Paragraph 2701.2(d) states:
d) Right Against Double Jeopardy—No bill of charges shall be certified by any committee on investigation after an earlier bill of charges has been certified by a committee on investigation based on the same alleged occurrences.
This provision says when double jeopardy attaches but not what it means. According to a common legal definition, the right against double jeopardy "protects against second prosecution for same offense after acquittal or conviction, and against multiple punishments for same offense…The evil sought to be avoided is double trial and double conviction…"86 The purpose of this right is not to guarantee the finality of the trial court proceedings, as claimed by an amicus brief,87 for the respondent has the option to appeal the verdict.88 The Discipline, ¶ 2715.1. The guarantee against double jeopardy is a safeguard against do-overs and consecutive attempts of the Church to hold a clergy person accountable for the same chargeable offense. Amended ¶ 2715.10 would grant the Church the right of appeal "from findings of the trial court based on egregious errors of Church law or administration that could reasonably have affected the findings of the trial court." [underlines omitted] Even though limited in scope, the proposed legislation effectively permits the Church to seek a second trial for the same offense, albeit on the basis of "egregious errors of Church law and administration". 89 Nevertheless, such a second trial would fall within the commonly understood definition of double jeopardy. The main issue here is whether the right against double jeopardy is a disciplinary or constitutional right. If it is the former, then the right against double jeopardy is a legislatively granted right and, therefore, can be restricted or abolished by the General Conference under its authority to "provide a judicial system and a method of judicial procedure for the Church." Constitution, ¶16.7. But if it is the latter, it has constitutional status and can only be altered or revoked by constitutional amendment. Constitution, ¶¶ 59-61.
The explicit mention of the prohibition against double jeopardy is disciplinary. Discipline, ¶ 2701.2(d). The prohibition against double jeopardy is not explicitly mentioned in the Constitution of the United Methodist Church, nor has the Judicial Council previously found the right against double jeopardy to be implicit in our Constitution. Therefore, Petition 15 appears constitutional on its face. On the other hand, the Judicial Council has previously found the concept of fair process "is one that has been engrafted upon the constitutional standards of our Church." JCD 1230. In the proper case, a future constitutional challenge to the legislative enactment of this provision by the General Conference remains possible, and only its adoption and passage as a constitutional amendment would eliminate this potential infirmity.
The part of the Petition that modifies the Church's right of appeal from findings of the committee on investigation to include the "central conference" committee on appeals and "the Judicial Council" is simply an expansion of the current provision. In contrast to the portion above, this part does not entail double jeopardy because (1) the interlocutory appeal occurs at the investigative stage and prior to a trial and (2) the appellate proceedings are distinct from the trial proceedings in terms of scope and result. The appellate body reviews the findings of the committee on investigation for egregious errors of Church law (not for failure to certify a bill of charges) and can only remand the case for a new hearing.
Further, unlike a grand jury in criminal law that examines only evidence selected and presented by the prosecutor, the committee on investigation conducts its own "investigation into the allegations made in the judicial complaint" independently from the counsel for the Church "to determine if reasonable grounds exist to bring a bill of charges and specifications to trial." The Discipline, ¶ 2706.1. Its investigative mandate and power are broad. "The committee may receive from the counsels suggested lists of persons to be questioned, sources of written material or questions." The Discipline, ¶ 2706.4(c) [emphasis added] It is not restricted to evidence presented by counsel for the Church or defense counsel. It can question additional witnesses to corroborate statements made by either party's witnesses:
The committee on investigation may call and question such persons or request such written information, including but not limited to materials from the supervisory process, as it deems necessary to establish whether or not there are reasonable grounds for formulating a charge or charges. The Discipline, ¶ 2706.4(c) [emphasis added]
The committee can reject any or all pieces of evidence proffered by either side if it deems them not to be "relevant and reliable" under ¶ 2706.4(d). "For the Presiding Officer, the transcript of a Committee on Investigation's work provides evidence of what was done before a complaint became a charge." JCD 1296. The broad authority and important role of the committee on investigation make it appropriate to give the Church an independent right to challenge its findings. Put differently, the Church's appeal at the investigative stage is not a do-over or second trial.
The constitutionality of the following two sentences of Petition 16 is not addressed in this proceeding:
The Church shall have a right of appeal to the committee on appeals and then to the Judicial Council from findings of the trial court based on egregious errors of Church law or administration that could reasonably have affected the findings of the trial court. When the committee on appeals or the Judicial Council shall find egregious errors of Church law or administration under this part, it may remand the case for a new trial, along with a statement of the grounds of its action.
Neither the Constitution nor previous decisions of this Judicial Council have specifically addressed whether the existence of a right against double jeopardy is constitutional or disciplinary. In the proper case, a future constitutional challenge to the legislative enactment of this language by the General Conference remains possible, and only its adoption and passage as a constitutional amendment would eliminate this potential infirmity.TP Petition 17
This last Petition seeks to amend ¶¶ 570 and 574.1 by adding the language "and churches formed through the provisions of ¶ 2801." [underlines in original]
The Rationale offered here states:
Rationale: This opens the possibility for concordat churches in the United States, allowing negotiated covenants and relationships between self-governing Methodist churches formed under ¶ 2801 and The United Methodist Church.
This allows a continuing connection with those congregations departing from the denomination because of conscience.90
The phrase "and churches formed through the provisions of ¶ 2801" is vague. It can be read as referring to the self-governing Methodist churches formed by annual conferences under the provisions of amended ¶ 2801.9, which we upheld as constitutional. See supra TP Petition 10. If this is the correct reading, then Petition 16 is constitutional. However, if the phrase is interpreted to include groups of local churches forming new or joining existing self-governing Methodist churches under the provisions of proposed ¶¶ 2801.10- 12, it would be unconstitutional for the reasons discussed above.
If the wording of a provision can reasonably be construed to have two different meanings, one of which is unconstitutional, the presumption is that the author of the legislation would have chosen the meaning that conforms to the Constitution. Our task here is not to determine the meaning, application, or effect of this proposed legislation. It is up to the General Conference to clarify ambiguous language. For this reason, Petition 17 presumably refers to self-governing Methodist churches formed by annual conferences under proposed ¶ 2801.9 and is constitutional.
Paragraphs 2718.3 and 2718.4 of The Book of Discipline 2016 afford the right to file an interlocutory administrative appeal prior to and without the requirement of a final action of the clergy session. Until the completion of the appellate process, claims of procedural errors are not resolved and the disciplinary question is not sufficiently clear to allow the clergy members in full connection of an annual conference to make a fair and informed decision. The clergy session is barred from voting on a recommendation for involuntary change of status when the appellate process has not yet been completed. An administrative appeal filed in a timely manner stays a recommendation for involuntary leave of absence, administrative location, involuntary retirement but not for discontinuance from provisional membership. A clergy member remains in good standing and is entitled to an appointment pending the outcome of the appellate process, except when the challenged action is in relation to discontinuance from provisional membership.
Ruben Reyes was absent.
Warren Plowden, first lay alternate, participated in this decision.