Memorandum Number 1407


April 16, 2021

IN RE: Petition for Declaratory Decision from the Council of Bishops Concerning the Constitutionality of Proposed Legislation Implementing the Protocol of Reconciliation and Grace Through Separation

The Council of Bishops [hereinafter COB], identifying itself as an interested party submitted a petition for a declaratory decision as to the constitutionality of proposed legislation implementing the Protocol of Reconciliation and Grace Through Separation [hereinafter Protocol].  The COB lists other interested parties as Philippines Annual Conference, the Michigan Annual Conference, and the Sierra Leone Annual Conference. The COB notes that the Philippines Annual Conference, the Sierra Leone Annual Conference, and the Michigan Annual Conference have approved and forwarded this Protocol as proposed legislation to the Commission on the General Conference.  There is no indication in this record that the proposed Protocol has been endorsed or approved by the COB in its capacity as a duly recognized body under The Book of Discipline of the United Methodist Church. Thus, the COB seeks this Declaratory Decision as an interested party but not in its capacity as a governing body of the Church. This Petition therefore merely presents the question of the constitutionality of the Protocol, if and when it is adopted.  The record contains no indication that the Protocol has been adopted by either the General Conference or the COB.  It is, therefore, simply proposed legislation and stands in the same position for jurisdictional purposes as any other proposed legislation not duly adopted by either COB or the General Conference.

Under ¶ 2609.2, the “Judicial Council shall have jurisdiction to determine the constitutionality of any proposed legislation when such declaratory decision is requested by the General Conference or by the Council of Bishops.” The COB’s disciplinary authority to submit this Petition is indisputable. The language of that provision is different from other disciplinary provisions in that it vests the Judicial Council with the jurisdictional authority to review proposed legislation without specifying when to exercise it, thereby leaving this question for us to decide. The sole issue before us is whether the request is appropriate for adjudication. In determining the timeliness of a petition for declaratory decision under ¶ 2609.2, the Judicial Council takes into consideration (1) the authorship and history of the proposed legislation and (2) if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.

Unlike the legislative proposals under review in JCD 1366, the Protocol is the work product of a select group of bishops, clergy, and lay persons who took it upon themselves to offer legislative solutions to the longstanding conflict over the role of LGBTQIA persons in the Church and who met secretly in undisclosed locations over a period of time. The public was unaware of its existence until that group completed its work and issued a press release. More important, the authors of the Protocol received no official backing of the General Church and are, therefore, fundamentally different from the Commission on the Way Forward [hereinafter COWF]. The contrast could not be more striking. The COWF was authorized by the 2016 General Conference and duly appointed by the COB for the purpose of the called session in 2019. Its composition, mission statement, meeting schedule, and venues were posted online ahead of time; its meetings and work progress were covered by UM News Service; its operation was funded by the General Church. After the COWF completed its work, the final report containing the three plans became the main focus of the 2019 special session of General Conference in St. Louis. From the beginning to the end, the COWF enjoyed an unprecedented level of interest and support from the General Church. None of that is present here. Consequently, the facts in this case are clearly distinguishable from those in JCD 1366.

The separation of powers “is integral to the United Methodist Constitution and law,” mandating that the judicial branch respect the defined roles of all other branches of the Church, and vice-versa. JCD 689. Under the Constitution, “the General Conference is the supreme legislative body of the Church,” JCD 307, whereas the “Judicial Council is the highest judicial body in The United Methodist Church.” JCD 1096. More specifically, this delicate balance of rights and responsibilities means that the “Council of Bishops, in seeking a declaratory decision about proposed legislation, and the Judicial Council, in making a declaratory decision about a piece of proposed legislation, must be careful not to intrude into the ‘full legislative power’ that is conferred by the Constitution upon the General Conference.” JCD 1303, quoting Const. ¶ 16. The Protocol, one of numerous legislative plans submitted to the General Conference for consideration, could be amended, substituted, or even rejected, thus, making it unlikely that it will be enacted in its current form. “The Judicial Council, in taking an early action to fulfill its jurisdictional authority on a request for a declaratory decision on the constitutionality of [the Protocol], could potentially place a constitutional seal of approval on one proposed legislative item.” Id. It would be improper for us to anticipate or engineer legislative outcomes. Until the General Conference has the opportunity to consider and act on all proposals, including the Protocol, we must avoid interfering with the legislative process through premature adjudication. For those reasons, the Petition fails the timeliness test.


The Judicial Council declines jurisdiction in this matter.

Concur In Part and Dissent In Part


I dissent.

J. Kabamba Kiboko


I concur with the holding of the majority although our analyses differ.

Beth Capen

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