Memorandum Number 1041


April 27, 2006

Petitions for Reconsideration of Decision 1032.

The petitions for reconsideration of Decision 1032 filed by Bishop Charlene P. Kammerer, presiding bishop of the Virginia Conference, and by the Board of Ordained Ministry of the Virginia Conference are denied.

Concurring Opinion

A petition for reconsideration of a decision of the Judicial Council does not present the parties to a proceeding a second opportunity to persuade the members of the Judicial Council on how a matter should be decided. Rule VIII (A) of the Rules of Practice and Procedure of the Judicial Council states,

Whenever a decision of the Judicial Council is shown clearly to be in error, or in order to prevent a manifest injustice resulting from the interpretation of a Judicial Council decision, the Judicial Council on its own motion, or on a petition filed by a party to the proceedings, may, by a majority vote, reconsider any ruling or action taken by it.
We join with our colleagues who have voted to deny the petition for reconsideration in this matter because the petitioners for reconsideration have not shown Decision 1032 clearly to be in error nor have they shown that reconsideration of the Decision is necessary to prevent a manifest injustice resulting from the interpretation of the Decision.

We recognize that the issues presented in Decision 1032 are controversial in nature and the subject of heated debate long before they reached the Judicial Council. The role of the Judicial Council in a case such as Decision 1032 is to review the decision of law made by a bishop and to determine whether the bishop's decision conforms to the Book of Discipline and the decisions of the Judicial Council. In Decision 1032, the Judicial Council determined that the bishop's decision of law did not conform to the Book of Discipline and therefore reversed the bishop's decision of law. The Council proceeded to apply and interpret the Discipline in response to the question of law posed.

Twenty-two briefs were filed with the Judicial Council prior to Decision 1032, representing the diversity of positions on the substance of the questions before the Council. The issues were thoroughly briefed and ably argued. The Council conducted oral hearings in the matter because of the diversity of positions taken on the questions presented. The issues were fully debated within the Council and the Council rendered its decision. The twelve briefs and the more than 2000 communications filed with the Judicial Council on the petitions for reconsideration, again reflecting the diversity of positions on the issues before the Council, have not persuaded us that the Council erred in Decision 1032.

In our considered opinion, it is time for the issues addressed in Decision 1032 to now be debated by The United Methodist Church as is occurring. The presiding bishop fulfilled her disciplinary responsibilities when she responded to the questions of law. The Judicial Council has fulfilled its disciplinary responsibilities in reviewing the decisions of law rendered. We disagree with those in the minority who cavalierly assert that the Judicial Council has somehow exceeded its role in precisely fulfilling that role. The role of the Judicial Council is to interpret the Discipline and to apply its provisions to the scenarios that are presented. In Decision 1032, the Council has interpreted relevant provisions of the Discipline and applied them to the scenario posed to it.

We disagree with those in the minority who assert that further debate before the Judicial Council will be healing for The United Methodist Church. Rather, we believe that reopening this matter, especially where no grounds have been demonstrated to do so, will further polarize the various parts of the church. We have arrived at this view with great respect and admiration for those who disagree with us in the minority.

We continue to affirm that the 2004 Discipline invests discretion in the pastor-in-charge to make the determination of a person's readiness to affirm the vows of membership (¶ 217). Paragraphs 214 and 225 are permissive and do not mandate receipt into membership of all persons regardless of their willingness to affirm membership vows. As noted in the concurring opinion filed by Keith Boyette in Decision No. 1032, we also affirm that the discretion of the pastor-in-charge must be exercised consistent with ¶ 4 of the Discipline, Article IV of the Constitution. Paragraph 4 declares who is eligible for membership, but does not create an entitlement to membership. The Discipline, throughout the sections dealing with membership, imposes conditions that must be satisfied as preconditions to membership. A person may be eligible for membership under ¶ 4 of the Discipline and yet still be required to meet the preconditions to membership enumerated in the Discipline.

James W. Holsinger, Jr.
Mary A. Daffin
Keith D. Boyette
Rodolfo C. Beltran

Dissenting Opinion

We join in the dissent with Jon Gray, and write separately. We want to express appreciation for the judicial prudence and wisdom expressed by our colleagues in the minority.

We vehemently dissent from our colleagues in the majority who have denied the request for reconsideration and thereby upheld Decision 1032. We deeply regret the denial of reconsideration because it further advances a spirit of distrust and contributes to the brokenness of the church. Election to the Judicial Council is a sacred trust. The Judicial Council is imbued with and carries the responsibility for upholding both the spirit and the letter of the law. While reconsideration may not have changed the minds of those in the majority it would have shown a genuine effort to hold the Church and the body of Christ together while attempting to work through difficult issues. A vote for reconsideration would have allowed more time to bring deeper understanding and healing. This rigidity of mind in the Council is detrimental to the Church.

As well as being a legally flawed decision, over-reaching and imprudent, Decision 1032 creates grave theological problems. It is most troubling in its departure from the most essential tenets of Methodist ecclesiology. This decision has the potential to threaten some of the fundamental principles of the tradition articulated in The Book of Discipline, in the Sermons of John Wesley, the Explanatory Notes Upon the New Testament, and the General Rules of the Methodist Church. In addition, as was noted in the Henry-Crowe dissent on Decision 1032, ¶ 4 of the Constitution is violated. This paragraph is a theological statement affirming openness and inclusivity.

One of the distinguishing marks of the Christian faith, as expressed in Methodism, is the primacy and sufficiency of God's grace, offered to all, and most especially, in the sacraments of Baptism and Eucharist. Through the sacrament of baptism, Christ's invitation to full participation in the life of the Church for any and all baptized Christians is the gift that is offered. (Note: ¶ 103 Section 3 -The Articles of Religion – Of Baptism, Article VI of the Confession of Faith - The Sacraments.)

Season after season, we hear the words of Invitation to Communion offered by the pastor/celebrant in the following words, Christ invites to his Table. The invitation and the gift of Christ are extended by the pastor. . It is Christ's invitation, not ours. Theologically, and as well as disciplinarily, the pastor has no discretion to exclude anyone from membership or the sacraments of Baptism and Eucharistic because it is not his/her invitation. It is Christ's. Therefore, all who present themselves for Baptism, Eucharistic and reception into the Church are joyfully welcomed. This invitation is to worship, to receive the Sacraments of Baptism and Eucharist, to take the vows declaring the Christian faith, and to enter into the life and mission of the Church through membership.

The Discipline in ¶ 340 clearly states: Elders have a four-fold ministry of Word, Sacrament, Order and Service within the connection and thus serve in the church and the world. The sub-paragraphs following outline the areas of responsibility including: Word and ecclesial acts, Sacrament, Order and Service. The vocation of ministry is a gift given by Christ and entrusted by the Church. This vocation cannot be a vocation of denial but rather a vocation of extending God's love and looking for evidences of the work of the Holy Spirit. Determining who is eligible for life in the Church is not the vocation of the pastor. It is the Holy Spirit who makes us members of the Church. Touched by the Holy Spirit one comes to believe in and worship Jesus Christ. It is Christ who makes us members of the body. We then want to share communion with other Christians giving us the desire to join. For the pastor to deny membership is to present obstacles to the work of the Holy Spirit. This denial is dangerous and does not serve the work of evangelism. If a pastor refuses to receive someone into membership he/she is substituting him/herself for Christ's role. By deciding who becomes a member or who does not the pastor is making him/herself his own association or church. This is not the Church. It is a gift to bear witness to the work of the Holy Spirit and Christ's redeeming love in the world through Christ's church.

At times, in the Church there is a tendency to see the Discipline as superseding Scripture. The Constitution as contained in the Book of Discipline has to be the measure by which we apply the Bible. The Constitution should not be in conflict with the Bible. If the Discipline violates the Bible then the Church is no longer Christ's church but rather a mere association of men and women.

While profoundly disagreeing with the majority, we are committed to be in relationship with them and those who share their opinion. No one should pastorally or prophetically abandon fellow Christians. The unspeakable pain that this decision causes calls for repentance and prayer which will lead to healing. The cause of Christ's Church and Christ's hospitality, openness, generosity, justice and righteousness are the principles at stake.

Susan T. Henry-Crowe
Shamwange P. Kyungu (Paul)

Jon R. Gray and Beth Capen join in this dissent.

Dissenting Opinion

I favor reconsideration of Decision 1032 and I continue to dissent from the majority's pronouncement. I join the dissent of my colleague, Susan Henry-Crowe, but again write separately to offer legal reasons why I differ with the majority.

The role of the Judicial Council is to interpret disciplinary provisions from a legal standpoint. The pronouncements contained in Decision 1032 concerning "discretion" and "responsible pastoral judgment" have abandoned all traditional notions of interpretive restraint. I am not unaware that Decision 1032 has been received as a clarion call by many who read the Judicial Council's decisions and maintain a list of wins and losses. It is not the Judicial Council's function to deliver wins and losses but to interpret disciplinary provisions. A Latin phrase says it succinctly and best: Jus dicere, non-dareTo declare law, not make it.

In Decision 1032, the Judicial Council has created new law heretofore unknown and in my judgment uncontemplated by any previous General Conference. The Judicial Council has often rendered decisions of general interest on volatile tissues. When the Judicial Council renders decisions based upon legal reasoning and established precedent, its decisions are generally accorded respect and finality. Respect for Judicial Council decisions does not spring from unanimous agreement among those who carefully parse the content of those decisions but rather, springs from respect for the role of the Judicial Council and confidence in its adherence to established precedent and sound reasoning. Decisions that are made by Judicial Council acting outside its traditional role are not regarded with the same legitimacy. Such decisions undermine respect for judicial process. The result is less institutional confidence in the integrity of the judicial process.

Separation of powers is a time-honored doctrine that has served our connection well. The General Conference would be unwise to attempt to execute Episcopal functions. Bishops do not participate in the legislative process as they are not eligible to vote at the General Conference. It follows that the Judicial Council should not, under our system of governance, attempt to create law by legislating from the bench. Judicial activism, like beauty, is in the eye of the beholder. Decision 1032 is an example of judicial activism of the rankest order.

I favor reconsideration of Decision 1032 because it is clearly in error. The Book of Discipline is silent on the issue of responsible pastoral judgment. Our task would have been complete had we merely said so. It would have been better for the Judicial Council to provide no guidance on the question than to provide the poor guidance of Decision 1032. Reconsideration of Division 1032 would permit the Judicial Council to prevent manifest injustice resulting from its interpretation. Upon reconsideration, the Judicial Council would have the opportunity to review the issues presented with a greater understanding of its unintended consequences and its deleterious impact on our institutional fabric. We should remain cognizant that our decision not only applies to the parties who brought this question but has now been elevated to the point of law across the entire connection. There are other compelling reasons why reconsideration is mandated by these circumstances. The majority has decreed that pastors have "discretion" and by doing so has assumed and usurped powers specifically reserved to the General Conference. The grant of discretion is a legislative and not a judicial prerogative. The majority's concoction of pastoral discretion outside of the established legislative processes of our system has created a perverse structural anomaly that does violence to our system of governance.

The continued viability of our system of checks and balances is threatened whenever one branch acts in excess of its powers. Decision 1032 is a blatant and unprecedented usurpation of legislative authority. This issue needs to be resolved by the General Conference at its next session.

Jus dicere, non-dare. To declare law, not make it.

I dissent from the denial of reconsideration.

Jon R. Gray

Beth Capen, Susan T. Henry-Crowe and Shamwange P. Kyungu (Paul) join in this dissent.

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