Decision Number 427

Digest

Paragraph 451.3 of the 1976 Discipline can be considered only in relationship with Paragraphs 451.2, 934.6 and 1706.4(a)2, all of which were enacted in the same session of the General Conference. Taken together they are so inconsistent, vague and indefinite and so irreconcilably in conflict that Paragraph 451.3 is constitutionally invalid.

Statement of Facts

In connection with the General Conference enactment of legislation the legislative committee on Higher Education and Ministry included in its report the sentence, "The committee requests the Judicial Council to render a declaratory judgment on the proposed Paragraph 453.3."

The Proposed paragraph in question stated:

"3. Appointment of pastors in full connection.-A pastor, upon consultation with the bishop and/or Cabinet may waive his/her claim upon the conference minimum salary. This waiver is to be effective until the time of subsequent appointment."

That proposed paragraph was renumbered and became Paragraph 451.3 in the 1976 Discipline.

The proposed paragraph as well as the recommendation of the legislative committee was adopted by the General Conference as noted in the Daily Christian Advocate of May 8th, 1976, page 974.

The matter was heard at the session of the Judicial Council held on October 28th, 1976. Jurisdiction was retained for further hearing at the April 1977 session. (See Memorandum 419.)

Jurisdiction

Jurisdiction is accepted under the Constitution, Paragraph 61.1, and the 1976 Discipline, Paragraphs 2507 and 2515.

Analysis and Rationale

The matter before the Judicial Council refers to legislation of the 1976 General Conference. That particular piece of legislation provides only that pastors in full connection may waive their claim upon the Conference minimum salary program. There are safeguards to such a decision, namely consultation with the bishop and/or Cabinet and an annual review of the decision.

Briefs have been filed from the Commission on the Status and Role of Women, Lyle T. Christianson, chairman of the legislative sub-committee of the General Conference that dealt with this matter, and the Associate General Secretary of the Division of Ordained Ministry. All of these participated in the oral argument on April 21, 1977.

It is the position of the Commission that Paragraph 451.3 is constitutional. This position is shared by the chairman of the legislative sub-committee.

On the other hand, it is the position of the Associate General Secretary that Paragraph 451.3 is unconstitutional. He makes the following significant points in his brief.

"6. The inclusion of paragraph 451.3 was an amendment added after the passage of 451.2. It has not, in fact, been tested with the difficult question of Pensions and Equitable Salaries.

As with paragraph 392 of the 1972 Book of Discipline it would be very difficult, if not impossible, to administer within the current language. Paragraph 392 was declared unconstitutional in Judicial Council 380. That (decision) reads in part: "The itinerant system requires that each effective ministerial member of the Annual Conference is entitled to an appointment and is required to accept an appointment when made."

"7. Most significantly, as it presently stands, 451.3 would radically alter our current and common understanding of the itinerant ministry of the denomination and without sufficient thought move away from any effective implementation of the appointment system. As it now stands it is clearly in conflict with paragraph 419 in describing members of the conference in full membership which reads: "They offer themselves without reserve to be appointed and to serve as their superiors in office may direct." It also conflicts with the historic question upon entrance in the conference 422.5 "Are you resolved to devote yourself wholly to God and his work?"

This brief has raised some serious questions, but there are still more that we must consider. We find it impossible to deal with Paragraph 451.3 by itself. It was enacted at the same time as Paragraph 451.2, and as a subsection of the same paragraph. The same session of the General Conference enacted Paragraph 934.6 and 1706.4(a)2. All four of these sections deal with much of the same subject matter and contain inconsistent and sometimes contradictory provisions. All have a relationship to pension rights and have a bearing on Paragraphs 1706.4(a)l and 1706.4(b) yet make no reference to those subparagraphs. Paragraph 1706.4 (then numbered 1259) was the subject of our Decision No. 386.

Paragraphs 451.2, 934.6 and 1706.4(a)2 are clear examples of special legislation discriminating among pastors on the basis of marital status. Paragraph 15.14 of the Constitution defines the authority of the General Conference: "To secure the rights and privileges of membership in all agencies, Programs, and institutions in the United Methodist Church regardless of race or status."

In Decision No. 7 of the Interim Judicial Council we held that in view of that provision a woman could not be denied membership in an annual conference as a layperson by reason of her status as the wife of a minister. In Decision No. 317 we held a woman could not be denied ministerial membership in an annual conference for the same reason.

Paragraph 451.3 by itself does not reveal all of these serious difficulties, inconsistencies, conflicts, vagueness and indefiniteness, but we are convinced that all of these provisions must be studied as they relate to each other. We therefore find Paragraph 451.3 to be so vague and indefinite and in such irreconcilable conflict with other provisions of the Discipline as to be constitutionally invalid.

Decision

Paragraph 451.3 of the 1976 Discipline is constitutionally invalid.

TOM MATHENY, President

HOOVER RUPERT, Secretary

Concurring Opinion

I find myself in reluctant agreement with my colleagues in the opinion as written.

I am troubled by the analysis and decision because I feel that it gives little help to those who seek guidance by reading it.

I believe that it is the obligation of the Council to do more than rule a matter constitutional or unconstitutional. We must, in addition, do what can be done to give guidance to our legislative body in correcting errors made, if it can be done.

It is obvious that the General Conference in enacting 451.2, as well as, 451.3, was attempting to deal with the ever growing and healthy situation in which both husband and wife are ordained clergy; and in which each spouse is a member of the Annual Conference. Further, it was enacted in order to permit husband and wife to perform their respective Ministry in more or less close association the one to the other, in fulfillment of their individual and joint calling to ministry, and to the glory of God through the church.

The paragraph makes provision for the appointment of such couples, as if they were a single entity, or as if the appointment of two individual persons were a joint appointment, to a variety of situations as follows:

1. pastors of adjoining charges; 2. co-pastors of a single charge; 3. pastor of a charge-pastor on special appointment; 4. two pastors on appointment beyond the local church-

the whole gamut of possible appointment situations, with the two persons regarded as being in combination and in effect one person.

In order that such a provision may be effected, the legislation, after taking note that when such a couple is appointed to any one of the aforesaid situations each one has a claim on the conference minimum salary, provides that at their own initiative, this claim or any portion of it may be waived by either or both pastors upon consultation with the bishop and/or cabinet-with such waiver to be reviewed annually, and to be effective until the time of subsequent appointment. Further still, the legislation provides that under the waiver of either or both the service performed may be considered full-time when approved as such by the bishop, cabinet, and executive committee of the Board of Ordained Ministry.

I do not really believe that it is necessary to have such legislation. The Discipline is flexible enough and Bishops innovative enough to resolve whatever difficulties arise out of the factual situation where both husband and wife are United Methodist Clergy.

A United Methodist Minister, whether male or female, has the same rights under the Discipline as any other minister regardless of the circumstance that they are married to another minister. This would be true without the enactment of 451.2, 451.3, 934.6, and 1706.4(a)2. These articles add nothing to the rights already established in the Discipline, for ministers of the United Methodist Church.

However, some in the General Conference, in their sometime hasty pace, felt that these additional protective clauses were desirable.

But this legislation which yokes husband and wife together in a Disciplinary sense, as well as a marital sense, gives rise to problems.

The purpose of the waiver appears to be that of allowing two persons, each of whom has a full claim, to receive a claim equivalent to that which belongs to one only. At the same time however, even under or with the waiver, each person may be regarded as serving full-time. There is an inner inconsistency; and it is not clear whether or not the waiver referred is related to minimum salary or to time spent in service. In the legislation there is no reference to a relationship between the waiver and pension rights as these latter may be affected by either minimum salary and/or portion of time spent in pastoral service.

In the briefs that have been presented in support of the legality and desirability of the paragraph there is no agreement with respect to intent and purpose.

What is more, all the arguments in favor of the paragraph make minimum salary and pension the matters of primary concern when they are at best secondary. Of primary concern, as United Methodist policy now stands, is the individual nature of persons with respect to conference membership, ordination, and appointment. In each of these areas persons are related without reference to sex (Par. 412.2) or marital status (Dec. 317) as individuals who on one hand have rights and on the other hand have responsibilities.

With respect to conference membership, it is to be further noted with regard to rights and responsibilities, every effective member in full connection who is in good standing shall receive an annual appointment (Par. 420); while they offer themselves without reserve to be appointed to serve as their superiors in office may direct (Par. 419).

Relative to ordination, this right carries with it responsibility to give oneself completely to (Ordained) ministry (Par. 446.3), and to abide by the demands (Emphasis added) of the special relationship of the church's ordained ministers (Par. 446.9).

In regard to appointments, several points are to be noted that: they are to be made without regard to sex (Par. 527); through appointment-making, the connectional nature of the United Methodist system is made visible (Par. 527); all who qualify are to receive appointments (Par. 451) unless granted a sabbatical leave, a disability leave, or are on leave of absence or retired; they require of the pastor commitment to ordained ministry and work through the institutional church (Par. 530.2).

Yet, to deal with the secondary matters of minimum salary and pension, Paragraph 1706.4 is quite clear (1706.4(2) notwithstanding) (and despite the anomalous forced definition of full-time) that full-time service is required except as noted for pension benefit; and that the definition of full-time as set forth in Paragraph 1706.4(2)b is applicable to all aspects of pastoral life. (See J.C. Dec. 386).

Although Paragraph 451.2 is in harmony with Paragraph 934.6 (Equitable Salaries) and with Paragraph 1706.4 a (2) (pensions), it is not in harmony with other legislation on conference membership, ordination, and appointment. None of this latter legislation has been in the mind of the General Conference to repeal.

Turning to 451.3, it is clearly illegal in that it applies the special, class legislation of 451.2 to all pastors in full connection; and merely seeks to make 451.2 nondiscriminatory as found by the Council.

Therefore, it is obvious that there is a larger problem than 451.3.

Paragraphs 451.2, 451.3, 934.6, and 1706.4(a)2 should all be studied and re-written in constitutional form, or eliminated altogether. June 1, 1977 TOM MATHENY

Dissenting Opinion

I agree with the statement of facts and recognition of jurisdiction set forth in the opinion of the majority, and with most of the analysis, but disagree with their conclusion. I am influenced by two principles, both of which are recognized by the majority but to which I give somewhat greater emphasis.

First, we must always presume that actions of the General Conference are valid and uphold them if we can properly construe them not to conflict with the Constitution. We all gave much weight to that concept in our decision number 424.

Secondly, our jurisdiction is limited to questions properly brought before us. I feel we can now deal only with Paragraph 451.3 and must uphold it unless it, by itself, violates some provision of the Constitution or is in irreconcilable conflict with some other portion of the Discipline.

With this approach, I see nothing in the Constitution to prevent a pastor from waiving his or her claim upon the conference minimum salary. There is no constitutional provision requiring a conference minimum salary. Such plans are based upon General Conference legislation which the General Conference could amend or repeal.

I cannot see that Paragraph 451.3 has any effect on pension rights or the itinerant full time ministry. There is nothing in Paragraph 451.3 from which it logically follows that a waiver of minimum salary claim either increases or decreases a pastor's pension rights, or has any effect on his or her right to an appointment or duty to accept one, or relates in any way to whatever commitment or obligation a pastor has to render full time service.

Paragraph 451.3 is not, by itself, special legislation. It does not discriminate on the basis of marital, or any other, status, but applies equally to all pastors.

As I see it, Paragraph 451.3 is not necessarily inconsistent with, or inextricable from, Paragraphs 451.2, 934.6, 1706.4 (a) 1 and 1706.4 (b). I feel 451.3 can stand on its own feet and is planted on sound constitutional ground from which it need not be dragged by the other four into the abyss of inconsistency, conflict, vagueness, indefiniteness and discrimination.

In my opinion, the other four sections are not before us and we cannot now rule on them, so that we should concern ourselves only with Paragraph 451.3, and uphold it.

LEONARD D. SLUTZ