Decision Number 1032

Review of Bishop's Decisions of law in the Virginia Annual Conference Related to the Authority of a Pastor under ¶¶ 214 and 225 of the 2004 Discipline to Exercise Judgment in Determining Who May Be Received into Membership in the Local Church.

Digest

The decisions of law of Bishop Charlene P. Kammerer are reversed. 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.

Statement of Facts

On December 8, 2004, the associate pastor of South Hill United Methodist Church contacted the Petersburg District Superintendent informing him that a person had expressed interest in becoming a member of the Church. He had been participating in the life of the Church in a variety of ways. The pastor of South Hill United Methodist Church met with the person aspiring to membership on at least five occasions over a two-month period discussing his membership request. The person was a member of another denomination and was seeking to become a professing member by transfer of his membership from another denomination. The aspiring member's sexual orientation and practice was a significant part of the ongoing discussions between him and the pastor. Although he continued to be in ministry to the person, including enrolling him as a constituent member of the Church, the pastor refused to transfer him to the Church from another denomination. On January 26, 2005, the district superintendent discussed the situation with the pastor, and the pastor informed the district superintendent that he would continue to be in ministry with the person but that he would not receive him into membership in the Church. On January 27, 2005, after consulting with Bishop Charlene P. Kammerer, the district superintendent met again with the pastor and informed him that he was required to receive the person into membership in the Church as well as anyone else who acknowledged that they would receive the vow, affirm the vow, and promise to fulfill the vow. Since the pastor would not acquiesce, the district superintendent filed a complaint charging him with "unwillingness or inability to perform ministerial duties." On March 15, 2005, the bishop referred the administrative complaint to the Board of Ordained Ministry for review of the district superintendent's charge. Following a number of hearings and meetings, the Board of Ordained Ministry sustained the complaint against the pastor and recommended to the annual conference clergy session that the ninety-day notice be waived and recommended that he be placed on involuntary leave of absence along with other remedial actions. The recommendation of the Board was taken to the June 13, 2005, clergy session. Following the approval of the waiver of the ninety-day notice, the members of the clergy session voted the place the pastor on involuntary leave of absence, with health benefits, by the required two-thirds affirmative vote (448 for, 114 against, 18 abstentions). Decision 1031 addresses certain aspects of the procedures followed by the Virginia Annual Conference in this case. Following the action of the clergy session of the Virginia Annual Conference, questions of law were posed to Bishop Charlene P. Kammerer who ruled as follows: Question 1:

Must a clergy person at the direction of a bishop and/or district superintendent and subject to their administrative complaint or charge, receive into the membership of a local United Methodist church anyone who is able to receive the vow, affirm the vow, and promises to fulfill the vow and who at the same time acknowledges and impenitently practices homosexual relations?

Bishop's ruling of law: The bishop ruled "that the bishop and district superintendent are charged to give guidance, as they did to Rev. Johnson in this matter." Question 2:

In a June 9, 2005, Hearing Presentation by the Board of Ordained Ministry the Board identifies three paragraphs from the Book of Discipline on which to base their recommendation of Involuntary Leave of Absence. Does the permissive language of ¶ 214 and ¶ 225 grant the appointed senior minister, in this case the Rev. Ed Johnson, the right and responsibility to exercise responsible pastoral judgment in determining who may be received into church membership of a local church?

Bishop's ruling of law: The bishop "ruled in the negative in this case." Oral hearings were held in Houston, Texas on October 27, 2005. Rev. H. O. Thomas, Jr. and Pat Meadows, Esquire, spoke seeking reversal of the decision of law. Bishop Charlene P. Kammerer, Rev. Jeffrey P. Mickle and Clark Williams, Esquire, spoke seeking affirmation of the decision of law. Jurisdiction The Judicial Council has jurisdiction under ¶ 2609.6 of the 2004 Discipline. Analysis and Rationale Paragraph 340.3(a) of the 2004 Discipline includes among the responsibilities and duties of elders and licensed pastors their being "the administrative officers of the local church." Paragraph 340.3(b)(1) further provides that elders and licensed pastors are to "administer the provisions of the Discipline." As part of these administrative responsibilities the pastor in charge of a United Methodist church or charge is solely responsible for making the determination of a person's readiness to receive the vows of membership. The vows of membership for uniting with a United Methodist church (¶ 217) are detailed and explicit. The pastor-in-charge is entrusted with discretion in the exercise of this responsibility. Paragraph 214 states: "Eligibility – The United Methodist Church is a part of the holy catholic (universal) church, as we confess in the Apostles' Creed. In the church, Jesus Christ is proclaimed and professed as Lord and Savior. All people may [emphasis added] attend its worship services, participate in its programs, receive the sacraments and become members in any local church in the connection . . . . " The operative word in connection with the phrase "become members in any local church in the connection" is "may." Decision 930 established the premise that "shall" cannot be used to replace "may" in the Discipline. Thus, the General Conference has determined that any person "may" become a member of any local church in the connection. Paragraph 225 states: "Transfer from Other Denominations – A member in good standing in any Christian denomination who has been baptized and who desires to unite with The United Methodist Church may [emphasis added] be received as either a baptized or a professing member by a proper certificate of transfer from that person's former church, or by a declaration of Christian faith, and upon affirming a willingness to be loyal to The United Methodist Church (see ¶¶ 214-217) . . . ." Decision 930 applies to this paragraph of the Discipline as well, and may means may. Since the pastor is not required by the Discipline to admit into membership all persons regardless of their willingness to affirm the vows of membership, and since the Discipline designates the pastor "to be the administrative officer of the local church" (¶ 340.3a) and to "administer the provisions of the Discipline" (¶ 340.3b(1)), a pastor-in-charge cannot be ordered by the district superintendent or bishop to admit into membership a person deemed not ready or able to meet the requirements of the vows of church membership of The United Methodist Church. The appointed pastor in charge has the duty and responsibility to exercise responsible pastoral judgment in determining who may be received into the membership of a local church. The rulings of law of Bishop Charlene P. Kammerer on Questions 1 and 2 are reversed. The disciplinary language of ¶¶ 214 and 225 is permissive. Decision The decisions of law of Bishop Charlene P. Kammerer are reversed. 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. October 29, 2005 Shamwange P. Kyungu was absent. Jon R. Gray, Beth Capen and Susan T. Henry-Crowe dissent. Dissenting Opinion I dissent with my colleagues on Decision 1032. This decision compromises the historic understanding that the Church is open to all. The Judicial Council cannot interpret something that is not stated in the Discipline. Nothing in the Discipline gives pastors discretion to exclude persons presenting themselves for membership in the Church. (See ¶4 and ¶138) Susan T. Henry-Crowe October 29, 2005 Dissenting Opinion Having fully mastered the difficult task of judicial interpretation, my colleagues in the majority have now chosen to direct their talents to the meticulous work of authoring legislation. I choose not to join them in that endeavor. Although I join in the dissenting statement filed by my colleague, I write separately to offer legal reasons why I differ with the majority opinion. The Book of Discipline is the book of law of The United Methodist Church that covers nearly every aspect of church governance. There are, however, gaps that exist in the Discipline because there are issues that the General Conference has not addressed. Where the General Conference has not spoken, the Judicial Council is not imbued with creative license to engage in conjectural improvisation. Legislative power resides exclusively with the General Conference. Para. 26. The responsibility of the Judicial Council is to interpret the law of our church from a strictly legal standpoint. Decision 59. The Judicial Council has no authority other than as specified in Paragraphs 55 through 58. Great care must be exercised to insure that the central role remain that of judicial interpretation. The issue of whether a pastor has the right and responsibility to exercise "reasonable pastoral judgment" to determine who may be received into membership appears to be a question of first impression. I find nothing in the Discipline or in the whole of our jurisprudence that suggests that this issue has ever been addressed. The Discipline is silent on the issue. If the Judicial Council is to remain true to its traditional role as interpreter of church law, it should resist the urge to interpret provisions that do not exist. The Judicial Council may not substitute its judgment where the General Conference has not spoken, nor should the Judicial Council attempt to write legislation between sessions of the General Conference. The General Conference has enacted very few provisions that grant pastors the right to exercise "discretion" of any kind. Paragraph 224, for example, grants pastors "discretion" to receive persons into membership outside of normal congregational settings. Under paragraph 216.3, pastors are granted "discretion" to guide younger persons who have not yet completed the sixth grade in the preparation for the experience of profession of faith and confirmation. There may be other paragraphs that would become apparent after more thorough review of the Discipline. Because there are very few such provisions, I am led to the ineluctable conclusion that whenever a grant of discretion has been determined appropriate, the General Conference has said so in clear and unmistakable terms. The Judicial Council's role is purposefully limited to that of interpretation. In fulfilling its role, the Judicial Council should not impose its own preferences or priorities on the church. Elementary rules of construction require that the plain text of a document be given its reasonable effect and intendment. Text should not be supplemented. It certainly should not be invented or pulled from out of thin air. Powers should not be inferred or imagined. Interpretative guidance should be gleaned from the text of the entire document rather than the interpreter's personal philosophy. Since the paragraphs cited by the majority do not speak to the issue presented, and the Discipline is otherwise silent, we must look to other declarations contained in the Discipline for guidance. From a sound legal perspective, the paragraphs contained in the question presented must be considered in the light of General Conference declarations that bear upon the issue contained elsewhere in the Discipline. For reference I commend all of my colleagues to paragraph 161 entitled "The Nurturing Community". In an effort to shed light upon the subject, I specifically cite paragraph 161(G) which reads in pertinent part as follows:

". . . Homosexual persons no less than heterosexual persons are individuals of sacred worth. All persons need the ministry and guidance of the church in their struggles for human fulfillment, as well as the spiritual and the emotional care of a fellowship that enables reconciling relationships with God, with others and with self. The United Methodist Church does not condone the practice of homosexuality and considers this practice incompatible with Christian teaching. We affirm that God's grace is available to all and will seek to live together in Christian community. We implore families and the church not to reject or condemn lesbian and gay members and friends. We commit ourselves to being a ministry for and with all persons."

The majority's decision now condones the denial of the fellowship of the church to persons in need of its ministry and guidance who are homosexual. The decision eviscerates our statement that God's grace is available to all and reduces it to an empty platitude. More tragically, the same Judicial Council charged with giving effect to the intent of the enactments of the General Conference has turned a cold and rejecting ear to its plea that families and churches not reject lesbian and gay members and friends. Paragraphs 214 through 225 provide guidance on the issue of church membership to clergy and laity alike. The cited paragraphs make very few references to pastors at all and in none of those references does the General Conference bestow upon pastors the type of discretion as contemplated by the majority. The permissive language contained in paragraphs 214 through 225 is an invitation to persons who seek membership. The permissive language does not equip clergy with the power or authority to erect a bar to membership. The permissive language is an open invitation to any and all who seek God's grace through membership within our denomination. There is nothing contained in the majority opinion that prevents pastors from exercising "discretion" to refuse membership to persons whose eating habits convict them of the sin of gluttony, whose personality traits convict them of the sin of pride, and whose work habits convict them of the sin of sloth. There are a total of seven such scenarios that I can imagine, none of which were involved in this case as a basis for denying membership. Under the majority's opinion, pastors who form a reasonable belief that any of the foregoing scenarios exist would have the "discretion" to deny membership to such persons. Because of the majority's ruling, pastors across our great connection will not only enjoy the rights and privileges of ordination, they will also enjoy the additional power, discretion and authority that are now ordained by judicial fiat. Pastors will be able to screen out persons seeking membership to safeguard our churches against all varieties of sinners. While churches without sinners may be a precursor of heaven, the decision to pursue such a path must, under our system of church governance be made by the General Conference after the idea has been debated, tested and refined in the legislative processes of our church. I am also critical of the majority opinion because it does nothing to offer true guidance as to what constitutes "responsible pastoral judgment". In its haste to make its pronouncement, the majority has done more harm than good. The language of the question posed asks whether pastors have "the right and responsibility to exercise reasonable pastoral judgment in determining who may be received into membership of a local church." Yet, the majority's ruling obfuscates the issue by using the term "discretion" interchangeably with the words "responsible pastoral judgment." The Judicial Council had repeatedly reminded the General Conference and the various Annual Conferences that terms require definition in order to promote a general understanding of their meaning. Inherent in the majority's decision is a roving commission. This panoply of new terms that has now been engraved upon our jurisprudence is not accompanied by any guidance as to their meaning and import. We do not serve our function well by coining new phrases with amorphous meaning. Any guidance that the majority opinion purports to provide is purely illusory. A thoughtful legislative process would not only set parameters of "responsible pastoral judgment" or "discretion" but would also provide a method to regulate the exercise of such judgment and guard against abuses of discretion. Yet the majority, through some unaccountable infatuation, has chosen to endow pastors with powers and abilities far beyond those of mortal men and women; that being the power and ability to separate the mind from the motive. We cannot begin to comprehend the unwanted and undesired consequences of this ruling. The majority's ruling has dangerous potential to create adversarial relationships between pastors and persons who seek membership in our denomination. It encroaches upon the authority of the office of bishop by judicial whim rather than through a deliberate legislative process. It upsets the delicate system of checks and balances inherent in our governance. These consequences will result in serious ramifications. However, I fear most that the majority decision will prove harmful to the credibility of the Judicial Council because it abandons the traditional and limited role of the Judicial Council as interpreter of church law and assumes a new mantle as creator of church law. I am greatly concerned about this ruling that my majority colleagues have banded to pronounce. My greater concern is that its pronouncement may be a harbinger of things to come. Will we begin to see cases where membership has been denied based on economic status? Or educational status? Will pastors deny membership to those who do not support all of our Social Principles? Or those who fully support our Social Principles? We all aspire to break the bonds and reject the forces of sin. Nevertheless, we choose a perilous course when even "responsible pastoral judgment" is granted to allow pastors the "discretion" to select among a multitude of sins for which some persons will be refused membership. I also dissent because this question does not present as a frequently recurring problem within our denomination. There was no emergency that required the Judicial Council to act at all let alone to act precipitously. The majority's action has fashioned a rule that will now apply across the connection. The legal maxim that hard cases make bad law is given life and breath by the majority's ruling. The maxim has grown up in the secular world in those situations when courts have made the ill-advised decision to legislate rather than interpret. The bad law that results brings many unintended and undesired consequences. I finally state that although the General Conference has clearly prohibited self-avowed practicing homosexuals from becoming ordained clergy, it has never determined that being a self-avowed practicing homosexual constitutes a bar to membership. The Judicial Council has previously acknowledged homosexuality to be a sensitive and volatile issue. Dec. 702. It is the equivalent of ideological legerdemain for the Judicial Council to declare "discretion" where there is none and to grant pastors "responsible pastoral judgment" where the General Conference has not done so. As a Judicial Council, the better angels of our nature require that we restrain ourselves from making up rules that do not exist. Because I did not join the majority, I am unable to move for its reconsideration. I would implore my majority colleagues to admit that the Judicial Council has made a grievous and harmful error in its pronouncement and reconsider and recall its decision. For all of the foregoing reasons, I vociferously, yet respectfully dissent. Here I stand. I can do no other. So help me God. Jon R. Gray November 8, 2005 Susan T. Henry-Crowe joins in this dissenting opinion. Concurring Opinion Contrary to what some will assert, our decision here is not a statement that homosexuals are barred from membership in the local church. Bishop Charlene P. Kammerer was asked two specific questions and made two very brief rulings which are under review. Bishop Kammerer was asked:

Must a clergy person at the direction of a bishop and/or district superintendent and subject to their administrative complaint or charge, receive into the membership of a local United Methodist church anyone who is able to receive the vow, affirm the vow, and promises to fulfill the vow and who at the same time acknowledges and impenitently practices homosexual relations?

Bishop Kammerer ruled "that the bishop and district superintendent are charged to give guidance, as they did to Rev. Johnson in this matter." Bishop Kammerer was then asked:

Does the permissive language of ¶ 214 and ¶ 225 grant the appointed senior minister, in this case the Rev. Ed Johnson, the right and responsibility to exercise responsible pastoral judgment in defining who may be received into church membership of a local church?

Bishop Kammerer "ruled in the negative in this case" thus holding that the clergyperson appointed to serve as the administrative officer of the local church has neither the right nor the responsibility to exercise responsible pastoral judgment in defining who may be received into church membership of a local church. The Judicial Council has reversed Bishop Kammerer's rulings and held 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), and that ¶¶ 214 and 225 are permissive and do not mandate receipt into membership of all persons regardless of their willingness to affirm membership vows. As one can plainly see from the Decision and Digest of the Judicial Council as well as the Analysis and Rationale, there is nothing in such language that can remotely be construed as making a sweeping declaration that the Judicial Council has held that "homosexuals" are barred from membership in the church. As an individual member of the Judicial Council who supports the decision rendered here, I specifically affirm the provisions of ¶ 161(G) of the Discipline. Questions of law are always asked in a particular factual context. However, when decisions of law come before the Judicial Council, no evidentiary proceedings have occurred as might occur in a church trial. Nevertheless, the record provided by the Virginia Annual Conference indicates that the individual seeking membership continued to be welcomed in worship, continued to be administered the sacraments, and continued to meet with the pastor for counseling and discernment throughout the period prior to the submission of the questions of law to the presiding bishop. Thus, the fellowship of the church to persons in need of its ministry and guidance who are homosexual was provided. The questions of law, the resulting decisions by Bishop Kammerer and our decision here do not address other ways in which local churches are to be in ministry to homosexual persons or others. Thankfully, God's grace has never been dependent upon membership to be imparted. Membership has never ensured that an individual is availing them self of God's grace. Furthermore, nothing in the Judicial Council's decision eliminates the continued applicability of numerous provisions of the Discipline that place limitations on the pastor's exercise of discretion with respect to membership. For example, the discretion of the pastor-in-charge must be exercised consistent with ¶ 4 of the Discipline. Paragraph 4 which is Article IV of our Constitution, specifically provides:

Inclusiveness of the Church – The United Methodist Church is a part of the church universal, which is one Body in Christ. The United Methodist Church acknowledges that all persons are of sacred worth. All persons without regard to race, color, national origin, status, or economic condition, shall be eligible to attend its worship services, participate in its programs, receive the sacraments, upon baptism be admitted as baptized members, and upon taking vows declaring the Christian faith become professing members in any local church in the connection.

[Emphasis added]. As we have held in Decision 1027, regulation of the practice of homosexuality does not violate the "status" provisions of the Constitution. As we stated in Decision 1027, "[n]o provision of the Discipline bars a person with a same-sex orientation from the ordained ministry of The United Methodist Church." Likewise, no provision of the Discipline bars a person with a same-sex orientation from membership in The United Methodist Church, and, in fact, I believe that ¶ 4 specifically prohibits the use of such orientation, as opposed to practice, as a basis for excluding a person from membership in The United Methodist Church. Paragraph 138 of the Discipline does not support the conclusion that all persons who are willing to give voice to the vows of membership must be received into membership. In fact, a portion of ¶ 138 states:

In The United Methodist Church inclusiveness means the freedom for the total involvement of all persons who meet the requirements of The United Methodist Book of Discipline in the membership and leadership of the Church at any level and in every place.

[Emphasis added]. Thus, ¶ 138, even in its affirmation of inclusiveness, states that such inclusiveness has boundaries, which would include at a minimum making and keeping the vows of membership outlined in ¶ 217. In fact, ¶ 221 specifically requires the local church, acting through its pastor and its agencies, to hold members accountable to the vows of membership outlined in ¶ 217. To adopt the position advanced by the rulings of law under review here and by those who dissent would result in the anomalous result that a person who could not affirm the vows of ¶ 217 being admitted to membership and then immediately being subject to discipline as required by ¶ 221. The Discipline does not require such a nonsensical result. The decision here applies the explicit words of the Discipline. To adopt the position advanced by the rulings of law under review here and supported by those who dissent would require judicial legislation ignoring explicit language in the Discipline. Where a pastor in the exercise of his or her discretion determines that a person, for whatever reason, is not ready to affirm the vows of membership, that discretion is not unfettered. Clearly the exercise of such discretion may be questioned by the lay leadership of the local church. Because of the corporate nature of the body of Christ, one would fully expect that ongoing consultation and reflection on the matter would be engaged in by the pastor, the laity of the church, the district superintendent and the bishop. If it was determined that the pastor had exercised his or her discretion in such a way as to violate ¶ 4 or other provisions of the Discipline, appropriate disciplinary procedures exist to challenge the pastor's exercise of discretion. The Judicial Council was not asked in this case to review the specific basis and propriety of the pastor in exercising discretion here. We were asked to review two specific rulings of law by a bishop. The Council is required by the Discipline to review such decisions. See ¶¶ 56.3 and 2609.6. The Council has done its duty. I wish to comment on one final aspect of Decision 1032. The decisions of law under review in Decision 1032 were rendered by the presiding bishop of the Virginia Annual Conference, the annual conference of which I am a clergy member. The minutes of the Virginia Annual Conference reflect that as consideration of this matter was brought before the Annual Conference, I immediately was granted the privilege of the floor and informed the Conference that I was not participating in the matters under discussion by the Conference because of my membership on the Judicial Council. See Decision 1031. Because I did not participate in the matters before the Virginia Annual Conference, I was not a party to its actions under review in Decisions 1031 and 1032, and therefore I chose to participate in the deliberations and decisions of the Judicial Council in these two decisions. The issues raised by these Decisions are not unique to Virginia but have impact on every clergyperson in our connectional system. In my view, it would be inappropriate for me to recuse myself under such circumstances, and I exercised my right as a member of the Judicial Council to make that determination. I would follow the same course again on a matter of the application of the Discipline to the Virginia Annual Conference which was applicable to the church as a whole and in which I was not directly involved. I have chosen not to recuse myself in the past under similar circumstances. See Decision 985. However, where the issue only had applicability in the Virginia Annual Conference and/or I have had a personal involvement in the matter, I have chosen to recuse myself. See Decision 984. Keith D. Boyette November 15, 2005 Rodolfo C. Beltran joins in this concurring opinion.