Decision Number 433
Unconstitutionality of Paragraphs 451.2 and 934.6 because of Discrimination with Respect to Appointment, Minimum Salary and Pension Rights of Clergy Couples.
Paragraphs 451.2 and 934.6 are unconstitutional because discriminatory on the basis of marital status in violation of Paragraph 15.14 of the Constitution and are also invalid because irreconcilably inconsistent and in conflict with other provisions of the Discipline.
Statement of Facts
The secretary of the Western North Carolina Conference certified that that Conference requested a declaratory decision as to the constitutionality of Paragraphs 451.2 and 934.6. These Paragraphs appear to be matters relating to Annual Conferences or the work therein. We consider the request to be the equivalent of a petition under Paragraph 2515.
The secretary of the Iowa Annual Conference certified that that Conference adopted a motion with three amendments. We have received copies of the original motion and two of the amendments, and have been informed by the secretary as to the third amendment. As best we can combine the motion and the amendments the action adopted by the Conference is as follows:
"We request the Judicial Council of the United Methodist Church to render a declaratory decision concerning the practice of the Cabinet of the Iowa Conference to ask clergy couples, and for any pastor who limits their (sic) itinerancy for any reason, to sign the agreement in current usage and we request that the Board of the Ordained Ministry and the Cabinet be asked to prepare a brief concerning the constitutionality of such a practice."
We received from representatives of the Iowa Conference a carefully prepared brief to which was attached copies of six forms. We are told that none of the forms has yet been signed or used.
We have combined the Western North Carolina and Iowa actions for purposes of hearing and decision. We have considered briefs submitted by the Commission on the Status and Role of Women, the Joint Task Force on Clergy Couples and Clergy Women of the Nebraska Annual Conference, the Board of the Ordained Ministry of the Nebraska Annual Conference and numerous other individuals, both clergy and lay, from various Annual Conferences.
Oral hearings were held at Boston University School of Theology October 27, 1977. Arguments were presented by Rev. Robert Huie and Susan Spruce representing the Commission on the Status and Role of Women, Dr. Robert Thornburg of the Board of Higher Education and Ministry and Thomas A. DeSelm, Chairman of the Board of Pensions of Kansas East Conference.
The Judicial Council has jurisdiction of the Western North Carolina petition under Paragraph 2515. It does not accept jurisdiction of the Iowa action.
Analysis and Rationale
Most of what is said in Decision No. 427 is applicable to Paragraphs 451.2 and 934.6 and dispositive of this proceeding.
Paragraph 15.14 of the Constitution gives the General Conference legislative power:
"To secure the rights and privileges of membership in all agencies, programs, and institutions in the United Methodist Church regardless of race or status."
Decision No. 7 of the Interim Judicial Council applied that provision to the rights and privileges of membership in Annual Conferences and interpreted the word "status" to include marital status, holding that the spouse of a minister may not be disqualified by reason of that status from lay membership in an Annual Conference.
There is no constitutional requirement for an equitable salary fund, but the General Conference has elected to create one, and in Paragraph 934.5 extends the benefits of that fund to all pastors whose salaries approved by the pastoral charges, plus the supplemental aid or income from other sources, are not equal to the minimum salary approved by the Conference. The General Conference could constitutionally create that right and privilege of ministerial membership in an Annual Conference only if the right was secured to all ministerial members regardless of race or status, including marital status as the spouse of another United Methodist pastor.
There is little question but that the General Conference looked favorably upon the increased number of clergy couples in which both spouses seek ordination and full conference membership in the Annual Conferences of the United Methodist Church. Reports indicate that as many as 200 such couples are under appointment, with another 100 in various stages of the process of preparation for conference membership. There are emerging problems which are unique to clergy couples in the full-time ministry. Sometimes one or both members of the couple finds that he or she must serve less than full-time. In many instances the Annual Conference appointing authority is faced with the necessity of assigning both members of the clergy couple to charges which cannot support two full-time ministers. In light of the requirements of Par. 419 that all members in full connection "offer themselves without reserve to be appointed and to serve as their superiors in office may direct," how could an Annual Conference appoint a full member as a part-time pastor, meanwhile allowing that pastor to maintain "full connection" in other aspects of the rights and privileges of the ministry?
Paragraphs 451.2 and 934.6 are in many ways similar but in strange ways different. Both begin by reaffirming with respect to members of some clergy couples the right to minimum salary given to all pastors by Paragraph 934.5. Par. 934.6 reaffirms that right with respect to members of clergy couples accepting full-time appointments as pastors of adjoining churches or charges, or as co-pastors of a church or charge. The meaning of the word "adjoining" is unclear in connection with United Methodist polity.
451.2 recognizes the right with respect to such clergy couples, but does not speak of full-time appointment. It goes on to recognize the right where the members of the couple are appointed as pastor of a charge and pastor on special appointment or as two pastors on appointment beyond the local church.
Neither paragraph affirms the right where the members of the couple are appointed as pastors of charges that do not adjoin. Further, both paragraphs appear to affirm the right only when both members of the clergy couple are members of the same Annual Conference. It is entirely possible, especially where appointments are made beyond the local church, that members of a clergy couple may be members of different Annual Conferences. In fact, it is entirely possible that a United Methodist minister might be married to a member of the clergy of a different church. We are told there are some such couples.
If our only problem were the illogical and inconsistent treatment of members of clergy couples under such differing conditions, we might not need to find the paragraphs unconstitutional. We might consider them incomplete and inaccurate efforts to restate the rights granted to all pastors by 934.5.
Recognizing the need for flexibility in the appointive system in order to use as fully as possible the various gifts of persons, the various types of ministerial skills and combinations thereof, including those unique to clergy couples, the question of discrimination remains. Does a special class of ministerial members of the Annual Conference have the inherent right to request sufficient flexibility in the process of appointments, so their unique desires and particular requirements for ministry always are fully met?
Both of the questioned paragraphs discriminate not only among some classes of clergy couples, but also between members of clergy couples and pastors who are not married to clergy spouses. Whether the discrimination is in favor of, or against, such members of some clergy couples is open to argument, but under the Constitution the General Conference cannot discriminate either in favor of, or against, some ministerial members of Annual Conferences because married to a member of the clergy of our church, or any other church, or because of the particular kind of appointment under which the spouse is serving.
In the arguments submitted to us, our attention has been called to a number of praise-worthy motives that might lead a member of one of the particular types of clergy couples genuinely to desire voluntarily to waive minimum salary rights. We have heard from those who are so eager to be of service to struggling churches or congregations of underprivileged that they are entirely willing to accept sub-minimal support. That can be just as true of ministers who are not married or ministers whose spouses are not clergy, yet these provisions would discriminatorily and unconstitutionally deprive the latter of the opportunity to make the same decision. We have heard from those who feel it unnecessary to receive minimum salary and are quite willing to waive it because married to a minister and in circumstances such that the income of the spouse, or the combined income, seems sufficient. A minister married to a spouse engaged in secular employment, and possibly very substantially compensated, would not have the same rights. Neither would an unmarried minister who might have substantial income from savings or inheritance.
On the other hand, under some circumstances the discrimination could well be a disadvantage. Even if no person, neither spouse, nor district superintendent, nor bishop, nor member of a pastor-parish relations committee, or committee on finance, or committee on budget of a local church were to put any intentional or unintentional pressure on a member of one of the particular types of clergy couples, there could well be considerable pressure of circumstances, for example, the failure of a charge to raise its budget. If there were a valid provision for waiver of minimum salary rights, members of such clergy couples would not really have the same rights and privileges as other ministerial members of Annual Conferences and the reason for the difference would be status as the spouse of another minister serving under a particular kind of appointment.
Paragraph 451.2 goes on to say that persons serving under such a waiver may be considered to be in full-time service if the bishop, cabinet and executive committee of the Board of Ordained Ministry approve. While it is not expressly so stated, this probably was intended to apply even where the person serving under waiver was not in full-time service. Again, while it is not so stated, the intention probably was that they be considered to be in full-time service for the purpose of pension credit. Here we have yet another discrimination among members of clergy couples. The bishop, cabinet and executive committee of the Board of Ordained Ministry would seem to have power to call part-time full-time with respect to members of some types of clergy couples who signed a waiver but not members of the same types of clergy couples who did not sign. Further, there is discrimination between members of the specified types of clergy couples who signed waivers and ministers not members of such types of clergy couples who can have part-time called full-time by a three-fourths vote of the Annual Conference on recommendation of the Conference Board of Pensions under 1706.4(a)(1). Which is the more advantageous way of seeking to have part-time called full-time is not clear. Perhaps in some instances the discrimination would prove favorable and in others unfavorable, but there clearly is unconstitutional discrimination based on status.
At this point Paragraphs 451.2 and 934.6 are inconsistent with each other. 934.6, not only does not refer to situations where one or both members of the couple are on appointment beyond the local church, but it also appears to limit the right to waiver of minimum salary claim to situations where both have accepted full-time appointment. 451.2 probably was intended to include some serving part-time, though seemingly providing that under certain circumstances part-time may be considered full-time. 934.6 provides for a waiver of any portion or all of a share in the minimum salary fund. 451.2 does not seem to provide for partial waiver.
The effect of our Decision No. 380 is that legislation irreconcilably inconsistent with other paragraphs of the Discipline, and apparently not intended to repeal or amend such paragraphs; is constitutionally invalid. In Decision No. 409 we held that the General Conference cannot make some provisions mandatory and then empower Annual Conferences to ignore them. In Decision 339 we held unconstitutional legislation that was vague, indefinite and in apparent conflict with other provisions of the Discipline.
Paragraphs 451.2 and 934.6 are so vague, so contradictory, so inconsistent and so irreconcilably in conflict with other provisions of the Discipline that they must be held unconstitutional for these reasons, as well as because of discrimination as to marital status.
We believe the General Conference will endeavor, and be able, to find valid nondiscriminatory ways to provide for less than full-time service as a minister where circumstances make that at least temporarily necessary, without loss of essential rights of membership in full connection in an Annual Conference.
A number of appointments have been made in reliance upon the provisions of Paragraphs 451.2 and 934.6. We recognize the administrative difficulties in connection with the effects of this decision upon such appointments. Nevertheless, the necessary adjustments must be made as soon as practically possible. No additional members of clergy couples may hereafter receive the sort of discriminatory appointments contemplated by these paragraphs.
With regard to the action of the Iowa Conference, under the holding of compelled to hold Paragraphs 451.2 and 934.6 constitutionally invalid, the questions raised are moot.
Paragraphs 451.2 and 934.6 of the 1976 Discipline are unconstitutional and invalid. We do not have jurisdiction to decide the Iowa petition. In any event it is moot.
I respectfully dissent from the decision of the majority of the members of the Judicial Council in this matter. I am further constrained to say that I believe that the Judicial Council erred in its Decision 427.
It is obvious that the General Conference in enacting 451.2 and 934.6 was attempting to deal with the evergrowing and very healthy situation in which both husband and wife are ordained clergy; and in which each spouse is a member of the same Annual Conference. Further, it was enacted in order to give flexibility in permitting 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.
Paragraph 451.2 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 such as pastors of adjoining charges, co-pastors of a single charge, pastor of a charge together with pastor on a special on appointment beyond the local church. This provides for the whole gamut of possible appointment situations, with the two persons regarded as being in combination in terms of appointment. In order that such a provision may be effected, the legislation, after taking note when such a couple is appointed to any one of the aforesaid situations each has a claim on the Conference minimum salary, and provision is made 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, provided that such waiver is to be reviewed annually, and to be effective only until the time of a subsequent appointment.
Further, the legislation provides that under the waiver of either or both the service performed is still considered full time when approved as such by the Bishop, Cabinet, and Executive Committee of the Board of the Ordained Ministry.
None of the legislation before the Judicial Council in this decision is necessary in order to provide the flexibility needed in this situation.
934.3 states, "Insofar as practicable this schedule of minimum salary shall be observed by the Bishops and District Superintendents in arranging charges and making Appointments." The Discipline is flexible enough and Bishops are innovative enough to resolve whatever difficulties arise out of the factual situation where both husband and wife are United Methodist Clergy.
The 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) (the latter of which is not before us). These articles add nothing to the rights already established in the Discipline for ministers of the United Methodist Church.
However it is obvious that the General Conference, in its sometimes hasty pace, felt that these additional protective clauses were desirable.
These matters are before us because this legislation which yokes husband and wife together in a Disciplinary sense, as well as a marital sense, give rise to problems of interpretation.
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 (or perhaps one and a half or one and three-fourths). At the same time, however, under or with the waiver, each person may be regarded as serving full time. This seems to present an inner-inconsistency and it is not clear whether or not the waiver referred to relates only to minimum salary or to time spent in service. In the legislation there is no reference to relationship between the waiver and pension rights as these latter may be affected by either minimum salary and/or portion of time spent in the pastoral service.
In the multiplicity of briefs that have been presented in support of the legality and the desirability of these paragraphs there is no agreement with respect to the intent and purpose of the General Conference. However, the above does seem obvious.
What is more, all of 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 the United Methodist policy now stands, is the individual nature of persons with respect to conference membership, ordination, and appointment. Also a primary concern is the preservation of the intinerant system in the United Methodist Church. In each of these areas persons are related without reference to sex (Paragraph 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 noted with regard to rights and responsibilities that every effective member in full connection who is in good standing shall receive an annual appointment (Paragraph 420); while they offer themselves without reserve to be appointed to serve as their superiors in office may direct (Paragraph 419).
Relative to ordination, this right carries with it the responsibility to give ones self completely to (ordained ministry) (Paragraph 446.3), and to abide by the demands (of the special relationship of the churches ordained ministers) (Paragraph 446.9).
In regard to appointments, several points are to be noted that: they are tobe made without regard to sex (Paragraph 527); through appointment making, the connectional nature of the United Methodist system is made viable (Paragraph 527); all who qualify are to receive appointment (Paragraph 451) unless granted a sabbatical leave, a disability leave, or are on leave of absence or retired; all are required to fulfill the pastoral commitment to ordained ministry and work through the institutional church (Paragraph 530.2).
Yet to deal with the secondary nature of minimum salary and pension, Paragraph 1706.4 is quite clear ((1706.4)(2) not withstanding) (and despite the anomalous forced definition of full time) that full time service is required except as noted for pension benefits; 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 Judicial Council Decision 386).
Although Paragraph 451.2 is in harmony with Paragraph 934.6 and with Paragraph 1706.4 (a)(2) it is not in harmony with other legislation on conference membership, ordination and appointment. It is to be noted, however, that none of this latter legislation has been in the mind of the General Conference to repeal.
However the fact that it is not in harmony, and the fact that the legislation was obviously rather hastily enacted without consideration of other paragraphs of the Discipline and despite the fact that there is vagueness in the legislation does not make the legislation, necessarily unconstitutional.
The Judicial Council has an obligation to find constitutionality where possible. It is obvious that it would be better if these paragraphs were not in the Discipline at all. No one would lose their rights if they were deleted. It is equally obvious that if they are to remain in the Discipline they need to be refined and sharpened in their wording. However, this is a legislative task and is the responsibility of the General Conference.
In order to find legislation unconstitutional on the basis of vagueness, conflicting wording, etc. it must be necessary that the language be so vague and so irreconcilable that it cannot be so interpreted in order to protect the rights of those concerned under the constitution. This legislation, while poorly worded, can be interpreted and can be reconciled.
In reading the legislation several things should be observed. In the first place it is not inconsistent, vague or irreconcilable if one paragraph of the Discipline provides for certain rights and another paragraph provides that a person may voluntarily waive such rights. Rights under the Discipline, just as under constitutional law, are individual matters and individuals have the privilege of waiving their rights on a voluntary basis. Most of the so called inconsistency has to do with minimum salary and pensions. However, these are relatively recent rights in the history of the church and do not effect Conference membership, ordination and appointment as such.
The Judicial Council of the United Methodist Church, and its predecessor bodies have very rarely made findings of unconstitutionality on the basis of vagueness or irreconcilable conflict and almost never without citing specific constitutional provisions.
We have failed to do so here. We have merely said that the language was vague and conflicting.
Certainly it is not "so vague and indefinite and such irreconcilable conflict with other provisions of the Discipline as to be constitutionally invalid."
I believe that the legislation needs to be carefully examined and reworked and reworded. I do not believe it to be unconstitutional. Tom H. Matheny
Gene E. Sease was absent.