California-Nevada Conference Defines Sexual Orientation as a Status

The California-Nevada Conference of the United Methodist Church passed a resolution June 17 defining sexual orientation as a status. (See here also.) The exact wording of the resolution is: "The California-Nevada Annual Conference hereby defines the word 'status' as including sexual orientation such as heterosexuality, homosexuality, bi-sexuality, and transgendered."

The conference also passed another resolution explicitly refusing to define the word "practicing." This resolution states: "The California-Nevada Annual Conference hereby specifically refuses and declines to define the words 'practicing' or 'practicing homosexual.'"

According to the California-Nevada Conference record of the daily proceedings for June 18, a member of the conference requested that the presiding bishop, Beverly J. Shamana, make a ruling of law on the following questions:

"Does our adoption of Item 26 defining 'status' void, violate or otherwise pre-empt the force of law of para. 304.3 in the 2004 Book of Discipline?" [Para. 304.3 states that "self-avowed practicing homosexuals are not to be certified as candidates, ordained as ministers, or appointed to serve in the United Methodist Church."]

"Is the definition of 'status' as adopted in Item 26 sufficiently overbroad as to render it ambiguous, unenforceable and/or violation of the principles of due process?"

"Does our refusal to define 'practicing' in Item 27 void and/or violate the enforcement or enforceability of para. 304.3 in the 2004 Book of Discipline in the California Nevada Annual Conference."

"Since 'self-avowed practicing homosexual' is defined in footnote 1 on page 197 in the 2004 Book of Discipline, is Item 27 legal?" [The footnote defines "self-avowed practicing homosexual" as meaning that "a person openly acknowledges to a bishop, district superintendent, district committee of ordained ministry, board of ordained ministry, or clergy session that the person is a practicing homosexual." The definition defines "self-avowed," but not "practicing."]

Bishop Shamana has up to 30 days after the close of the conference session to rule on questions of law, so her ruling will be due no later than July 18. It will surely be interesting to read her ruling when it is issued. Decisions of law made by bishops have to be reported to the Judicial Council annually. The Judicial Council, then, has the authority to "affirm, modify, or reverse" a bishop's ruling of law. (2004 Book of Discipline, Para. 51)

Although Bishop Shamana has to issue her ruling by July 18, if I read the Discipline correctly, she really has up to a year to submit it to the Judicial Council for review. It is likely, however, that she will send it in this summer --why wait?-- which means the Judicial Council will consider her ruling during its next session scheduled for October 27 in Houston -- the same meeting during which the council will rule on the Committee of Appeals verdict in the Beth Stroud case. (See here.)

Strictly speaking, the Stroud appeals verdict and the California-Nevada resolutions have nothing to do with one another (Stroud is a member of the Eastern Pennsylvania Conference which has defined neither "status" nor "practicing"), except that they both deal with the same concern.

The Constitution of the United Methodist Church states clearly that: "In the United Methodist Church no conference or other organizational unit of the church shall be structured so as to exclude any member or any constituent body of the Church because of race, color, national origin, status or economic condition." (2004 Book of Discipline, para. 4, Article IV) The Constitution also charges General Conference with the responsibility "to secure the rights and privileges of membership in all agencies, programs, and institution in The United Methodist Church regardless of race or status." (2004 Book of Discipline, para. 16, Article IV.14) If sexual orientation is a status, we have a conflict between church law and the Constitution that needs attention. If sexual orientation is a status, there is a serious question whether para. 304.3 is constitutional.

However, the logic of the Committee on Appeals decision in the Stroud case is even narrower than constitutionality. The committee's decision is very precisely written and deserves to be read carefully and thoughtfully. It is based significantly on Judicial Council decision 702. Judicial Council decision 702 says: "[I]n order to do that" --that is, in order to ensure that "the prohibition of an appointment . . . is exercised in compliance with the rights of all persons who are in full membership"-- "the words 'status' and 'self-avowed practicing homosexual' must be defined by either the General Conference or the various Annual Conferences."

The simple point made by the appeals committee in its decision is that neither the General Conference nor the Eastern Pennsylvania Conference has defined either "status" or "practicing homosexual." The Judicial Council has wisely recognized that it is not its role to make such definitions. The Judicial Council said in decision 702: "It is not the task of the Judicial Council to legislate the meaning of words passed by the General Conference.

It is clear that either the General Conference or the Annual Conferences must define for their own use, the words 'self-avowed practicing homosexual.' It might be observed that the latter may not be very successful unless there is a considerable degree of uniformity. Likewise, it is obvious that the term 'status' needs to be defined."

The point the appeals committee decision makes is that neither the General Conference nor the Eastern Pennsylvania Conference has defined the terms under which the trial court found Stroud guilty. It is a violation of due process to find someone guilty based on undefined terms which anyone is free --no, forced-- to interpret subjectively.

The following paragraph from the Committee on Appeals decision is important: "The Committee stresses that its decision on this point says nothing about the wisdom or theological soundness of ¶ 304.3. The Committee recognizes and respects that the General Conference is the supreme lawmaking body of the Church and that all are bound to live by, and may not legitimately act to nullify, that law. The Committee also appreciates that its decision may frustrate the will expressed by a majority at several General Conferences. On this issue, however, that frustration is a product of the fact that the Committee is obliged to follow the rulings of the Judicial Council when applying the Discipline. The Committee's narrow holding is simply that binding Judicial Council precedent continues to require that ¶ 304.3 cannot constitutionally be applied to prohibit an appointment unless either the General Conference or the Annual Conference has first defined both 'practicing homosexual' and 'status.' Since neither phrase has been defined by either of the requisite bodies in this case, the verdict and penalty must be set aside."

So, even though its resolution doesn't apply to Beth Stroud because she is not a member of the California-Nevada Conference, this particular conference has taken the bull by the horns. The California-Nevada Conference has said that sexual orientation is a status. If a complaint were to be brought against a clergy member of the California-Nevada Conference based on para. 304.3, there would be no way to avoid a discussion about the constitutionality of this particular law -- the very discussion the presiding officer in the Stroud case chose to squelch.

The California-Nevada Conference's decision to refuse to define "practicing" or "practicing homosexual" is equally significant. The introduction to the California-Nevada Conference resolution questions the propriety of defining "practicing." It says: "It is inherently subjective and speculative to define the word 'practicing' as regards sexual acts. To define 'practicing' as related to homosexual acts without also having to explain 'practicing' as it differentiates in some instances from heterosexual acts is discriminatory and confusing. Further, to define 'practicing' creates the unseemly and humiliating necessity of questioning clergy about their intimate and private sex acts ..."

In other words, the California-Nevada Conference has refused to participate in asking clergy about the mechanics of their sexual relationship, as though (excuse me, I don't like discussing this either) what goes where were the point. I appreciate this particular resolution because, during the Stroud trial, when the prosecutor asked Beth Stroud whether her relationship with her partner included "genital contact," I suddenly realized that there were certain intrusions into people's dignity and privacy that I hope I will never participate in, even if I thought to justify it by saying that I was merely fulfilling a necessary function in church governance. There are questions we should be embarrassed to ask.

So, the logic is clear:

1. We cannot prosecute people based on undefined terms;

2. It is not the job of the Judicial Council to define General Conference's terms;

3. If General Conference has not defined terms, annual conference definitions should apply;

4. If neither General Conference nor annual conferences have defined the terms, disciplinary rules cannot be fairly enforced.

The Judicial Council, it seems to me, has no choice but to accept the conclusions of the Committee of Appeals in the Stroud case. And it has no choice but to allow the California-Nevada Conference to establish its own definitions.

If we are a church of order and due process, how could the Judicial Council decide otherwise? The other option is to choose popular opinion over reason ... mob rule over order and due process.

Comments

[Mike Barker]

The C-N conference is rather limited in its inclusive thinking. Progressives in Spain are more forward thinking regarding "status" and inclusion:

San Francisco Chronicle:
http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2006/06/18/INGQCJEDCC1.DTL

Reuters:
http://today.reuters.com/news/newsArticle.aspx?type=oddlyEnoughNews&storyID=2006-06-27T145440Z_01_L27821328_RTRUKOC_0_US-SPAIN-APES.xml

Mike Barker