Judicial Council must uphold due process in the Stroud case

We need to start preparing our congregations for the Judicial Council decision in the Rev. Beth Stroud's case. The Judicial Council will be hearing oral arguments about the case Oct. 27 in Houston and is expected to issue its decision Oct. 29. A newspaper reporter here in Washington, D.C., told me he didn't put much effort into reporting the appeals committee process because the Judicial Council decision would be the "real story," so we should expect a lot of press coverage.

Unless the Judicial Council decides to ignore core principles of our governance system such as due process, it will have to take the findings of the Northeastern Jurisdiction Committee of Appeals seriously.  I expect the Judicial Council to uphold the appeals decision, or parts of it, not because the council members want to but because our system of governance requires it.

If I am right, United Methodists are likely to be disappointed, and perhaps confused, in two different ways.

1) Those to whom it seems obvious that General Conference has spoken clearly on this matter will be upset and confused because it will seem to them that General Conference's rules aren't being enforced -- that the will of General Conference is being thwarted.

2) On the other hand, those of us to whom it seems obvious that General Conference's ban on openly gay clergy is discriminatory and, thus, in violation of the Constitution of the United Methodist Church will be disappointed because this case will not have addressed constitutionality issues in a substantial way.

Here's a review: Last December an Eastern Pennsylvania Conference jury found the Rev. Beth Stroud guilty of the charge of "engaging in practices declared by the United Methodist Church to be incompatible with Christian teaching" because she is a lesbian openly living in a same-sex committed relationship. The jury voted to take away her ministerial credentials.

Retired Bishop Joseph Yeakel, who served as presiding officer, or judge, made several debatable procedural decisions in the case, including prohibiting the defense from presenting arguments concerning the constitutionality of the law being enforced.   

In a decision dated April 29, the Northeast Jurisdiction Committee on Appeals reversed the jury's decision on the basis of "legal error."

The most serious legal error, in my opinion, was trying to enforce a law the Judicial Council has ruled cannot be enforced unless certain pivotal terms -- "status" and "practicing homosexual" -- have first been defined by either General Conference or the relevant annual conference. But neither General Conference nor the Eastern Pennsylvania Conference have defined the meaning of the terms. The failure to define the word "status" is especially problematic.

The Constitution of the United Methodist Church says that "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." ("The Constitution," Division One, article IV) This is reinforced in Division Two, Section I, Article IV.13 of the Constitution which charges General Conference with the responsibility "to secure the rights and privileges of membership in all agencies, programs and institutions of The United Methodist Church regardless of race or status."

Is sexual orientation a status? If so, church laws that treat one sexual orientation differently from another may be discriminatory and unconstitutional. But we do not know whether sexual orientation is a status or not because General Conference has not defined the term.

It is not as if General Conference delegates have not been aware that a definition is needed. In 1993 the Judicial Council issued Decision 702 stating that it would be difficult to evaluate and enforce certain church laws unless General Conference, or annual conferences, determined whether sexual orientation is a status. In fact, the Judicial Council recognized that sexual orientation may well be a status. The Judicial Council said in Decision 702 that the "normal definition" of the word "status" would be "all inclusive." It asked General Conference to provide clarity.

Many United Methodists believe General Conference has spoken clearly, but it has not. It has refused to tackle the hard question of deciding whether or not sexual orientation is a status. So long as it refuses to do so, rules passed by General Conference that discriminate on the basis of sexual orientation will be difficult, and perhaps impossible, to enforce.

The Northeastern Jurisdiction Committee on Appeals did not say whether or not it believes that sexual orientation is or is not a status. It simply pointed out that the Judicial Council has said that clergy appointments cannot be taken away because someone is charged with being a "self-avowed practicing homosexual" unless the terms "status" and "practicing homosexual" have been defined by General Conference or the annual conference.

Unless the Judicial Council suddenly reverses itself and says that such definitions are not necessary, it will be difficult for them to overturn the appeals committee decision.

There are other issues at stake as well:

Is the Disciplinary statement saying that "the practice of homosexuality is incompatible with Christian teaching" a doctrinal statement? If so, General Conference did not follow due process in passing it.

Was it appropriate for the presiding officer to disallow arguments concerning the constitutionality of the law being enforced? If such arguments cannot be introduced, how can they be considered? The Book of Discipline (Paragraph 2715.9) says that "questions of church law may be carried on appeal, step by step, to the Judicial Council." As the appeals court ruling says: "It goes without saying that questions of Church law cannot be 'carried on appeal, step by step,' if they cannot be presented in the first instance during the trial proceedings."

I was having lunch a few weeks ago with a group of United Methodists who were upset that the appeals committee had overturned the Stroud jury verdict. When I explained these issues, they understood the problem.  While some United Methodists may not like it, unless they totally disregard due process and fairness, they can understand the appeals committee’s ruling.

My greater concern is those United Methodists who believe discrimination against gay clergy is unconstitutional and unjust. Even if the Judicial Council upholds the appeals committee decision, or parts of it, as I believe it must, the essential question of whether discrimination based on sexual orientation is constitutional or not is unlikely to be addressed directly. This is unfortunate. It is an issue we need to face.

Comments

[David]

One of the amazing things to me is how both sides of this issue accuse one another of being doctrinare and legalistic and then both sides of the issue use doctrine and legality as arguements for their positions. When the charges were filed many lamented the legalism of the UMC. General Conference has spoken clearly on the issue, in my opinion, but now legalism is being used to say that it has not. The intent of GC is clear, the legal perfection is not. In the end we are going to have to create two documents from our Book of Discipline. A Book of Doctrine, on which there is agreement and a Book of Thought on which there can be subjective interpretation. Either that or we adopt the UCC model where the actions of their General Synod have no impact on local churches but are rather "statements of the denomination" Using the UCC model an annual conference or church can go whatever way they want while the General Conference can debate and refine language and dot all the i's and cross all the t's and rephrase and clarify for the rest of time. Frankly, it's headed in that direction anyway.

[David]

Just curious, was there a definition of status when the constitution was written? If not a definition some sort of wording that could be used to indicate intent? Status could be interpreted as blue collar versus white collar or upper middle class versus lower middle class.

[Andy B.]

I do not agree that "the intent of the GC is clear." If it were, why does that clarity not manifest in unambiguous, easy to interperet policy? To forbid discrimination based on "status" is not in the least bit clear. Truth is, there is a lot of unclear language in UM documents, language open to layers of interpretation. I kind of thought it was written that way on purpose, so that a diverse group of people could be a church together.
Clearly yours,
Andy B.

[David]

Andy you may be right. If you make stuff fuzzy enough there can and will be multiple interpretaions. The problem is, it's not working that way now. We are becoming polarized and what I think is clearly the intent of the GC you do not and from a topic further down the page on membership and attendance loss folks are leaving. I truly believe they are leaving from both sides of this debate. Two pastors surrendered their credentials in this conference this year. One left for a "liberal" denomination, the UCC and the other left for a more "conservative" denomination the Church of the Nazarene. I don't know how long the church can continue to be ambiguous.

As for clarity. The pastor that broke the chalice at the last GC understood the clarity of the action. The 56% or whatever of delegates that voted to not change the Discipline left with a great deal of clarity. I dare say that many of the 44% or whatever that voted in favor of changing the Discipline left feeling they had clarity on the issue.

I think Rev. Snyder is correct in saying we are going to need to prepare our congregations for this decision one way or the other. With heartbreaking sadness I feel we will experience some degree of additional decline either way.

[Revwilly]

I think David is absolutely right. We are digging our own grave with the issue of homosexuality.

To all
The internet access I'd hoped to have this week isn't working out, so I only have access at the local public library here in Warm Springs, Va.,(a beautiful place!) But the library has time limit constraints on internet use. I'd like to participate more in this conversation than I can.

In regards to David's question about General Conference's intent, Judicial Council decision 702 says:

"In regard to the definition of the word 'status' in the Constitutional Amendment, the following observations must be made in the light of its legislative history: 1. There is no evidence that the word 'status' was intended to include the clergy status of a self-avowed practicing homosexual. 2. There is no evidence in the legislative history that the word 'status' does not include the clergy status of a self-avowed practicing homosexual. 3. It is obvious that if the normal definition of 'status' is used, it would be all-inclusive. 4. The word 'status' is not defined either in the legislative process or in the Discipline."

The intent is General Conference will not be able to clarify this. I think we have to decide on the basis of the information we have topday whether saxual orientation is a status. The defining issue, I think, is whether it is a choice or innate. Thanks for your discussion.
Dean

[John Wilks]

Dean,

I guess I still don't see how the "choice vs. innate" resolution clarifies anything. After all, there are a number of behaviors and patterns which are innate in many people which we do not wish to see and will not condone in our clergy.

Besides, one of the core teachings of Christianity has been that God can change even inborn traits in His people- we can be born again, and in fact all who come to Christ are new creations.

So the issue isn't whether homosexuality is chosen or innate (for the record, I think some choose homosexuality and others are either born that way or have been nudged down that road by issues in childhood and adolescence beyond their control.)

The issue is God's intent in creating human sexuality- which leaders to the real underlying issue, namely, how do we know what God wants?

In truth, it is the divergence between the classical Christian view and the more subjectivist progressive view which is being debated. Sexuality is just a very volatile and emotionally charged medium for what amounts to a foundational theological debate.

[Dean Snyder]

John

You are right that the "innate vs. choice" discussion is not as simple as I stated it. Also, I agree that the meaning and significance of sexuality is a core issue here.

For example: If sexuality is meant to be an expression of love and commitment, and if, for a percentage of our sisters and brothers such love is only possibile within a same-sex relationship,then an acceptance of same-sex relationships is necessary to fulfill the meaning and purpose of sexuality.

It is not just that sexual orientation is innate; it is that honoring our sexual orientation is necessary to fulfill the deeper meaning of sexuality.

I am suggesting that in order to make possible the kinds of behavior we want in clergy --faithfulness, honoring our commitments, loving our partners, openness -- we need to recognize and respect same-sex relationships.

I assume these kinds of qualities are what God wants, although I think we all need to be cautious in defining what God wants in others while working like the dickens to figure out what God wants in me.

I appreciate this discussion. Hope you and your wife are well.
Dean

[John Wilks]

Dean,

Laurie and I are well. Thank you very much for asking!

To your response, well, there are a lot of "if" clauses hanging there, are there not?

So when I say this is a theological issue, what I mean is that we need to clarify these "ifs" you are working with. What is God's intent in creating human sexuality? Is orientation static? If not, what does it take for a change to occur?

Even in your own postings, you speak eloquently about commitments and innate traits. And yet do you not push for not just committed monogamous gay and lesbian inclusion, but also full LGBT inclusion? Where do we draw the line? Is a multiple-partner relationship OK? (After all, bisexuality and monogamy hardly go together.) And what of someone being born physically one gender and choosing to become another? So there is more going on than just embracing faithful relationships here.

I certainly appreciate your appeal to tolerance in that paragraph about discerning what God wants in the self versus what God might want in others. And in terms of living in a free society, I take a "live and let live" attitude myself.

At the same time, human sexuality is a not a foundational issue in theology but a secondary one. What we think about sexuality reveals what we think about Our Creator and our traditions and our Scriptures. So when we debate this issue, we are really touching on something even deeper. I'd like to see the discussion moved to that theological level so we can figure out if there is room for renewed unity, if so how to achieve it, and if not how to restructure for the benefit of all.

But continuing the dialog on this level leads to circular arguments. Our theological differences leads both sides to taking certain things for granted (like the purpose and nature God's intent for sexuality.) I do not wish to continue rehashing this same ground with the same results. Unless and until we come to agree on the underlying issues, we can never agree on the surface issue.

[Dean Snyder]

John:

What would be a theological conversation? The interpretation of Scripture? This seems to me to be an area where we make little progress. What would move us ahead?
Dean

[John Wilks]

Dean,

Certainly what we think about Scripture and how God communicates with us in general and what the nature of God is are all issues that make up our varied stances on human sexuality. So if unity or compromise can be found, it must be found on that level. For a change of anyone's mind about sexuality will require a shift in the underlying issues.

As to the really pressing question, what can move us ahead, well, I haven't any answers. Heck, I'm not sure what "moving ahead" looks like. I'm pretty sure that when either side speaks of "moving ahead" they mean their ideas winning out. But I don't see any sign of either side backing off their position.

And really that is what bothers me about this debate. I do not want a split- at the same time, I doubt we're going to see agreement on this issue- and more problematically, no agreement on the basic theological issues which cause this debate in the first place.

So how do we make a move that allows all parties to be faithful to their convictions and yet maintains our unity?

I am afraid the differences run so deep that such a compromise measure may not be found. And if my fears are well founded, that is sad indeed. For I have come to deeply respect most of the liberal/progressives I know, yourself most definitely included, even though I do not agree with where your theology takes you and cannot in good conscious follow.

[Dean Snyder]

John

If I understand it correctly, the Lutherans decided to allow clergy the option of deciding whether or not to celebrate holy unions. They came within a few votes of allowing synods the option of ordaining and employing gay clergy in committed relationships.

It seems clear to me that some of our differences are geographically and culturally influenced. Those of us in areas with a relatively significant presence of gay folk see them living good lives with sincere piety and exercising quality leadership in our congregations. We see many gay relationships that (without much societal support) are loving and stable.

Our response is: Can anyone withhold the water for baptizing these people (or for receiving them into membership or ordaining those who have a call and gifts and graces for ministry) who have received the Holy Spirit just as we have?

Of course, in all honesty, I believe that 30 years from now openly gay and lesbian clergy and church leaders will be no more unusual than clergywomen are today. (In fact, I sometimes remind some of my gay and lesbian friends that 30 years from now many gay folk will have forgotten how the Bible was used to exclude them and many will be biblical literalists. We will all just have stopped attending to those few passages of Scripture that do not understand sexual orientation. We will do this in the same way we have stopped attending to many other passages because we understand unconscioualy or consciously --even literalists do-- that these few passages represent a different time and understanding.)

But the question in the meantime is what you who are in different geographical and cultural settings from us will or will not allow us do in the way of ministry with gay and lesbian folk.

Can't you allow the option of us celebrating holy unions even if you choose not to? Can't you allow the option of some conferences choosing to ordain gay folk in committed relationships even if other conferences choose not to?

It is not that we need you to agree with us for now (in all honesty I think the church eventually will and I work toward that goal; eventually I do want you to agree with us), but in the meantime do you need to tie our hands so severely in doing ministry with those whom God has given us to serve?

What do you think?
Dean