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Judicial Council Memorandum: Petitions for Reconsideration of Decision 1032

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    http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1120&JDMOD=VWD&SN=1001&EN=1042 Memorandum No. 1041 In Re: Petitions for Reconsideration of Decision
    Message 1 of 1 , May 2, 2006

      Memorandum No. 1041

      In Re: Petitions for Reconsideration of Decision 1032.

      Friday, April 28, 2006.

      The petitions for reconsideration of Decision 1032 filed by Bishop
      Charlene P. Kammerer, presiding bishop of the Virginia Conference, and
      by the Board of Ordained Ministry of the Virginia Conference are denied.

      April 28, 2006

      Concurring Opinion

      A petition for reconsideration of a decision of the Judicial Council
      does not present the parties to a proceeding a second opportunity to
      persuade the members of the Judicial Council on how a matter should be
      decided. Rule VIII (A) of the Rules of Practice and Procedure of the
      Judicial Council states,

      Whenever a decision of the Judicial Council is shown clearly to be
      in error, or in order to prevent a manifest injustice resulting from
      the interpretation of a Judicial Council decision, the Judicial
      Council on its own motion, or on a petition filed by a party to the
      proceedings, may, by a majority vote, reconsider any ruling or action
      taken by it.

      We join with our colleagues who have voted to deny the petition for
      reconsideration in this matter because the petitioners for
      reconsideration have not shown Decision 1032 clearly to be in error
      nor have they shown that reconsideration of the Decision is necessary
      to prevent a manifest injustice resulting from the interpretation of
      the Decision.

      We recognize that the issues presented in Decision 1032 are
      controversial in nature and the subject of heated debate long before
      they reached the Judicial Council. The role of the Judicial Council in
      a case such as Decision 1032 is to review the decision of law made by
      a bishop and to determine whether the bishop's decision conforms to
      the Book of Discipline and the decisions of the Judicial Council. In
      Decision 1032, the Judicial Council determined that the bishop's
      decision of law did not conform to the Book of Discipline and
      therefore reversed the bishop's decision of law. The Council proceeded
      to apply and interpret the Discipline in response to the question of
      law posed.

      Twenty-two briefs were filed with the Judicial Council prior to
      Decision 1032, representing the diversity of positions on the
      substance of the questions before the Council. The issues were
      thoroughly briefed and ably argued. The Council conducted oral
      hearings in the matter because of the diversity of positions taken on
      the questions presented. The issues were fully debated within the
      Council and the Council rendered its decision. The twelve briefs and
      the more than 2000 communications filed with the Judicial Council on
      the petitions for reconsideration, again reflecting the diversity of
      positions on the issues before the Council, have not persuaded us that
      the Council erred in Decision 1032.

      In our considered opinion, it is time for the issues addressed in
      Decision 1032 to now be debated by The United Methodist Church as is
      occurring. The presiding bishop fulfilled her disciplinary
      responsibilities when she responded to the questions of law. The
      Judicial Council has fulfilled its disciplinary responsibilities in
      reviewing the decisions of law rendered. We disagree with those in the
      minority who cavalierly assert that the Judicial Council has somehow
      exceeded its role in precisely fulfilling that role. The role of the
      Judicial Council is to interpret the Discipline and to apply its
      provisions to the scenarios that are presented. In Decision 1032, the
      Council has interpreted relevant provisions of the Discipline and
      applied them to the scenario posed to it.

      We disagree with those in the minority who assert that further debate
      before the Judicial Council will be healing for The United Methodist
      Church. Rather, we believe that reopening this matter, especially
      where no grounds have been demonstrated to do so, will further
      polarize the various parts of the church. We have arrived at this view
      with great respect and admiration for those who disagree with us in
      the minority.

      We continue to affirm 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 (Para. 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. As
      noted in the concurring opinion filed by Keith Boyette in Decision No.
      1032, we also affirm that the discretion of the pastor-in-charge must
      be exercised consistent with Para. 4 of the Discipline, Article IV of
      the Constitution. Paragraph 4 declares who is eligible for membership,
      but does not create an entitlement to membership. The Discipline,
      throughout the sections dealing with membership, imposes conditions
      that must be satisfied as preconditions to membership. A person may be
      eligible for membership under Para. 4 of the Discipline and yet still
      be required to meet the preconditions to membership enumerated in the

      James W. Holsinger, Jr.
      Mary A. Daffin
      Keith D. Boyette

      Dissenting Opinion

      We join in the dissent with Jon Gray and Beth Capen, and write
      separately. We want to express appreciation for the judicial prudence
      and wisdom expressed by our colleagues in the minority.

      We vehemently dissent from our colleagues in the majority who have
      denied the request for reconsideration and thereby upheld Decision
      1032. We deeply regret the denial of reconsideration because it
      further advances a spirit of distrust and contributes to the
      brokenness of the church. Election to the Judicial Council is a sacred
      trust. The Judicial Council is imbued with and carries the
      responsibility for upholding both the spirit and the letter of the
      law. While reconsideration may not have changed the minds of those in
      the majority it would have shown a genuine effort to hold the Church
      and the body of Christ together while attempting to work through
      difficult issues. A vote for reconsideration would have allowed more
      time to bring deeper understanding and healing. This rigidity of mind
      in the Council is detrimental to the Church.

      As well as being a legally flawed decision, over-reaching and
      imprudent, Decision 1032 creates grave theological problems. It is
      most troubling in its departure from the most essential tenets of
      Methodist ecclesiology. This decision has the potential to threaten
      some of the fundamental principles of the tradition articulated in The
      Book of Discipline, in the Sermons of John Wesley, the Explanatory
      Notes Upon the New Testament, and the General Rules of the Methodist
      Church. In addition, as was noted in the Henry-Crowe dissent on
      Decision 1032, Para. 4 of the Constitution is violated. This paragraph
      is a theological statement affirming openness and inclusivity.

      One of the distinguishing marks of the Christian faith, as expressed
      in Methodism, is the primacy and sufficiency of God's grace, offered
      to all, and most especially, in the sacraments of Baptism and
      Eucharist. Through the sacrament of baptism, Christ's invitation to
      full participation in the life of the Church for any and all baptized
      Christians is the gift that is offered. (Note: Para. 103 Section 3 -
      The Articles of Religion - Of Baptism, Article VI of the Confession of
      Faith - The Sacraments.)

      Season after season, we hear the words of Invitation to Communion
      offered by the pastor/celebrant in the following words, "Christ
      invites to his Table. . ." The invitation and the gift of Christ are
      extended by the pastor. . It is Christ's invitation, not ours.
      Theologically, and as well as disciplinarily, the pastor has no
      discretion to exclude anyone from membership or the sacraments of
      Baptism and Eucharistic because it is not his/her invitation. It is
      Christ's. Therefore, all who present themselves for Baptism,
      Eucharistic and reception into the Church are joyfully welcomed. This
      invitation is to worship, to receive the Sacraments of Baptism and
      Eucharist, to take the vows declaring the Christian faith, and to
      enter into the life and mission of the Church through membership.

      The Discipline in Para. 340 clearly states: "Elders have a four-fold
      ministry of Word, Sacrament, Order and Service within the connection
      and thus serve in the church and the world." The sub-paragraphs
      following outline the areas of responsibility including: Word and
      ecclesial acts, Sacrament, Order and Service. The vocation of ministry
      is a gift given by Christ and entrusted by the Church. This vocation
      cannot be a vocation of denial but rather a vocation of extending
      God's love and looking for evidences of the work of the Holy Spirit.
      Determining who is eligible for life in the Church is not the vocation
      of the pastor. It is the Holy Spirit who makes us members of the
      Church. Touched by the Holy Spirit one comes to believe in and worship
      Jesus Christ. It is Christ who makes us members of the body. We then
      want to share communion with other Christians giving us the desire to
      join. For the pastor to deny membership is to present obstacles to the
      work of the Holy Spirit. This denial is dangerous and does not serve
      the work of evangelism. If a pastor refuses to receive someone into
      membership he/she is substituting him/herself for Christ's role. By
      deciding who becomes a member or who does not the pastor is making
      him/herself his own association or church. This is not the Church. It
      is a gift to bear witness to the work of the Holy Spirit and Christ's
      redeeming love in the world through Christ's church.

      At times, in the Church there is a tendency to see the Discipline as
      superseding Scripture. The Constitution as contained in the Book of
      Discipline has to be the measure by which we apply the Bible. The
      Constitution should not be in conflict with the Bible. If the
      Discipline violates the Bible then the Church is no longer Christ's
      church but rather a mere association of men and women.

      While profoundly disagreeing with the majority, we are committed to be
      in relationship with them and those who share their opinion. No one
      should pastorally or prophetically abandon fellow Christians. The
      unspeakable pain that this decision causes calls for repentance and
      prayer which will lead to healing. The cause of Christ's Church and
      Christ's hospitality, openness, generosity, justice and righteousness
      are the principles at stake.

      Susan T. Henry-Crowe
      Shamwange P. Kyungu (Paul)

      Jon R. Gray and Beth Capen join in this dissent.

      Dissenting Opinion

      We favor reconsideration of Decision 1032 and we continue to dissent
      from the majority's pronouncement. We join the dissent of our
      colleagues, Susan Henry-Crowe and Shamwange P. Kyungu (Paul), but
      write separately to offer legal reasons why we differ with the majority.

      The role of the Judicial Council is to interpret disciplinary
      provisions from a legal standpoint. The pronouncements contained in
      Decision 1032 concerning "discretion" and "responsible pastoral
      judgment" have abandoned all traditional notions of interpretive
      restraint. We are not unaware that Decision 1032 has been received as
      a clarion call by many who read the Judicial Council's decisions and
      maintain a list of wins and losses. It is not the Judicial Council's
      function to deliver wins and losses but to interpret disciplinary
      provisions. A Latin phrase says it succinctly and best: Jus dicere,
      non-dare. To declare law, not make it.

      In Decision 1032, the Judicial Council has created new law heretofore
      unknown and in our judgment uncontemplated by any previous General
      Conference. The Judicial Council has often rendered decisions of
      general interest on volatile issues. When the Judicial Council renders
      decisions based upon legal reasoning and established precedent, its
      decisions are generally accorded respect and finality. Respect for
      Judicial Council decisions does not spring from unanimous agreement
      among those who carefully parse the content of those decisions but
      rather, springs from respect for the role of the Judicial Council and
      confidence in its adherence to established precedent and sound
      reasoning. Decisions that are made by Judicial Council acting outside
      its traditional role are not regarded with the same legitimacy. Such
      decisions undermine respect for judicial process. The result is less
      institutional confidence in the integrity of the judicial process.

      Separation of powers is a time-honored doctrine that has served our
      connection well. The General Conference would be unwise to attempt to
      execute Episcopal functions. Bishops do not participate in the
      legislative process as they are not eligible to vote at the General
      Conference. It follows that the Judicial Council should not, under our
      system of governance, attempt to create law by legislating from the
      bench. Judicial activism, like beauty, is in the eye of the beholder.
      Decision 1032 is an example of judicial activism of the rankest order.

      We favor reconsideration of Decision 1032 because it is clearly in
      error. The Book of Discipline is silent on the issue of "responsible
      pastoral judgment." Our task would have been complete had we merely
      said so. It would have been better for the Judicial Council to provide
      no guidance on the question than to provide the poor guidance of
      Decision 1032. Reconsideration of Decision 1032 would permit the
      Judicial Council to prevent manifest injustice resulting from its
      interpretation. Upon reconsideration, the Judicial Council would have
      the opportunity to review the issues presented with a greater
      understanding of its unintended consequences and its deleterious
      impact on our institutional fabric. We should remain cognizant that
      our decision not only applies to the parties who brought this question
      but has now been elevated to the point of law across the entire
      connection. There are other compelling reasons why reconsideration is
      mandated by these circumstances. The majority has decreed that pastors
      have "discretion" and by doing so has assumed and usurped powers
      specifically reserved to the General Conference. The grant of
      discretion is a legislative and not a judicial prerogative. The
      majority's concoction of pastoral "discretion" outside of the
      established legislative processes of our system has created a perverse
      structural anomaly that does violence to our system of governance.

      The continued viability of our system of checks and balances is
      threatened whenever one branch acts in excess of its powers. Decision
      1032 is a blatant and unprecedented usurpation of legislative
      authority. This issue needs to be resolved by the General Conference
      at its next session.

      Jus dicere, non-dare. To declare law, not make it.

      We dissent from the denial of reconsideration.

      Jon R. Gray
      Beth Capen

      Susan T. Henry-Crowe and Shamwange P. Kyungu (Paul) join in this dissent
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