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September 2, 1998
"The right of everyone to dissent is in jeopardy when the right of anyone is denied." United Methodist Resolution on "The Rule of Law and the Right of Dissent" 1968
At its 1998 session, the Oregon-Idaho Conference adopted this resolution:
We, the members of the Oregon-Idaho Annual Conference, request that the Judicial Council, acting under the authority of paragraph 2616, make a declaratory decision about the constitutionality of the sentence, "Ceremonies that celebrate homosexual unions shall not be conducted by our ministers and shall not be conducted in our churches," which was added to Paragraph 65-C of the Social Principles by the 1996 General Conference. We ask:
In the absence of a definition by the General Conference, does the ordinary meaning of the word "status" apply in Paragraphs 4 and 15.14 of the Constitution?
Does one's sexual orientation constitute a status?
Do the Constitutional provisions of Paragraphs 4 and 15.14 apply regardless of sexual orientation?
Can a class of people who are described only by their sexual orientation be denied a ministry of the church?
The paragraphs of the Constitution:
Paragraph 4. Article IV. Inclusiveness of the Church--The United Methodist Church is a part of the church universal, which is one Body in Christ. Therefore all persons, without regard to race, color, national origin, status, or economic condition, shall be eligible to attend its worship services, to participate in its programs, and, when they take the appropriate vows, to be admitted into its membership in any local church in the connection. 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.
Paragraph 15. Article IV.--The General Conference shall have full legislative power over all matters distinctively connectional, and in the exercise of this power shall have authority as follows:
14. To secure the rights and privileges of membership in all agencies, programs, and institutions in The United Methodist Church regardless of race or status.
The nature of these requests, which impact the conduct of annual conferences in judicial proceedings for holding clergy accountable to the order and discipline of the church, and General Conference requirements for the conduct of clergy are appropriately before the Judicial Council.
The General Conference or the Annual Conference may define the term "status." The Judicial Council does not need to establish a definition of the term (See Decision 722). Ordinarily the Judicial Council does not define terms used by the General Conference.
The Constitution of The United Methodist Church is meant to be even-handed, to treat people of every kind with justice and fairness. The task of the Judicial Council is to hold The United Methodist Church to the language of the Constitution which interprets this intention.
Paragraph 15.14 was placed in the Constitution to guard against prejudicial or unfair treatment of people based, not on their character, but on a social category. In The United Methodist Church neither race nor any other status is to be singled out as a target for less than even-handed treatment. Par. 15.14 has been the key text invoked to prevent the General Conference, Annual Conferences, agencies and institutions of The United Methodist Church from establishing barriers to full inclusion of persons based on race.
Whether or not the Judicial Council claims that the ordinary definition of the word "status" applies to decisions related to Par. IV or to Par. 15.14, an intent is present. The gospel of Jesus Christ is open to all persons. Therefore The United Methodist Church is open to all persons.
Judgments about a person based on categories or descriptions that result in barriers to "rights and privileges of membership in all agencies, programs, and institutions of The United Methodist Church" are unconstitutional. Fair ecclesiastical discernment about a person, for instance, a decision about readiness for baptism or ordination, or a choice about suitability for holding office in the church, is to be specific to that person.
Paragraph IV goes beyond Par. 15.14 by amplifying additional categories, sometimes used for prejudicial treatment, that are not to be used as barriers to full inclusion in The United Methodist Church. To race and status are added color, national origin, and economic condition.
In Par. IV the second sentence expands the scope of inclusiveness to constituents and non-members. They are "eligible to attend its worship services, to participate in its programs, and, when they take the appropriate vows, to be admitted into its membership in any local church in the connection."
The third sentence of Par. IV establishes that the Constitution prevents not only local churches but also institutional church structures from excluding either members or "any constituent body of the Church." The intent of this language may be representative, to protect all groups from discrimination, including some not listed, such as persons with handicapping conditions.
Even if the language were interpreted as being specific only to the categories of race, color, national origin, status, or economic condition, the Constitution sets barriers to discrimination. Membership gives rights and privileges. There is to be no discrimination giving certain rights and privileges to some and not others. Likewise every friend and constituent is eligible to attend worship services and participate in programs. Local churches, conferences, and organizational units of the Church may not be structured so as to exclude.
The Constitution protects the rights of members and constituents from discrimination and oppression in regard to their participation in the life of The United Methodist Church. It falls upon the JC to uphold the Constitution in determining the application of General Conference legislation and whether categories of persons are to be included or excluded from constitutional protection.
To protect people from discrimination we have to be able to recognize it; to comprehend the application and effect of church laws, policies and practices; and, if discrimination is found, to provide legal redress.
This brief takes a close look at five questions pertinent to this decision. A) How do we recognize discrimination? B) How shall we apply the constitutional protection of rights established in Par. IV and Par. 15.14 to be able to discern whether or not sexual orientation is a protected status? C) What are United Methodist sources for rejecting discrimination on the basis of sexual orientation? D) How shall we make difficult moral choices? E) How shall we protect the integrity of different worldviews living under one United Methodist roof and provide redress of grievances?
This is the language being put to the constitutional test for fairness:
"Ceremonies that celebrate homosexual unions shall not be conducted by our ministers and shall not be conducted in our churches."
At the outset, Affirmation notes that the term "homosexual unions" is not our language. We assume that the term "homosexual unions" means unions for homosexual persons. Either we are not dealing with homosexual persons, or we are; and if we are, we have a category or status of persons about which particular legislation is written. We believe that this legislation was meant to apply to homosexual persons.
We assume that homosexual unions mean ceremonies that approximate marriages. They do not include funerals, anniversaries, or joys and concerns celebrated in a local church.
Three questions can aid us in discerning whether or not laws are fair, and whether or not a group of people is being targeted by discriminatory legislation.
Was the process for making the law open and fair? Did everyone have an equal say and the ability to participate in the decision making when the law was written? Were those people making the law representative of some groups but not of others who have to follow the law?
No. With one exception, out gay and lesbian people were not delegates with voice or vote at the 1996 General Conference being heard in the debate on this piece of legislation. The Daily Christian Advocate does not provide evidence that any out gay or lesbian person spoke when this legislation was before the conference.
Does the law treat all people fairly? Is it written to single out a group of people for exclusion or violation of their rights? Yes, it singles out homosexual persons. It establishes a ban on a particular kind of union for persons identified solely by sexual orientation.
Dr. Martin Luther King, Jr. wrote: "An unjust law is a code that a majority inflicts on a minority that is not binding on itself. This is difference made legal. On the other hand, a just law is a code that a majority compels a minority to follow that it is willing to follow itself. This is sameness made legal."
Dr. King's observation is not complete when dealing with sexual orientation. Because not all people have the same sexual orientation, legislating for sameness legislates with difference.
Discrimination writes laws to control the behavior of specific groups of people. Although a discriminatory law may appear on the surface to apply to all people, in application it requires more sacrifice on the part of a particular group of people.
When we are dealing with sexual orientation, the equation for fairness cannot be based on whether a ban on homosexual unions is equally applied to all persons. It must be formulated on whether persons making covenants and promises of love to one another are given equal opportunity to do so. When we deal with sexual orientation, fairness needs to allow for difference in sexual orientation.
Is the law fairly administered? Are people from some groups required to pay the consequences more frequently than are people from other groups? It may be that attempts to stop homosexual unions are pursued with equal vigor, but equal efforts have not been made to prohibit opposite gender unions.
Several statements have been written into the Discipline that are specifically discriminatory in regard to the sexual orientation of persons.
The Social Principles contain a statement saying that United Methodists do not "condone the practice of homosexuality." The Discipline contains a prohibition against funding general church programs that "promote the acceptance of homosexuality." The Discipline does not permit the ordination or appointment of "self-avowed practicing homosexuals."
The Book of Discipline of The United Methodist Church singles out no other category or class of persons for special discrimination or special disqualification of the rights, privileges and opportunities of church membership.
The number of requests for decisions on these items sent to the Judicial Council indicates that these laws are meant to exclude a category of people who are identified by sexual orientation. Each one of these additions to the Discipline about homosexuality has been contested. At least nine decisions about these four pieces of legislation have been rendered as the church has tried to find ways to deny ministries of the church to people on the basis of their sexual orientation: 65.G (Decision 702); 302.2 (Decision 542); 302.3 (Decisions 702, 708, 722, 725, 764); 806.12 (Decisions 491, 597).
The 1996 General Conference added to Par. 65.C, "Ceremonies that celebrate homosexual unions shall not be conducted by our ministers and shall not be conducted in our churches." This, too, has been contested: 65.C (Decision 833, preceded by related Decision 694).
The Constitution of The United Methodist Church has no provision that allows sexual orientation to be singled out as a unique category for exclusion or denial of rights.
The request for a declaratory decision asks whether the rights of United Methodists are protected regardless of sexual orientation. We look at the judicial history of the application of Par. IV and 15.14 and explore the basis for a decision that can hold a hurting church together in this time.
The term "status" seems to have a history of two different kinds of application. Most frequently, status has been used to inquire about the lines of relationship, standing, and accountability of people in a certain category, often ministerial, created by church law. For this use of the term, if the church creates legislation that effects a category of people, the rules themselves seem to create a status. The Discipline contains specific guidelines and rules about homosexuality and homosexual unions. The effect of these statements is that they establish that sexual orientation is a status.
Less frequently, status has been applied to social categories recognized in society at large, such as marital status. This is what we examine next as we compare the history of the Judicial Council's use of these two concepts of status.
Review of the use of the term "status."
Status is used in reference to categories of "standing" or "relationship" five times.
Decision 303 refers to the status of a retired bishop.
Decision 334 is about the status, not of people, but of an Annual Conference audit when the fiscal year is in transition.
Decision 500 concluded that pastors have no ex-officio status on the local church Board of Trustees or the Pastor-Parish Relations Committee.
Decision 606 is about the status of ministers from other Annual Conferences and other Methodist denominations who are appointed in an Annual Conference.
Decision 764 is about the status of a ministerial member who was voted to be continued on leave of absence.
The word "status" in Par. 4 and 15.14 may be about the relationship of persons to various bodies of the church. The cases above deal with internal relationships in which the church presumes that the people involved have rights. In all these cases persons have some rights and privileges. Status is applied to people already clearly in the system because the church has created a category for them, such as retired bishops, or pastors. The Judicial Council has used the term "status" for the purpose of ascertaining whether a person's rights have been denied. Yet these cases do not deal with the exclusion of a category of persons from the ministries of the church.
Status is used less frequently, but perhaps more substantively, in reference to social categories, especially marital status. Unlike race, which is part of our identity by birth, marriage is open to choice. Yet once assumed, it becomes a part of one's identity, part of one's way of being in life. Marital status provides a context in which living and loving are part of one whole. Marital status is about a basic way in which an individual's own identity is shaped while at the same time it is a lens through which people are socially labeled and placed in a category.
The Judicial Council ruled in Decision 317 that "A Board of Ministry of an Annual Conference may not deny approval of a candidate for probationary membership on the basis of marital status or the ministerial occupation of a spouse."
In Decision 404, Par. 15.14 was applied to a case of perceived injustice based on marital status. When Gertrude Sorlien sought ordination and appointment, most Methodists thought that a married woman should yield employment to follow her husband. Mrs. Sorlien wanted to be in ministry with her husband.
The Judicial Council ruled: "Complying with strict construction could amount to an unconstitutional deprivation of the rights of Mrs. Sorlien as a member of The United Methodist Church under 15.14 "To secure the rights and privileges of membership in all agencies, programs and institutions of The United Methodist Church regardless of race or status."
In 1982 the Judicial Council issued Decision 513. At that time the church did not have any "provision making same sex orientation a disqualification for ordination." Without such a provision the decision stated, "The Annual Conference decides whether to ordain eligible persons and admit them to full membership." In 1984 General Conference legislation, using the terminology "self-avowed practicing homosexual," created a legal category based on sexual orientation.
Decision 544 tested the constitutionality of Par. 402.2. The Judicial Council based its decision on the authority of the General Conference to establish minimum standards for the ministry of the church. The decision stated: "The prohibition of an appointment must be exercised in compliance with the rights of all persons who are in full membership."
James M. Dolliver's concurring opinion (also signed by Tom Matheny) to Decision 544, stated that Par. 402.2, (1984-1992, 302.2 in 1996) by establishing the criteria of "self-avowed practicing homosexual," did not discriminate on the basis of sexual orientation. Dolliver wrote, "While, arguably, to be homosexual is to be within a protected 'status' under Par. 15.14, I do not read Par. 402.2 to be directed toward that characteristic. It does not per se bar homosexual persons from the ordained ministry of The United Methodist Church. Rather Par. 402.2 is directed toward those persons who are 'self-avowed practicing homosexuals,' which is an entirely different matter." Dolliver concurred with the majority that "on its face, Par. 402.2 is constitutional." The Judicial Council did not, at that time, rule on an issue mentioned in the concurring opinion, whether "to be homosexual is to be within a protected 'status' under Par. 15.14."
Judicial Council Decision 702 ruled on the status of a person approved by the Annual Conference clergy session as a clergy member but who is considered under Par. 402.2 to be ineligible for appointment by the bishop. The Judicial Council determined that the words "status" and "self-avowed practicing homosexual" must be defined by either the General Conference or the various Annual Conferences before a prohibition of an appointment could be exercised. Some Annual Conferences have adopted definitions. The General Conference has not completed the task of defining these terms.
A concurring opinion was filed citing Par. 15.14. The concurring opinion clarified Decision 702 by stating:
There is no evidence that the word "status" was intended to include the clergy status of a self-avowed practicing homosexual.
There is no evidence in the legislative history that the word "status" does not include the clergy status of a self-avowed practicing homosexual.
It is obvious that if the normal definition of "status is used, it would be all-inclusive.
The word "status" is not defined either in the legislative process or in the Discipline.
Paragraphs 4 and 15.14 of the constitution are written to uphold the rights of categories of persons known in the culture. Social categories include race, marital status, handicapping conditions, economic status, and sexual orientation. The church did not imagine, determine or create the category of homosexual. That's why it is a social category existing outside as well as inside the church. This kind of status is what Paragraphs 4 and 15.14 are about. Marital status, race and sexual orientation exist with or without the church. When laws are written in the Discipline to exclude persons on the basis of these categories, Paragraphs 4 and 15.14 hold the church accountable to its constitutional protection of rights. The General Conference doesn't have right to discriminate based on status.
The term "status" is in Paragraphs 4 and 15.14 to be invoked in situations in which people are excluded categorically. The protection of "status" is there to help the church avoid excluding people on the basis of distinctions that society makes.
The church does not make distinctions based on social category because if it did, it might want to presume to make judgments about who are sinners and who are not; between categories of people who are more righteous and those who are less righteous. The church does not make this distinction because the Bible says that all are sinners.
Biblical precedent. If Christians had existed in Old Testament times and passed a rule that no murderer could be a religious leader, Moses would have been disqualified. If early Christians had ruled that no accomplice to murder could be a leader, they would not have had the gifts that Paul brought to the church. If woman to woman love had been cause for exclusion, Ruth and Naomi might have been run out of Bethlehem. If man to man love meant that a person could not be a leader, David would have never been king. According to Matthew these were Jesus' ancestors, genetically or spiritually, except for Paul, who was a missionary for Jesus.
These people have been witnesses for God. If they had been disqualified we would all be spiritually poorer. It is wrong to set categories that exclude all persons in a particular category. The United Methodist constitution should be interpreted to protect against discrimination on the basis of sexual orientation.
Baptism is inclusive. Not only do Christians "renounce the spiritual forces of wickedness, reject the evil powers of this world and repent of [their] sin," but they also agree to "accept the freedom and power God gives [them] to resist evil, injustice, and oppression in whatever forms they present themselves."
The Judicial Council has a responsibility to protect The United Methodist Church from itself, it's own inclinations to set up forms of discrimination that perpetuate injustice, even if the church can justify and rationalize these systems.
The ministry and mission of the church are inclusive. This is what the church declares in Par. 117:
"We recognize that God made all creation and saw that it was good. As a diverse people of God who bring special gifts and evidences of God's grace to the unity of the Church and to society, we are called to be faithful to the example of Jesus' ministry to all persons.
"Inclusiveness means openness, acceptance, and support that enables all persons to participate in the life of the Church, the community, and the world. Thus, inclusiveness denies every semblance of discrimination.
"The mark of an inclusive society is one in which all persons are open, welcoming, fully accepting, and supporting of all other persons, enabling them to participate fully in the life of the church, the community, and the world. [Italics added.] A further mark of inclusiveness is the setting of church activities in facilities accessible to persons with disabilities.
"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."
The term "all persons" does not appear to exclude people whose adult loving is shared with a partner of the same gender.
The Social Principles protect equal rights regardless of sexual orientation.
The Discipline of The United Methodist Church has guidelines for the conduct of United Methodists in protecting "Equal Rights Regardless of Sexual Orientation." Par. 66.H says, "Certain basic human rights and civil liberties are due all persons. We are committed to supporting those rights and liberties for homosexual persons."
The Discipline lifts up concerns for the legal rights of same-gender couples.
"We see a clear issue of simple justice in protecting their rightful claims where they have shared material resources, pensions, guardian relationships, mutual powers of attorney, and other such lawful claims typically attendant to contractual relationships that involve shared contributions, responsibilities, and liabilities, and equal protection before the law."
The church has declared that where there are shared contributions, responsibilities and liabilities, United Methodists uphold the rightful claims of people, regardless of sexual orientation, to enter into contracts and have these contracts honored.
This may mean that the church encourages United Methodists to support the legal relationships of same-gender couples without acknowledging the relationships themselves. Hopefully the church cares as much about people and their meaningful relationships as it does about legal contracts.
Moral Responsibility Does Not Deny Rights
There are both responsible and irresponsible people of every race and status, of every ethnic group and nationality, of each gender and every sexual orientation. The church does need to separate wheat from chaff in terms of character and qualification in various settings. The constitution guides this process.
It is not fair to set a standard based on attainment of a status that is an option available for some but not for all people. It is not fair to set a standard that hinges on marriage when marriage is not accessible as an option for all people.
No church marries people. Marriage is a legal act of the state for which the state has authorized clergy to be representatives of the state. Technically speaking, the church's interest in the matter is the covenanting process, the vows and promises spoken. Socially speaking, what matters to most families is that sense that the church is blessing the promises of love. The church does not do anything to make this love happen. Speaking theologically, the church is celebrating God's love that is known to us in the human experience of loving. Ideally, the power of two people loving makes them both stronger so that their love overflows and blesses the community.
It would be a foolish capitulation of the power and authority of the church and the gospel of Jesus Christ for the church to limit its rituals, ceremonies and celebrations to those that the state authorizes. The church surrenders a piece of its theological role if it establishes a ban on homosexual unions for this reason.
Nagging questions about selecting sexual orientation to be a status for exclusion.
Should the church assume the role of determining who can marry and who cannot? Even the State of Alaska has decided that states should not be the parties to make such a decision. That decision rightfully belongs with those who are of age and want to marry.
Should the General Conference decide who should and who should not be allowed the benefit of rituals and ceremonies of the church? That decision historically belongs to the pastor of a congregation. In the case of marriage, pastors exercise judgment in individual cases and can elect to perform a ceremony or not. This decision is based on the pastor's understanding of the situation particular to the couple that comes to them. In the same way, pastors should exercise judgment about performing covenant services or other celebration ceremonies on a case by case basis.
Should the church be allowed to declare that all rituals of the church are open to all persons, and that no class of people are to be excluded from any of them, with the exception of descriptors based on sexual orientation that must be met for two rituals? The boundary lines have been drawn this way around covenant services and ordination. Other rituals do not discriminate: baptism, church membership, holy communion, and funerals. The United Methodist Church permits no barriers of status to curtail administration of its sacraments of baptism and holy communion.
Human sexuality is not a divine joke.
The Committee to Study Homosexuality reported to the 1992 General Conference things that the church can and cannot responsibly teach. The committee said, "The church cannot teach that gay and lesbian persons are generally dysfunctional or characteristically preoccupied with sex.... The church cannot teach that sexual orientation, either heterosexual or homosexual, is deliberately chosen." The committee also agreed that "There are substantial numbers of persons of homosexual orientation within the church whose gifts and graces manifest the work of the Spirit among us."
The committee said that the church can responsibly teach that "Sexual expression is most profoundly human when it takes place in the context of a caring and committed relationship where each partner can be an expression of God's grace for the other." To attempt to rule that one, and only one, category of people, described only by sexual orientation, is excluded from the church community at the point of making a caring and committed relationship public not only cuts people off from the church. It also severs the church from some of God's people. This kind of pruning cuts a taproot.
The question under scrutiny in this case is whether a class of people, defined only by sexual orientation, have their rights protected under the constitution of the United Methodist Church.
Human sexuality is part of one's identity. It is about attractions. Everyone has sexuality. Sexual orientation is part of the way a person looks at the world, part of what shapes human identity.
Factors that shape human identity are complex. They include gender and race, family and relationships, geography and sexual orientation. We are shaped by what others see, respond to, and call forth from us. We are shaped by how we feel and how we understand our calling.
If we were to say that people with same-sex orientation have good identity and people with opposite sex orientation have a dangerous or bad identity, that would unfairly single out heterosexual persons for oppression. It would not be fair to say that one group can "practice" their identity but that others cannot. Can you believe in a God who would create some people with a good sexual identity and others with a bad one? That would be a cruel divine joke!
The church has agreed to say that we are all children of God. Our desire to be responsible to God shapes our identity.
The 1996 General Conference added to Par. 65.C, "Ceremonies that celebrate homosexual unions shall not be conducted by our ministers and shall not be conducted in our churches."
Now this legislation is before you for a constitutional test. Does it single out a group of people for discrimination? YES. On the basis of sexual orientation, are some people denied access to sacraments, rituals, or ordinances of the church? YES. Does the constitution permit such barriers to be erected? NO. This legislation is not fair.
Will The United Methodist Church allow the General Conference to legislate exclusion from its rituals, ordinances, and ministries?
Now is the time for the Judicial Council to decide that this is not appropriate.
To do so does not require the Judicial Council to open up a can of worms. What is needed for justice and fairness is for the Judicial Council to rule that sexual orientation is not to be used as a basis for exclusion. The Constitution in Paragraphs IV and 15.14 protects the rights of persons regardless of sexual orientation. That interpretation may even include the rights of self-avowed practicing homosexuals.
When persons come requesting ceremonies that celebrate their relationships, each couple's request is properly before the church, as represented by the local pastor, and not to be categorically rejected on grounds of sexual orientation.
This ruling will provide an interpretation of the applicability and effect of Paragraphs IV and 15.14 of the constitution on the issue of sexual orientation. It is not the task of the Judicial Council to decide what The United Methodist Church thinks about homosexuality. It does have the task of enforcing a constitution that is inclusive, which delineates no category of people to be excluded from the life of The United Methodist Church.
By taking this action neither the Judicial Council nor The United Methodist Church either endorse covenant services or condemn them. Responsibility is placed on clergy under Par. 331.1 to "oversee the worship life of the congregation." Clergy are responsible to examine the relationship of a couple who desire to hold a ceremony celebrating their relationship. Regulation of the use of church buildings remains in the hands of local church administration, but must be attended in keeping with the constitutional requirement that people are not to be excluded based on race or status.
This is not a case in which the church says "yes" to sexual immorality. It is a case in which the church says that each of us stands alone before God and before the church. Each of us is accountable to God and to our community for our moral choices. The church does not give protection or exemption from scrutiny on the basis of status. Nor does the church discriminate on the basis of status.
The church is in great pain on this subject. No decision will be happily received in all quarters. Affirmation urges you to interpret law with grace.
We find that laws based on sexual orientation have been written with the intent to exclude people from full and equal participation in the services and ministries of the church. We find that Par. 65.C was written with this intent, and discriminates by establishing a ban on same-gender celebrations without banning opposite-gender celebrations.
We find that the meaning of status in Paragraphs IV and 15.14 of the constitution protects people from discrimination on the basis of sexual orientation. We find that the effect of the language of Par. 65.C, "Ceremonies that celebrate homosexual unions shall not be conducted by our ministers and shall not be conducted in our churches," violates the constitutional provisions of Paragraphs IV and 15.14.
As an independent voice of Lesbian, Gay, Bisexual, Transgender, and Queer people, Affirmation radically reclaims the compassionate and transforming gospel of Jesus Christ by relentlessly pursuing full inclusion in the Church as we journey with the Spirit in creating God's beloved community. We affirm a Gospel of respect, love, justice and mercy for all. Affirmation is an activist, all-volunteer, not-for-profit organization with no official ties to The United Methodist Church.
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