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I can't tell you how gratified I am to be allowed to appear before you today. How gratified, and, frankly, how scared. Not frightened of you -- no, I have every reason to believe you are gracious, thoughtful and committed colleagues from whom I have nothing to fear. And yet, I do come quaking, carrying the weight of the magnitude of what we will discuss today.
I am very aware that I am asking you to rule that a popular church law is unconstitutional. I know well that this will be a difficult ruling. And yet I bring the question to you, believing that you will consider the matter carefully, with a steady, evenhanded courage and insight that will ultimately light a pathway for our troubled church.
The heart of my argument is simple. I argue that the ordinary meaning of the Constitutional protection of status in Paragraphs 4 and 15 includes sexual orientation, that any prohibition conditioned solely by someone's status is unconstitutional and, consequently, that it is unconstitutional to prohibit "ceremonies that celebrate homosexual unions" when the sole descriptor of these ceremonies is someone's sexual orientation.
You have received briefs from Keith Boyette of the Forum for Scriptural Christianity, Mary Daffin of the Confessing Movement, and Thomas Griffith, writing at his own behalf. I would like to address the critical arguments made in each of these briefs.
Reverend Boyette argues that the Constitution gives General Conference the power to establish rituals of worship (Para. 15.6) and that the General Conference appropriately used that power to forbid ceremonies that celebrate homosexual unions. Because no official ritual for homosexual unions exists, he argues, no one is being forbidden to attend any United Methodist worship. He then goes on to argue, in a footnote, that the questions asked by the Oregon-Idaho annual conference are therefore hypothetical and need not be answered. Instead the Judicial Council need only rule that there is no service to which anyone is denied access based on status.
Well, of course there is a service. The sentence calls it a "homosexual union." The people I've worked with call it a covenant service or a holy union. If in fact there were no worship to which people were being denied access, we wouldn't have the prospect of yet another trial before us in Northern Illinois Annual Conference, nor would 50 pastors in a Western annual conference be planning to co-officiate at such a service in upcoming months. Of course there is a service. It's not "official," but it's real. This very law acknowledges its existence in the prohibition.
I have argued in my brief that the service being denied to lesbians and gay men but not to heterosexual people is the celebration of their covenantal commitments. I will not repeat that argument here. What I want to point out is that the power given to the General Conference in Para. 15.6 is subject to and conditioned by Para. 15.1.
Para. 15 begins: "The General Conference shall have full legislative power over all matters distinctly connectional, and in the exercise of this power shall have authority as follows: 15.1 To define and fix the conditions, privileges, and duties of Church membership, which shall in every case be without reference to race or status."
Because the law in question most clearly references the status of sexual orientation, it is an unconstitutional law. The General Conference does have legislative power over all distinctly connectional matters, but it may not use that power to create an unconstitutional law that makes reference to race or status.
Mary Daffin, arguing for the Confessing Movement, also starts from the constitutional powers given to the General Conference, this time in Para. 15.2. Although her argument includes what I believe to be misinterpretation of Judicial Council decisions 702 and 833, her most critical argument is that the prohibition does not violate Paragraph 4 of the Constitution because it does not prohibit persons from attending a service. Instead, it prohibits ministers from performing a certain type of what she calls "worship."
This, she argues, is entirely within the power given to General Conference to define and fix the powers and duties of elders, deacons, supply pastors, local preachers, exhorters, and deaconesses. And it would be, if that power were not subject to Para. 15.1, requiring that the conditions, privileges, and duties of Church membership shall be in every case without reference to race or status.
With Keith Boyette, Mary Daffin argued that there is no official program, rite, or ritual that people are prohibited from participating in or attending. It is constructive that neither Boyette nor Daffin argue that sexual orientation is not a status.
Thomas Griffith argues that the General Conference has, through creation of a Book of Worship, put all blessings in the context of worship. As he examined blessings in the Book of Worship he found none for which he would be required to ask the status of a couple or person coming for blessing, none but one. Para. 65c requires that he determine their sexual orientation status of a couple before considering a request for blessing.
Griffith recognizes that General Conference has the right to limit the behavior of cllergy and to establish forms of worship, but also notes that Para. 4 forbids discrimination on the basis of status. When he presents this as a conflict of the Constitution with itself, he, too, ignores the conditioning of Para. 15.1.
Reverend Griffith also takes up the definition of "status". He asserts that the Judicial Council is not a legislative body and has no legislative guidance for interpreting the meaning of "status". Consequently, he suggests that you retain jurisdiction while remanding the question of the meaning of "status" back for General Conference for clarification, suggesting that you impose a moratorium on enforcement of the law until there is clarification.
I believe Reverend Griffith's suggestions are a recipe for ecclesiastical disaster, for several reasons:
First, he misinterprets the role and power of the Judicial Council, making you subject to the legislative intent of the General Conference without acknowledging that, while you may and do consider legislative intent, you only do so in the framework of the Constitution. It is to you that The United Methodist Church has entrusted the task of applying the test of constitutionality to the actions of the General Conference. To remand the question back to the General Conference as if you had no power to act would be to undo the careful balance that our church has crafted between its legislative and its judicial branches.
Second, Reverend Griffith misinterprets, I believe, the Judicial Council's emphatic 1993 direction that the General Conference or the annual conferences must define "status". I believe that decision 702 served to warn the General Conference that the ordinary meaning of "status" would include "the clergy status of a self-avowed practicing homosexual" and that, if General Conference intended a different meaning than ordinary, it was imperative for General Conference to define the term. It was not to say that the Judicial Council could not apply the ordinary meaning of the term to its work. You have done that for years. No, this was a case of where, recognizing the sensitive and volatile nature of the issue, you refrained from applying what you clearly identified as the ordinary meaning of the word until General Conference had had a chance to consider your words and act. To argue now that you have no authority to apply the ordinary meaning of words is once again to misunderstand and diminish your authority.
Finally, it is folly to continue a provision as law while putting a moratorium on its enforcement. To do so diminishes all respect for the role of law in the church. Those who are convinced the law is unconstitutional would violate it publicly and flagrantly while those who are convinced that it is proper and constitutional law would seethe in frustration at such flagrant disregard. And, in the process, the fractures in this landmass called The United Methodist Church would widen into great unbridgeable gulfs.
The argument I make is a constitutional argument. The United Methodist Constitution provides a framework that protects the rights of minorities from abuse by the majority. Thus the Constitution is invoked to make the provisions of Paragraph 65c a church law. However, the intent of General Conference can never override Constitutional protection. Notwithstanding the intent of General Conference, the Constitution prohibits conditioning the privileges and duties of church membership by status.
The Judicial Council need not define "status" in some special way to interpret the Constitution. It need only use the ordinary meaning of the word, as it has for years. The point of telling the annual conferences and the General Conference to define the word was to give them an opportunity to establish a definition other than the ordinary definition, it that was their will. It was not to say that the Judicial Council cannot act until the General Conference defines "status". Moreover, if the General Conference were to adopt a definition that would limit Constitutional protections of "status" by defining the word so narrowly as to exclude sexual orientation, that definition would need to be placed within the Constitution, for the Constitution cannot be conditioned by the non-Constitutional Book of Discipline. Instead, the Constitution sets the standard against which Disciplinary provisions are measured. In like manner, it is not appropriate to use the argument Constitutional protection of the status of sexual orientation is unthinkable because it is inconsistent with statements in the Social Principles. If there is a contradiction between any part of the Book of Discipline and the Constitution, it is the Constitution that sets the standard.
So the question comes down to one simple point. Is sexual orientation a status, a human condition, or is it not? I believe you know that it is. I pray that you will act on that knowledge. There are no exceptions. That is precisely the point. The word "status" appears in parallel structures with the word "race" in Paragraph 15.14 . We need a message just as strong today, a message to remind us all that our church is inclusive in membership, in structure, and in operation, regardless of status. There must be no exceptions.
A generation ago, the Supreme Court, with its great respect for an willingness to apply the principles of the United States Constitution, carried this nation over the gulf between the institutional racism of the 1950s and the Civil Rights Act of 1964.
I believe that this court can - and must -- play a similar role in United Methodism today. Help us, please, move through a time when we are not in agreement about the meaning of differences in sexual orientation, just as we earlier were not in agreement about the meaning of differences in race. If ever there was a time for the Judicial Council to say, clearly and with great authority, that the United Methodist Church does not and may not discriminate against people because of their sexual orientation, or any other status, if there ever was a time, the time is now.
And may God bless us all.
Affirmation's brief concludes, "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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