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February 26, 1999
See also: Judicial Council Delivers "Double Whammy" Report and analysis by Morris Floyd
A decision of the UMC's Judicial Council came under fire in mid February when a group of lawyers sent an open letter to the council disagreeing with its decision prohibiting official bodies of the church from adopting titles of unofficial groups.
The 18 lawyers – all members of the denomination – listed four legal arguments in asking the Judicial Council to reconsider the matter.
In its October 1998 session the Judicial Council decided that an annual (regional) conference's adoption of a resolution that would have made the conference a "confessing conference," a publicly acknowledged part of the unofficial Confessing Movement, was not in keeping with the church's constitution.
As part of this decision, No. 847, the council said a conference "may not identify or label itself as an unofficial body or movement" and reversed two of its earlier rulings that permitted a churchwide agency and the Wisconsin Annual Conference to identify themselves with Reconciling Congregations, a group which welcomes all people regardless of sexual orientation.
The case arose in the review of a ruling a bishop made while presiding at the Northwest Texas Annual Conference and included other provisions of a resolution called "A Call to Doctrinal Integrity."
In advocating that the decision be revisited, the lawyers said, "We would urge that fear of schism should not be the rationale for legal decisions. . . . United Methodism will survive. This is not a fragile denomination."
Asked about the letter, Tom Matheny, president of the Judicial Council, acknowledged its receipt, but said that it has long been the practice for council members to refrain from discussing cases and decisions outside the council's formal deliberations, which are closed sessions.
Susan Griffin, San Francisco, who did most of the editing, said the letter was originally drafted in November by Michael D. McClellan, Omaha, Neb., the lawyer who counseled the Rev. Jimmy Creech in a March 1998 church trial. That draft went through five or six revisions before being signed by the 18 lawyers from different parts of the United States, she added.
Although all or almost all of the people who signed are in supportive of the reconciling congregations movement, Griffin noted that in a letter to the United Methodist Reporter that appeared in the Dec.25 edition, Lonnie Brooks of Anchorage, Alaska, who appears to speak from a different perspective, faulted the council on some of the same grounds. In addition, Brooks pointed out that two earlier decisions allowed a churchwide agency and an annual conference "to label themselves as reconciling organizations" but balked at a conference taking the confessing label.
Brooks went on to say, "Divisiveness seemed only to be a problem for the council when it was an action by the right wing that led to divisiveness. It doesn't take a Machevelli to see where the Judicial Council's political alliance is."
One concern the lawyers voiced was "lack of judicial restraint," saying that the council went beyond the question before it – whether the bishop was correct in ruling that adopting that particular resolution was in keeping with the church's constitution.
A second concern raised is whether the case was "ripe" or ready to be heard. "Rather than allowing case-by-case rulings on whether an action does conflict with the Discipline [the church's doctrines, documents and rules] or other church doctrine, your decision prohibits all actions that might," the lawyers accuse.
The lawyers said the council violated the legal doctrine of "stare decisis," a Latin term that means already decided, according to Griffin. It states that the cases that have gone before are controlling, she said. When the court chooses to change the law, such precedents are specifically overruled and the reasons are usually stated, she said.
The lawyers fourth point said the council's definition of "divisive" was vague in this decision and selective in contract with its ruling at its special session in August that the prohibition about performing same sex unions has the effect of church law.
Throughout, these lawyers advocate an interpretation of the church's constitution as a living document with the annual conferences having power to address such issues at the local level.
# # #
A full text of the letter and a list of the attorneys follow:
February 18, 1999
Judicial Council, United Methodist Church
c/o Sally Curtis Askew, Secretary
Reference/Public Services Librarian
University of Georgia Law School Library
Athens, GA 30602 - 6018
Open Letter to Officers and Members of the Judicial Council
We, as attorneys and members of The United Methodist Church, take the unusual step of addressing you directly and publicly because we believe Decision Number 847 goes beyond the bounds of wise jurisprudence and raises more problems than it solves.
This decision states: "An Annual Conference may not identify or label itself as an unofficial body (such as, but not limited to, a 'Confessing Conference,' 'Reconciling Conference,' or 'Transforming Conference.') Such identification is divisive and makes the official bodies of the Church subject to the possibility of being in conflict with the Discipline and doctrines of The United Methodist Church." (Emphasis added.)
Particular concerns we note in review of Decision Number 847 are as follows:
1. Lack of Judicial Restraint: In all areas of this country's civil and criminal appellate law, "judicial activism" has been regarded with suspicion and, sometimes, alarm. So, too, here it is with some concern that we view this decision. The question put before you as the Judicial Council did not appear to deal with identifying or labeling Annual Conferences. It was a question from the Bishop of the Northwest Texas annual conference on whether that resolution passed by the Annual Conference was constitutional. The bishop did not ask whether an Annual Conference could identify itself as "Confessing." You decided upon your own motion to ask the question of yourselves. Therefore, rather than simply hear the question that had been put before it (see Constitution of the United Methodist Church paragraph 54), the Judicial Council decided to take legislative action.
2. The Supposed "Conflict" Question is Not Ripe: The decision goes even further into conjecture: rather than allowing case-by-case rulings on whether an action does conflict with the Discipline or other church doctrine, your decision prohibits all actions which might. To state that identifying and labeling by Annual Conferences makes official bodies of the Church "subject to the possibility of being in conflict" is to try to rule on a question or problem prior to its existence. It is telling that even this decision does not, and cannot, identify a conflict. We believe it is not good practice for a judicial body to rule on conflicts that have not occurred. Generally speaking, potential conflict is not "ripe" for decision. Further, decisions of that sort are the purview of the Church's legislative body, not its judicial arm.
3. Stare Decisis (i.e., to stand by that which was decided): The legal doctrine of stare decisis is important for any judicial or legal body to consider before throwing out and overturning past decisions. Decision Number 847, which overrules earlier decisions on the same point which were properly narrowly decided (see, for example, Decision Number 794), only leads to uncertainty within the Church as a whole. This is especially true when the question concerning past decisions was not directly before the Council in the question from the Bishop.
4. Vagueness in the Definition of "Divisive": If the Judicial Council is trying to end division within the Church, it certainly is selective in what it finds to be "divisive." You have upheld (in Decision Number 833) the concept of prosecuting United Methodist pastors based on a statement in the Social Principles portion of the Book of Discipline (previously not a part of "church law"). Is anything potentially more divisive than that? Moreover, neither the decision itself, nor any other church doctrine, defines "divisive." This decision could even be read as meaning that United Methodist bodies cannot affiliate with any "unofficial," i.e., not General Conference-approved, organizations. It would be a sad case if United Methodist bodies could not identify themselves in covenant with mission groups such as The American Bible Society, Habitat for Humanity, Bread for the World or regional councils of churches. Who is to say which labels or identifications are or are not "divisive"?
It is our concern that you may be choosing the dead hand of "historical identity" as the defining force in the Church's path through one of the most important issues it faces. Rather than entertain the living judgment of the Conferences in addressing Reconciling, Transforming, and Confessing movement issues on the local level, your recent decision attempts to distance the church hierarchy from the issue by attempting to define away the conflict. We believe this may be bad law.
Some recent decisions, including those cited in Decision Number 847, have led to confusion as to the rationale of the judicial body. With the utmost respect, we wonder if Decision Number 847 is formulated out of fear and in response to hysteria that has arisen within the Church? At a special session of the Judicial Council in Dallas last summer, the bishops of the South Central Jurisdiction argued that a decision was needed (allowing the Church to prosecute pastors who conduct "homosexual unions") because without such a decision the Church would split. We would urge that fear of schism should not be the rationale for legal decisions.
The undersigned hereby join in asking the Judicial Council to reconsider these issues carefully. We know that you are trying to do your job faithfully in a time that many see as a crisis. The processes work. United Methodism will survive. This is not a fragile denomination and, as the Annual Conferences are trying to show through considered and spiritual thought, discussion and prayer, not unable to deal with the Reconciling/Confessing/Transforming issues. We all need to trust in the systems of the Book of Discipline, to have faith and not give in to fear and prejudice.
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