High Court Dissenting Opinion: Pastors Have No Say In Membership, Unfaithful Pro-homosexuality Bishops Do
Having fully mastered the difficult task of judicial interpretation, my colleagues in the majority have now chosen to direct their talents to the meticulous work of authoring legislation. I choose not to join them in that endeavor. Although I join in the dissenting statement filed by my colleague, I write separately to offer legal reasons why I differ with the majority opinion.
The Book of Discipline is the book of law of The United Methodist Church that covers nearly every aspect of church governance. There are, however, gaps that exist in the Discipline because there are issues that the General Conference has not addressed. Where the General Conference has not spoken, the Judicial Council is not imbued with creative license to engage in conjectural improvisation. Legislative power resides exclusively with the General Conference. Para. 26. The responsibility of the Judicial Council is to interpret the law of our church from a strictly legal standpoint. Decision 59. The Judicial Council has no authority other than as specified in Paragraphs 55 through 58.
Great care must be exercised to insure that the central role remain that of judicial interpretation. The issue of whether a pastor has the right and responsibility to exercise "reasonable pastoral judgment" to determine who may be received into membership appears to be a question of first impression. I find nothing in the Discipline or in the whole of our jurisprudence that suggests that this issue has ever been addressed. The Discipline is silent on the issue. If the Judicial Council is to remain true to its traditional role as interpreter of church law, it should resist the urge to interpret provisions that do not exist. The Judicial Council may not substitute its judgment where the General Conference has not spoken, nor should the Judicial Council attempt to write legislation between sessions of the General Conference.
The General Conference has enacted very few provisions that grant pastors the right to exercise "discretion" of any kind. Paragraph 224, for example, grants pastors "discretion" to receive persons into membership outside of normal congregational settings. Under paragraph 216.3, pastors are granted "discretion" to guide younger persons who have not yet completed the sixth grade in the preparation for the experience of profession of faith and confirmation. There may be other paragraphs that would become apparent after more thorough review of the Discipline. Because there are very few such provisions, I am led to the ineluctable conclusion that whenever a grant of discretion has been determined appropriate, the General Conference has said so in clear and unmistakable terms. The Judicial Council's role is purposefully limited to that of interpretation. In fulfilling its role, the Judicial Council should not impose its own preferences or priorities on the church.
Elementary rules of construction require that the plain text of a document be given its reasonable effect and intendment. Text should not be supplemented. It certainly should not be invented or pulled from out of thin air. Powers should not be inferred or imagined. Interpretative guidance should be gleaned from the text of the entire document rather than the interpreter's personal philosophy. Since the paragraphs cited by the majority do not speak to the issue presented, and the Discipline is otherwise silent, we must look to other declarations contained in the Discipline for guidance. From a sound legal perspective, the paragraphs contained in the question presented must be considered in the light of General Conference declarations that bear upon the issue contained elsewhere in the Discipline. For reference I commend all of my colleagues to paragraph 161 entitled "The Nurturing Community". In an effort to shed light upon the subject, I specifically cite paragraph 161(G) which reads in pertinent part as follows:
". . . Homosexual persons no less than heterosexual persons are individuals of sacred worth. All persons need the ministry and guidance of the church in their struggles for human fulfillment, as well as the spiritual and the emotional care of a fellowship that enables reconciling relationships with God, with others and with self. The United Methodist Church does not condone the practice of homosexuality and considers this practice incompatible with Christian teaching. We affirm that God's grace is available to all and will seek to live together in Christian community. We implore families and the church not to reject or condemn lesbian and gay members and friends. We commit ourselves to being a ministry for and with all persons."
The majority's decision now condones the denial of the fellowship of the church to persons in need of its ministry and guidance who are homosexual. The decision eviscerates our statement that God's grace is available to all and reduces it to an empty platitude. More tragically, the same Judicial Council charged with giving effect to the intent of the enactments of the General Conference has turned a cold and rejecting ear to its plea that families and churches not reject lesbian and gay members and friends.
Paragraphs 214 through 225 provide guidance on the issue of church membership to clergy and laity alike. The cited paragraphs make very few references to pastors at all and in none of those references does the General Conference bestow upon pastors the type of discretion as contemplated by the majority. The permissive language contained in paragraphs 214 through 225 is an invitation to persons who seek membership. The permissive language does not equip clergy with the power or authority to erect a bar to membership. The permissive language is an open invitation to any and all who seek God's grace through membership within our denomination.
There is nothing contained in the majority opinion that prevents pastors from exercising "discretion" to refuse membership to persons whose eating habits convict them of the sin of gluttony, whose personality traits convict them of the sin of pride, and whose work habits convict them of the sin of sloth. There are a total of seven such scenarios that I can imagine, none of which were involved in this case as a basis for denying membership. Under the majority's opinion, pastors who form a reasonable belief that any of the foregoing scenarios exist would have the "discretion" to deny membership to such persons. Because of the majority's ruling, pastors across our great connection will not only enjoy the rights and privileges of ordination, they will also enjoy the additional power, discretion and authority that are now ordained by judicial fiat. Pastors will be able to screen out persons seeking membership to safeguard our churches against all varieties of sinners. While churches without sinners may be a precursor of heaven, the decision to pursue such a path must, under our system of church governance be made by the General Conference after the idea has been debated, tested and refined in the legislative processes of our church.
I am also critical of the majority opinion because it does nothing to offer true guidance as to what constitutes "responsible pastoral judgment". In its haste to make its pronouncement, the majority has done more harm than good. The language of the question posed asks whether pastors have "the right and responsibility to exercise reasonable pastoral judgment in determining who may be received into membership of a local church." Yet, the majority's ruling obfuscates the issue by using the term "discretion" interchangeably with the words "responsible pastoral judgment." The Judicial Council had repeatedly reminded the General Conference and the various Annual Conferences that terms require definition in order to promote a general understanding of their meaning. Inherent in the majority's decision is a roving commission. This panoply of new terms that has now been engraved upon our jurisprudence is not accompanied by any guidance as to their meaning and import. We do not serve our function well by coining new phrases with amorphous meaning. Any guidance that the majority opinion purports to provide is purely illusory. A thoughtful legislative process would not only set parameters of "responsible pastoral judgment" or "discretion" but would also provide a method to regulate the exercise of such judgment and guard against abuses of discretion. Yet the majority, through some unaccountable infatuation, has chosen to endow pastors with powers and abilities far beyond those of mortal men and women; that being the power and ability to separate the mind from the motive.
We cannot begin to comprehend the unwanted and undesired consequences of this ruling. The majority's ruling has dangerous potential to create adversarial relationships between pastors and persons who seek membership in our denomination. It encroaches upon the authority of the office of bishop by judicial whim rather than through a deliberate legislative process. It upsets the delicate system of checks and balances inherent in our governance. These consequences will result in serious ramifications. However, I fear most that the majority decision will prove harmful to the credibility of the Judicial Council because it abandons the traditional and limited role of the Judicial Council as interpreter of church law and assumes a new mantle as creator of church law.
I am greatly concerned about this ruling that my majority colleagues have banded to pronounce. My greater concern is that its pronouncement may be a harbinger of things to come. Will we begin to see cases where membership has been denied based on economic status? Or educational status? Will pastors deny membership to those who do not support all of our Social Principles? Or those who fully support our Social Principles? We all aspire to break the bonds and reject the forces of sin. Nevertheless, we choose a perilous course when even "responsible pastoral judgment" is granted to allow pastors the "discretion" to select among a multitude of sins for which some persons will be refused membership.
I also dissent because this question does not present as a frequently recurring problem within our denomination. There was no emergency that required the Judicial Council to act at all let alone to act precipitously. The majority's action has fashioned a rule that will now apply across the connection. The legal maxim that hard cases make bad law is given life and breath by the majority's ruling. The maxim has grown up in the secular world in those situations when courts have made the ill-advised decision to legislate rather than interpret. The bad law that results brings many unintended and undesired consequences.
I finally state that although the General Conference has clearly prohibited self-avowed practicing homosexuals from becoming ordained clergy, it has never determined that being a self-avowed practicing homosexual constitutes a bar to membership. The Judicial Council has previously acknowledged homosexuality to be a sensitive and volatile issue. Dec. 702. It is the equivalent of ideological legerdemain for the Judicial Council to declare "discretion" where there is none and to grant pastors "responsible pastoral judgment" where the General Conference has not done so. As a Judicial Council, the better angels of our nature require that we restrain ourselves from making up rules that do not exist.
Because I did not join the majority, I am unable to move for its reconsideration. I would implore my majority colleagues to admit that the Judicial Council has made a grievous and harmful error in its pronouncement and reconsider and recall its decision.
For all of the foregoing reasons, I vociferously, yet respectfully dissent. Here I stand. I can do no other. So help me God.
Jon R. Gray November 8, 2005 Saturday, October 29, 2005.
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