Decision Number 1215

Review of a Bishop's Decision of Law in the Wisconsin Conference Regarding the Relationship between "Clergy Covenant: An Invitation" Adopted by the Annual Conference and ¶¶16, 304, 311, 341, 2702 and Judicial Council Decision 1111

Digest

The bishop's decision of law is affirmed.

Statement of Facts

On May 31, 2012, the Clergy Session of the Wisconsin Annual Conference adopted a document entitled, "Clergy Covenant: An Invitation." The Rev. Amy E. DeLong prepared this document in partial fulfillment of the penalty assessed by a trial court after she was found guilty of conducting a holy union for a same gender couple. She was ordered to outline procedures to help reduce issues that create an adversarial spirit within the clergy covenant. This document proposed a structure by which a formal clergy covenant would be presented to the Clergy Session during the 2013 Annual Conference. The Clergy Covenant invitation proposes "that the clergy of the annual conference enter into deep conversation with one another in order to work toward a clearly articulated clergy covenant." The following procedures were approved by the clergy session of the 2012 Wisconsin Annual Conference.

• Authorize funding for and the development of a Conference Clergy Covenant Team.

• The Conference Clergy Covenant Team will be charged with the task of developing a Clergy Covenant. When developing the Clergy Covenant, the Conference Clergy Covenant Team must:
1. Recognize that conflict is not to be avoided, but worked through with grace and honesty.
2. Create a definition – not for everyone, always – but for us, now. This requires avoiding generalized or coded religious language which reinforces an individualized interpretation of what covenant means.
3. Establish a Professional Code of Ethics which includes intentional relationship-building and modes of accountability.
4. Confront imbalances of power and avoid the perils of majority rule (i.e., the tyranny of the majority).
5. Seek protection of and equality for the vulnerable/minority by ending participation in discrimination (specifically against GLBTQI people).
6. Engage external assistance for an internal work of covenant­ defining.

Just as John Wesley had a variety of mentors from throughout the Christian community (his own Church of England, Roman Catholic, Moravian, etc.), it may be necessary for us to look beyond our own tradition for guidance (including members of the GLBTQI community and possibly the larger inter-faith community). The Covenant Team will be comprised of 12 members who will work together at least monthly providing regular conference wide progress reports. It will return to the 2013 Clergy Session for approval of the proposed Clergy Covenant. A starting fund of $5,000 was approved in the budget adopted by the Annual Conference. The Covenant Team will oversee the evaluation of the implementation of the Clergy Covenant reporting back to the Clergy Session of the Annual Conference in the following two years.

The following Two Questions of Law were appropriately submitted in writing to the bishop during the June 1, 2012, afternoon session of the Wisconsin Annual Conference. l. Does the requirement that a "Clergy Covenant" be developed based on the principle of "ending participation in discrimination (specifically against GLBTQI people)" constitute a violation of provisions of the Book of Discipline which prohibit the candidacy, ordination, or appointment of self­ avowed practicing homosexuals (¶ 304.3, 3ll.2d) and the performing of same-gender unions (¶ 341.6, 2702.1b), and does it constitute a violation of ¶ 16 of the Constitution, which reserves to the General Conference "full legislative power over all matters distinctively connectional," including "to define and fix the powers and duties of elders, deacons, supply preachers, local preachers," and ''to define and fix the powers and duties of annual conferences," and does it constitute a violation of Judicial Council decision 1111 and others, which state, "An annual conference may not negate, ignore, or violate provisions of the Discipline with which they disagree, even when the disagreements are based on conscientious objections to the provisions?"

2. Does the request for an appropriation of $5,000 from the annual conference budget for the work of the "Conference Clergy Covenant Team" constitute a violation of ¶ 613.20, which states that "no annual conference board, agency, committee, commission or council shall ... otherwise use [United Methodist] funds ... to promote the acceptance of homosexuality?" The bishop ruled the following: The Clergy Covenant Invitation adopted by the Clergy Session creates a Conference Clergy Covenant Team, which is composed of twelve members. . . .The Conference Clergy Covenant Team is tasked with creating a Clergy Covenant. The Clergy Covenant prepared by the Conference Clergy Covenant Team is to be submitted to the 2013 Clergy Sessions for approval. In preparing the Clergy Covenant, the Conference Clergy Covenant Team must "[s]eek protection of and equality for the vulnerable/minority by ending participation in discrimination (specifically against GLBTQJ people)."

The Clergy Covenant Invitation correctly notes that Book of Discipline encourages inclusiveness and denies discrimination: Inclusiveness means openness, acceptance, and support that enables all persons to participate in the life of the Church, the community, and the world; therefore, inclusiveness denies every semblance of discrimination. Clergy Covenant Invitation at 2 (citing Book of Discipline ¶ 139). The Clergy Covenant Invitation simply directs the Conference Clergy Covenant Team to prepare a Clergy Covenant for consideration by the 2013 Clergy Sessions. While the Clergy Covenant Invitation sets forth six areas that the Conference Clergy Covenant Team must consider, the Clergy Covenant Invitation does not dictate what terms must be included in the Clergy Covenant. Specific to Question Number 1, while drafting the Clergy Covenant, the Conference Clergy Covenant Team is to "[s]eek protection of and equality for the vulnerable/minority by ending participation in discrimination {specifically against GLBTQI people)."

This directive to the Conference Clergy Covenant Team is consistent with the Book of Discipline. Nothing in this directive requires the Conference Clergy Covenant Team to enact a covenant that violates the Book of Discipline. Instead, this directive and the other directives merely are areas that should be considered when preparing a Clergy Covenant that complies in full with the Book of Discipline. Thus, until a Clergy Covenant is approved by the Clergy Session, Question Number 1 presents a hypothetical question. "Moot and hypothetical questions shall not be decided." (Judicial Council Decision 33.) Specific to Question Number 2, the Clergy Covenant Invitation asked the Wisconsin Annual Conference to provide funding to help defray some of the costs that will be incurred by the Conference Clergy Covenant Team.

The Wisconsin Annual Conference approved a motion to provide the Conference Clergy Covenant Team funding of $5,000.00 per year for the years 2012 and 2013. Question Number 2 asks whether this funding violates the Book of Discipline. As noted above, nothing in the Clergy Covenant Invitation requires the Conference Clergy Covenant Team to enact a covenant that violates the Book of Discipline. Thus, for the same reasons noted above, Question Number 2 presents a hypothetical question. "Moot and hypothetical questions shall not be decided." (Judicial Council Decision 33.)

Jurisdiction

The Judicial Council has jurisdiction under ¶2609.6 of the 2008 Discipline.

Analysis and Rationale

The questions of law raised by the presenter in this situation assume that the Clergy Covenant to be developed by the Wisconsin Annual Conference will end up violating the 2008 Discipline and the various paragraphs cited in the questions of law. Although the action passed at the Clergy Session of the Annual Conference provides six directives that the writing team "must" consider, there was no specific mandate to include any of these directives in the final document. There is a difference between "must consider" and "shall include". When the final document is presented the annual conference will be able to assess if these directives were duly considered. Until the Clergy Covenant is written and presented at the 2013 Wisconsin Annual Conference for approval, the concerns raised by the questions of law are moot and hypothetical. It is a long-standing fundamental principle of the Judicial Council that we do not deal with moot and hypothetical questions. See Decision 33. The questions of law raised by the presenter assume a document will exist that may violate the Discipline. Since there is no document yet before the Annual Conference for action, the Bishop's decisions are affirmed.

Decision

The Bishop's decision of law is affirmed. Beth Capen was absent. Sandra Lutz, first lay alternate, participated in this decision.

Concur In Part and Dissent In Part

We respectfully dissent in part because the twin questions are not hypothetical , contrary to the Bishop's ruling. Judicial Council seminal, oft-cited Decision 33 instructs us that requests for rulings by the Bishop in an Annual Conference should be based upon some action taken or proposed to be taken by such conference wherein under the specific facts in each case some doubt may have arisen as to the legality of the action taken or proposed (emphasis ours). The case at bar satisfies that requisite to rule out the branding of moot and hypothetical questions by ways of conferring jurisdiction to the Judicial Council. The use of the word must in the six-point directives apparently indicates that they are mandatory, not discretionary or optional.

Thus, there are grounds to believe that the discrimination sought to be ended refers to the sanction against clergy members who are self-avowed practicing homosexuals, who conduct homosexual unions or perform same-gender wedding ceremonies (¶ 2702), that the stated option of considering non-cooperation with directives they believe to be contradicting to the Gospel (pp. 3-4, Invitation) pertains to the said provision in relation to ¶ 304 on qualifications for ordination, ¶ 311 on candidacy for licensed and ordained ministry and ¶ 341 on unauthorized conduct. Too, the "Clergy Covenant: An Invitation" sounds like an endorsement of those same prohibited acts and chargeable offenses proscribed by the Discipline (¶ 2702.1) and the Constitution (¶ 16). The brief filed defending the Bishop's ruling, however, argues that the clergy covenant invitation is merely aspirational.

The Bishop herself opined that nothing in the assailed fifth directive requires the Conference Clergy Covenant Team to enact a covenant that violates the Book of Discipline and further intimated that the covenant to be prepared will comply in full with the Discipline. Benefit of the doubt can be accorded in the meantime to this position. Considering, therefore, that the indications of the violation are not clear and conclusive; that only the actual Clergy Covenant to be developed, presented and approved at the 2013 Annual Conference would undoubtedly reveal if there is any violation, it is the better part of prudence for the Judicial Conference to reserve its final decision. The Wisconsin Annual Conference ought to report that outcome to this Council next year. Retention of the Judicial Council jurisdiction is in order until final disposition of the matter. Meantime, since only one of six directives is challenged and the funding with respect to the others is not questioned, we concur that the approved budget of $5,000 for the purpose this year should be allowed.

Ruben T. Reyes

Dennis L. Blackwell