[Oe List ...] UMC Judicial Council Members

[SVESjaime@aol.com]

Beret et al,

Jon Gray dissented.  Beltran would have been one of the five.  He's a 
Filipino lawyer - more legalistic show off than ideologically conservative, but votes 
with the conservative.

Jaime


Dissenting Opinion


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.