The United Methodist Church’s top court has held off on deciding whether a denominational separation plan passes constitutional muster.
And that has some of the plan’s architects frustrated and worried.
“This ruling simply adds to the feeling that the denomination is ‘stuck’ and to the sense that our well-regimented institutions are unable and unwilling to address the very big challenges facing The United Methodist Church,” said veteran church leader Randall Miller.
Among those challenges is the denomination’s decades-long, intensifying debate over the status of LGBTQ people that already has some congregations heading for the exits.
Miller was among a diverse group of 16 United Methodist leaders who, with the help of famed mediator Kenneth Feinberg, developed a proposal aimed at resolving that debate.
Their proposed Protocol of Reconciliation and Grace Through Separation, if adopted, would allow traditionalist churches and conferences (those who support restrictions on gay marriage and ordination) to leave with church property and $25 million. The proposal also sets aside $2 million for other groups of churches that might leave.
The protocol mediation team — convened in 2019 by the late Sierra Leone Bishop John Yambasu — included bishops as well as leaders of traditionalist, centrist and progressive advocacy groups that had often been at odds in the homosexuality debate. With the protocol, they struck an accord, and advocacy groups across the denomination’s theological spectrum have endorsed the plan.
By March 2020, the Philippines Cavite, Sierra Leone and Michigan annual conferences — three regional church bodies — had approved forwarding the protocol legislation to the coming General Conference.
Ahead of the lawmaking assembly, the Council of Bishops also asked the Judicial Council, the denomination’s top court, to review whether the protocol was within the bounds of the church’s constitution.
Church law gives bishops the authority to ask for a judicial review of proposed legislation. Many in the church also want to avoid a repeat of the 2012 General Conference when, on the last day of the gathering, the Judicial Council overturned a just-passed legislative package on constitutional grounds. In 2012, no one asked the Judicial Council to review the legislation's constitutionality until General Conference delegates had already voted for it.
Eight years later, it was a different story. With the endorsements, annual conference votes and a possible judicial review, all seemed set for General Conference delegates to have final say on the protocol when they met in May.
But then the COVID-19 pandemic shut down international travel, twice forcing the postponement of General Conference — now scheduled for Aug. 29-Sept. 6, 2022, in Minneapolis.
In the meantime, the Judicial Council — a significantly smaller body — has been meeting online periodically. On April 16, the court released Memorandum 1407 declining the bishops’ request to rule on the protocol ahead of General Conference.
In the memorandum, the church court acknowledged that bishops had the right to ask for a ruling. However, the Judicial Council noted that it did not want to put its thumb on the scales for any particular separation plan when other similar proposals are heading to General Conference.
“It would be improper for us to anticipate or engineer legislative outcomes,” the memorandum said. “Until the General Conference has the opportunity to consider and act on all proposals, including the Protocol, we must avoid interfering with the legislative process through premature adjudication.”
The Florida Conference’s Bishop Kenneth Carter, who served on the protocol team, said the bishops’ motivation in making its request “is not to privilege legislation, but to help the church and especially to help the delegations to gain clarity as they do their work.”
Bishops preside but don’t have a vote at General Conference.
The Judicial Council’s decision is not unprecedented. In 2015, the court deferred ruling on a proposal to restructure the denomination’s general agencies because of the possibility of other similar proposals. The court issued its opinion just ahead of the 2016 General Conference.
Miller, the protocol team member, is a former alternate Judicial Council member and he participated in the 2015 decision. But he said the court’s new memorandum on the protocol is different from that earlier deferral.
He said the new memorandum seems to argue that the Council of Bishops must endorse a piece of legislation before asking for a ruling and that is not a step mentioned in the Book of Discipline, the denomination’s law book.
“I hope the Council of Bishops will resubmit its request,” said Miller, who also is a reserve delegate to the coming General Conference.
The New York Conference’s Bishop Thomas Bickerton, another protocol team member, said given the Judicial Council’s rationale, he does not see a resubmission closer to General Conference resulting in the court making a different decision.
“It appears highly unlikely that the protocol will be considered without substantive debate and potential amendment,” Bickerton said.
However, he added that if delegates don’t give the protocol serious consideration, he fears General Conference will once again be filled with “anger, emotion, and deep hurt.”
“I personally believe it is time for a better, more graceful way,” he said.
The Rev. Thomas Berlin, a General Conference delegate and protocol team member, said a judicial review would have given delegates confidence that all provisions in the legislation are constitutionally valid.
“It is unfortunate that the Judicial Council decided not to offer a review,” he said. “The lack of review may lower the confidence some delegates have in the protocol as a predictable and valid pathway that will serve the needs of all parties.”
Nordic-Baltic Area Bishop Christian Alsted, who also served on the protocol team, said he does not think the lack of a ruling will have much effect on the protocol support.
"I think the delegates will have to do their best work," he said, "And should the protocol in some form be passed, I am sure the unfortunate trend, started in 2012, of referring major General Conferences decisions to the Judicial Council will continue."
The legislation already faces at least one constitutional question. Part of the protocol allows annual conferences to withdraw from The United Methodist Church, if lay and clergy members vote to do so by at least 57%.
The Rev. William B. Lawrence, a former Judicial Council president, argues in a memo broadly circulated among General Conference delegates that this provision is unconstitutional. He said the measure goes against the constitutional authority given to jurisdictional and central conferences — the denomination’s intermediate regional bodies — to name, number and set the boundaries of annual conferences.
The Rev. Ande Emmanuel, a delegate from Nigeria, is part of an African group seeking United Methodist unity that opposes the protocol.
“Africa will lose so much and get into more conflicts if the protocol plan in its present form was adopted,” he said.
Still many other United Methodists continue to support the plan, including the advocacy group Wesleyan Covenant Association, which is already forming a new traditionalist denomination under its provisions.
For now, the biggest obstacle to the protocol coming before General Conference is the deadly COVID-19 and the slow rollout of the vaccines around the globe.
Council of Bishops President Cynthia Fierro Harvey, also a protocol team member, said in a statement that she is grateful for the Judicial Council’s continued work in these pandemic times. The bishops are scheduled to have their own virtual meeting April 26-30.
“The Council of Bishops takes note of these decisions and the implications for their future work,” Harvey said.
Hahn is assistant news editor for UM News. Contact her at (615) 742-5470 or [email protected]. To read more United Methodist news, subscribe to the free Daily or Weekly Digests.
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