An Open Letter To The Bishops And Superintendents Of The United Methodist Church

UNDER THE CONSTITUTION OF THE UNITED METHODIST CHURCH, BISHOP MARTIN MCLEE’S HANDLING OF THE REV. DR. THOMAS OGLETREE MATTER IS THE BEST WAY TO PROMOTE HEALING AND TO AVERT CLERGY TRIALS;

AND, WHY FULL MARRIAGE EQUALITY IS NEARLY INEVITABLE IN THE UNITED STATES WHICH ADDS TO THE MORAL IMPERATIVE FOR OUR CHURCH TO EMBRACE THIS FUNDAMENTAL RIGHT

Greetings in the Name of Jesus Christ:

While we may not like to think about such things, there are people in The United Methodist Church who are actively working to discriminate against gay and lesbian people. A vocal and reactionary minority within our Church, who is vehemently against marriage equality, is considering schism. Normally, I just pass off such talk as people revving up their base to raise more money. But the persecution and trial of the Rev. Frank Schaefer and the vicious attacks on some of our bishops have caused me to rethink how those of us who love and are committed to The United Methodist Church need to respond. Make no mistake, the reactionary minority is well funded, highly organized, and vitriolic.

Our bishops take their vows very seriously, and for that we are grateful. But it is a false reading of the Constitution of The United Methodist Church to assume that a bishop has no choice other than to file charges against a minister when faced with a recalcitrant complainant. This Open Letter explains the solid constitutional foundation for the decision made by Bishop Martin McLee to drop all charges in the Professor Thomas Ogletree matter and the disciplinary basis for marriage equality in The United Methodist Church.

While I am not completely comfortable with some of the stereotypes, I consider myself a southern evangelical. At a young age, I became a Christian by responding to an altar call. My great grandfather, who I knew as a child, rode a Methodist circuit every Sunday on horseback in Virginia to preach the gospel. I grew up in a United Methodist parsonage in Florida and was nurtured and educated by the Church. The United Methodist Church confirmed  my call to ministry, ordained me, and for almost thirty-nine years has sent me forth in service to Christ and the world.

My PhD is in the field of Christian ethics, and I hold a second doctorate in marriage and family therapy. While I am not qualified to practice law, I earned a master’s degree from the Duke University School of Law in 1985.

Marriage equality, in my view, is a pivotal issue facing The United Methodist Church. Given the generational demographics on the subject, many people believe it may even define our survival as a vibrant denomination in the United States. So, when I was asked by some of my colleagues in ministry to write an Open Letter to the bishops analyzing the disciplinary authority for marital equality based on the Constitution of The United Methodist Church and The Book of Discipline, I agreed to do so.

Since June 26, 2013, there has been a deluge of lawsuits filed throughout the country, and this has been followed by numerous federal courts ruling that marital discrimination is unconstitutional under the doctrine of equal protection of the law in the Fifth and Fourteenth Amendments. What happened on June 26, 2013? The United States Supreme Court decided two cases that made marital inequality unconstitutional.

First, in Perry v. Schwarzenegger, based on technical grounds related to standing, the Court left in place lower federal court rulings that California’s Proposition Eight, which enshrined marriage discrimination into the California Constitution, was unconstitutional based on equal protection legal doctrines under the California Constitution. Even though focused on California, the Perry case established an important legal precedent. Based on overwhelming evidence presented by the American Psychological Association and the American Association for Marriage and Family Therapy, the lower courts ruled that marital discrimination causes substantial harm to millions of same-sex couples who live in loving, familial relationships and is especially injurious to hundreds of thousands of children living with same-sex parents.

The second case decided on June 26, 2013 was even more far-reaching. In United States v. Windsor, the Supreme Court ruled that the Defense of Marriage Act (“DOMA”), passed by the U.S. Congress, violated equal protection for same-sex couples due to its discriminatory definitions of the words “married” and “spouse.” This ruling eviscerated a thousand laws and regulations which were the federal basis for marital discrimination. Justice Anthony Kennedy, writing for the court, stated:

DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality…. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities. By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects…. And it humiliates tens of thousands of children [in New York] now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and their daily lives…. Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound.

The Perry and Windsor decisions have had a seismic effect on the legal landscape. The news of federal court rulings in numerous jurisdictions in support of marriage equality is a weekly, and sometimes a daily, occurrence. Change in attitudes on marital equality is not just reflected in federal court decisions. Polling on the subject shows a dramatic shift in the attitudes of the general public as well.

Recent polling shows that a majority of U.S citizens now believe in marital equality. Approximately 83% of those surveyed believed that marital equality will become legal nationwide in a matter of a few years. Among those in favor of same-sex marriage, 85% believe national legal recognition is “inevitable.” Even among those opposed to marital equality, 59% say its national legal recognition is inevitable. Nearly 70% of the people born after January 1, 1980 (“Millennials”) believe in marital equality; and, strikingly, 64% of the Millennials who identify themselves as “evangelical” believe in marital equality. Roughly 58% of Americans favor allowing gay and lesbian couples to adopt children; 70% of Millennials believe gay and lesbian couples should be allowed to adopt. (Sources: PewResearch.org; PublicReligion.org; FreedomtoMarry.org; MarriageEquality.org; and, “Public Opinion of Same-Sex Marriage in the United States,” in Wikipedia.org.)

While United Methodists do not derive their theology and ethics from the most recent polls, any Fortune 500 CEO will tell you that ignoring such shifts in attitudes is done at the peril of the Church’s future. Civil cases in the United States may have some limits as to how they apply directly to the Church and United Methodist polity. But such wide spread legal changes are creating a profound and categorical shift in how marital equality is being dealt with by many institutions in our society. This is already having a profound effect on the Church. We United Methodists are called to serve Christ and the world, and that does not mean constructing our own little world.

I now turn to the specific authority for recognizing marital equality under the Constitution of The United Methodist Church. The very fact that the Church has its own Constitution is significant. It functions in United Methodist polity in the same way written constitutions function in all kinds of societies and governments.

The Church’s Constitution sets forth certain Articles that are fundamental and which are very difficult to change. Moreover, it contains specific Restrictive Rules, which the General Conference “shall not revoke or change” under any circumstances (see Paragraphs 17 – 22). The Constitution also provides for the separation of powers between the legislative, judicial and episcopal branches of governance. The Judicial Council, the denomination’s highest judicial body, has affirmed the separation of powers on numerous occasions. Hence, while The Book of Discipline provides some 600 pages of governance, all provisions of that governance must conform to and be consistent with the Constitution, and the various powers of the legislative, judicial, and episcopal branches must be exercised according to the Constitution.

The first substantive Article in the Constitution of The United Methodist Church defines one of the most fundamental principles in Methodism. It states:

Paragraph 4. Article IV. Inclusiveness of the Church – The United Methodist Church is a part of the church universal, which is one Body in Christ. The United Methodist Church acknowledges that all persons are of sacred worth. All persons without regard to race, color, national origin, status, or economic condition shall be eligible to attend its worship services, participate in its programs, receive the sacraments, upon baptism be admitted as baptized members, and upon taking vows declaring the Christian faith, become professing members in any local church in the connection. In the United Methodist Church no conference or other organizational unit of the Church shall be structured so as to exclude any member or any constituent body of the Church because of race, color, national origin, status or economic condition.

Furthermore, Article IV is not left open to interpretations that would discriminate against  same-sex couples. In Paragraph 140, The Book of Discipline specifies the constitutional meaning of inclusiveness: “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” (emphasis added). In the first General Rule, promulgated by John Wesley and enshrined in the Restrictive Rules, United Methodists are instructed to live together—“First: By doing no harm. . . .”  (The Book of Discipline, page 76). This constitutional principle shall not be revoked or changed (Paragraph 21).

In the first General Rule, promulgated by John Wesley and enshrined in the Restrictive  Rules, United Methodists are instructed to live together—“First: By doing no harm. . . .” (The Book of Discipline, page 76). This constitutional principle shall not be revoked or changed (Paragraph 21).

The Book of Discipline goes further and specifically implores “families and churches not to reject or condemn lesbian and gay members and friends.” As United Methodists, “we commit ourselves to be in ministry for and with all persons” (Paragraph 161F). Support for gay and lesbian persons does not end there. At Paragraph 162, The Book of Discipline further provides:

Support for gay and lesbian persons does not end there. At Paragraph 162, The Book of Discipline further provides:

The rights and privileges a society bestows upon or withholds from those who comprise it indicate the relative esteem in which that society holds particular persons and groups of persons. We affirm all persons are equally valuable in the sight of God. We, therefore, work toward societies in which each person’s value is recognized, maintained, and strengthened. We support the basic rights of all persons to equal access to housing, education, communication, employment, medical care, legal redress for grievances, and physical protection. We deplore acts of hate or violence against groups or persons based on race, color, national origin, ethnicity, age, gender, disability status, economic condition, sexual orientation, gender identity, or religious affiliation. Our respect for the inherent dignity of all persons leads us to call for the recognition, protection, and implementation of the principles of The Universal Declaration of Human Rights so that communities and individuals may claim and enjoy their universal, indivisible, and inalienable rights.

In a subsection within the same disciplinary provision (Paragraph 162.J), The Book of Discipline is even more explicit:

Equal Rights Regardless of Sexual Orientation—Certain basic human rights and civil liberties are due all persons, regardless of sexual orientation. We see a clear issue of simple justice in protecting the rightful claims where people have shared mutual resources, pensions, guardian relationships, mutual powers of attorney, and other such lawful claims typically attendant to contractual relationships that involve shared contributions, responsibilities, and liability, and equal protection before the law. Moreover, we support efforts to stop violence and other forms of coercion against all persons, regardless of sexual orientation.

I can hear the protestations from the reactionary minority: “But what about this Judicial Council decision or that Judicial Council decision?” I also am sure they have their favorite proof texts from the Bible and from The Book of Discipline.

The decisions of our highest ecclesiastical court do matter, and there will be ample opportunities in the future to argue the minute details. For now, I would simply point out that the decisions of the Judicial Council are reversible. Moreover, at no time has the Judicial Council received extensive evidence and heard constitutional arguments regarding how harmful marital inequality is to a large population of our church members and a large segment of society. It is highly doubtful that momentous changes in societal attitudes and legal context in the United States, as was established in Brown v. Board of Education, where the injurious effects of racial segregation were legally recognized, will not eventually have an effect on the jurisprudence of the Judicial Council. Such changes, and the legal recognition of the harm caused by inequality, should have an effect on our life together in the Church.

So here we are: It is a fact that marriage inequality is not only a form of unlawful discrimination in much of the United States; we now know that it is an accepted scientific fact such discrimination is directly harmful to a significant population of our nation. Even more injurious, marriage inequality brands the hundreds of thousands of children being raised by same-sex couples as living in a second class family. It tears at the fabric of familial bonds and humiliates same-sex couples and their children under governmental decree. Likewise, the Constitution of The United Methodist Church does not permit the continuance of harmful injury. Furthermore, the General Conference does not have the power under the Constitution to enshrine discrimination into the polity of The United Methodist Church.

From a constitutional point of view, Bishop Melvin Talbert, Bishop Martin McLee, Bishop Minerva Carcano, Bishop Grant Hagiya, Bishop John Schol, Bishop Mary Ann Swenson, Bishop Roy Sano, and many others are publically leading The United Methodist Church in the right direction. With complaint procedures initiated against Bishop Talbert, I will not comment directly on his case other than to say that his call for Biblical Obedience is grounded in the best traditions of our Church.

The analysis I provide below is applicable to the leadership and responsibilities of every bishop—and germane, for that matter, to the leadership and responsibilities of every ordained minister. In providing this analysis, I will focus primarily on the recent decision of Bishop McLee related to his handling of the complaint filed against Professor Thomas Ogletree.

Professor Ogletree, age 80, is a retired ordained Elder in the New York Annual Conference. He served terms as dean at both Drew Theological Seminary and the Yale Divinity School and is a past president of the Society of Christian Ethics. His PhD is from Vanderbilt University. Ironically, he helped draft one of the key sections of The Book of Discipline, entitled “Our Theological Task.”

On October 20, 2012, Professor Ogletree performed the same-sex wedding of his son in the State of New York, a state that recognizes marital equality. This was the only such wedding he performed. Two members of the New York Annual Conference filed a complaint with Bishop McLee accusing Professor Ogletree of violating The Book of Discipline.

Various supervisory and procedural requirements were fulfilled by Bishop McLee and by Professor Ogletree, but the complainants demanded a church trial. The complaint process, as provided for in The Book of Discipline, became guided by judicial procedures. Counsel for the Church and a Presiding Officer were chosen by Bishop McLee. The trial date was set for March 10, 2014. Under Church law, the Counsel for the Church prosecutes the case on behalf of the Church, not just the complainants. The polity of The United Methodist Church embraces a restorative justice process, as oppose to a retributive process. This is an important distinction in the law of the Church. Hence, The Book of Discipline states that the purpose of any complaint procedure is to achieve “a just resolution…in the hope that God’s work of justice, reconciliation and healing may be realized in the body of Christ” (Paragraph 363).

During the pretrial stage, the Presiding Officer, Retired Bishop S. Clifton Ives met with the principals and, with their consent, decided to send the case back to Bishop McLee to see if a just resolution could be reached without a trial. The March 10, 2014 trial date was postponed. It should be noted that The Book of Discipline actually encourages actions consistent with Bishop Ives’ decision to postpone going to trial, calling trials a procedure of “last resort” (Paragraph 2707; see also Paragraph 363.F). His decision also is in keeping with the disciplinary principles of restorative justice.

On March 10, 2014, a settlement agreement was announced by Bishop McLee, Bishop Ives, the Rev. Tim Riss, Counsel for the Church, Professor Ogletree and the Rev. W. Scott
Campbell, Counsel for Professor Ogletree. All charges against Professor Ogletree were dropped. In addition, Bishop McLee made a commitment to end all trials as a way of dealing with clergy conscientious endorsement and participation in marital equality in his episcopal area. There are many ministers in the New York Annual Conference practicing marital equality and marrying same-sex couples.

In announcing the settlement agreement, Bishop McLee also called for “a process of theological, spiritual and ecclesiastical conversation.” Under the terms of the settlement agreement, Professor Ogletree will not exercise his constitutional right to a trial on the complaint. He also will be invited by Bishop McLee “to join others from varying perspectives to a public forum on the true nature of the covenant that binds us together.”

The complainants were not happy with the settlement agreement and since its announcement have been stirring up the reactionary minority, accusing Bishop McLee of not keeping faith with the United Methodist covenant and unilaterally dismantling clergy accountability. This simply is not true.

There is one further contextual detail that should be acknowledged. In one of the most recent church trials focused on a minister’s practice of marital equality, astonishingly, representatives of the reactionary minority were successful in convincing the presiding officer to rule in pretrial motions that the accused may not present exhibits quoting The Book of Discipline or provide expert testimony that would justify the minister’s actions. These rulings undermined the ability to put forward a full defense and eviscerated the meaning of a fair “trial” under the Constitution of The United Methodist Church.

Let’s be honest. Even the reactionary minority, and most of the bishops for that matter, know there is at least a public relations problem in The United Methodist Church: The Book of Discipline, a book with more than 600 pages of governance, contains less than five sentences that are directly discriminatory against marriage equality. The very notion of a trial becomes absurd if the accused is allowed to quote the Constitution and other passages from The Book of Discipline. A public trial allowing the accused to show his or her full justification for practicing marital equality based on the official polity of The United Methodist Church would tend to expose the Church’s hypocrisy on this matter. “Open hearts, open minds, open doors” would be shown to be no more than a slick public
relations slogan, with no real substance when it comes to marital equality. Hence, the
presiding officer in the trial disallowing exhibits quoting The Book of Discipline because they might be “confusing.” Violating the Constitutional rights of our clergy to a fair trial will not solve the fundamental problem. Only ending the discrimination of marriage inequality will make our church law coherent and make our Church worthy of claiming that we have open hearts, open minds and open doors without the scourge of discrimination.

The United Methodist form of polity does not rely on sheep-like leadership from the bishops. We are aware that the Spirit of God speaks in the midst of ongoing daily life. We embrace our diversity and multicultural perspectives as an inherent strength. This requires daily supervision in the life of the church in myriad temporal matters. It requires supervision in things spiritual as well. We celebrate that Jesus sided with the marginalized of society to proclaim God’s sovereignty and to show the ultimate triumph of grace—sola gratia. These are essential functions in the Church, and The Book of Discipline charges each bishop with “residential and presidential supervision” (Paragraph 49).

The episcopacy is protected by the Constitution of The United Methodist Church and more importantly by the Restrictive Rules contained in the Constitution. Accordingly, the “General Conference shall not change or alter any part or rule of our government so as to do away with episcopacy or destroy the plan of our itinerant general superintendency” (Paragraph 19). Though there are age requirements for retirement from residential service, bishops are consecrated for life long leadership, and they retain membership in the Council of Bishops and in their respective colleges in each jurisdiction. Bishops are considered leaders of the whole Church, not just an annual conference. It also is important to note that under the constitutional separation of powers the chief legislative body of the Church, the General Conference, meets only once every four years. The chief judicial body, the Judicial Council, meets only twice a year. Episcopal supervision is a daily and continual responsibility.

Bishops are not only entitled to interpret the Constitution in their daily administration of the “temporal and spiritual” affairs of the Church, they have a responsibility to do so in fulfillment of their supervisory role. Hence, Bishop McLee was not only within the powers of his office to drop the charges against Professor Ogletree, with the consent of his cabinet of District Superintendents, he had a responsibility to apply the totality of the Constitution in fulfilling his residential and presidential supervision (See Paragraphs 49 and 363).

The reactionary minority has continued since the announcement of the restorative justice settlement agreement with Professor Ogletree to demand that a “pound of flesh” is the only just resolution. They demand coercion over conscience, and, in so doing, they do violence to the Constitution and promote injurious harm to a large population of the Church. The United Methodist Church is a global connection. In some parts of the world, people are literally dying and suffering physical violence daily because of governmentally sanctioned discrimination and heterosexism.

John Wesley said: “Do all the good you can, by all the means you can, in all the places you can, at all the times you can, to all the people you can, as long as ever you can.” This gracious admonition leaves no room whatsoever for marshaling resources to destroy the lives of our pastors who believe in marital equality based on conscience and who pursue good for those they love.

Bishop Martin McLee is correct. Church trials are not a way forward and do not strengthen our covenant as United Methodists. Every bishop of the Church should pledge support for Bishop McLee’s paradigm for handling complaints against clergy practicing marriage equality. Sustaining charges against ministers who actually fulfill the disciplinary requirement of inclusiveness and who stand against “every semblance of discrimination” is a violation of our Constitution. Such charges are an abusive manipulation of power by a small minority of Church members and clergy who zealously pursue the harm of others. This is not and should not be allowed in our polity.

The bishops of The United Methodist Church are given the constitutional and ecclesiastical power to stop the daily and injurious harm of discrimination in our Church and to bring an end to the persecution of ministers who courageously practice marriage equality in fulfillment of their calling and in performance of their pastoral responsibilities.

Grace and Peace in Christ’s Service,

Larry B. Lake

March 25, 2014

L.Lake@FaithAndConscience.org

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