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Bishop-elect Karen Oliveto
The Rev. Karen Oliveto accepts her election by the Western Jurisdiction as a United Methodist bishop. Oliveto is currently the senior pastor at Glide Memorial United Methodist Church in San Francisco, Calif. Her wife, the Rev. Robin Ridenour, a United Methodist deaconess, stands behind her.
Editor's Note: Within minutes of the Western Jurisdiction's elected of openly lesbian Rev. Karen Oliveto as bishop on July 15, delegates to the South Central Jurisdiction approved a motion to ask the United Methodist Judicial Council to nullify her election. Since then, the executive committee of the Council of Bishops asked the Judicial Council to hold a "special hearing" to consider the South Central petition immediately, since all newly elected bishops take office Sept. 1. In an unprecedented decision, the executive committee of the Judicial Council declined the request for a special hearing, instead scheduling a decision on the South Central petition for its Spring 2017 docket.
In the following "friend of the court" brief provided to United Methodist Insight by its author, the Rev. Thomas H. Griffith, a retired elder from the California-Pacific Annual Conference who is a church law expert, argues that the South Central Jurisdiction petition has no legal standing according to the United Methodist Book of Discipline. This brief and accompanying emails between Rev. Griffith and the Rev. David Severe, South Central Jurisdiction executive director, are published as presented to the Judicial Council, except that contact information for all parties has been removed for privacy reasons.
THOMAS H. GRIFFITH
August 12, 2016
AMICUS CURIAE BRIEF TO THE JUDICIAL COUNCIL
IN RE: Request for Declaratory Decision from South Central Jurisdiction regarding whether a Jurisdiction may elect an openly homosexual clergy to be a Bishop.
Docket: (Presumed) Fall, 2016
N.B.: All “¶” and “Paragraph” references are to the 2012 Book of Discipline.
“JCD” means “Judicial Council Decision”
Other citations are footnoted.
RECOMMENDED ACTION BY THE JUDICIAL COUNCIL
The action of the South Central Jurisdiction in its request for a Declaratory Decision does not meet the procedural criteria to be considered as a legal request. The Judicial Council does not have authority to grant jurisdiction to consider this request. Further, if the Judicial Council does grant jurisdiction to consider this request for a Declaratory Decision, previous decisions of the General Conference in The Book of Discipline, together with prior Judicial Council rulings, do not support the assertions made in the request. It should be denied.
STATEMENT OF FACTS
On July 15, 2016, the South Central Jurisdiction requested a Declaratory Decision on questions related to whether another Jurisdiction could nominate, elect, consecrate, and/or assign as a Bishop, a person who is a self-avowed homosexual. This is now before the Judicial Council.
JURISDICTION
I would argue that the Judicial Council should decline jurisdiction on this question. However, if the Judicial Council does claim jurisdiction to answer this question, it has jurisdiction only under the provisions of ¶2610.2f.
ANALYSIS
In this writer’s opinion, the question asked is one that was requested on the basis of emotion. In actuality, the operative elements of this request must be seen in the light of the legal doctrine of stare decisis: “It has been decided.” Precedent in the Book of Discipline, prior Judicial Council Decisions, and even in the standing Rules of Practice and Procedure of the Judicial Council, itself, show that the question and sub-questions asked have already been asked and answered. The Judicial Council should not grant jurisdiction.
I begin with the words of the Judicial Council’s own Rules of Practice and Procedure regarding requests for Declaratory Decisions:1
“Such petitions must meet two conditions: (1) it must be a matter which affects the body filing the petition and (2) it must involve the constitutionality, meaning, application, or effect of the Discipline or some portion thereof, or some act of the General Conference.”
Historically, the Judicial Council has insisted that whether it comes from an Annual Conference, a Jurisdictional Conference, or a Central Conference, a request for a Declaratory Decision must arise from an action or event that occurred in the requesting body, itself. In this case, the South Central Jurisdiction is asking a question not based on what was happening in its own session. Rather, the request was based on an action assumed to be occurring in another Jurisdiction. There was nothing going on in the South Central Jurisdiction that related this question to its own action(s); it was not based on an item on its own agenda; it was not based on an election that had occurred in its own meeting. The answer to the question would not affect the actions of the South Central Jurisdiction at its 2016 session. On that basis, alone, the Judicial Council should not grant jurisdiction to consider this question.
To add to this is abuse of process: by written acknowledgement from Dr. David Severe, Secretary and Executive Director of the South Central Jurisdiction (see Exhibit II attached), the motion passed by the South Central Jurisdiction requesting this Declaratory Decision occurred “late in the afternoon,” Central Daylight Time. The Secretary’s records from the Western Jurisdiction (See Exhibit I attached) show that the election of Karen Oliveto to the Episcopacy occurred on July 15, 2016, at 8:59 p.m., Mountain Standard Time. (The Western Jurisdiction met in North Scottsdale, Arizona. Per state law, Arizona operates on Mountain Standard Time, year ‘round. From March until November, Mountain Standard Time in Arizona is the same as Pacific Daylight Time in rest of the contiguous United States.) If we assume, for purposes of comparison, that the South Central Jurisdiction’s “late in the afternoon” request for a Declaratory Decision took place at 5:00 p.m., CDT, that is the same as 3:00 p.m., MST. The vacancy in the Western Jurisdictional College of Bishops for which an election was held did not result in an election until 8:59 p.m., MST, on July 15. This request was made six or more hours prior to the election of any Bishop in the Western Jurisdiction. The Judicial Council has already determined that decisions and negative assessments of persons may not be made on the basis of “future possibilities which may or may not occur.” (JCD 725).
In effect, the South Central Jurisdiction, upset at the idea that a homosexual clergy might be elected to be a Bishop, was voting on an idea, not on actual fact. This request is the equivalent of the South Central Jurisdiction requesting an advisory opinion under the provisions in
¶2609.2---something the General Conference has already decided is a right solely of the General Conference itself, or of the Council of Bishops.
The South Central Jurisdiction is seeking to legislate, for the entire denomination, through our judicial system. The Constitution makes it clear that legislative power granted solely to the General Conference (See ¶¶16.3 and 16.5).
On this basis, alone, the Judicial Council should not grant jurisdiction to consider this question.
If the Judicial Council does choose to grant jurisdiction for consideration of this request, I offer the following arguments, incorporating the arguments previously listed:
All persons whose name appeared on any ballot for the one vacancy in the College of Bishops of the Western Jurisdiction were, at all times, persons who had completed Candidacy, and who had served on Probationary Membership until they were received into full membership in an Annual Conference of The United Methodist Church. Each of their respective Annual Conferences had determined that they met the requirements for ordination and membership in Full Connection. (JCD 542). None of them had their names listed on Question 17 of the “Business of the Annual Conference” in their respective Annual Conferences; ergo, they were determined by their clergy session to be “blameless” in their official acts and work. Each met the standards for election to be elected to be a Bishop at ¶403.1: “An Elder in Good Standing in Full Membership in an Annual Conference.” (See also JCD 920).
The elected Bishop was consecrated on Saturday, July 16, 2016, and was assigned to serve in an Episcopal Area of the Western Jurisdiction.
With regard to the specified Disciplinary passages that the South Central Jurisdiction feels were violated:
¶2702.1a, 1b, and 1d all list chargeable offenses for which a written judicial complaint (¶363) could be filed. However, this is a request for a Declaratory Decision. The Judicial Council is an appellate body---it cannot consider issues that would require a written complaint to begin at a lower level of the church. The Judicial Council itself, at its Decision 702, wrote:
“The Judicial Council is not an evidentiary body. (Name of Respondent) could make a statement to us in open session that (s/he) was a self-avowed practicing homosexual and we could not regard it.”
The only way allegations under this Paragraph could legitimately come to the Judicial Council would be through an appeal from a decision of a Jurisdictional Committee on Appeal, which itself was considering an appeal from a Church Trial. (See ¶2711). No written complaints by anyone who could claim any personal sexual relationship and witness regarding this chargeable offense has submitted a written complaint against any of the candidates for Bishop in the Western Jurisdiction at the time this request for a Declaratory Decision was passed. It has already been decided: this Disciplinary paragraph is irrelevant in this particular case.
¶341.6 deals with persons who conduct marriages. There is no written allegation by any witness that any of the candidates for Bishop in the Western Jurisdiction had conducted any services that might in any way celebrate homosexual unions. Had there been such allegations extant, complaints could have been filed against any of the candidates in their own Annual Conferences, and considered according to the terms of ¶363. This Disciplinary paragraph is irrelevant in this particular case.
¶310.2d deals with the requirements of clergy. There have been no complaints filed against any of the candidates who were on the ballot for election at the time this request was approved by vote in the South Central Jurisdiction, in any annual conference, for violation of any of the virtues listed in this paragraph. This Disciplinary paragraph is irrelevant in this particular case, (¶604.4). Further, even JCD’s 702 and 920 make it plain that if a clergy is accused of a chargeable offense, the accused cannot be terminated without full fair process as detailed in ¶2701.
¶304.3 (including its two referenced footnotes) comprises the General Conference’s definition of the phrase, “self avowed practicing homosexual.” As stated in the Concurring Opinion to Judicial Council Decision 544 (cited 13 times on its own, as opposed to only once for the main decision at JCD 544), our prohibition is not against “…those who are homosexual, per se, but against “self avowed practicing homosexuals, which is an entirely different matter.”
The 1996 General Conference adopted the definition of the phrase “self avowed practicing homosexual,” after requests for the same from the Judicial Council from the preceding two quadrennia. ¶304.3, in its footnote number one, gives us this definition:
“Self avowed practicing homosexual” is understood to mean that a person openly acknowledges to a bishop, district superintendent, district committee on ordained ministry, Board of Ordained Ministry, or clergy session that the person is a practicing homosexual.”
This means that a candidate, provisional member, associate member, or member in full connection of an Annual Conference must personally state to at least one of the parties named in the footnotes that s/he is both homosexual in his/her gender orientation, AND engaged in a relationship with a person of the same gender that involves sexual practice. At both JCD 920 and JCD 1027, the Judicial Council has defined the phrase “practicing homosexual” as one who “…is engaged in genital sexual activity with a person of the same gender….”
We have a large number of our clergy, before and most particularly on the day before the 2016 General Conference opened, when 111 clergy and candidates publicly affirmed and personally avowed, in writing, that they are homosexuals. However, to my knowledge, none of these clergy have self avowed that they are engaged in homosexual practice. Unless and until any of them make that second personal avowal, and complaints have been filed against them (¶363), they are in good standing as ordained ministers in The United Methodist Church, and eligible per Disciplinary requirements to be elected a Bishop.
With regard to the five sub-questions listed in the request for a Declaratory Decision:
The public record that a nominee for the episcopacy is a spouse in a same-sex marriage does not constitute a self-avowal. For all any person knows from the public record, two persons have requested a license to be legally married and treated as a unit. It is not a statement of sexual practice, unless the clergy member of the couple makes a personal self-avowal, or a person who has been engaged in same-sex sexual practice with the clergy files a written complaint. Neither I, nor any clergy I know, was ever asked by a District Superintendent, Bishop, district committee on ordained ministry, Board of Ordained Ministry, or a clergy session, just how my spouse and I choose to engage in a sexual relationship. There are indeed marriages that are, and remain, celibate. To state that a public record is proof of sexual practice is, at most, an assumption on the part of a person not in the marriage relationship, about persons who are in a married relationship. For this to be examined would require a written complaint (¶363) and going through our judicial process. Otherwise, it is none of anyone’s business except that of the couple, and of God.
There are many behaviors that could be subject to a chargeable offense, same-sex sexual practice being only one. We cannot state, at all, that the status of a clergy who could be subject to a chargeable offense can nullify any action taken by a Charge, District, Annual, Jurisdictional, or Central Conference, absent proceeding through the entire judicial process, being found guilty by a trial court, having a penalty assessed that would include such a nullification, and the time of appeal rights having elapsed.
¶415.6 mandates that Bishops participate in the consecration of new Bishops who are elected by Jurisdictional or Central Conferences. That is not a matter of choice for a member of a College of Bishops. For a Bishop to refuse to participate in a service of Consecration of a new Bishop could subject the refusing Bishop to Administrative Complaints for “unwillingness to perform Episcopal duties” (¶413.3e) or judicial complaints of “Disobedience to the Order and Discipline of The United Methodist Church” (¶2702.1d).
Again, even if a Bishop becomes aware that a clergyperson has become the spouse of another person who is of the same gender, through a public record, that public record is does not constitute a self avowal of either homosexual gender orientation, or of homosexual practice.
Not one word or idea I have written above is new. It has all, previously been decided. Therefore, it is my assertion that the action of the South Central Jurisdiction in its request for a Declaratory Decision does not meet the procedural criteria to be considered as a legal request. The Judicial Council does not have authority to grant jurisdiction to consider this request. Further, if the Judicial Council does grant jurisdiction to consider this request for a Declaratory Decision, actions of the General Conference in The Book of Discipline, together with prior Judicial Council rulings, do not support the assertions made in the request. It should be denied.
Respectfully Submitted,
Thomas H. Griffith
Elder in Full Connection (Ret.)
California-Pacific Annual Conference
1 Rules of Practice and Procedure of the Judicial Council, dated 4/8/2015, Appendix B, Pg 14
EXHIBIT 1
(Correspondence between Thomas H. Griffith and Catie Coots, Interim Secretary, Western Jurisdictional Conference)
8:59 is the answer I got from one of my sources. We were sensitive to the timing from the start, and had a couple different methods to set the time. We were trying to coordinate to make sure we were accurate.
Please let me know how this goes and if there is anything else I can do to help.
Catie
Sent from my iPad
On Jul 16, 2016, at 9:23 PM, Tom Griffith wrote:
Catie, I'm beginning to draft a brief opposing the request of the South Central Jurisdictional Conference for a declaratory decision from the Judicial Council as to whether a Jurisdictional Conference may nominate, elect, or assign a self-avowed practicing homosexual to be a bishop.
There is one item of info that I think you have: did you note in your minutes the exact time at which the ballot was announced that Bishop Oliveto was elected? It turns out that may well be critical in determining whether the question raised by the SCJ is in order. If you have that time, please email it to me.
Thanks in advance.
Tom
EXHIBIT II
(Correspondence between Thomas H. Griffith and Dr. David Severe, Secretary and Executive Director of the South Central Jurisdiction)
From: David Severe Sent: Tuesday, July 19, 2016 11:22 AM Subject: Re: Request for Information RE: election of Bishop Karen Oliveto from Tom Griffith California-Pacific Annual Conference
Tom
I am out of the office today and can't check the minutes for the exact time.
I can tell you the motion was made and passed late in the afternoon on Friday the 15th.
David from David's IPhone.
-----Original Message----- From: Tom Griffith Sent: Tuesday, July 19, 2016 9:47 AM To: [South Central Jurisdiction] Subject: Request for Information
TO: Dr. David Severe, Executive Director
South Central Jurisdiction
Dear Dr. Severe:
I am preparing an analysis of the events relating to the election of Bishop Karen Oliveto in the Western Jurisdiction. Part of that is the request of the Judicial Council for a Declaratory Decision by the South Central Jurisdiction as to whether a Jurisdiction could elect an openly homosexual person to be a Bishop.
Reports in the press regarding that request for a Declaratory Decision are all over the map on when that request was made. Could you please reply to this email and give me the specific date (July 15 or July 16) and the specific time in the South Central Jurisdiction's 2016 session, that that request was approved by the Jurisdiction?
Thank you in advance for your assistance in this matter.
Sincerely,
Tom Griffith
Elder in Full Connection
California-Pacific Annual Conference