Practical Observations Concerning the Proposed 'Protocol' Legislation

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Since the Protocol was first announced, numerous writers and speakers have approached the issue of separation from various perspectives.  Some writers focus on theological issues addressing unity and separation and advance positions based on their theological perspective.  To me, the two theological positions in tension are Christ’s call for unity in the universal church and a recognition that the church is called to be in the world but not of the world.  I have reflected long and hard on the tension and continue to pray about the issue and try to discern the right path.  I’m sure other delegates are struggling with unity versus separation on this theological level.

Other writers have addressed the church politics involved in passing the legislation and what effect passing or failing to pass the legislation will have on the church.  As a global denomination, the United Methodist Church clearly operates in many contexts.  However, whether one likes it or not, the reality of the United Methodist Church polity is that decisions at General Conference are made using a majority vote.  Anyone considering the future of the United Methodist Church must deal with that reality.

Other writers have focused on division of assets, clergy pensions, effect on local churches and myriad other issues.  There are many voices seeking to be heard and worth hearing.

Years ago I read or heard (the years have dimmed my recall of the source) a very wise observation.  When a new venture is being proposed, the optimism and excitement surrounding the new venture often results in people failing to anticipate many of the future problems.  Those problems, if addressed and resolved initially, are often easier to solve than they are later in the venture’s life.

I believe we are seeing such optimism and excitement building over the Protocol and its proposed implementing legislation.

When a new venture is being proposed, the optimism and excitement surrounding the new venture often results in people failing to anticipate many of the future problems. 

When I drafted and submitted the Plain Grace Plan, I focused on the process.  I believed then, and still believe, that a fair and understandable process that can’t be gamed would go a long way towards allowing a peaceful separation.  I still believe that.  Without attempting to upset the carefully drafted compromise memorialized in the proposed legislation, I think it is appropriate to note some of the potential deficiencies with the plan’s implementing legislation.  In making this critique, I’m not suggesting that the  Reconciliation and Grace Through Separation and Restructuring plan (hereinafter “Restructuring Plan”) should be defeated; however, I do think it contains some hidden issues that the plan’s proponent’s might want to address and General Conference might need to fix by amendment.

This post is the first of several that will address some of the latent process issues,  Today, I’ll address two.

Issue No. 1 – What happens if part of the legislation is invalidated by the Judicial Council?

When the protocol was announced, the proponents of the protocol pledged, as item 5: “The undersigned agree that each of the provisions of this Protocol is integrated with and integral to the whole and shall not be severable from the remainder of the Protocol. Further, should any provisions of the Protocol be deemed illegal by either the United Methodist Judicial Council or by civil courts, the entirety of this Protocol shall be considered null and void.”  This is a fairly standard concept in mediation: there is no agreement on any provision until there is an agreement on all provisions.  It reflects the reality that often compromises are reached by one party giving in on “Issue A” in exchange for the other party giving in on “Issue B”.

This pledge should be contrasted with sub-paragraph 1.f) of the proposed legislation: “Severability—If any provision in ¶ 2556 is determined to be invalid or unconstitutional, that decision shall not affect the remainder of the provisions.”

Clearly, these two statements are at odds and express two different sentiments.  The proposed legislation indicates that if one part of the compromise is struck down the legislation may continue forward. However, considering the pledge made by the negotiators, if a part of the proposed legislation is struck down, will the proponents of the plan jointly announce that the deal is dead?  That would appear to be what they pledged to do and seems to be sentiment flowing from the Protocol.  On the other hand, the legislation would clearly allow the General Conference to consider the legislation that survives.  One can easily envision recriminations that may flow if a part of the legislation, that was key to reaching the compromise, is struck down and other parties press forward with attempting to enact the remaining legislation while another party objects to going forward.

This potential problem is exacerbated by the groundswell of support to consider the legislation.  Do those being asked to support the Restructuring Plan understand that the leadership may ask that the legislation not be considered?  Is that even a possibility at this point?  What will be the level of frustration and recriminations if such a result happens.  What will be the level of frustration and recriminations if that result doesn’t happen?

This problem may never surface.  The Judicial Council may conclude that the entire proposed legislation passes judicial review.  Nonetheless, the proposed legislation has set the stage for a potential dispute.  The optimist in me would like to think such a problem couldn’t happen, the lawyer in me says don’t be so sure about that.

Issue No. 2 – Qualification through the Council of Bishops

The Plain Grace Plan established a process for the Council of Bishops to insure that new denominations that formed were Wesleyan at heart.  But it made the Council of Bishop’s job ministerial, not adjudicative.  In addition it created an extremely simple process for recognition with short deadlines and presumptions that inaction by the Council of Bishops was deemed to be approval.  None of the safeguards in the Plain Grace Plan exist in the Separation Plan.  There is the implied idea in the Restructuring Plan that we will trust the Council of Bishops to do right.  In my opinion, the proposed Restructuring Plan creates huge problems and potential roadblocks.

First, as written the “The United Methodist Council of Bishops shall conditionally recognize as a New Methodist Denomination, with which local churches and annual conferences may opt (by vote or default) to align . . .”  Missing from this statement is Central Conferences.  I assume this is a mere drafting omission, if it is, then it should be corrected.  If it’s not, then the Council of Bishops has no power to conditionally recognize a New Methodist Denomination that Central Conferences may choose to join.

Second, what is the process for this conditional recognition?  The legislation says the Council of Bishops “shall conditionally recognize”.  Does the Council of Bishops have to vote as a whole to conditionally recognize?  This would appear to be left up to the Council of Bishops.  I assume the Council of Bishops will have to meet and establish the process as a first step.  I don’t envision a speedy decision on the process to be forthcoming.

Third, the Council of Bishops is required to make 5 determinations before it may Conditionally Qualify a new denomination.  Item 1 seems to be a mixed question of fact and law: “The New Methodist Denomination must have a distinct legal existence, reflecting its polity, through incorporation of the New Methodist Denomination or incorporation of an administrative entity, that is able to be recognized under the applicable laws where it is organized.”  Will the Council of Bishops conclude that they, without the assistance of legal counsel, can determine that the New Methodist Denomination has “a distinct legal existence, reflecting its polity”?

Paragraph 132 of the Book of Discipline states this about the United Methodist Church’s polity  “by sharing together a constitutional polity, including a leadership of  general superintendency”.  Combine this with the the requirement of of sub paragraph 4): “The New Methodist Denomination must propose a definite and distinct ecclesiastical governance structure” and the ground is laid for a lively debate within the Council of Bishops concerning whether the new denomination’s “polity” and “definite and distinct ecclesiastical governance structure” passes muster so that the new denomination may be Conditionally Qualified.  I’ve written extensively on the need to avoid “ruling from the grave”, these provisions certainly hand the Council of Bishops the right, and probably the responsibility, to rule from the grave.

Fourth, when is the Council of Bishops required to "conditionally recognize" the new denomination?  There is no mandated time frame. May the Council of Bishops put the "conditional recognition" question on their Agenda for October, November or December of 2020 or even later?  If so, despite all language suggesting the potential for annual conferences and local churches to take an early vote to join a new denomination, it appears to me that no Annual Conference, Central Conference or Local Church can actually vote to join a new denomination.   Paragraph 25562.c) provides: “The conditional qualification in ¶ 2556.2a provides recognition for voting.”  Perhaps I’m missing something here and I invite others to explain where I went wrong in my thinking.  If I’m reading this right, then despite all the language to the contrary, there can be no vote nor any reason to call a special session until the Council of Bishops has acted by granting "conditional recognition."  I certainly have my doubts that a new denomination with be "conditionally recognized" as the United Methodist Church enters its 2020 season of scheduled annual conferences, especially since many of those Annual Conferences will take place in the time period immediately following General Conference.

There are other process issues that I intend to address in the future, God willing.  But as I approach 1500 words, I think this post is long enough.

Thanks for reading; Come Holy Spirit.

Retired attorney Frank Holbrook of Martin, Tenn., is a delegate to the 2020 General Conference from the Memphis Annual Conference and author of the "Plain Grace" separation plan to be considered by General Conference. This post is republished with permission from his blog, Plane Grace.