Rebutting Criticism of Frank Schaefer Appeal Ruling

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A United Methodist Insight Exclusive

Before the criticism of the Appeal of the Rev. Frank Schaefer gets too emotionalized, let’s look at the facts that give rise to the criticisms:

Rev. Schaefer is part of a ministerial covenant and he violated it. Why is he still a minister?

Yes, the Rev. Frank Schaefer is a part of a ministerial covenant. He was, and remains, subject to that covenant---just as all of us in the ordained relationship are subject to it. Yes, he violated the covenant by engaging in an act that at least half of United Methodist Clergy have done: he participated in the legal wedding of his own child. What made it different is that his son was marrying another man---an act in violation of our Book of Discipline.

Just like the Federal Government in the United States, we have a tri-partite polity structure: executive, legislative, and judicial. Frank Schaefer is subject to its rules and its protections, again as all of us in the ordained relationship are so subject. A church judicial trial court found him guilty of violating that covenant, and he has been subject to a penalty for that act violating the covenant.

But it looks like he “got off”: he is still a minister.

Frank Schaefer was suspended from the practice of ministry for 30 days, without pay. For the average clergy in our denomination, that costs a suspended clergy somewhere between $4,500 and $5,500 in lost pay. Even the maximum penalty for persons convicted of a misdemeanor crime in any state in the U.S. is less than that.

Our Church constitution (¶33) and Book of Discipline (¶604.4) make all matters of ordination, character, and conference relationship the province of the ministerial members in full connection in the annual conference in which an accused clergy holds his/her membership. Frank Schaefer was found guilty by a trial court of members of his own Annual Conference (Eastern Pennsylvania), and was sentenced by them to be suspended, without pay, for 30 days. He did not “get off.” He served that sentence.

The trial court also intended for him to lose his orders if he couldn’t promise he wouldn’t perform such a service again. He said he could not make that promise, so his Board of Ordained Ministry defrocked him. Why is he still a minister in our denomination?

Frank Schaefer’s appeal case was not over the verdict. He did not contest his guilty verdict. The appeal was only over the part of the sentence that called for him to affirm to his Board of Ordained Ministry that he would never violate the anti-gay portions of our polity again. He could not so affirm, so the Board of Ordained Ministry “defrocked” him.

The appellate decision revolves around two Judicial Council decisions, both of which were based on principles of law that parallel those of our secular legal system. The first affirmed, just as secular law does, that a “suspension” applies as a function of time, not of other factors. If one is suspended for a period of time, then once that time is over, the person cannot be required to perform any other functions to return to good standing. This Judicial Council decision was made in 1966, long before homosexuality ever was an issue in our denomination.

The second Judicial Council decision also parallels secular law: we can punish people for things they have done that violate the law. We can also punish people for NOT doing things that the law requires them to do. However, even in secular law, we cannot punish people for doing, or not doing, acts that have not yet occurred---and which may or may not ever occur. That decision goes back to the 1994---20 years ago. These decisions are not new.

The Trial Court violated both of those Judicial Council decisions by demanding that Frank Schaefer perform certain acts and make certain promises as a condition of being returned to good standing after the time of his suspension was over. Further, they violated The Book of Discipline by assigning their judicial function, as a continuing body until all appeals are over, to the Board of Ordained Ministry of their Annual Conference.

If the Trial Court wanted to defrock Frank Schaefer permanently, it had the authority to do so. The Trial Court chose not to do so. A Committee on Appeals can affirm a decision, or lower its intensity; it cannot increase the penalty. (This has been the case since the 19th century in Methodist church law!) The Committee on Appeals affirmed the legal part of the penalty, and nullified the part of the penalty that was illegal in our polity.

One critic said that this Appeal Decision was made by a liberal Committee on Appeals in a liberal Jurisdiction, led by a “liberal lesbian” President of the Appellate Committee.

I find comments like that to be preposterous: they show a total lack of understanding of our polity and our United Methodist history---classes which all UM clergy must complete prior to ordination and membership in an Annual Conference, in full connection.

In the 1939 Unification of three Methodist bodies into “The Methodist Church,” we created five “Jurisdictions” in the United States to allow both for regional election of Bishops and for churches to retain much of their historic styles of operation. Some Jurisdictions tended to be more “conservative,” than others, while others tended to be more “liberal.” This was known in 1939 when Unification occurred. To criticize those Jurisdictions for functioning as they were designed to function, 75 years later, is specious.

I find it particularly offensive to refer to the President of the Northeast Jurisdictional Committee on Appeals as a “liberal lesbian.” This woman, who happens to be a federal prosecutor in her “day job,” was elected by that committee as being the one it felt was best qualified among its members to serve in that role. Her personal life is her business, not ours. (We do not exclude laypersons who happen to be homosexual from full participation in The United Methodist Church.)

I have read all of the almost 1200 Judicial Council decisions made in our denomination since Decision No. 1, in 1940. I have never read a Judicial Council decision that was so detailed in its retelling of the history, reciting the relevant ‘case law’ from the Judicial Council, and coming up with a decision that was so conservative in its interpretation of existing church law, as was this decision in the Schaefer case. It runs eleven pages, single-spaced, on 8.5” x 11” paper. This decision was written up in the same format as if it had been a U.S. Supreme Court decision.

Even if I had disagreed with the Appellate Committee decision, I would have been proud of the way it was approached, decided, and reported.

The Eastern Pennsylvania Annual Conference has the right to appeal. Shouldn’t the Counsel for the Church make that appeal right away? The Judicial Council is a more conservative body and would likely reverse that decision.

If I were a betting person, I wouldn’t bet any money on that notion. If I were Counsel for the Church in this case, I would think twice or thrice about making that appeal. I know, all too well, the phenomenon popularly known as “the law of unintended consequences.”

First of all, the Judicial Council could only consider laws “related to procedures of the Jurisdictional Committee on Appeals,” or if there had been a similar case in a different jurisdiction that came up with a different decision. (There has not yet been another such case.) The procedures detailed in the written decision were absolutely “by the book.”

More importantly, as it stands, the Schaefer case can only serve as a precedent in the Northeastern Jurisdiction, if another similar case comes along in an Annual Conference of that Jurisdiction. It is not binding on Annual Conferences in the other four Jurisdictions or Central Conferences. However, if the Judicial Council considered the appeal and either reduced the penalty Rev. Schaefer received, or let the appellate decision stand without change, it would become a precedent for the entire denomination. For those who are opposed to the results of this Appeal, I would think an Appeal to the Judicial Council would be the last thing in the world they would want to see.

This decision was too well written to be undone by Judicial Council criticism, irrespective of how “liberal” or “conservative” the Judicial Council may be.

Civil governments use criminal court action as a “deterrent” to keep others from violating the same laws. Should the church not do the same thing to deter other clergy from also performing same sex union or marriage services?

Civil governments use criminal punishments of the guilty as deterrents to keep others from violating the same laws. The way civil governments determine guilt or innocence is much the same in both Secular and Ecclesiastical Courts.

Where our Church is unique (and history has shown this to be wise) is to acknowledge that we are too small a body to have set penalties for any particular “offense,” as is done in Civil Law. (Consider that we have fewer than 26,000 clergy, counting those both active and retired, worldwide, in The United Methodist Church. The average Justice Court in the U.S., the lowest level of court in the country, has a larger body of persons subject to its review.)

As a result, the General Conference sets the “chargeable offenses (¶2702.1) for judicial complaints, but allows each Annual Conference’s trial court to determine both the “specifications” that might prove to a trial court that the “offense” occurred, and to determine what the appropriate penalty is, in any particular circumstance. This style of judgment effectively nullifies a denominational-wide “deterrent” effect.

This style of judgment also affirms the Church constitution, in ¶33, which states that all matters regarding character or conference relationships of a clergy are in the hands of that clergy’s peers, those members in full connection in the same annual conference as the one accused of misconduct.

This is our system. It was first mentioned in the minutes of the 1792 General Conference and in the 1808 Book of Discipline. It has been enshrined as a “restrictive rule” in our Church constitution since that constitution was approved by the 1832 General Conference.

Our system of dealing with clergy is misconduct worked. For that, we should all be grateful.

The Rev. Thomas H. (Tom) Griffith is a retired Elder in Full Connection in the California-Pacific Annual Conference. He has served as Counsel for the Church twice and mediator on a Judicial Charge case in his own Annual Conference, once. He also has served as Counsel for the Defense on six Judicial Process cases (twice in Trials) in four different Annual Conferences. In addition, he has served as Defense Advocate, over the years in 19 cases in his own Annual Conference. He has appeared before the Judicial Council on seven different occasions in his career.