Constitutional Authority to Establish Specifications
There are several aspects of this case that deserve some attention
What is the constitutional issue involved?
What are the political implications of the request?
Why did the Council choose P 2608.2 instead of P 2610 to answer the request?
What does the decision actually say?
Why did the Council even take jurisdiction?
Knowing what I know of the Council and of the ones bringing the request, I can offer speculation that may provide possible insight into what happened and why.
What is the constitutional issue involved?
The constitution gives authority to each church body and office identified as part of the church. It gives to the General Conference the authority to establish a judicial system. It therefore has the power to identify chargeable offenses. The constitution provides for the committee on investigation to identify specifications that prove the charges and a trial court that must have verified specifications in order to support any charge against a pastor. But does the General Conference have the authority to identify specifications?
In other words, is it constitutional for specifications like being celibate or performing same sex weddings to be included among the charges as they are in Paragraph 2702?
There already are various paragraphs that are prohibitive throughout the Discipline such as Paragraph 341 which identify the same things as in PP 2702.1(a) and (b). Those were passed by the General Conference and are not called into question by the request. In fact, they are not exactly specification since a specification includes time, place, and events alleged to have happened (Paragraph 2706.5a).
It appears that the issue may be editorial rather than constitutional. Including those particular examples is redundant. Any number of other examples could have been used such as re-baptizing and ex-parte communications. But they would have been redundant as well.
What are the political implications of the request?
The political act which added the redundant “including but not limited to” examples to P 2702.1(a) and (b) successfully raises them above other violations just by their being printed where they are. In truth, they make it appear the judicial system rotates around them and faithfulness to the UMC focuses on them rather than faithfulness on all other things.
The problem that the questioner hoped to solve by the request was to allow for how each conference and each committee on investigation chooses to prioritize the degree of seriousness of any specification. Some conferences would not handle the complaints about those examples as “felonies,” requiring dire punishments. “Conference rights” might have been a way to allow for a variety of different understandings about how church rules related to homosexuality to be expressed, rather than force them into a lock-step approach. Whether the Council argued in any of these terms is known only to them. But it would not be far fetched to believe that the vote fell along partisan lines. Even to get the Council to remove the passages for editorial reasons would have been a victory of sorts to those who see homosexuality as a natural phenomenon and not a moral issue.
Why did the Council choose P 2608.2 instead of P 2610 to answer the request?
Most requests for declaratory decisions are handled under P 2610 which states that the Council shall take jurisdiction. Those decisions usually are resolved by a majority vote and the ruling made. In this case, the Council could have given an analysis, perhaps like I’ve offered above, and ruled there was no violation of the constitution. I do not recall a constitutionally questioned issue ever being ruled on other than by using P 2610. (I need to do some more homework, I see.)
As the memorandum here is stated, it sounds as though the president of the Council asked the moment this request was before them, “Is there a constitutional issue here?” and less than six of the Council members said “yes.” Since there were less than six, no further ruling was needed.
I’m certain that there was very vigorous discussion and to resolve the differences, the president chose P 2608.2, perhaps even calling that particular question, knowing he would not get the six votes needed. But if the vigor was politically motivated or other issues were noted such as the matter being editorial, I’m sure the exchanges could not be simply put into an instructive rationale or they would have done it.
What does the decision actually say?
The issue of the use of examples was not a constitutional matter. And the Council was unwilling to add to the discussion within the denomination by publishing any ideas they exchanged in discussing the request. Maybe silence in this case was golden.
Why did the Council even take jurisdiction?
When I’m asked about how to get something before the Council, I strongly urge that they have a specific motion or action before the annual conference on which to base their request so that the request cannot be ruled hypothetical and summarily dismissed, no matter what the merit of the request may be. I have seen too many questions of law and requests for adjudication dumped and the issues behind them ignored because there was no connection identified with something happening in the annual conference.
In this case, there was no attempt to tie the request to a specific case before the conference.
And yet, the Council took jurisdiction. It did not even look for a link to some real world happening as it did in JCD 1313 above.
Every once in awhile, the Council allows requests for declaratory decisions to be moments of clarifying church law even though there is no case pending. Maybe the Council is taking seriously what Nolan Harmon wrote many years ago and was quoted in JCD 189:
"Moot and hypothetical questions will not be decided, but only those where some action is desired, and some doubt or question as to the meaning or application of the Act, legislation, action or ruling is apparent." The Committee on Judiciary of the 1944 General Conference urged the new legislation, "because there seemed at times need for some definite interpretation of law before an action or law whose legality was in doubt had actually been effected."
In simpler terms, a request for a declaratory decision may be prospective because sometimes the meaning of laws needs to be clarified and properly supported to be sure they can be correctly followed in future actions.
May future Councils fulfill this potential when requests come without affecting something that has already happened.
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