SCHAEFER APPEAL UPHELD
Though the basic facts seem to be widely known, let me repeat them briefly. The Council is thorough in going over the facts and well worth reading.
An Eastern Pennsylvania Conference church trial begun Nov. 18. 2013, was in response to a complaint against Rev. Frank Schaefer for conducting a private same-sex marriage of his son in Massachusetts where same sex marriages were legal in late April, 2007. The complaint signed by someone who was not a witness of the marriage was sent in days (early April) before the statute of limitations (six years) expired.
For nearly six years, no one complained about any harm being done. The one complaint was that a passage of the Discipline was violated, though no one was actually shown to be harmed by that violation.
The trial court found Rev. Schaefer had violated Paragraph 2702.1b (conducting a same-sex marriage) and Paragraph 2702.1d (violating the order and discipline of the United Methodist Church). That he performed the ceremony and disobeyed the Discipline were not contested.
The punishment phase became the focus of considerable media attention. The trial court provided two elements, a thirty day suspension and, to quote them, “If at the end of the 30 days Rev. Schaefer has determined he cannot uphold the Discipline in its entirety, he must surrender his credentials.” At the end of the thirty day suspension, his conference Board of Ordained Ministry asked him if he could uphold the Discipline in its entirety and he said he could not because it is internally contradictory and no one can. He also said he would not surrender his credentials. Whereupon the Board involuntarily terminated his conference membership.
Rev. Schafer appealed the second element of the trial court’s punishment, saying it violated three points of church law. One, the Discipline does not require proof of good conduct to end a suspension. Two, church law does not allow punishment for an action that may occur in the future. Three, the punishment was framed in overly broad terms that were unrelated to the charge.
The appeal to the Northeastern Jurisdiction’s Appellate Committee sided with Rev. Schaefer. All the relevant Disciplinary passages for procedural decisions and for supporting the change of punishment are noted in JCD 1270. Counsel for the Church then appealed that ruling to the Judicial Council.
That was possible because under Paragraph 2609.8 there is a clause that allows any party to the appeal the right to raise a challenge based on a conflict of decisions of law from previous appeals court or Judicial Council rulings. I find that wording in my oldest Discipline (1956, Paragraph 913) and in every one since. In effect, this gives the church the right of appeal if they lose, contrary to Paragraph 2715.10 which does not allow the church to appeal. The Council ruled that, despite JCD 595 (and Paragraph 2715.10) which set into chuch law the principle that the church could not appeal, accepted jurisdiction.
I believe that decision to accept jurisdiction is in error and should be revisited at the Council’s next opportunity.
The Counsel for the Church, citing it had found discrepancies between the appeals court rulings in the Schaefer case and that of the Dell case from 1999, appears to have taken carte blanche to then appeal whatever he wanted. As I understand, the 1999 ruling turned on the suspension not being given a termination time but required the pastor to pledge no more LGBT marriages to come off of suspension. It appears that JCD 240 was invoked because it requires an end time to be stipulated for the suspension and may not require an action by the suspended pastor to end the suspension. Unfortunately, the Council did not identify those specifics from the 1999 ruling and appears to have allowed the Church Counsel to raise whatever questions he wanted. That illustrates exactly why the Church should not be allowed to appeal under any circumstances.
Church Counsel appealed five things. In addition to saying another appeals court had dissimilar results, he threw in his opinions that Rev. Schaefer forfeit his appeal rights, that the decision varied from the Discipline and previous JCDs, that the appeals committee should have remanded the question of punishment to the trial court rather than make up its own, and that the appellate committee should not have included an amicus brief in its deliberations.
Apparently, with a desire to educate motivating its patience, the Council decided that reasonable responses to these questions would help the denominatin the most.
The Council, without a clear explanation, indicated that there was no significant difference between the 1999 ruling and the one for this case. Based on my research, both cases had punishments of suspension with an added element of the pastor having to make some kind of affirmation to conclude the punishment. In both, the added elements were struck down and the suspensions were viewed under JCD 240. Thus the differences were insignificant.
With respect to the alleged failure of Rev. Schaefer to fulfill the punishment and thus void his right of appeal, the Council found that he did fulfill it. They agreed he did answer the question about obeying the Discipline in its entirety. He just said “no.” Since there was no requirement made by the trial court that he give up his credentials voluntarily, there was no violation when he refused. They were taken from him. His actions were not in violation of the punishment.
With respect to the next concern, the Council found no support in the Church Counsel’s arguments. JCD 240 applied because the trial court specifically suspended Rev. Schaefer. JCD 240 identifies each possible penalty available to a trial court as distinct and not subject to mixing. If the trial court had wanted him terminated, they should have said so specifically. JCD 1201 supported this understanding of Paragraph 2711.3 where the various punishments are listed. The element of the punishment requiring affirming the Disipline in its entirety was future-oriented and thus could not really be tried in any forum (JCD 725). That would have required a new hearing in a judicial setting where termination was an option. The Board of Ordained Ministry as an administrative body, by separation of powers, does not have that option.
With respect to the concern about the right of the appellate committee to change the punishment, the Council affirmed their right to change it without making it worse, as inicated in Paragraph 2715.8. While the committee had the option of remanding the case, it pointed out that an undue amount of time had already passed and felt no need to extend the time since the requirement for discernment and obeying the Discipline in its entirety were illegal under JCD 240. Let me add, since Rev. Schaefer was to receive salary and benefits from his conference from the end of his suspension until he was appointed, remanding the case would only increase the cost to the conference.
With respect to the concern about an amicus curiae brief, the Council said there were no rules against it and there was no evience in any ruling or transcript of the appellate committee that they were influenced by it.
Church Counsel added another concern not listed in his original request for review and the Council refused to answer it. Several members of the Council did take time to deal with the issue in a concurring opinion that I will summarize here. Church Counsel pointed out that the annual conference clergy session voted to accept the report of Rev. Schaefer’s termination as settling his status. Church Counsel asserted that the annual conference has the last say on personnel matters (Paragraph 33). The exception is that under Paragraph 20, the right to trial and appeal, a trial court has that right and can only be changed upon appeal possibly all the way to the Judicial Council, all a part of separation of powers (JCD 799 struck down the right of an annual conference to vote on a change of status of a pastor resulting from the decision of a trial court).
Guilt nor innocence of Rev. Schafer was not at issue, though I believe the original complaint was hearsay and the bishop should not have accepted it. I also contend that the complaint was moved forward by the bishop by asking Rev. Schaefer to incriminate himself, also a flaw in our system.
Rev. Schaefer was punished. The punishment was light, as far as some people are concerned, but he faced publicity which was some help but also some harm to his ministry. He lost all income, housing, health insurance, and the rest of his pastoral support from the end of his suspension until the appellate committee overturned the trial court’s added punishment, possibly even until the ruling was supported by the Council months later. Trying to appeal while broke is harmful to the health of one’s family and oneself. But there are some who do not see that as punishment. I ask them to consider what it would be like to walk in his shoes, not knowing whether or not an appeal woiuld lead to recompense and reinstatement. Surviving that is incredibly hard on the body, mind, and spirit.
This case was decided on three very basic principles of law that protect anyone facing a trial court’s decision about punishment: specifity of the punishment, separation of powers, and avoiding of prospective punishment.
One, a trial court needs to be sure it knows exactly what it wants and states it clearly. The law related to punishment options should have been addressed by the presiding bishop when he offered his instructions to the trial court. JCD 240 should have been read to them. Mixing of the various levels of punishment can lead to unfair results no matter what the complaint was about.
Two, the Board had no authority to terminate Rev. Schaefer. It could not act in the place of the trial court nor of the clergy session of the annual conference. The Discipline does not grant them that authority and no trial court can invest its own authority in another body which the Discipline does not provide for. That leads to power overreach that no one wants to have to fight.
Three, no one should be punished for something they have not yet done. Rev. Schaefer was asked to do something that was impossible in the first place, “obey the Discipline in its entirety.” The reason we have a Judicial Council is to handle the discrepancies, inconsistencies, and vaguaries of the Discipline, something they can only do when one comes up. Rev. Schaefer was asked to say what he would be doing in the future with respect to the Discipline, obeying it “in its entirety” or not.
Please note that advocates for the respondent are sometimes successful. In this case, his selection of issues were all supported at both the jurisdictional level and at the Council level.
Finally, the Schaefer case may be the last one of its kind. Few conferences will be willing to spend the money needed for trials. That is especially so with the clarification of the constitutional rights of same-sex marriage made by the Supreme Court on the day I write this (6/25/15). That ruling does not change church law. Pastors retain the right to refuse to conduct same-sex marriages just as they may choose not to marry heterosexual couples they may feel should not wed for whatever reason. But the ruling changes the milieu. And bishops are now listing guidelines for pastors to be supportive of gay marriage without violating church law. In that, some will say, “The Devil will find a way.” Others will say, “Love will find a way.”