JCD 1341

http://www.umc.org/decisions/71953

The Oliveto Case

The Rev. Dr. Karen Oliveto, esteemed (now former) pastor of Glide Memorial UMC, one of the largest congregations serving the Gay community in San Francisco, was honored with election to the episcopacy in the Western Jurisdiction.  This was historic in that Rev. Oliveto is married to Robin Ridenour, a deaconness in the UMC, whose working profession is as a nurse-anesthetist.

Since all of the American jurisdictional conferences are held over the same several day period across the United States, word passed swiftly among them of this election.  And almost as swiftly, a lay delegate in the South Central Jurisdiction raised a request for a declaratory decision about the legality of Rev. Oliveto's standing as a clergy and bishop despite being in violation of the Discipline's rules against "self-avowed practicing homosexuals," whether or not the new bishop's marriage license was proof of that, and whether or not it was legal to consecrate her as a bishop.  

As can be seen by the concurring/dissenting opinions by various members of the Council, it was caught between those who felt the election was illegal under church law and those who wanted to postpone any serious consideration of the case.  They were seeking to give time to allow the newly formed bishops' commission to resolve the differences over the issue of homosexuality in our denomination.

The majority decided to explore church law very carefully and very comprehensively in an effort to answer the questions asked and not leave the denomination in limbo.  

I suspect their exploration was much longer than what was published because there seem to be large sections of argument that are missing.  One in particular relates to the significance of the marriage license where I believe the impression is left that a marriage license is de facto proof of self-avowal.  Careful reading of the sentences related to that issue show it might be accepted in a church trial court as "rebuttable presumption" but not as proof.  It is not a new law promulgated by the Council, as some critics said.  But the mistake is understandable because it appears the full argument was edited down.

Law is a strange creature in that on the one hand, it delineates the rules by which a body operates and on the other, it also defines how that law is to be enforced.  That has to drive some people nuts because it means that we can't go out and lynch someone just because we see what we think is proof of guilt.

That is one of the reasons why it became law in the American Wild West that carrying firearms was a bad idea simply because people could too easily take law into their own hands.  That is part of the rationale of why the British police do not carry firearms as our police officers do.

After their deep exploration of church law, the Council found that whatever anyone may have thought and said, including Rev. Oliveto herself, formal charges had to be brought and her standing as a clergy and as a bishop had to be properly tested under Fair Process.

Therefore, until that happened, her standing as an Elder was unchanged and her election as bishop was legal.

The Council carefully explained that whether we like them or not, church laws related to homosexuality have been legally established by General Conference.  But dealing with apparent violations must also be done by law and the subject of the allegations has Fair Process rights including innocence until proven guilty and only then, among other options that could be considered, may standing as a member of the conference and election to the episcopacy be ended.

Let me summarize the questions raised by the South Central Jurisdiction and provide the Council's answers:

Q: Is the nomination and election of a person who claims to be a self-avowed practicing homosexual legal?  How do church laws against such practice apply?

A: The Council could not take jurisdiction because the request was from a jurisdiction not directly affected by the action being questioned.  

Q: Does a marriage license for a same-sex marriage disqualify a person for election as bishop?

A: No.  It is grounds for bringing a complaint (a “rebuttable presumption”), the merit of which has to be tested by Fair Process but not to prevent nomination and election as bishop.

Q: If a jurisdictional conference chooses a bishop who could face charges, does that nullify the election?

A: No.

Q: May the bishops of a jurisdiction consecrate a bishop who by public record is known as a self-avowed practicing homosexual?

A: Yes and no.  “No” because a self-avowed practicing homosexual may not be consecrated.  “Yes,” if the pastor/bishop has not been proven to be so by Fair Process.  (This was not explicitly stated but follows from the rest of the Council’s analysis and decision.)

Q: When a public record of a civil union or same sex marriage of a clergy person is made known to conference officers, does that on its face amount to self-avowal of being a practicing homosexual?

A: Yes, but it does not disqualify that pastor from appointment without Fair Process.

I fudged a little bit on the wording but the point is the same.  As I understand it, no matter what public or private evidence there is that a pastor is a self-avowed practicing homosexual, that evidence has to be processed by appropriate hearings and appeal under the pastor's constitutional rights (Paragraphs 20 and 58).  As a church with a judicial system, we may not arbitrarily remove them from office without trial and appeal.

That's how I read this decision.  It will be interesting to see if the Council follows it in other rulings from this session and from future decisions. 

Note:  The term “rebuttable presumption” is a new term in denominational law.  It comes from BLACK’S LAW DICTIONARY (Sixth Edition).  It is similar to “probable cause” in that both allow the state to presume based on evidence that an action is illegal and therefore may take it to court.  My reading of the definitions is that “probable cause” must be proved by the state in civil court but “rebuttable presumption” shifts the burden of proof to the accused. 

Both have to be tested in court.  Both would constitute only “belief” of the prosecution and not “proof,” which can only be determined by a formal court hearing.

“Probable cause” is used mostly in criminal court so it carries with it the baggage of violence and comparable harms.  “Rebuttable presumption” does not have that baggage.  However, in civil court it does mean that the respondent has to prove the allegation is false.  I find that a little disconcerting because we are under English common law where the state has to prove guilt and not Napoleanic law where the accused has to prove their innocence.

Maybe, when this decision is challenged for reconsideration, the Council can make up a new term as the General Conference did when it chose not to use the phrase “due process” but chose “Fair Process” instead.

Update:  Several experts have corrected my assumption that Black's Dictionary was adequate in defining "rebuttable presumption."  It is a term used in criminal law as well and as such it requires the prosecution to prove its case.  In criminal law, the accused does not have to prove innocence.  --  As far as I know, there has never been a clear statement that our judicial system handles criminal law.  I have thought that our system is "civil" though that was suggested to me many years ago by Bishop Jack Tuell.  Since the presumption of innocence is stated very clearly in our Discipline, I think we have to look at our judicial legal terms as more parallel to criminal law.  So let me say it again.  A marriage license is a "rebuttable presumption" for which the prosecution (counsel for the church) bears the burden of proof in a church trial.  It is not de facto proof.

Additional note:  With reference to civil and public contracts like marriages and civil unions, the Council argues that state laws must be recognized as legitimate and those contracts have sufficient merit to be taken very seriously by the Church.  Article XXIII of the Articles of Religion (Paragraph 104, p. 70 of the 2012 Discipline) is to encourage the Church anywhere in the world to support local civil governance.  By making this reference, that puts all United Methodist pastors into a quandary where local law allows same sex marriage and civil unions.  Is the pastor obligated to follow civil law in their place of ministry under the Article of Religion or are they obligated to follow the Discipline?  

Another note:  The intellectual process of making a judgment is really a three step process: establish the facts, determine the basis of evaluating the facts, and coming to a conclusion (establishing an opinion that the evidence is actually proof).  Too often, we go from facts to opinions without going through evaluation.  Without that evaluation, our opinions are only “beliefs.”  But for many, beliefs are taken as facts and become motivation for causing harm (lynching being one harm too often perpetrated, figuratively or literally).  Your opinions are not facts, even if you are a cabinet member.  Facts have to be evaluated by reasonable criteria.  Evidence has to be tested in a court of law, following Fair Process.  Only then can a judgment be made.

Last note:  The decision is so extensive and full of law content that to deal with all the issues the decision raises becomes prohibitive for the purpose of this commentary.  There are likely to be many future references to points of law made in this decision.