The results of the Judicial Council’s Spring meeting (April 23-26, Evanston, IL) are both momentous and monotonous. To break it down for idiots like me, I offer this guide.
(Feel free to correct me, I might get something wrong. True confession: I worked on this while watching the Mets-Brewers game—Mets 5, Brewers 2. #LGM).
Judicial Council Decisions (JCD)
- 1366—Council of Bishops (COB) asked for a declaratory decision on the 3 plans that came out of the work of the Commission on a Way Forward (October 26, 2018).
- 1377—Legislative Committee of General Conference asked for a declaratory decision on petitions related to the Traditional Plan (February 26, 2019 during the St. Louis General Conference)
- 1378—General Conference asked for a declaratory decision on everything they adopted in St. Louis; this decision reviews all legislation known as the Traditional Plan (April 25, 2019).
- 1379—This decision reviews the legislation for local church disaffiliation that General Conference adopted in St. Louis, which is also known as the “Taylor Plan” (April 25, 2019).
Judicial Council Decision 1378
By and large, the Judicial Council reaffirmed in this decision what they had determined in JCD 1377. They upheld everything they had previously ruled constitutional and unconstitutional. There were four petitions that had been amended in St. Louis. They ruled that these amendments were insufficient to make the petitions constitutional. As for what they had previously deemed constitutional, they said, “We have ruled twice on those issues and dismiss them here as res judicata (“a thing or matter settled by judgment”).
The one sliver of hope that everything would be overturned rested on the “severability test”—the test to see whether the unconstitutional pieces of legislation could be omitted (“severed’) from the Discipline without affecting what was left. They ruled that the invalid parts can be severed from the rest.
Here is a list of the legislation grouped according to topic with the petition numbers in [ ].
- The creation of a three-member council relations committee within the COB to investigate and recommend involuntary retirement or leave of absence for bishops. These petitions had been amended to prohibit committee members from voting on their recommendations in the full meeting of the COB. The petitions violated the right to trial and made the COB prosecutor, judge and jury. [90033, 90034, 90035]
- Greater accountability of members and potential members of conference boards of ordained ministries (BOOM). Bishops were mandated to certify that those whom they nominate to serve on BOOM will uphold what the Discipline says about “practicing homosexuals.” BOOM was mandated to examine candidates for ministry to determine whether they are in compliance with the newly expanded definition of “self-avowed practicing homosexual.” The petition regarding bishops’ nominees to serve on BOOM had been amended to broaden the scope of verification. Instead of narrowly focusing on homosexuality, a bishop was supposed to certify that the nominee would uphold the Discipline “in its entirety, including but not limited to all qualifications for ordination.” The Judicial Council ruled that this was “devoid of specificity and clarity with respect to the scope of the certification” and would create a “dangerous slippery slope” that could lead to “arbitrary and capricious” accusations against a nominee. The examination requirements of candidates for ministry were also deemed to be singling out homosexuality rather than a full examination of a candidate. [90037, 90038, 90039,90040]
- Required persons who had been found in violation of the Discipline to pledge not to repeat the offense in the future. [second sentence in 90045]
These pieces of legislation had been ruled constitutional in JCD 1377 and JCD 1378 reaffirmed that previous ruling.
- An expanded definition of “self-avowed practicing homosexual” that includes “living in a same-sex marriage, domestic partnership or civil union or is a person who publicly states she or he is a practicing homosexual” (Previously, “self-avowed” had been limited to openly acknowledging oneself to a bishop, DS, BOOM or district committee on ordained ministry). 
- Minimum penalties for clergy who perform same-sex weddings (first offense—one-year suspension without pay; second offense—defrocked). 
- Prohibiting bishops from commissioning and ordaining elders and deacons and consecrating bishops who are “self-avowed practicing homosexuals” even if they have been recommended by BOOM or elected by a jurisdictional conference. [90036, 90043] [See update below]
- Gives complainants a role in the complaint process. [90044,90045 except the second sentence,90046]
- The church has the right to appeal findings of a trial based on egregious errors of church law or administration. “This is not to be double jeopardy.” 
In sum, they upheld what they had ruled in previous decisions. These changes to the Discipline eliminate most (but not all) of the loopholes. It imposes severe penalties for violations and greater scrutiny of allegations.
Judicial Council Decision 1379
This decision reviewed the “Taylor Plan” for the disaffiliation of a local church from the denomination that was approved in the last minutes of the General Conference . The original version had been ruled unconstitutional because it did not contain a role for the annual conference. Later, it was amended to give the annual conference a role in the disaffiliation process.
The Judicial Council ruled that, in its amended form, it did provide a sufficient role for the annual conference when it is combined it with another paragraph in the Discipline [¶ 2529.1(b)(3)].
They concluded by saying, “In deference to the legislative branch, we reluctantly declare amended Petition 90066 constitutional but stress at the same time that the General Conference bears the responsibility to legislatively address the deficiency identified in ¶ 2553 [the new paragraph number for the Taylor Plan].”
In short, we now have a process in the Discipline for a local church that disagrees with the denomination’s position on homosexuality to be released from the trust clause. However, there is no process for the creation of new denominations.
I see five take-aways from these decisions:
- The decisions illustrate that the Judicial Council exercised judicial restraint and emphasized that the future of the denomination is vested with the legislative authority of General Conference. JCD 1379 is an improvement over JCD 1377 (JCD 1377 was flawed in its interpretation of the Taylor Plan in regards to ¶ 41 of the constitution).
- The decisions demonstrate that the core of the Traditional Plan is constitutional. I believe the real meat of the plan is the expanded definition of “self-avowed practicing homosexual,” the mandatory sentencing, and the expanded role for complainants. These features have now passed judicial muster three times. The other parts which were ruled unconstitutional are not as important and in many cases are overkill.
- The decisions indicate what the 2020 General Conference needs to fix. Improving the disaffiliation process and creating a transition plan into new denominations is the work that awaits General Conference next year.
- The decisions show that there are limits to what can be legislated. The rest of the Traditionalist agenda can only be accomplished through election of bishops. The unconstitutional petitions mandating the selection of BOOM members can only be solved by who is elected to the episcopacy. This has been a frustration for conservatives. For example, my jurisdictional conference (North Central) has a tradition of electing moderate-progressive candidates because conservatives never had a big enough voting block to get their candidates elected. In 2016, three out of the four who were elected had declared their opposition to the Discipline’s rules on homosexuality (The three affirmed that they would uphold the Discipline). Needless to say, this must be frustrating for a conservative delegate. They were successful at General Conference, but two months later at jurisdictional conference see the election of bishops who oppose what General Conference had adopted.
- The decisions outline the contours of the battlefield if moderates and progressives choose to stay in and “resist.” Because judicial and legislative solutions are limited, the conflict will intensify around the election of bishops and nominations to boards and agencies. The fight will trickle down to the annual conference level, especially on boards and district committees of ordained ministry. What little comity we now have will be replaced by bitterness. In the end, there will be no transformative progressive leaders, only disruptive ones.
[Updated 4/30/2019] Scott E. Manning pointed out to me that the petition regarding bishops commissioning, ordaining and consecrating elders, deacons and bishops does not contain the word “practicing” but rather prohibits such actions being performed on “self-avowed homosexuals.” The omission is significant (regardless of whether it was intentional). Read Rebecca Miles perceptive commentary on this flaw.
Here is the original petition 90036:
“Amend by addition ¶ 415.6:
To consecrate bishops; to ordain elders and deacons; to commission deaconesses, home missioners, and missionaries; and to see that the names of the persons commissioned and consecrated are entered on the journals of the conference and that proper credentials are furnished to these persons.
For more perspective order my book The Secret Transcript of the Council of Bishops