Detailed Outline of United Methodist Judicial Process Prepared by the Marriage Equality Task Force Metropolitan Memorial United Methodist Church, Washington, D.C. 1. Introduction The following outline is intended to familiarize the reader with the basics of the judicial process used for the trials of clergy alleged to have violated the Book of Discipline (BOD), specifically, by officiating at same-gender weddings or being a self-avowed practicing homosexual. It is not intended to be comprehensive. The reader may find answers to questions not provided in this outline by consulting the BOD itself. It is available on-line at the following URL: http://issuu.com/abingdonpress/docs/9781426718120_online_part1?e=1213442/1091664. The Handbook of the General Council on Finance and Administration (Handook), cited below, is also available on-line at: http://www.gcfa.org/administrative-and-judicialprocedures-handbook. The BOD contains multiple sections which provide a context that may inform the trial process. Specifically, The Constitution of the Church, at Article IV, entitled “Inclusiveness of the Church,” BOD, ¶ 4, “acknowledges that all persons are of sacred worth.” Moreover, that section provides that “[a]ll persons, without regard to . . .status . . . shall be eligible” to participate fully in the life of the United Methodist Church. (See also ¶ 340.1. Clergy “serve in the local church . . . in witness and service of Christ’s love and justice.”) The Conclusion of ¶ 102, “Doctrinal Standards and Our Theological Task,” provides that “[d]evising formal definitions of doctrine has been less pressing for United Methodists than summoning people to faith and nurturing them in the knowledge and love of God.” Further, ¶ 103, “Our Doctrinal History,” recognizes a distinction between the vital truths of Christian belief and respect for “diversity of opinions held by conscientious persons of faith.” In addition, ¶ 121, “Rationale for Our Mission,” states as follows: “The mission of the Church is to make disciples of Jesus Christ for the transformation of the world by proclaiming the good news of God’s grace and by exemplifying Jesus’ command to love God and neighbor, thus seeking the fulfillment of God’s reign and realm in the world.” In particular, “[w]henever United Methodism has had a clear sense of mission, God has used our Church to . . . heal relationships [and] transform social structures . . . thereby changing the world.” In ¶ 122, “The Process for Carrying Out Our Mission,” the BOD states that the Church will accomplish this mission by sending “persons into the world to live lovingly and justly as servants of Christ . . . by freeing the oppressed, [by] being and becoming a compassionate, caring presence, and working to develop social structures that are consistent with the gospel[.]” Finally, ¶ 124, “Our Mission in the World,” provides that “[t]he visible Page 1 of 6

church of Christ as a faithful community of persons affirms the worth of all humanity . . . [.]” (Emphasis supplied). In conclusion, in ¶ 140, “Called to Inclusiveness,” the BOD emphasizes that, as United Methodists, “we are called to be faithful to the example of Jesus’ ministry to all persons.” (Emphasis supplied). Specifically, the term “inclusiveness” is defined as follows: “Inclusiveness means openness, acceptance, and support that enables all persons to participate in the life of the Church, the community, and the world; therefore, inclusiveness denies every semblance of discrimination.” (Emphasis supplied). (See also ¶ 162(J)). 2. Purpose The purpose of the judicial process is stated in the BOD at ¶ 2701 as follows: “The judicial process shall have as its purpose a just resolution of judicial complaints, in the hope that God’s work of justice, reconciliation and healing may be realized in the body of Christ.” The BOD defines the phrase just resolution at ¶ 2701(5) in this way: “A just resolution is one that focuses on repairing any harm to people and communities, achieving real accountability by making things right in so far as possible and bringing healing to all parties.” The Handbook describes this as “fair process” and explains it, at Section I, as follows: “Fair process seeks to protect the rights of the respondent by giving him/her every opportunity to know sufficient detail of the charges, to have adequate time to prepare a response, and to effectively present that response. These provisions are intended to enhance trust and reliance upon the Church’s own process as a fair method to resolve disputes.” 3. Complaint The judicial process, insofar as it relates to misconduct by clergy, begins with the filing of a complaint with the bishop of the annual conference (the resident bishop) in which the person named in the complaint is a clergyperson in full connection. The BOD defines a complaint, at ¶ 363.1, as “a written and signed statement claiming misconduct as defined in ¶ 2702.1.” The grounds set forth in ¶ 2702.1, as relevant to the current trials, are: “(b) practices declared by The United Methodist Church to be incompatible with Christian teaching, including but not limited to being a self-avowed practicing homosexual; or conducting wedding ceremonies which celebrate homosexual unions; or performing same-sex wedding ceremonies . . . (d) disobedience to the order and discipline of The United Methodist Church[.]” (See also ¶¶ 161(b), 341.6.). Pursuant to ¶ 2702.4, “[n]o judicial complaint or charge shall be considered for any alleged occurrence that shall not have been committed within six years immediately preceding the filing of the complaint[.]” It does not appear from the BOD or the Handbook that the person filing the complaint needs to be a member of The United Methodist Church. The bishop is responsible for notifying the clergyperson charged of the fact of the complaint and the details contained therein. Under ¶ 363.1(a) of the BOD, the bishop is also responsible for notifying, in writing, the person Page 2 of 6

filing the complaint and the person against whom complaint is filed of the process to be followed. 4. Supervisory Response and Just Resolution Because the bishop has administrative responsibility for the annual conference to which he or she is assigned, under ¶ 363.1(b) of the BOD, upon receipt of a complaint he or she shall initiate a supervisory response to that complaint. This response must be carried out within 90 days after the receipt of the complaint. ¶ 363.1(f). The response is “pastoral and administrative” and is “directed toward a just resolution among the parties” and it “is not part of any judicial process.” During this process, the complaint is treated as an allegation or as allegations. Both the complainant and the person against whom the complaint is filed (the respondent) have the right to choose another person to accompany him or her. That person has the right to speak during the proceedings. At the bishop’s discretion, “persons with qualifications and experience in assessment, intervention, or healing may be chosen to assist in the process.” ¶ 363.1(b). Any agreement between the parties is a final resolution ot the complaint. Handbook, Chapter 5.II. The judicial process may also include a more formal procedure designated as “just resolution.” (See citation to ¶ 2701(5) above.) In conducting the process the parties may be “assisted by a trained, impartial third party facilitator(s) or mediator(s)[.]” Ibid. The objective of the procedure is to reach “an agreement satisfactory to all parties.” If an agreement is reached, it must be reduced to writing and signed by all the parties. “A just resolution agreed to by all the parties shall be a final disposition of the related complaint.” In effect, this process constitutes an attempt to achieve a negotiated settlement, with or without third party intervention. The just resolution procedure can take place at any stage of the complaint process, up to and including the trial stage. In particular, after consultation with the counsel for the church and the counsel for the respondent, the presiding official may refer the complaint to the resident bishop to conduct a just resolution procedure. ¶ 2708.3. (This has happened in the Ogletree trial.) If the supervisory response and/or the just resolution procedure fail to produce a resolution of the complaint, the complaint returns to the bishop and he or she has the discretion either to: (1) dismiss the complaint, with the consent of the cabinet (the District Superintendents of the conference) and giving his or her reasons in writing, or (2) refer the matter to the counsel for the church as a complaint. BOD, ¶ 363.1(e). The BOD does not specify the reasons needed for the bishop to dismiss the complaint. ¶ 163.1.(e).(1). However, according to the Handbook, a bishop may dismiss a complaint if, e.g., he or she determines that it is without sufficient evidence or is not based in law or fact. Handbook, Chapter 5.I. On the other hand, ¶ 2704.2(a) provides that if the bishop “determines that a written complaint is based on allegations of one or more offenses listed in ¶ 2702.1, the bishop shall refer the complaint to the counsel for the Church, who shall be appointed by the bishop. Note, in particular, that Page 3 of 6

the only qualification to be the counsel for the Church is that he or she “shall be a clergy person in full connection.” Thus, the bishop has discretion as to the choice of the counsel for the Church. In addition, the counsel for the Church may choose an assistant counsel who may be an attorney and who may not speak in any hearing conducted as part of the judicial process. See also BOD ¶ 2713.4. The person against whom the complaint is filed, in his or her discretion may also select a representative or counsel, who must be a clergyperson in full connection, and an assistant counsel who may be an attorney but who similarly may not speak during any part of the judicial process. In effect, such assistant counsels serve an advisory function. The counsel for the Church conducts an independent investigation of the allegations in the complaint as deemed necessary. Under ¶ 2704.2(a) “[i]f the counsel for the Church determines that there is sufficient evidence to support a chargeable offense, [the] counsel shall prepare and sign a complaint, which shall consist of a bill of charges and specifications, including documentary evidence, for each offense.” In this regard, Judicial Council Decision No. 980 states as follows: “When the agreed facts concede a practice which the Discipline declares to be incompatible with Christian teaching, reasonable grounds exist to bring a bill of charges and specifications and it is an egregious error of Church law not to bring such a bill of charges and specifications.” The counsel then informs the resident bishop that charges are being forwarded and the bishop appoints a presiding officer of the trial court, who must be either a retired bishop or the bishop of another annual conference. See also BOD ¶ 2713.2. Once the presiding officer is appointed, the counsel for the Church forwards the charges to that officer. Several things are to be noted at this point: (1) in practice, the counsel for the Church is appointed by the bishop once any preliminary procedure is completed without resolution of the complaint; (2) since the bishop has discretion as to the selection of the counsel for the Church, he or she is under no obligation to select someone who is opposed to same-gender marriage; and (3) the bishop also has discretion in selecting the presiding officer and, in the interest of fairness, should choose someone who is open-minded and will allow the fullest presentation of the evidence and the arguments. This is important. In recent trials, for example, presiding officials have restricted the presentation of evidence, ruling that only evidence that went to whether or not the respondent in fact conducted a same-gender marriage was relevant. Evidence as to provisions of the Discipline relating, e.g., to nondiscrimination and inclusiveness, was not permitted. As to other aspects of a bishop’s discretion, Dr. Thomas Frank of Wake Forest University stated, in a letter to all United Methodist bishops as follows: “Nothing in the Book of Discipline requires that you refer complaints to counsel for the church and subsequent trial. You have discretion as the chief pastors of the church over the manner, purpose, and conduct of any supervisory response and just resolution under ‘fair process.’” (Emphasis in original).

Page 4 of 6

5. Trial Procedures A trial is considered as an expedient of last resort and is only considered an option after all other attempts to resolve the complaint have been exhausted. BOD, ¶ 2707. The “official charged with convening the trial,” usually the resident bishop, determines the time and place of the trial and is responsible for notifying the presiding officer, the respondent, and the counsel for the Church. BOD, ¶ 2713.1. Prior to the trial of a clergy member of an annual conference a jury pool is constituted consisting of 35 members of the conference in full connection. BOD, ¶ 2713.3.(a). The members of the pool are selected by the District Superintendents. Ibid. At the beginning of the trial, 13 persons and two alternates are selected from the pool to constitute the jury. ¶ 2709.2. The counsel for the Church and for the respondent have up to four peremptory challenges and an unlimited number of challenges for cause. ¶ 2709.3. The presiding officer decides whether sufficient grounds have been presented to sustain a challenge for cause. The presiding officer has the authority, among other things, to rule on proper representation of the counsel for the Church and for the person charged, the admissibility of evidence, and “charging the members of the trial court as to the Church law involved in the case at the beginning of the trial and just before they retire to make up their verdict[.]” ¶ 2710.1. The Handbook, Chapter 13,IV.H., recommends that a court reporter be used to record the trial proceedings because “the trial record is the only background material that may be reviewed by appellate bodies[.]” The presiding official does not have the authority to pronounce a judgment either for or against the person charged. Under ¶ 2708.1, a presiding official may choose to have his or her own counsel who “functions in much the same way as a civil court judge’s law clerk[.]” Handbook, Chapter 13, II, G. The jury “shall have the exclusive right to determine the innocence or guilt of the person charged.” Id. If the respondent pleads “guilty” at the beginning of the trial, no trial is held. In that circumstance, evidence is taken only with regard to the penalty. If he or she pleads “not guilty,” the trial proceeds with the taking of testimony, the introduction of evidence, and the presentation of arguments. ¶ 2710.4. The burden of proof requires the counsel for the Church to convince the jury of the respondent’s guilt by “clear and convincing” evidence. ¶ 2711.2. (By analogy with civil law, this is a higher burden than preponderance of the evidence, but less than proof beyond a reasonable doubt.) A vote of nine members of the jury is required to sustain the charges and to convict. Id. Less than nine votes constitute an acquittal. Id. If the jury convicts the respondent, further testimony may be heard and arguments presented by counsel as to what the penalty should be. ¶ 2711.3. A separate vote by the jury is taken to determine the penalty. Determination of the penalty requires the vote of seven members of the jury. Id. As relevant to trials of clergy, the penalties include termination of conference membership; revocation of ministerial credentials, suspension, or some lesser penalty. Id. Page 5 of 6

Any lesser penalty must be clearly spelled out so that it can be enforced. Handbook, Chapter 13.V.B. The Discipline, therefore, does not mandate defrocking clergy who are found guilty of officiating at same-gender marriages. (Note that the jury has complete discretion as to the guilt of the respondent and the penalty. This is significant in that the church has no right to appeal from the findings of the trial court (see below)). According to Judicial Council decisions, see Judicial Council Decision Nos. 1201 and 1250, the jury must have available to it the full range of legislated penalties. Thus, annual conference legislation requiring specific penalties, e.g., 24-hour suspensions, when a respondent is found guilty of officiating at samegender weddings, may very well violate the Discipline. (The Pacific Northwest Conference has such a policy and it has been applied in two cases.) The Social Principles in Chapter 164.V (The Political Community) set forth principles urged by the Church to be applied in the criminal justice system. ¶ 164.V.(H). As stated there, “restorative justice [as opposed to punitive justice] seeks to hold the offender accountable to the victimized person, and to the disrupted community. Through God’s transformative power, restorative justice seeks to repair the damage, right the wrong, and bring healing to all involved, including the victim, the offender, the families, and the community.” Id. To be consistent with these principles, the Church should apply them in clergy trials, instead of the punitive justice now applied, e.g., revocation of ministerial credentials. It should be noted, see, e.g., Judicial Council Decision No. 1254, that the Social Principles are not church law. However, the Social Principles set forth policies that represent a public declaration of the church’s position on various issues and actions by the church that are inconsistent with those policies, as well as the policies set forth in the Introduction hereto, could make it seem that the church is hypocritical. (Note further that in the current clergy trials there is no “victim,” unless it is argued that the church itself is the “victim.”) 6. Appeals Anyone appealing a trial court decision must notify the resident bishop, the presiding officer, and counsel and provide a written statement of the grounds of the appeal. ¶ 2715.1. The committee on appeals is selected by the bishops within the jurisdiction where the trial was held and is composed of four clergy, a diaconal minister, a full-time local pastor, and three lay persons. ¶ 2716.1. “The appellate body shall determine two questions only: (a) Does the weight of the evidence sustain the charge or charges? (b) Were there such errors of Church law as to vitiate the verdict and/or the penalty?” ¶ 2715.7 “These questions shall be determined by the records of the trial and the argument of the counsel for the Church and for the respondent.” Under ¶ 2715.6, “[t]he records and documents of the trial, including the evidence, and these only, shall be used in the hearing of any appeal.” (Emphasis supplied). “The appellate body shall in no case hear witnesses.” Id. See also Handbook, Chapter 14.II.A. “The Church shall have no right of appeal from the findings of the trial court.” ¶ 2715.10. Decisions of the appellate body involving questions of Church law may be appealed to the Judicial Council. ¶ 2715.9. Page 6 of 6

Summary of United Methodist Judicial Process Prepared by the Marriage Equality Task Force Metropolitan Memorial United Methodist Church, Washington, D.C. Recent trials of United Methodist clergy for conducting same-gender marriages have given rise to many questions as to the judicial process under Church law. Why has this occurred and how are charges brought against ministers? This summary provides an overview of the process; links to the primary sources are included at the end of this summary. A more detailed summary, to answer questions not addressed herein, has also been prepared by a Metropolitan Memorial committee. Doctrinal standards, and the structure and administration of the Church, are set out in the UMC Book of Discipline (the Discipline), which is developed and approved by the General Conference as the main governing body of the Church. The Discipline prescribes (¶2702.1) a list of chargeable offenses for clergy, including practices that are declared by the UMC to be incompatible with Christian teachings. Effective January 2005, language was added to provide that such offenses include, but are not limited to: “conducting same-sex marriage ceremonies (or) being a self-avowed practicing homosexual”. Subject to a six year statute of limitations, (a) clergy may be subject to trial when charged with this offense (or any of the other listed offenses1). The process set out in the Discipline begins with the filing of a complaint with the bishop. A complaint may be made by anyone, whether or not a member of the UMC, and whether or not directly affected by the alleged offense. While the complaint process could be abused, it permits reporting of dangerous offenses where a victim may – as in the case of sexual or child abuse – be afraid to come forward. A formal process for any trial is also provided which is designed to ensure fairness. The judicial process includes a number of steps and potential outcomes. On receipt of a formal complaint, the bishop first responds with a pastoral effort to resolve the controversy administratively. Wide latitude is given to conducting this process, and it is informal. Church trials are regarded as ‘an expedient of last resort’ (¶ 2707) after every effort to ‘correct any wrong’. The objective of the pre-trial process is the restoration of community and healing. The UMC Judicial and Administrative Handbook discusses in more detail the goal of reconciliation and provides guidance on handling sensitive issues in the review or trial process. If (within 90 days), a satisfactory resolution is not achieved, the bishop will either dismiss the complaint with the consent of the cabinet (district superintendents) or refer the complaint to the counsel for the church, who is appointed by this bishop. It appears, without being entirely clear, that there is very limited discretion for a bishop to dismiss a case if the conduct that is the subject of the complaint is a chargeable offense and appears to be supported by the evidence. (Discussed below is an alternative non-judicial procedure that may be invoked at any time during the informal review or trial process). Counsel for the Church, who must be clergy, conducts an investigation and either prepares charges or recommends dismissal. Church counsel represents the church and its doctrines, and, by inference, not the person filing the complaint.

1

Other chargeable offenses include immorality, a crime, disobedience to Church standards, child or sexual abuse or misconduct, harassment or racial/gender discrimination.

Page 2 of 2 If the Church counsel determines charges are warranted, a Bill of Charges is prepared and a trial convened. The bishop appoints a bishop as the presiding official (analogous to a judge), and a thirteen member (plus 2 alternates) jury is selected from a pool of clergy. The trial is conducted with procedures intended to assure fairness, including ability to strike jurors, to receive the charges, to examine witnesses and to present evidence. The accused has a right to clergy as counsel, with an assistant counsel that may be a lawyer, but who is not allowed to speak at the trial. At least nine of the thirteen jurors must vote for a conviction. If convicted, a separate vote is taken in which seven jurors must approve a penalty. Jurors have broad discretion in determining, in their own judgment, the penalty, which may range from removal, to suspension, to other lesser penalties. Following a trial, an accused has a right to appeal, based exclusively on an error of church law, or a lack of evidence in the record of the trial. The Church may not appeal an acquittal (except in very limited cases on points of law). Appeals are heard by a nine person committee nominated by the college of bishops, and composed of clergy, a deacon, a local pastor, and three lay UMC members. The decision of the appeals committee is final, subject to appeal to the Judicial Council regarding errors of Church law. As an alternative procedure – at any point in the supervisory, complaint, or trial process – the bishop may initiate a formal ‘just resolution’ process with a goal of a written agreement between the counsel for the Church and the respondent which achieves the goal of reconciliation. The parties must agree to this procedure, which is conducted by a trained, impartial third party facilitator or mediator. Any agreement reached is a final resolution of the charges, in lieu of any trial. Many lay members and clergy within the UMC have expressed the view that trials for conducting same gender marriages, and their prohibition by the Discipline, are contradictory to Christian teaching, and to the Church’s own fundamental doctrines of full inclusion and protection of those who have been marginalized by society. http://www.cokesbury.com/forms/DynamicContent.aspx?id=87&pageid=920 http://www.gcfa.org/administrative-and-judicial-procedures-handbook

Questions and Answers Concerning Judicial Process 1. Complaints, Charges and Trials sounds really "legal" - why does the church have trials and these legal processes? Personnel systems in most organizations have procedures for resolving issues of purported misconduct by employees. Such procedures are the means by which the organizations enforce their rules related to work performance and conduct on the job. In differing ways these systems attempt to ensure that due process is afforded the person charged with misconduct. However, the process in secular organizations almost never contains procedures resembling trials. At most they may end in some form of mediation or arbitration involving a third-party neutral, but could simply provide for appeal to higher levels of the organization. Often these systems are weighted on the side of the organization, especially if the final step involves a higher level official in the organization and does not provide for neutral third-party review. The Discipline describes the procedures used to resolve issues relating to misconduct as “fair process.” The Discipline also emphasizes that trials are a last resort after other options in the procedure, such as the supervisory response and just resolution, fail to resolve the complaint. As to what constitutes “fair process,” the Discipline emphasizes protection of the rights of the person charged with misconduct, for example, the right to know the charges, the right to prepare and present a defense, the right to be heard, the right to be accompanied by counsel, the right of access to records, and ultimately, if other procedures fail, the right to have the charges decided by a jury of his or her peers. In this regard, fair process leaves the final decision in the hands of persons who may not have the same institutional interest in the result, i.e., a jury, as a higher level official in some other organization might have in the result in that organization’s procedure. In addition, the trial process is not exactly analogous to secular organizations’ personnel procedures because clergy are not “employees” of the Church in the usual meaning of that term. Clergy are persons set aside for spiritual and administrative leadership in the Church and the procedure for assessing their conduct and performance is established within, and an action of, a community of love and justice. The General Committee on Finance and Administration Handbook, (the Handbook) Chapter 1.II, does describe this process as being analogous to secular criminal procedure, though neither the Discipline nor the Handbook explain why such a procedure is used. [The Handbook contains administrative interpretations and explanations of the terms of the Discipline.] As noted above, unlike secular criminal procedures, the Discipline provides a just resolution process, which is a form of mediation, that can resolve the charges without a trial, as happened in the Ogletree case. Given the fact that the over-all

procedure is described as “fair process,” whether or not we agree, it appears that the church has determined that these steps provide the person charged the most just way to handle complaints of misconduct. A good case can be made, however, that the existence of trials is inconsistent with the purpose of the Church, a covenant community, whose mission is to spread the good news of justice, forgiveness, and reconciliation and with the stated purpose of promoting healing. The most important point to be made about trials of clergy alleged to have officiated at same gender weddings, however, does not concern the trials themselves. The crucial issue relating to these trials is the specific ground of misconduct which prohibits clergy from conducting such weddings. (See answer to Question 4 below.) 2. What is a complaint? A complaint is a written statement alleging some form of misconduct as defined in the Discipline, setting forth facts which support the allegation. The Handbook, Chapter 5, I, defines a complaint as follows: “An initial complaint shall be written with specifications containing as many facts as are available, such as the date, time, and place of specific events alleged to have occurred.” In the case of clergy, anyone can file a complaint with the bishop. The person does not need to be a member of the United Methodist Church. Given that the grounds for misconduct include sexual harassment, child abuse, and sexual misconduct, it is clear that such behavior could involve persons who are not United Methodists. 3. Does every complaint result in a trial?

No. Not every complaint results in a trial. The resolution of the Ogletree complaint is a good example of this. The Discipline provides for a just resolution process, a form of mediation, which can be employed at any stage of the judicial process. In the Ogletree trial, the matter was referred to the presiding official (a bishop who serves as the trial judge) for trial, and the parties thereafter agreed to use the just resolution process prior to the trial. As a result of the just resolution process, the charges against Dr. Ogletree were resolved, which ended the case. A case may also be resolved at the supervisory response stage if the parties agree to the terms of a settlement. 4. What are chargeable offenses? Chargeable offenses are set forth in 2702.1 of the Discipline as follows: “(a) immorality including but not limited to, not being celibate in singleness or not faithful in heterosexual marriage; (b) practices declared by the United Methodist Church to be incompatible with Christian teachings, including but not limited to:

being a self-avowed practicing homosexual; or conducting ceremonies which celebrate homosexual unions; or performing same-sex wedding ceremonies; (c) crime; (d) disobedience to the order and discipline of The United Methodist Church; (e) dissemination of doctrines contrary to the established standards of doctrine of The United Methodist Church; (f) relationships and/or behavior that undermines the ministry of another pastor; (g) child abuse; (h) sexual abuse; (i) sexual misconduct or (j) harassment, including, but not limited to racial and/or sexual harassment; or (k) racial or gender discrimination.” It should be noted that subsection (b) was added at the 2004 General Conference. 5. Who can be brought up on charges? Bishops. For example, Bishop Mel Talbert has been the subject of a complaint for celebrating a same-gender marriage in Alabama. Clergy and diaconal ministers can be subject to a complaint. Lay members of a local church, in which case the trial is convened by the District Superintendent. Discipline, ¶¶ 217, 221, 2706, 2708, and 2714. Grounds for misconduct by a lay person may include, for example, neglecting “faithfulness and discipline in terms of the baptismal convenant[.]” In the case of a lay person found guilty of violating his or her baptismal covenant, the trial court has discretion as to the penalty, which may include termination of membership. ¶ 2714.6. 6. Can a church be charged for allowing same-sex weddings to take place in their building? The Discipline, ¶ 341.6, provides that “[c]eremonies that celebrate homosexual unions shall not be conducted by our ministers and shall not be conducted in our churches.” (Emphasis supplied.) The term “churches” may be understood to mean anywhere on church property. A search of Judicial Council decisions suggests that the Council has not construed or applied this provision. There is no provision in the Discipline which provides a means of filing charges against a local church. However, the Discipline, ¶ 340.2.(c).(2).(a), provides that clergy are to “administer the temporal affairs of the church” and, specifically, “[t]o administer the provisions of the Discipline.” Given ¶ 340.2.(c).(2).(a), it would seem that clergy would be responsible, in the local church to which they are appointed, for enforcing the prohibition against same-gender wedding ceremonies on the property of that church. Failure to enforce that prohibition would seem to render the clergy person liable to a complaint that he or she was disobedient to the order and discipline of the Church within the meaning of ¶ 2702.1.(d). It is more likely, however, that the bishop would reassign

such a clergy person and appoint clergy who would enforce the provisions of the Discipline. 7. Who are the key players in a church trial? Up until a trial takes place, the resident bishop is probably the key player. Apart from the resident bishop, the key players in a trial depend mostly on the stage of the trial process. Beginning at the beginning of the process, at the supervisory response stage, the primary participants are the resident bishop, or the bishop’s designee, the complainant, and the respondent. Secondary participants may include a person chosen to facilitate the process and any person who accompanies the complainant and the respondent. These latter have the right to speak. If the supervisory response does not resolve the complaint, the bishop selects a counsel for the Church, who must be clergy and who will represent the church through the rest of the process, whatever that might be. The counsel for Church conducts an investigation and if, as a result of the investigation, concludes that the charges in the complaint are warranted, prepares a bill of specifications. After forwarding the bill of specifications to the bishop, the bishop selects a presiding official, who must also be a bishop, whether active or retired. Once the presiding official is selected, the counsel for the Church forwards the bill of specifications to that official for trial. Thus, at this stage the key players are the bishop, who selects the counsel for the Church, the counsel for the Church him or herself, and the presiding official. If, at any point during the process, the complaint is referred to just resolution, the parties would include, as primary participants, the counsel for the Church, the counsel for the respondent, and the bishop or any third party mediator. The counsel for the Church and the counsel for the respondent may have, as secondary participants, assistant counsels, who may be attorneys, but who do not have the right to speak. The complainant has the right to be heard in this process, as happened in the Ogletree just resolution procedure. If, as a last resort, a trial is convened, one primary participant is the presiding official, who has the authority to rule on the admissibility of evidence and permissible arguments, and who instructs the jury as to the applicable law both at the beginning of the trial and before the jury retires to consider its verdict. These are very important responsibilities and can affect the course of the trial and its results, as happened in the trial of Frank Schaefer. The other primary participants are the counsel for the Church, the counsel for the respondent, and the jury. The jury must all be clergy, are picked from an initial pool of 35 or more selected by the District Superintendents, and, once chosen for duty, number

13 with two alternates. The role of the jury is crucial, since the jury has discretion both as to the verdict and the penalty, and its decisions cannot be appealed by the Church. 8. If I'm a Reconciling clergy person can I be in the jury pool? The Discipline does not explicitly contain an automatic bar to a clergy person who is, e.g., a member of the Reconciling Ministries Network, being selected for the jury pool. However, as relevant here, the counsel for the Church has four peremptory challenges, which means he or she can exclude a potential juror without disclosing a reason, and an unlimited number of challenges for cause, whereby a reason for exclusion must be given. The validity of that reason will be determined by the presiding official. The Judicial Council stated, in Decision No. 980, that “once a bill of charges is certified, persons who state that they cannot in good conscience uphold the Discipline are ineligible to serve on a trial jury.” Thus, during the preliminary questioning of prospective jurors (the voir dire) the counsel for the Church may ask the prospective juror whether, for example, he or she is prepared to enforce the Discipline as written. Given a Reconciling clergy person’s opposition to the provisions of the Discipline that, e.g., preclude clergy from officiating at a same-gender wedding (¶ 2702(b)), such a person would seem to be a person who could not “in good conscience uphold the Discipline.” In that case, counsel for the Church would move to exclude that clergy person for cause and the presiding official would almost certainly exclude them. Thus, the short answer is that, given the Judicial Council’s holding, a clergy person’s support for the Reconciling Ministries Network, or otherwise expressed support for inclusion of homosexuals in the whole life of the church, would constitute a bar to such a person serving on a trial jury, whether pursuant to peremptory challenge or to a challenge for cause. Under that decision, the presiding official would be required, in those circumstances, to determine that such a challenge had sufficient cause.