Writings: In Defense of Marraige Rights

Substantiation of the Digest:

1.     Article XXI As a Defense of a Right to Marry

The right to marry for all United Methodist clergy is clearly established and affirmed by Article XXI of the Methodist Articles of Religion: 

This article, protected by the First Restrictive Rule[2], comes to us from the 39 Articles of Religion of the Anglican Communion, where it is enumerated as Article XXXII. Originally adopted in 1553 following the Clergy Marriage Act of 1548, then updated and re-adopted in 1562, Article XXXII ensured that bishops, priests, and deacons of the Church of England would not be required to vow or maintain the Roman Catholic practice of clerical celibacy but were free to marry “at their own discretion, as they shall judge the same to serve best to godliness.” Except for the change in clerical nomenclature, this Article has been retained substantially unaltered from its 1562 version.[3] As part of the Methodist Articles of Religion, it is protected by the First Restrictive Rule in the Church’s Constitution and, as such, takes precedence over all other rules or regulations regarding marriage to be found within The Book of Discipline, 2016.[4]
 
Article XXI contains no limitations on the definition of marriage, nor does it define legality in purely ecclesial or civil terms. “God’s law” is referenced regarding the lack of Scriptural warrants for the Roman Catholic practice of clerical celibacy, which should remind us that this article was originally drafted to ensure the civil and ecclesial right of all Anglican clergy “to marry at their own discretion.”[5] This point bears amplification: in this Article the reformers of the Church of England were affirming that all clergy could decide for themselves if, when, and to whom they would marry. The “discretion” and “judgement” referenced in the doctrine is clearly on the part of the person being married, not on the part of the church or a civil authority. Indeed, rather than being required by ecclesial authority to abstain from marriage, as had been the case within Roman Catholicism, the clergy of the Church of England were at liberty to make such decisions for themselves – to marry or to remain celibate – guided solely by their own discretion and judgement.[6] No secular or ecclesial authority was permitted to dictate their decision to marry or remain single, nor could such dictate limits regarding whom they could marry: they were not restricted relative to the aristocracy nor, even, to matters of denominational affiliation; they were free to marry entirely at their own discretion.[7] It is at this precise point that ¶2702.1b, ¶161.C, ¶161.G, ¶304.3-footnote 1, and ¶341.6 all run afoul of Article XXI. In direct contradiction to the intent, wording, and spirit of Article XXI, these regulations deny the right of some clergy “to marry at their own discretion,” and further require those same clergy to “abstain from marriage” and “vow the estate of single life.” The General Conference, as aided by the Judicial Council, has done this based upon the perceived authority of the “incompatibility clause” and other statements made in ¶161.G, even though this legislation was passed at a much lower vote threshold than required by the First Restrictive Rule[8] and is thus undeniably inferior to the Doctrinal Standards.[9] The prohibition of same-sex marriage for clergy, and the subsequent mandate of lifetime clerical celibacy for the same, are therefore unconstitutional.
 
The Judicial Council has issued only a single decision pertaining to Article XXI, however their treatment is plagued by multiple faults in both fact and reasoning while also failing to encompass the full scope of the Article’s applicability to the question. In Decision 1185[10] the Judicial Council ruled that ¶2702.1 did not violate Article XXI for the following reasons:
 

1. The definition of marriage presumed by the Anglican authors and Methodist adopters of the Article would not have included same-sex unions,

2. The civil legality of same-sex unions is immaterial to Church law, and

3. The Social Principles (in ¶161.C and ¶161.G) establish marriage as being heterosexual in nature, and that definition was presumed to apply to the term “marriage” in Article XXI.

This ruling, combined with the Supreme Court’s decision in Lawrence v Texas[15] striking down most laws criminalizing non-procreative sex and legalizing the practice of homosexuality, has changed the cultural and legal environment within which the Church functions as an advocate for human rights. Prior to these landmark decisions, the fundamental rights and liberties of LGBTQ+ persons were challenged in many areas of society as well as in the Church. Since these rulings have changed the legal environment, our society has become increasingly more accepting of LGBTQ+ persons both in the integrity of their private lives and in the public expression of their identities.[16] Unfortunately, this hasn’t been the case among most Christian communities, including The United Methodist Church.
 
The United Methodist Church has long been on the forefront of progressive social activism in championing the civil rights of minorities and others who have suffered injustice at the hands of both the culture and civil authority. Unfortunately, the Church has also been slow to recognize its own participation in injustice or to stand with those who are oppressed; historically, the Church has eventually done so with honesty, humility, and grace, but usually only after a prolonged period of painful listening, introspection, and change. This has been true relative to the gender and racial injustices which have plagued the Church for decades (and which, in many ways, still plagues it), and it has been especially true for those of differing sexual orientations and identities. Indeed, the current fracturing of the UMC is rooted entirely in this question: will we, as a community of faith, begin to recognize the fundamental human rights that we are still officially denying, and will we make amends?
 
Amazingly, for many years the Church has been willing to affirm and commit itself, in at least some respects and contexts, to forwarding the civil rights of those who are on the LGBTQ+ spectrum. An often-ignored example from the Social Principles serves as a testament to this:

When ¶162.J was adopted into the Social Principles, the prevailing cultural and legal standards of our society didn’t regard marriage as a basic human right for same-sex couples. Time, events, and the morphing of our cultural and legal institutions have passed the UMC by, and now marriage is understood by our society’s legal and cultural ethos as being very much part of the “rights and liberties for all persons, regardless of sexual orientation.” By no fault of its own, the Social Principles contradicts itself on these matters and ¶162.J calls the Church to do better.
 
This inclusive expansion in the cultural and legal understanding of civil liberty doesn’t just impact our Social Principles; changes in our nation’s laws on this matter have direct impact on the applicability of the Book of Discipline in several ways. This is true, in large part, because the 1939 provision at the end of the Articles of Religion regarding the “Duty of Christians to the Civil Authority” states that:

In other words, the violation of civil law is a chargeable offense. While the Judicial Council has correctly stated that the laws of the nation do not dictate the church’s doctrinal or social stance[19], one of the several ways that changes in civil law impacts church law can be found in the applicability of ¶2702.1c to questions of same-sex marriage and homosexuality. Prior to 2015 regarding marriage, and 2003 regarding homosexuality, ¶2702.1c (and its prior equivalent) was a viable charge that could be, and sometimes was, leveled against gay clergy. The committing of a crime is a chargeable offense, and the Church recognized this fact and utilized it as a charge even when there were no criminal charges pending in secular courts. This is no longer the case today relative to either the practice of homosexuality or same-sex marriage in the United States, and hence ¶2702.1c can no longer be used in charging LGBTQ+ persons when they marry or for their sexual orientation.
 
This illustrates how a change in the cultural and legal context can have a direct impact on what the Church does; the Church is not separate from society and its laws, and changes in our nation’s cultural and legal understanding of fundamental human rights must not be dismissed simply because there are discriminatory regulations against a specific minority group codified in the Book of Discipline. In 1967 the United States Supreme Court ruled in Loving v. Virginia[20] that interracial marriage was a “fundamental right” based upon the same grounds as were later identified in Obergefell v. Hodges.[21] Prior to that decision (and far too often following it) clergy and lay members of the Methodist Church (and, after 1968, the UMC) treated interracial marriage as if it were a sin, with severe (often institutionalized) discrimination being the result. Over time The United Methodist Church accepted that racial equality was a matter of fundamental human rights, that it and its predecessor bodies had been guilty of violating those rights, and steps began to be taken which would make amends. It’s long since passed the time for the UMC to do likewise relative to the full inclusion of, and marriage rights for, LGBTQ+ persons.
 
Under the Constitution of the United States of America, it is my civil right to marry. That civil right must be recognized and affirmed by the Social Principles at ¶162.J, and conflicting Principles and other legislative enactments should be set aside until they can be rescinded.
 
3.      The Unconstitutionality of the Incompatibility Clause
 
¶161.G, the Social Principle dealing with “Human Sexuality,” reads in-part:

The “incompatibility clause” has caused an extraordinary amount of damage to the Church since it was passed by GC1972. The history of its inclusion and the scope of the damage it has done have been detailed by multiple other authors, so I will not belabor that here.[23] Suffice it to say, ¶161.G has been used as the doctrinal substantiation for multiple legislative enactments prohibiting the full inclusion of LGBTQ+ persons in the life and ministries of the UMC. The weight of this should not be missed: a Social Principle makes a statement regarding “Christian teaching” on a particular issue, which is subsequently used as the doctrinal justification for legislative actions that restrict civil liberties and foster injustice and oppression within the Church. ¶161.G isn’t referencing back to an Article in the Methodist Articles of Religion or the EUB Confession of Faith; it is making that doctrinal pronouncement of its own authority, without a substantive theological antecedent.[24] This is something that a Social Principle simply cannot do. And yet, this is precisely what the General Conference has done in direct contravention of the Constitution. William Lawrence traces the progression of unconstitutional legislation in this devastating summary:

The Social Principals are not doctrines, are not binding as laws, and do not carry the authority of the Doctrinal Standards. They were not passed by the two-thirds majority vote of the General Conference that is required of Constitutional amendments; they were not confirmed by the three-fourths majority aggregate of the lay and clergy membership of the Annual Conferences, as required by the First Restrictive Rule for changes or additions to the Doctrinal Standards; they, and the subsequent changes made to them, were approved by a simple majority vote of the General Conference. As such, ¶161.G, in its own authority, cannot state what constitutes “Christian teaching,” nor can it subsequently be used as justification for legislative enactments by the General Conference.[28] In doing this, the General Conference violated the Church’s Constitution and, as a direct result, all legislative actions that stem from that violation (e.g. ¶304.3-footnote 1, ¶341.6, ¶2702.1b, et al.) also violate the Constitution. They are unjust and foster oppression in every way that they present themselves. They are not valid laws, and I challenge their constitutionality as well as their ethical standing. They are not binding, and our baptismal vows call us to resist them.
 
4.     Marriage is Not Evidence for Self-Avowal as a “Practicing Homosexual”
 
While the unconstitutionality of ¶304.3-footnote 1 has already been demonstrated, I want to take a moment to address it here because it plays a role in my case, as it does in the case of any UM clergyperson who is married to someone of the same sex.
 
In response to Judicial Council Decision 1341, the 2019 General Conference added content to the operative footnote at ¶304.3. That footnote, in its entirety, now reads:

The addition is: “…or is living in a same-sex marriage, domestic partnership or civil union,…” and was added in response to the Judicial Council’s ruling that a same-sex marriage license is a public document which constitutes a person’s self-avowal as a “practicing homosexual.” Their reasoning is flawed in multiple respects, partially conflicts with our Social Principles on the nature of marriage, violates the original protective intention of “self-avowal,” is rebuttable in several ways, and moreover is unconstitutional because it violates the Fourth Restrictive Rule through establishing a “guilty until proven innocent” condition prior to trial of fact.
 
In the Judicial Council’s ruling, they state the following:

The Judicial Council’s argument here is incomplete, for they are obfuscating what they mean by “common understanding.” By this, they are referencing, in part, the Common Law presumptions in multiple western cultures relative to the act of consummation, by which a marriage was understood as being validly established only through the act of physical sex; indeed, even more troubling, in some Common Law jurisdictions consummation was only accepted, and the marriage presumed to be valid through the act of procreation.[31] This understanding no longer coordinates with judicial concerns relative to marriage in most of the US, does not reflect the wording of marriage licenses in most civil jurisdictions[32], no longer reflects the culture’s nominal expectations for when sexual activity begins within relationships, and directly conflicts with the Church’s Social Principles on the fundamental character of marriage. Indeed, the respondent and the amici curiae’s assertion that “marriage does not presume the act of physical sex between spouses or require physical union to be fulfilling” is manifestly true and in keeping with ¶161.C, where it is stated:

 
We have no compelling reason to depart from this understanding of human relationships and find that a married clergy person’s status in a committed same-sex relationship is sufficient to create the rebuttable presumption that the couple is engaged in physical sex, thus providing the objective element of “engagement in sexual acts with a person of the same gender” of a public declaration. The presumption can be defeated by proffering rebuttal evidence to the trier of fact in an administrative or judicial process. For this reason, taken together, being legally married and living in a same-sex relationship is a public declaration containing both personal and objective elements and, therefore, constitutes self-avowal under ¶ 304.3.[34]

Again, their argument is specious for the prior outlined reasons. Additionally, they affirm that it is rebuttable but in so-doing place upon the defendant the burden of administratively or judicially proving a negative, something which is notoriously difficult to achieve. They are also presuming “guilt” rather than “innocence” on a matter which has potentially devastating discriminatory consequences for the accused, and this constitutes an unjust reversal of nominal due process (relative to this last point, see below for remarks on the Fourth Restrictive Rule).
 
Be that as it may, here is such a rebuttal:

Requiring such a rebuttal is admittedly unsatisfying, should be embarrassing to the trier of fact, and constitutes an unconscionable and humiliating intrusion into a married couple’s right to privacy. And yet, there it is.
 
Finally, we come to the question of the Fourth Restrictive Rule, which the Judicial Council’s decision and the General Conference’s codification in ¶304.3-footnote 1 violates. It must first be admitted that the Judicial Council realized the problem they created for themselves relative to the constitutionality of their ruling as it pertains to the Fourth Restrictive Rule. They established the possibility of rebuttal in an attempt to avoid such a conflict; however, as has already been stated, their provision presumes guilt rather than innocence, requires the proof of a negative, and involves an extraordinary violation of personal privacy which is nowhere required of those who are not homosexuals. Additionally, it should be noted that the original purpose of the “self-avowal” barrier was to protect against violations of the Fourth Restrictive Rule by ensuring that automatic presumptions like this were not made and that “witch hunts” to root out homosexual clergy could not be conducted; an affirmative self-avowal of “practicing” became the required benchmark used to establish the objective fact, not innuendo, assumptions, presumptions, property records, marriage licenses, or other forms of “evidence” obtained by often questionable means. In breaching the barrier established by the principle of affirmative self-avowal through verbal or written assent to the proper ecclesial authority, the Judicial Council has opened the door to other forms of investigative intrusion and further undermined the protections guaranteed in the Fourth Restrictive Rule for clergy and laity.

While the presumption of self-avowal is rebuttable by an affirmative statement in the negative, this doesn’t repair the fact that such a finding, which occasions an extraordinary rebuttal, is made entirely apart from a “trial by a committee” and lacks even the possibility of appeal to higher authority. The rebuttal is not an appeal, even though that is how the Judicial Council appears to view it. Rather, the rebuttal is a response to presumed guilt rather than innocence. As such, it violates the sense and wording of ¶17, Article IV and is, therefore, unconstitutional.
 
5.     Marriage is Contextual to the Inclusivity of The United Methodist Church
 
My marriage is contextual to the inclusivity of The United Methodist Church as established in Section 1, Article IV, of the Church’s Constitution. Here, in language too striking to ignore, it is unequivocally affirmed that “all persons are of sacred worth,” that the ministries of the church are open to “…all persons without regard to race, color, national origin, status, or economic condition,” and that “no conference or other organizational unit of the Church shall be structured so as to exclude any member or any constituent body of the Church because of race, color, national origin, status or economic condition.”[36] My marriage is contextual to this affirmation of radical inclusivity in as much as questions of marriage or singleness are among the several identities that were originally intended by the term “status.” While some have argued that same-sex marriage should not be granted the protections afforded in the Constitution under the term “status,” their argument is usually circular because it is based upon appeals to those limitations that were imposed by later and subordinate additions to the Social Principles. If anything, and as illustrated above in points 2 and 3, those limitations on the nature of marriage are unconstitutional precisely because they violate Section 1, Article 4 of the UMC’s Constitution. Additionally, the question of applying the term “status” to same-sex marriage (and, therefore, to one’s sexual identity and orientation) is now moot because the Judicial Council, itself, has done precisely that in Decision 1341! [37]
 
The contextually of my marriage to the inclusivity of the Church is also substantiated through the overwhelming adoption, by all five US Jurisdictional Conferences meeting in 2022, of the resolution entitled: Queer Delegates’ Call to Center Justice and Empowerment for LGBTQIA+ People in the UMC. Points 2, 3, and 4 of this resolution merit quoting here:

The impact of this aspirational resolution cannot be understated, and particularly not when considering that substantially similar versions of it were approved by all of the US Jurisdictions, including the very conservative Southeastern and South-Central Jurisdictions. There is significant undeniable support for the full-inclusion and marriage rights of LGBTQIA+ laity and clergy within the US Church. My marriage to Kade Rogers is situated within this context.