What Laws Apply to Clergy
Liberty is one of the cherished features of living in America. As citizens of the United States, we are protected by the Constitution from abuses like cruel and unusual punishment and unreasonable searches and seizures. We have the right to face our accusers, trial by our peers, impartial juries, assistance of counsel when facing criminal prosecution, due process, and seek redress. These are all guaranteed by the Bill of Rights, the first ten amendments spell them out.
While I could now take off on why I think the current administration has undercut America’s credibility in the world by refusing anything approaching these rights to prisoners in their “war on terror,” I have a very different reason for reminding us of these precious gifts of liberty in our country. I would like to call your attention to the fact that these same individual rights are already being ignored in one of our society's most cherished institutions, the United Methodist Church. The victims are not terrorists; they are pastors.
Local pastors can be removed from office without any chance to defend themselves against whatever accusations caused their being fired in the first place.
Pastors can be refused the right to view the files kept by the Cabinet which the Cabinet then uses as the basis for decisions about appointments of those pastors, incorrect materials and all.
The Cabinet, which has the right and often abuses that right to sign the complaint against the pastor, picks those who make the decision about the guilt or innocence of a pastor in a church trial, a group called the “trial court.” The accuser gets to pick the jury!
Pastors are brought in by a superintendent for an innocuous reason and “ambushed” with a verbal lashing based on an unwritten complaint and coerced into withdrawing from ministry.
The opinion of the bishop about the guilt of a pastor usually guides the deliberations of the groups meant to check the facts and make the judgment.
Bishops often decide to handle a complaint administratively that should have gone to church trial.
Pastors have been suspended just on the word of the bishop without the proper consultation required by the Book of Discipline.
It takes a higher standard of proof to convict a church leader who violates due process rules than to convict a pastor of a chargeable offense.
How can there be such a disparity between the rights we have as American citizens and the rights clergy have within the United Methodist Church?
We clergy live in a different nation. “Subordination!” according to a Minnesota state court examining the right of the church to have secret files on clergy.
Most clergy, trained in a variety of backgrounds and with different jobs, still have the general experience of citizenship. Consequently, we presume that the U. S. Constitution has a higher priority on legal civil rights than anything in the Discipline. That presumption is wrong.
In 1976, the Supreme Court made a ruling on a case from the Syrian Orthodox Church. In their decision, they said that civil courts had no jurisdiction over churches that have a judicial system (as the United Methodist Church does) even if that system is not followed. Yes, you read that right. The Supreme Court allows churches not to have to follow their own judicial procedures.
Civil courts hate having to deal with church cases because judges face re-election by voters who go to church.
But the real problem faced by judges is that to take a case about a church personnel matter would require the court to have to make a judgment about matters as defined by that faith. The doctrine of separation of church and state declares that no court should do that. And so, since 1976, the United Methodist Church has drifted further into counting on that protection. Now the easiest route lawyers representing the church have is to say to a civil court that the case is a personnel matter and judges tend to drop the case.
As a result, any careless or intentional failure on a church leader's part which violates a pastor's rights under the U. S. Constitution AND/OR under the Book of Discipline is seen by church leaders as inconsequential. If they have an opinion about a pastor, they can act on it without reference to church law or civil law!
So if the civil courts can't protect a pastor from abuse by church leaders, why not use church law? Aren't there provisions for a complaint process against bishops? Indeed there are. A complaint against a bishop goes to the president of the jurisdictional college of bishops. No bishop wants to have another bishop interfere in his/her own conference matters and so there is a tacit agreement that anything that is not a sexual misconduct accusation against a bishop is dropped. So bishops have no accountability to anyone for their behavior toward pastors.
Can the Judicial Council be called upon to respond to a challenge of a bishop for procedural problems?
Since 1980, there has been a personnel case before the Judicial Council nearly every year. Sometimes there have been as many as six. There are at least four cases before the Council this October. In 1996, the Council went so far as to say the following:
"It should be emphasized that both the administrative and judicial processes in the Discipline are carefully and specifically designed to protect the rights of clergy and of the church. The steps set forth must be followed carefully and explicitly or injustice results. Lack of diligence, integrity, care, or compassion in dealing with a case almost always results in irreparable harm to both the individual and the church. That has usually happened by the time a case of this nature gets to the Judicial Council."
Judicial Council Decision 777.
Despite that observation, even the Council has not always supported the rights of pastors when they have been violated by Cabinets and Boards of Ordained Ministry. Even the decisions that have supported pastors are ignored across the Church.
So pastors have a real problem. Even though they are United Methodists, they cannot assume that their right to a church trial will be honored.
They cannot assume they will be presumed innocent until proven guilty in a trial. They cannot assume they will be treated with respect until a resolution is developed. They now must assume their own words will be used against them, that declaring innocence will be seen as defensive and all the more reason to judge them as guilty, that they will not see the accusations nor the accuser unless the bishop decides that should happen, among other things.
United Methodist clergy no longer live in the "nation" of the United States and its personnel laws and rights. In fact, they cannot count on living in the "nation" of the United Methodist Church's personnel and fair process laws.
The only "nation" left is "subordination" to the bishop who hopefully understands legal civil rights and fair process protections under church law. Since no bishop is required to have competence in either of those in order to be a bishop, there is a chance a pastor "doesn't have a chance!"
What can be done about this?
First, all pastors need to know their rights as laid out in the Book of Discipline. They should read Paragraph 362.1-3 and Paragraph 2701. Even if they are never accused themselves, they have every right to ask conference leaders to describe what was done so that they could be assured Fair Process was followed or challenge actions that fail to do so. If the pastors are accused, they should immediately go online to
Second, the General Conference needs to establish a new study commission as they did in 1988 to re-evaluate how church leaders should and actually do handle complaints and suggest new laws for consideration of the next General Conference.
Three, General Council on Finance and Administration and Annual Conference need to report the costs of church trials and civil court actions to the respective Annual Conferences and to General Conference. (Detail of many cases cannot be divulged under confidentiality agreements but those costs need to be added in some reasonable way to what can be reported. There are costs for episcopal autocratic behaviors
Four, General Conference should require a substantive training program for all Cabinet and Board of Ordained Ministry members so that they will understand the concepts of due process in civil law, fair process in church law, and personnel policies required under federal law.
And finally, the General Conference needs to change how complaints against bishops are handled so that those who elect them take responsibility, as Judicial Council Decision 475 required. Similarly, superintendents should not have the "hidey-hole" of Paragraph 429.3.
There is a saying in politics: "If they can, they will." To me, applied to the leadership of the Church, "they" can and "they" already do!
Because clergy do not really live in liberty, protected from abuse, and free to properly defend themselves, it is long past time to open discussion of this grievous state in the United Methodist Church.
(Note: For non-United Methodists, the Book of Discipline is the listing of our denomination's constitution and by-laws. References to segments of law called "Paragraphs" are from the 2004 edition.)
--Shortly after this was written in 2006, Diana Henriques of the New York Times ran a series of articles about how this same kind of injustice is occurring in other major religions and denominations.—
Revised 9/30 07
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