GC 2020 – First in a series of questions about the Protocol

Frank Holbrook 1 GC 2020

Over the weekend I’ve been hand cutting mortises into some 4×4 timbers for a project I’m working on.  I’ve talked to farmers who are old enough to remember time they spent plowing behind a mule.  They invariably talk about the time they had to think about things as they followed the mule down the row.  As I kept chiseling the mortises I thought about the time Jesus had as a carpenter to reflect on the world.  I wondered if the product produced by his carpentry work was mostly divine or mostly human.  If divine, his finished product probably was a perfect one that came quickly and easily.  If it was human, he had plenty of time to think about things.  I certainly had plenty of time to think.

This is the first of several posts about specific points in the Protocol I’ve been thinking about. The posts mainly will reflect questions that I hope someone has considered or is considering.  As you can see by reading below, I may offer a suggestion, I may not.

Question 1 – Who is working on the enabling petition?

It’s clear that an Annual Conference will have to pass a petition containing the actual proposed amendments to the discipline.  The deadline for individual petitions has passed so this is the only available avenue for bringing the matter before the General Conference.  Someone, somewhere should be working on propose language even as you read this.  I haven’t seen any mention of who is undertaking this task.

The Protocol is in many ways pretty standard fare for a mediation.  At the conclusion of a mediation a good mediator gets the parties to sign some initial document that memorializes the parties’ agreement.  That’s what the Protocol is and does.  But like virtually all mediation agreements, it is not self executing.  For example, if the Council of Bishops took the protocol to the Judicial Council and asked for a declaratory judgment, I doubt one could be given.  The agreement is too vague to become a part of the Book of Discipline.

As a lawyer I used to tell clients to beware of the second round of negotiations, the negotiations that occur when the actually documents are drafted.  In my mind, a good lawyer should draft an agreement that faithfully carries out the parties’ intent.  But oftentimes the agreement requires decisions that the parties didn’t face and the draftsmen must hash out.  That’s when the second round of negotiations occurs, while the details of the deal are being fleshed out.  Who is working on the second round of negotiations?  Is it a single group that will propose one single petition or will GC 2020 be faced with competing implementation petitions passed by different Annual Conferences?  The press release is silent on this.

Question 2: Why is Question 1 important?

A few examples should illustrate the importance of the second round of negotiations.

Example 1.  When I drafted the Plain Grace Plan I focused on process, not the underlying presenting issues.  The Protocol addresses the presenting issues but it pays little attention to process.  The process will be the arena for the second round of negotiations.

Included in the Plain Grace Plan was a provision, that on its face seems similar to this requirement appearing in the Protocol:  “Registration with the Secretary of the Council of Bishops of intent to form a new Methodist denomination pursuant to this Protocol must occur not later than May 15, 2021.”  Article III 1.a.  ¶431B of the Plain Grace Plan provides: “On or before Friday, May 29, 2021, an entity may submit a Petition of Intent seeking to become a Full Communion Expression by submitting a Petition of Intent to the Council of Bishops.”  Both seem similar on their face but the Protocol leaves open enormous questions.

Putting aside questions such as what does the Protocol mean when it says “Registration with the Secretary of the Council of Bishops” the real unanswered question is what is the role of the Council of Bishops?  Is the “registration” merely a ministerial act or does the Council of Bishops provide a gate keeping role?  What requirements may the Council of Bishops impose on registration?  May the Council of Bishops reject a registration?  Who may file a registration ? May I, Frank Holbrook a United Methodist Church layperson register to start a new denomination?  May one of the many existing Wesleyan denominations or churches register?  What happens after registration?  Does the Council of Bishops take any action after registration?  If so, what and how long do they have to act?  What happens if they don’t act?

Frankly, without a lot more detail the Protocol’s registration requirement is virtually meaningless, or worse a fruitful source of litigation that could last for years.  One of the major criticisms of the Plain Grace Plan is that it is too detailed.  For those who want something plain and sweet, the Protocol’s registration requirement fits the bill.  Everyone can read it and understand the plain words; at the same time, no one reading it knows what it means.  The Plain Grace Plan’s registration requirement included minimal qualifications for registration and makes clear that the role of the Council of Bishops is ministerial, not discretionary.  What will the second round of negotiations produce?

Example 2: On Saturday I briefly wrote about the apparent compromise reached on the Local Church vote.  That compromise is documented in Article III 1.d.: “If such a vote occurs, the church council shall determine a voting threshold of either a simple majority or two-thirds of those present and voting at a duly called church conference in order for the motion opting for a different affiliation to be adopted.”  I pointed out that this really moves the majority issue to the initial motion: Does the motion to use a simple majority (or two thirds majority) require a simple majority to pass?  The Protocol doesn’t tell us.

If I was drafting an enabling petition I probably would propose the following language:  “The question of affiliation shall be decided by a simple majority of the professing members present at the meeting; unless by motion, carried by a simple majority, the church conference decides to require a two thirds majority.”  Such a provision would be consistent with the Protocol’s intent but give some guidance to the Local Church.

On the other hand, as a delegate, rather than a draftsman, I would propose the following language: “The question of affiliation shall be decided by a simple majority of the professing members present at the meeting; unless by motion, carried by a simple majority the church conference requires a different majority that may be as high as two thirds.”  In my mind, this proposed language furthers the Protocol’s implicit goal of allowing the local church a level of autonomy on deciding the majority but does not make the local church have to decide between two preordained choices.  Isn’t it possible that a reasonable person might say “why can’t we use a 57% majority”?  That certainly seemed to be acceptable at the annual conference level, why not the local church? If a local church thought it was best to require a 55% or 60% majority what makes those numbers unacceptable?

Presumably, no individual signer of the Protocol could could support my theoretical proposed amendment unless every signer agrees to support my theoretical amendment since:  “The undersigned agree to use their best efforts to persuade any groups or organizations with which they are affiliated to support the legislation necessary to implement the Protocol.  Consistent with the commitment in Article I, Paragraph 1, the undersigned will not participate in or support legislation or other efforts that are inconsistent with the principles and terms of the Protocol and the implementing legislation.  They may support other efforts to the extent that all signatories to this Protocol agree that such efforts are consistent with the Protocol.”

Where we presently stand

As you can see, we are now in the liminal space between Friday’s triumphal announcement with photo ops and press releases, and the very hard work of reaching agreement on something that is workable and truly allows Reconciliation and Grace Through Separation.

As I cut the mortises I thought about how a chisel works like a plane, i.e. plane grace.  If a chisel is sharp and cutting with the grain, the results are smooth to the touch and pleasing to the eye.  It the chisel is dull or worked across or against the grain the result is what woodworkers call “tear out”.  I’m praying for an implementing plan with minimal tear out.  The draftsmen need sharp tools and the wisdom and ability to discern which way the grain is running.

Keep the church, and those working behind the scenes, in your prayers. Chopping mortises can be tedious and time consuming but ultimately it’s very rewarding work.