On the Uses of Law in the UMC

Today's post is by UM & Global blogmaster Dr. David W. Scott, Director of Mission Theology at the General Board of Global Ministries. The opinions and analysis expressed here are Dr. Scott's own and do not reflect in any way the official position of Global Ministries.

I am trained as a historian. Since codes of law are one of the main types of historic artifacts that have survived from the remote past, historians spend a lot of time thinking about laws and specifically about the relationship between law and behavior. The consensus is that laws should be seen not as records of what people actually did but rather what those in power who wrote the laws wanted people to do. As we know from our experiences today, people break laws all the time, in a variety of ways and for a variety of purposes.

Even if laws do not represent what all humans always do, laws can still influence behavior in one of two ways. First, they can set standards for behavior that some people then willingly adhere to because they want to act in harmony with the standard out of a basic human desire for social conformance. Second, they can set penalties for misbehavior the motivate people to behave in a certain way out of fear of those penalties, whether or not they are naturally inclined to aspire to behave according to the group standard.

For this second, penalty-based type of behavioral influence to work, there must be a high enough likelihood of penalties being enforced and those penalties must be meaningful to the person experiencing them. People must also be acting in a rational, self-reflective fashion rather than committing a "crime of passion," where they are motivated by present emotion or other factors that preclude self-reflection, for this type of behavioral influence to work.

This historical reflection on the uses of law has been helpful to me in interpreting the Traditionalist Plan, especially now that we know its final form following Judicial Council review.

The UMC has had proscriptions on the ordination of queer people and on clergy performing same-sex weddings for some time. Yet it is clear that these church laws are increasingly ineffective in influencing behavior among boards of ordained ministry and clergy generally in the first way: by setting standards that people will be internally motivated to follow for the sake of conforming to group standards.

Thus, the Traditionalist Plan sought to require stricter and more mandatory enforcement of penalties and to make penalties more severe and thus more meaningful to clergy who would experience them. Traditionalist leaders determined that penalties as structured and enforced were insufficient to prohibit behaviors they opposed and thus it was necessary to revamp the penalty system.

The Traditionalist Plan also sought to set more rigid standards of action for boards of ordained ministry and for bishops (the reasoning being, I suppose, that bishops would be more motivated to follow group standards than rank-and-file clergy) and to increase enforcement of penalties against bishops, using both strategies to try to influence the behavior of the bishops.

The Judicial Council essentially allowed the more rigid standards of action for boards of ordained ministry, bishops, and those involved in hearing complaints against clergy (Petitions 90032, 90036, 90043, 90044, and 90045). It also allowed increased penalties for clergy performing gay weddings and then convicted by a trial court (Petition 90042).

What the Judicial Council largely rejected, however, were the provisions of Traditionalist Plan that would have required a particular approach to enforcement of laws regarding homosexuality. Certifications that ordinands, boards of ordained ministry, and annual conferences will enforce LGBT exclusions were ruled unconstitutional. The ability of the Council of Bishops to impose penalties on its members without right of appeal was ruled unconstitutional.  Instructions to boards of ordained ministry and cabinets on how to carry out their enforcement of laws were ruled unconstitutional. The only element related to enforcement that was declared constitutional was allowing appeal if complainants thought the laws had not been followed.

What seems clear at this point is that Traditionalists have the legislative power within the church to set laws but not the constitutional power to require enforcement of those laws.

Thus, in annual conferences with progressive and/or centrist leaders who are uninterested in enforcing these laws, it will continue to be possible for clergy to disobey the laws regarding performing gay marriage and for boards of ordained ministry, clergy, and bishops to disobey the laws regarding the ordination of queer people, all without risk of penalties actually being imposed.

Yet here is where the first way in which laws influence behavior comes back in. In the present situation of the UMC, it is possible that laws as group standards would influence people's behavior, not by motivating them to conform to the group's standard, but by motivating them to leave the group. Portions of the UMC that are not interested in conforming to the UMC's ever more strongly worded standards regarding the place of LGBT people in the church, could choose to leave, even if they are able to continue within the UMC without fear of penalties. In essence, people could desire to leave to avoid the sense of cognitive dissonance and identity mismatch they perceive between themselves and the group, even if the group norms didn't directly impact their behavior.

Thus, remain and resist will continue to be a valid option for many within the UMC, but the desire for progressives and centrists to leave grows with each more forceful reiteration of the church's Traditionalist stance.