The Judicial Council will affirm the Consecration of Bishop Olivetto in April. It must. The reasons have little to do with General Conference actions, Disciplinary paragraphs, church polity, or existing precedent, and nothing to do with theology, ecclesiology, or a coherent hermeneutic. It must because it is corrupted by the same fear that has corrupted us all: It is not willing to risk losing its life to save it. It must affirm Olivetto’s election as a matter of survival. Don’t expect bible verses or quoting of Saints in this article—nor in the upcoming decision.
In another life, when God and I had a disagreement about my intended vocation, I spent some time in the belly of Atlanta Law School (closed since 1994). I do retain one vivid classroom experience from those years. The professor asked us to define the term “lawful”. What makes something lawful? After we took our turn at explanations he offered this one: Lawful is that which is compatible with the will of the one having jurisdiction. It has been true in secular courts for some time. The lesson is important for us because it is now true in our ecclesial courts.
Trial court decisions, the professor explained, will almost always stand. Few attorneys will ever have a case heard on appeal and few of those appeals will ever overturn a trial court. Our job as attorneys is to persuade the authority having jurisdiction that our position is a good thing–that what our client wants to do is something the one having jurisdiction also would like to do—and then provide that person having jurisdiction with just enough case law to justify doing it. The state of American jurisprudence is such that either side is capable of producing reams of case law and legislative history to support their opinion, and judges are relatively free to give whatever weight they choose to whichever arguments they choose. Cases are won in persuading the one having jurisdiction that they want to do a good thing for your client, or, at least not as bad a thing as your opposition has proposed.
This principle, he continued, is to be implemented as early in the process as possible—with the first person having jurisdiction. If you are present at the high school when the student is called into the office, then you want to persuade the principal that he/she does not want to involve the police, and then provide them a justification to do what they want to do. Failing that, you want to persuade the officer that justice is best served by not making an arrest and citing some precedent that will provide the officer with plausible validation. If there is an arrest, then you apply the same principal with the prosecuting attorney. The last chance to persuade a person having jurisdiction that what you want to do is a good thing is at the trial court, because the trial court decision will stand.
There is enough legislation and case law out there that almost any position can be plausibly defended. I saw this in practice my first few weeks into an appointment in a small-town church. I was working late on a Saturday night at the church office and heard a commotion. When I went outside I observed a number of inebriated teenagers stumbling about the property. It seems the house next door was having quite a party. I ventured onto the property and discovered the absence of any adult presence and a teenage resident who had no interest in any help to bring things under control.
I called the town’s one police officer. As we watched carloads of high school students carry cases of beer onto the property he explained to me all the reasons he could not go onto the property without a warrant. The officer did not know for sure that these people were under age (though I, who had only been there a few weeks, knew many of them by name; he, who had lived there for years, did not know any of them). I called the county sheriff who explained all the reasons why they could not enter the town except at the invitation of the local officer.
I learned the next morning that this was an annual event and that the family hosting it was one of those who paid most of the bills in the town. The ones having jurisdiction had already been persuaded that leaving that house alone was something they wanted to do and were prepared with reasons to do just that. It was a matter of their survival.
The Judicial Council finds itself in a tough spot—an existential crisis. If it rules against the consecration and appointment of Bishop Olivetto it will surely be ignored. No administrative body will implement the decision. After having so many of its recent decisions effectively nullified by Annual Conferences, and coming so close to the many acts of non-compliance following General Conference, it cannot afford to issue another decision on so weighty a matter which will have no effect. That would be the end of the Judicial Council’s relevancy. The center will not hold—things fall apart. The Judicial Council has already been persuaded that preserving the institution is a good thing that it wants to do.
So, by carefully limiting the scope of their inquiry, weighing the nuanced definitions of terms in the very specific questions before it, by keeping as many points of law out of the discussion as possible, and by choosing the weight to be allotted to the various arguments presented to it; they will be able to rule that a denomination which states that, “self-avowed practicing homosexuals are not to be certified as candidates, ordained as ministers, or appointed to serve in The United Methodist Church” actually permits the ordination, consecration, and appointment of a Bishop who is legally married to a person of the same gender. They must do it to preserve the institution—to save their life. They will be wrong in doing so. Everyone will know that they are wrong. But, the institution will be preserved: They will still be relevant.