Judicial Independence and the Problem of Ordination

Photo by Bill Oxford on Unsplash

The US Senate recently confirmed a new Supreme Court justice, Amy Coney Barrett. The battle dominated political headlines and campaigning. Conservatives anticipated and liberals dreaded the possibility of a 6-3 split favoring conservatives in the Supreme Court. While this made great political theater, the political reality of the Supreme Court is more complicated. History shows that once justices are confirmed to a lifetime appointment, they practice a fair amount of judicial independence. Justices O’Connor and Kennedy, nominated by Republican presidents, became swing votes. Chief Justice Roberts, portrayed as a stalwart conservative during his confirmation hearings, is now seen as a moderate. Justice Kagan has ruled with her conservative colleagues on several cases, creating a “centrist block” with Justices Roberts and Breyer.  Even Justices Gorsuch and Kavanaugh have sided with their liberal colleagues against the administration that nominated them. 

What may the confirmation hearings teach us about ordination? In the ordination process, candidates confirm and commit to a set of theological positions and discipline, the clergy covenant. Once they receive ordination, clergy are subject to very little theological oversight. When clergy change their theology and no longer commit to the position held at their ordination, the situation is often met with anger and surprise. Yet if judicial independence is expected, why should clergy independence be any more surprising?

Judicial experts point to four causes of judicial independence. Each cause also affects ordained clergy.

1. A confirmation process that disincentivizes honesty and transparency

The charged political atmosphere of confirmation hearings does not reward any controversy that may disqualify a candidate. The process encourages candidates to present themselves in the best possible light, even if that light is not completely honest. For example, Justices Sotomayor and Kavanaugh, political opposites, both declared in their confirmation hearings their role as a justice was to interpret law, not make law. Both declared full support for the Second Amendment and the rights of gun owners. Both presented themselves in remarkably similar ways, as uncontroversial moderates who appeal to as many senators as possible. The confirmation process provides no benefit for honesty or transparency that may hurt a candidate’s chances of confirmation.

Likewise, the process for ordination in most denominations disincentivizes honesty and transparency. Ordination boards often have set words or phrases they seek to hear during interviews. No benefit exists to reward a candidate who honestly disagrees or struggles with the theological doctrine of the church. The only incentive for the candidate is to express full support for theological doctrine and clergy covenant.

I serve on a credentialing board in my denomination. We found that candidates denied credentialing in the past who return have an overwhelming chance of approval on the second attempt and are almost guaranteed approval on the third attempt. Yet we found the difference was not in the quality of the candidate, but in the candidate’s ability to recite the necessary phrases and present the necessary theological positions for approval. Candidates are not more committed to theology; they learn how to say the necessary words.

2. The weight of Supreme Court decisions

After serving on the Supreme Court, justices often observe that they underestimated the weight they would feel when making judicial decisions. Before they served on the court, they held strong legal opinions about certain topics. When they actually faced a similar legal challenge while serving on the Supreme Court, the weight of consequences reshaped their previously held opinion and caused them to rethink their position.

Clergy struggle with the weight of their decisions as well. They may believe one position theologically, but the pain caused by that theological position may change their behavior. Theological positions give way to pastoral concerns.

I occasionally teach a class that focuses on sacraments for licensed pastors in my denomination. I pose a theological challenge. If a couple in your parish were to suffer a miscarriage and ask that you baptize their miscarried child, what would you do? Most pastors correctly identify the theological position is to not baptize the unborn child. Yet many admit they would do so anyway because the discussion might upset the couple. The weight of the decision causes a shift in their theological commitment.

3. The difference between academic and practical applications of law

Justices may hold a general legal and political opinion, but rule against that because of practical concerns in a case. Chief Justice Roberts angered both conservatives and liberals by his votes focusing on hospital access to doctors performing abortions. Roberts voted to uphold a Texas law in a 2016 case but voted to overturn a Louisiana law in 2020. Roberts’ written opinions show he was more concerned with the practical details in both cases than he was concerned with making a political or legal ruling on abortion rights.

Clergy struggle to uphold theological opinions when faced with practical challenges. Pragmatism often overrules theology. Coronavirus and the challenges of social distancing provide an excellent case study in this conflict, specifically surrounding the theology of online communion. Churches and denominations that are theologically opposed to online communion have allowed the practice because of practical concerns. In a recent discussion about online communion, a fellow clergyperson suggested that the theological implications should only be considered after the current crisis was over. This perfectly embodies the difference between academic and practical applications of theology. Pragmatism may override theology in the actual practice of ministry.

4. The influence of fellow justices

Supreme Court justices may hold different political and legal opinions but serve together as respected friends and colleagues. Ruth Bader Ginsburg and Antonin Scalia enjoyed famous friendship and influence with each other, despite holding opposing positions on the political spectrum. Justices Kagan and Alito are rumored to hold a similar friendship. Several of Justice Anthony Kennedy’s law clerks shared that he was often influenced by the arguments of his fellow justices.

Clergy may be influenced by other clergy as well. We may be influenced by clergy who hold supervisory positions over us. We may be influenced by clergy with whom we attended seminary. We may be influenced by clergy who serve in the same geographical area. We may be influenced by pastors we read or see on television. This influence may be subtle, but over time may reveal important shifts in theology.

I am currently pursuing a Doctor of Ministry degree. It would be foolish to suggest my faculty mentors do not have a profound influence on my theology. I serve as the chair of a credentialing committee in my local district and teach as part of the required education for licensed pastors. The influence of others on me passes through me. If this influence was contrary to our theological commitments, this would have a detrimental effect.

Judicial experts argue whether judicial independence is a problem to be solved or a healthy byproduct of our legal system. This is where the analogy of judges and clergy separates. When clergy begin to teach and practice theological positions different from the commitments of their ordination, the results are negative and damaging. Yet the lessons of the Supreme Court teach us that instead of acting with shock and surprise when we find clergy theology changing over time, we should anticipate changes will arise. Credentialing boards should anticipate that a number of clergy will not stay committed to the theology they promised to uphold in ordination. Humans change over time. The influences that cause justices to practice judicial independence cause clergy to practice theological independence.

What can credentialing boards do to anticipate and manage clergy whose theological doctrine is no longer in line with the church? Three important changes can move in this direction.

1. Take seriously the entire process of credentialing and theological commitments made therein.

There is no practical way completely to disincentivize dishonesty or lack of transparency in the ordination process. As long as ordination provides benefits to clergy, there will be someone who is willing to do what is necessary to achieve those benefits. Nevertheless, the way credentialing boards approach the process signals whether theological commitments are taken seriously.

In my own tradition, we are required to commit to itinerant ministry in our ordination process. Yet the way we ask about itineracy communicates we do not expect clergy to keep that vow. While it is a requirement, we have been instructed to not use commitment to itineracy to judge a candidate. We often ask the question in ways such as, “Are you willing to be reasonably itinerant, given the way itineracy is changing?” Likewise, we ask candidates John Wesley’s historic question, “Are you in debt so as to embarrass you in your work?” Yet when this question is asked, there is usually some caveat given surrounding seminary debt. Our student loan repayment plan may require Jesus to return before our next payment, but it is communicated to us that the correct answer to the question is still “no.”

When we do not take seriously the credentialing process and theological commitments made therein, we communicate that credentialing is an obstacle to be overcome, rather than a process of discernment. The incentive for clergy is not to discern whether this is the proper place to live out their call to ministry, but to do whatever is necessary to overcome this step and receive the benefits of ordination.

Eric Huffman wrote an excellent piece for this publication entitled, “The Reconversion of a Secularized Radical.” In that piece, Huffman reveals he was ordained despite holding theological positions opposed to those of the United Methodist Church. I ponder the failings involved during the ordination process that allowed this to happen.

2. Require a periodic theological review or reacceptance of theological doctrine.

In my denomination, licensed clergy are required to appear before the appropriate credentialing body every conference year. Ordained clergy are under no requirement. That is not to say that ordained clergy are not evaluated. Ordained clergy fill out yearly evaluations and reports. Yet none of these reports inspire the clergy to reflect on their commitment to the theological doctrine of the church. Our priorities are skewed when we are encouraged to provide weekly updates on worship attendance and offerings, yet never reflect on theological doctrine.

Clergy should be asked periodically to self-review their theology. Are they still committed to the theological doctrine of their ordination? While this will not affect clergy who choose to be deceitful or dishonest, it may prompt reflection in clergy who may not have realized how much their theology has changed. A periodical theological recommitment would allow clergy to self-evaluate whether they can still hold to the theological doctrine of the church.

3. Provide a better off-ramp for clergy no longer able to hold their theological commitments.

Publications such as Freakonomics have shown considerable insight into difficult problems by arguing that humans are essentially economically driven to incentives. The incentives in most of our denominations heavily favor clergy keeping their ordinations, even when they do not support the theological doctrine of the church that ordained them. 

My ordination brings benefits such as a guaranteed full-time appointment, health insurance, life insurance, and access to a good retirement plan. If I in good conscience choose to leave my denomination, I would lose all of these benefits. This incentivizes me to stay as long as possible. If credentialing boards anticipate that a certain percentage of clergy will change their theological commitments over time, they can also provide transitional benefits to help those clergy move out of ministry or to another denomination. When a periodical review and transitional “off-ramp” are provided, more clergy may self-select to leave, rather than stay and destroy denominational unity.

The political theater of Senate confirmation hearings threatens to take over the news cycle.  Credentialing boards should heed the lessons of judicial independence. Anticipate that some clergy will not keep the theological commitments made in their ordination, and take steps to handle clergy theological independence.

Jonathan Hanover is a pastor and ordained elder in the West Ohio Conference of the United Methodist Church. You can follow his random thoughts on theology and international soccer on Twitter @jonathanhanover.