Temptation

This post is something of a confession; prepare yourself. It’s nothing so tantalizing as a comment about the temptation of drugs or sex; it’s about another insidious temptation with which society often plies us. Lately, I’m feeling its pull more strongly, it seems.

That temptation is the one of comparison. You know the one. It’s the one that gnaws at your soul a little, whispers doubts in the back of your mind, every time you open up a social media platform. You see people living their “best lives” and–even though you consciously know that 99% of what you see posted is manufactured and exaggerated, conveniently glossing over those problems, dilemmas, failures and weaknesses that everyone has and no one really wants to share–you still wonder, “Am I not doing as well as everyone else?” “Am I just not as good?”

I’m no exception, and lately I’m thinking about this much more than I’d like to. Part of it is a function of age: I’m thirty-five, fast closing in on thirty-six. But I can’t really lay the blame on that, because it’s just another measure I’m using for comparison.

I, like many people from upper-middle-class suburban backgrounds, was raised on a steady regimen of the importance of achievement. Explicitly or not, I was taught to weigh value based on achievements reached, things accomplished. To add to that, I fell into the belief (though I can’t, admittedly, say that anyone drilled it into me) that real achievers achieve things early and often.

This was an easy thing to satisfy when I was younger and in school. I maintained consistently high grades, took all of the advanced placement classes available to me and entered my first semester of college with forty-seven hours of credit already under my belt. I spent the next decade or so earning degrees, tangible (kind-of) certifications of achievement.

Now I’m much farther removed from academia, and I’ve become much more responsible for intrinsically maintaining my sense of self-worth.

And therein lies the battle. I have very consciously chosen certain ideals and values to live by, ideals and values inspired by my faith and my idealism, ideals and values about which I am convicted and passionate.

Sometimes, those values are counter-cultural. A significant point of my personality is the value I place on my independence. Combined with my moral compass, that’s very much influenced my career path as a lawyer. Those choices are not without consequences. One of my wisest friends once said, “you’re only as free as you’re willing to accept the consequences of your actions.” Fulfilling that statement is truly living without fear, and it’s something that has resonated with me ever since I first heard it.

So–most of the time–I’m perfectly content with the career choices I’ve made. I work in a small firm with two partners who are like family, I have great independence in how I do my work and for whom I work. This has given me a lifestyle balance that truly fits with who I am, and I often tell people that I wouldn’t be happy lawyering if I was working for someone else.

But it also means that there are consequences. Balancing my broader life goals against my career and placing my moral values first when working mean that I sometimes turn down work that might be lucrative or that I perform my work in ways that place income as a secondary concern. I don’t take on new clients when I don’t believe that I can achieve anything for them; I don’t bill my clients for every little thing; and I don’t charge the exorbitant fees I sometimes see other attorneys charging.

I feel those choices every time I look at my bank account. Don’t get me wrong, I make a decent living and my practice grows with each passing year–it turns out that being honest and capable actually is a good business model! I’m happy to accept the consequences of those choices; I’ve found in the past few years that I need far fewer material things to be happy than I thought I did, and I have mostly disdain for the pursuit of wealth, power and status.

Imagine my surprise, then, when I was scrolling through Facebook over the weekend and happened across a post by a couple I went to law school with and felt a pang of jealousy. Here’s the strangest part: my jealousy was about the background of the picture, about their kitchen. I’ll be very excited to see K’s reaction when she reads this, because she knows me well and knows how little stock I typically put in the size and fanciness of a person’s home.

Of course, my feelings weren’t really about the kitchen. They were the result of the doubting my own adequacy in light of the financial success this couple presumably enjoys. These feelings were really about me asking myself if I’m really good enough, according to a standard I don’t believe in and actually reject!

I don’t want a house like theirs. I don’t want the type of life consequences that are attached to such a choice (which is not intended to be a judgment of their choices, simply a statement that that is not the path for me). But it doesn’t matter who you are, that temptation will reach its ugly tendrils into each of us at some point, if not regularly.

When it comes down to it, though, career achievement is the place where the temptation of comparison to others is easiest for me to bear. I’m very proud of how I conduct my business and uphold my values; that I try to practice the Christian ideals I so often discuss on this site. Again, that’s not intended to be a judgment on others, just a matter of trying to keep my own hypocrisy to a minimum.

The two other temptations I frequently feel to compare with others hit closer to home. The first of these is about parenthood; the second: my writing.

Those of you who have followed this blog for some time, or perused it in depth, or who know me personally, know that K and I plan to foster to adopt, and that we’re again waiting for a placement of kids. That’s difficult enough as it is, but we’re quickly approaching a time where it seems that we’re the only ones without children. One of my partners at the law firm has two; the other is expecting his first this Fall. My (younger) sister is pregnant with her first (and I am very happy about this and excited for her!) and I’ve got several siblings and cousins–many of whom are younger than me–who already have children as well.

I know better than to think of having children as a matter of achievement, really I do. But the fact that I have to write that here is revelatory in and of itself, is it not? And I know that K and I are not the only ones to deal with such comparisons with others–not by a long shot.

For me, my writing is where this temptation cuts deepest. If I can discern any sort of divine calling for myself, it lies in writing fiction and theology. If there is a personal pursuit about which I am truly passionate,  it is in writing. If there is a single most-powerful, non-divine source of my sense of self-worth, it is in my writing.

I’ll make a true confession by way of example, so get ready for some vulnerability on my part: This past weekend Rachel Held Evans died. She was an outspoken writer for progressive Christian values and, even in her short life, accomplished much in service of Christian faith and demonstrating to the unchurched (and perhaps millennials in particular) a Christianity that rejects fundamentalism, embraces the Gospel truth of love and reminds us that Christ calls us to pursue an agenda of social justice that does not rely on identity politics, a rejection of immigrants, or fear. (Here is one article with some information if you’re not familiar with her).

To my shame, I have to admit that, in addition to the sincere sorrow I feel at her passing, I was awash in a sense of unreasonable jealousy. She was only a little older than me and already had five published books! Obviously, my feelings of inadequacy have nothing to do with her; they’re really about me questioning myself, worrying that maybe I just don’t have what it takes.

I told myself that I’d get my first major work published before I turned 40. As that time slips ever closer, I find myself often looking up other author’s ages when they were first published. I can say that I understand that their life isn’t mine, nor should it be. I can write that I know that the value of a writing originates in the writing itself, not how old the author was at the time of creation.

And that knowledge, I think, is where the truth will out. Particularly in my theology, I talk about the importance and beauty of ambiguity. I also admit the difficulty we naturally have with the ambiguous. And let this post be evidence that I don’t stand above that difficulty; I’m not free from that struggle.

There are no easy ways to judge the value of a writing, whether fiction or non-fiction. Style is so highly varied and individual, the myriad ways in which a story might be told so dependent upon the consciousness in control of the tale, that there can be no single measuring stick. And yet, we humans like to have some certainty, even if that certainty is artificial and illusory.  For me, I can find some tangible standard of measure by looking at age at time of publication as a meaningful comparison (though I know in my heart it is not).

Again, the craziest part about falling into self-doubt by making such comparisons is that I intellectually do not value them! In my fiction, I follow after Joss Whedon: “I’d rather make a show that 100 people need to see than one 1,000 people want to see.” At this point in my writing, I’m not sure that I can do either, yet, but the point is that I’m more interested in deep connections with a smaller group of people than broadly appealing in a commercially-viable way. The same goes for my theology–I’d rather write something that resonates deeply and inspires just a few people to legitimate faith, that gives even a single person permission to practice Christianity in a way that isn’t “one-size-fits-all,” than to establish some great presence in the history of theology.

As I’ve mentioned on this blog before, I’m not even sure that I’m interested in traditional publication avenues right now. I’d love to be able to make a living writing, to devote all of my time to it, but not at the cost of having to cater to publishers or what will be successful on the current literary market to do it. My self-comparisons with published authors, though, makes me wonder if all of this idealism is simply cover for the fear of failing. “Know thyself,” the oracle says. “I’m trying!” I complain in response.

Ultimately, the temptation to compare ourselves comes from a positive place–we want to be meaningful, to be creators of meaning and to live lives where others can easily recognize meaning. That is a natural and divine thing. It’s where we let society tell us that meaning must look a certain way that we go wrong, where we try to make someone else’s meaning our own that we lose ourselves. Perhaps that is what Jesus means when he warns us about the temptation of the world, what Paul is alluding to when he warns us not to be “conformed to this world.”

What I do know is that I am passion about writing, and in particular I’m passionate about writing speculative fiction and easily-accessible theology. I’m working on the discipline to match that passion, and with every passing day I’m probably coming to understand the art and craft of writing just a little bit better–no that anyone truly ever masters it. Those things need no comparisons to be true, to be inspiring, to be fulfilling. So why look beyond them? As with so many things, easier to know what to do than to actually do it.

How do you cope with such temptations? Having read the blogs of some of my dear readers, I know that there is insight out there, meaningful stories to share. If you’ve got one, comment, or post a link to a post on your blog, or send me a message!

Post Script: Maybe in talking about my struggles writing, it would be useful to give a short update on where that writing stands:
(1) Children of God: This is the tentative title of my first theological book. I’ve had finished about 75% of a first-draft for several years now, but it needs a rewrite from the beginning and I need set aside the time to do that.
(2) Wilderlands: This is the first Avar Narn novel I’ve seriously set to working on. The first draft is about 40%-50% complete. I’m starting to feel an itch to return to the story; I’m not sure whether I’ll do that soon or wait until NaNoWriMo this year (which is how it started). It needs to be finished and then needs some significant rewrites in the portion already written.
(3) Unnamed Story of Indeterminate Length: This is an almost-noir-style story set in Avar Narn and what I’ve been working on most recently. I had envisioned it as a short-story, but it’s already swelled to 16,000 words and I’m not finished. I’ll be sending to some volunteers for review and advice on whether it should be left as a novella, cut down significantly, or expanded into a novel. I’ve got several other “short stories” in mind with the same major character, so this could end up being a novella set, a collection of short stories, or a novel series. I’ve also got an unfinished novella-length story with the same character I may return to while this one is under review. If you’d like to be a reader, send me a message.
(4) Other Avar Narn Short Stories: I’ve got several other short story ideas I’m toying around with, but I’m trying not to add too many other projects before I make substantial progress on the above.
(5) Avar Narn RPG: I have a list of games to spend some time with and potentially steal from for the rules here, but I’m mostly waiting to get some more fiction written to elaborate the setting before continuing seriously here. I’m occasionally working on additional worldbuilding and text that could fit in an RPG manual.
(6) The Blog: Of course, more blog posts to come.

 

Thinking About Kavanaugh

Since I’ve been asked to post some of my thoughts about American politics by a reader, it seems only right to reward the kind of feedback and responsiveness I’d love to see more of from readers as quickly as possible.

So, here you go, yet more commentary on the Kavanaugh nomination (though the first from me).

To begin, I am disappointed in the behavior of both major parties in our country. There have always been “winner-take-all” politicians in the world, but zero-sum, no-holds-barred, win-at-all-costs politics is now the status quo. Somehow along the way, we’ve lost the rigorous dedication to civil discourse, the ability to compromise and collaborate, and a focus on the common good over pandering to a limited electorate. This is true of persons on both parties.

I watched Senator McCain’s funeral with great sorrow. Not only did the event carry with it a sense of Shakespearean drama (I couldn’t help but think of Mark Antony’s funereal speech in Julius Ceasar, though both motivation and results differed in our reality–thankfully), but it really did seem that we’ve lost one of the last noble politicians–those who could vehemently stand for an ideology without demonizing or marginalizing anyone who disagrees. There’s some amount of revisionist idolization in there to be sure, but in his death McCain managed to become a momentary symbol of that more general loss.

I am afraid that both the Democrats and the Republicans have handled Kavanaugh’s nomination in such a way that it cannot but be polarized and polarizing. Worse still, suspicion of political motivations to the actions of both sides now guarantee that the results of the FBI investigation conducted this week will be automatically discounted by those whose opinion is not supported by the investigation’s findings. The Democrats will say that the investigation was too limited and too short if they don’t like the results, and the Republicans will call conspiracy if they don’t.

And that brings us to my real thoughts on Kavanaugh specifically. I watched a good portion, but not all, of both Dr. Ford’s testimony and Kavanaugh’s. But what I want to say in this post is not about the truth of the allegations against him. In fact, here’s what I have to say about the truth of the allegations: I don’t know. Based on what I’ve seen, I find no reason to believe a motivation in the three accusers other than sincere belief in the allegations made against Judge Kavanaugh. I found Dr. Ford’s demeanor fully credible. I don’t see that Ford, Swetnick and Ramirez have anything to gain by publically accusing Kavanaugh, but they do have much to lose.

In all honesty, I just don’t feel qualified to give anything other than my humblest of opinions as to the truth of the matter. So, putting that aside, let’s turn to the issues I do feel I can comment on.

Let me start with some comments as a lawyer to clear up misconceptions I hear frequently in discussions about the hearings and confirmation.

This is not a legal proceeding; it is a political one. Legal standards like “beyond a reasonable doubt” or “a proponderence of evidence” or “burden of proof” are not the proper standards to refer to in the confirmation of a Supreme Court justice. No one is considering criminal prosecution here, so let’s stop pretending like criminal standards matter.

The only standard that matters is “do we believe that this candidate will carry out the duties of a Supreme Court justice competently, faithfully, impartially and to the highest degree that the people of the United States deserve?”

In other words, the proceedings are not ultimately about Kavanaugh answering to the Judicial Committee, the Senate, the President or the Congress as a whole. They are about those bodies doing everything that they can to ensure that the candidate confirmed is accountable to the American people. Many of us–especially the politicians–have lost sight of that.

Additionally, let us not treat Kavanaugh as if he’s entitled to be confirmed. This is not a matter of “once the president nominates him, the burden shifts to someone else to affirmatively disqualify him.” The first concern in such a matter must never be the specific candidate, but the good of the citizenry. That should mean a neutral playing field.

So, when other people lament Kavanaugh’s treatment by the press, the Democratic members of the Judicial Committee, or anyone else, I can only partially agree. I can only agree to the extent that everyone deserves to be treated with civility and respect. I cannot agree to the extent that some deservedness of preferential treatement is assumed in such comments.

No one is entitled to be a Supreme Court justice. Personally, I’m a bit suspicious of anyone who makes it their avowed ambition to be one–I think that cuts against the expectations of neutrality in interpretation of the law, humility and selflessness that should be expected of such a person.

I also want to clarify comments about defamation. It is long established law in our country that those who are candidates for public office (or who hold such office) are under most circumstances barred from making claims of defamation. This is a function of the First Amendment right to question or criticize the operations of government and a check on the government itself by ensuring that the nation may freely debate the character and actions of its leaders. Those who run for office (for the most part) give up the right to complain about what people say about them.

On the other hand, I also believe that a respect for the democratic process must be placed above the result of any particular nomination. I do not agree with many (perhaps most) of Kavanaugh’s political ideas or jurisprudential philosophy. I do fear that his presence on the Court could threaten a reversal of long-established rights in this country, such as Roe v. Wade. But that is not a reason in and of itself to take the position any price should be paid to keep him off of the  Court.

Our nation was designed with checks and balances in mind, and there are ways to counter judicial results we don’t like–at both the state and federal levels, statutes are passed with some frequency because the legislature does not want to keep the legal result reached by a court. While the conditions under which such legistlative override are sometimes complex, we should not be mistaken for believing that any one decision within our government is an irreversible loss to anyone who doesn’t like the result.

I am willing to concede that I do not know whether Kavanaugh committed the acts of which he’s been accused, though I did find Dr. Ford’s testimony highly credible. What disqualifies Kavanaugh in my opinion (and I’m far from the first person to say this) was his own testimony on the same day.

Kavanaugh’s vitriolic description of hit-jobs, conspiracies and an intense hatred of Democrats showed a man who lacks judicial temperament. What we need in this country–across the board–are people who are willing to reserve judgment, consider the possibilities, have humility in the limitations of their knowledge and admit that they do the best that they can under the circumstances. Kavanaugh revealed himself to be a man more than willing to be partisan and to politicize judgments that should be made from a more even-keeled position. His extreme distrust of Democrats indicates a prejudice I find he would be unlikely to set aside simply because he puts on his robe and takes a seat in our highest court. For me, that’s the end of the analysis. There are other candidates, plenty whom the conservatives can get behind, who are otherwise qualified to hold the position (whether or not I agree with their views).

Now I’m going to share some thoughts on the matter as a Christian and lay theologian. As a Christian, I believe that people can change–it’s a fundamental part of our faith. Had Kavanaugh said from the get-go that he behaved irresponsibly as a kid, but that he’s grown past that, I would have had profound respect for that. Had he done that, I think I would have to give much more thought to the seriousness of the allegations against him to determine whether I personally thought him fit for the office.

But he didn’t. Instead, he tried to downplay and mischaracterize his youthful indiscretions for his personal gain. Again, the truth of the allegations against him aside, such dishonesty and dodginess is unacceptable from a person who wants to sit in an institution where the pursuit of truth and fairness is paramount. As most of the late-night hosts have remarked, his disingenuous explanations of commonly-known slang terms was deserving of ridicule. In this time of Russian bots, “fake news” and “alternative facts,” I believe that one role a Christian must play in current politics is to stand for truth and against disinformation and purposeful deception or propaganda–even (and especially) when we don’t like what that truth is.

I am disturbed by the sense of personal entitlement that Judge Kavanaugh displayed in the hearing. The general thrust of his argument was, “I’ve played by the rules of the country’s elites, so it would be unfair to deny me this position.” He responded to questions about his drinking by saying that he worked hard as a student, checked off the boxes of privilege for those with the resources and connections to attend Ivy League universities, that his position as a varsity sportsman and talented student somehow entitled him to behave however he wanted outside of those pursuits. His response to Democratic questions were not those of a person humbly submitting to vetting before potentially being given a high honor, but of a defiant man daring to challenge others to explain why he shouldn’t be given that honor.

Privileged entitlement is one of the biggest social issues in modern culture, I think. It is inextricably involved with racism, sexism, anti-immigration discrimination, the wealth divide and most of the other hot-button issues of the day. Kavanaugh’s nomination and the accusations against him, I think, have generated so much traction because these events seem so emblematic of the issues of privilege and entitlement in our country.

I am suspicious that, for some but certainly not all, an unacknowledged sense of entitlement is part of the opposition to full inclusion within the Christian faith.

I am extremely troubled by Trump, Jr.’s comments that he fears for male children more than female children in light of today’s #MeToo movement and the Kavanaugh hearings. Frankly, I’m pretty tired of the privileged trying to make themselves out to be victims. It’s not a good look. But take my indignation with a grain of salt–I am after all a white Christian heterosexual male who was born into an upper-middle-class family.

Nevertheless, I do not think that we’ve yet made sufficient progress in the rights of women that it’s time to start having conversations about how we protect men in the relatively few situations where they are falsely accused.

All of this begs the question as to what I think Christians should be doing to help in today’s environment. I have some particular things to say based on my own theological understanding of our faith, but let’s save that for some other post. For now, let’s focus on some things that I think most (hopefully all) Christians can agree upon.

First, let’s stand for truth. Let’s stop absorbing our preferred news source, assuming that everything they’ve said is exactly the way it is, and making assumptions about the facts without doing much to confirm them (as best we can). Let’s hold those who blatantly disregard the truth responsible for such behavior.

Second, let’s practice some humility. It is possible to stand for strong convictions while admitting that one is not so special as to be absolutely, unequivocally sure of the truth. In light of that, let us treat each other with respect. We can disagree without hating those who disagree with us. We can protest without hating the people who stand for what we’re protesting. Sometimes, often perhaps, that’s not easy. But that’s why we must practice.

Third, let’s actually listen to one another. This necessarily flows from the second point. I will admit that one is likely to encounter some people whose beliefs are entirely unfounded and unmoored from reality at some point along the way. I will also admit that it is a waste of time to engage with some people, because they will not be reasonable enough to engage in real conversation. But I don’t think that those people constitute the majority, and you still have to listen to everyone to know who is who.

Fourth, let’s try to walk the line. What line is that, you ask? The line between understanding that the truth and what people believe are both important, though they’re not necessarily the same thing. When I advise clients as an attorney, I often tell them that they need to treat the beliefs of the other side as true. Not because those beliefs are true, but because those beliefs are nevertheless realities that must be negotiated in order to achieve a desired result.

For the Christian in political discourse, this approach is important both pragmatically and morally. First, we cannot love one another well without trying to understand where other people are coming from, whether we agree with their perception or not. Even in our strife, even in politics, we must endeavor to act with love toward one another. Practically, you’re never going to convince anyone of anything by telling them that the way that they feel is flat-out wrong and should never be considered.

In my judgment, much of the current anti-immigration sentiment is based out of fear of loss–loss of culture, loss of status or income, loss of the “way things used to be.” I may not think that the fear of those kinds of loss are based in fact or are proper responses to immigration, but that doesn’t change the fact that many who feel that anti-immigration sentiment are scared, and if you can’t help them manage that fear (or at least acknowledge it), you’re not going to be able to reach a relationship with them where you can honestly talk about why they might (by their faith, for instance) be called to change those views.

In summary, the best way for us to influence how our politicians behave is to model that behavior ourselves so that we are not hypocrites when we demand the same sort of behavior from them. This, I think, is a moral imperative of the Christian. Happily, I think it coincides with our civic duties.

Counting the Cost: (Legal) Consequences of a Split in the United Methodist Church (in Texas)

As both theologian and lawyer, I tend to view the threatened (or impending, depending upon how fatalistic you’d like to be) split in the Methodist Church from a number of angles–but no single thread (to mix my metaphors) can easily be untangled from the others.

The report of the Commission on a Way Forward has beed released–though not officially by the Council of Bishops as translation has not been completed. I’ll discuss that in a separate post.

For now, I want to talk about the legal landscape, particularly in Texas, and what that might mean if the UMC does split after the General Conference in February. I’ll try not to get too much into the details (though feel free to post comments or send me a message and I can point you to some resources) and to keep things on a relatively-plain-English tone.

Preface and Disclaimer

This post is for informational purposes only and is not intended as legal advice. I make no claim to be familiar with the current state of law regarding church property disputes in its entirety–with ongoing litigation across the nation, such a comprehensive approach would be extremely time-consuming at best.

This post is instead meant to provide some background information to support the exhortation and conclusion that follows.

Lessons from the Past

In a recent opinion from the Fort Worth Court of Appeals (Episcopal Church v. Salazar, to which I’ll return shortly), the Court noted that “church property disputes [and schisms] are as old as any church.”

Recent memory has given us the split in the Presbyterian Church and the Episcopal Church (over similar issues to those currently facing the UMC). As the styling of the case betrays, Salazar involves the dispute between The Episcopal Church and local parish churches arising out of the split within that denomination.

Salazar is emblematic of the cost of church disputes over property that spill into the courts for resolution. The initial litigation in the Salazar appeal began in 2009! The most recent opinion in the case (given in April of this year) is on the second appeal from the trial court–the case was heard by Supreme Court of Texas in 2014, the United States Supreme Court declined to hear appeal from that court, and the case returned for new procedings in the trial court before being appealed again (resulting in the opinion to which I’ll refer in this post).

That alone is indicative of the cost–in money, time, effort, heartache and reputation–that has accompanied the Episcopal Church’s litigation in the aftermath of its split. Nine years without a decisive resolution, the attorney’s fees quickly stacking up against the value of the properties in dispute (though, given the number of properties involved in this case and a lack of access to attorney billing records, it’s impossible to know exactly how much has been spent and how that compares to the value of the things in dispute). And Salazar is hardly alone; it is but one of similar cases tracking through the legal system across the country.

Why Does the Episcopal Church Example Matter to Methodists?

The answer here is relatively simple: both the Episcopal Church and the Methodist Church have, within the documents that constitute the church law of each, a “trust clause” that essentially indicates that the local churches hold their property in trust for the greater denomination. In the Episcopal Church’s case, the diocese in which the church sits; for the Methodists, the conference of which the church is a member.

For reasons I’ll describe below, the Episcopal Church’s trust clause makes for a simpler legal case than the Methodist clause–though I do not dare say that it is a simple case for the Episcopal Church, as the breadth of litigation clearly demonstrates.

The Law of Decision – Up for Grabs

The nation’s courts tend to be split between two approaches to handling church property disputes. The first is called the neutral principles of law doctrine. Under this approach, the court looks solely to state property (and business/trust) law and secular records of ownership to determine the “rightful” owner of any particular property. Currently, this is what the Texas Supreme Court has determined is the proper approach.

The alternative approach, given various names but which we’ll call the deferential approach, is a result of the First Amendment of the United States Constitution. Under long-established First Amendment principles, the Courts must refrain from interfering in or determining the internal affairs of a religious institution (this itself called the ecclesiastical abstention doctrine).

Under ecclesiastical abstention, a Court must not take any part in a dispute that arises out of doctrine, theology, internal matters of faith or leadership and governance issues within the religious organization, because doing so could be the state “establishing” a government-sponsored religion by approving one side over the other. This is, rightly, I believe, a core component of freedom of religion in this nation.

The important thing to understand about the ecclesiastical abstention doctrine, and thus the deferential approach, is that it means that the court must defer to the determination of the higher denominational authority as the deciding factor in disputes where the court’s involvement would infringe upon First Amendment rights. Essentially, this means that the denomination gets what it wants when there is a dispute with a local church. In the case of trust clause litigation, it means that the denomination wins issues of property ownership against local churches nearly every time.

As an aside, I should note that we’re only discussing matters of civil (as opposed to criminal) law here–the legal history of criminalization (or not) of religious behavior is another long story best kept discrete from this issue.

For the neutral principles of law approach to be applicable, a Court must determine that the dispute does not involve the sorts of internal religious matters that require obeisance to the ecclesiastical abstention doctrine.

Other cases resulting from the dissolution of the Episcopal Church will be heard by the Supreme Court in the near future (though probably not before the UMC’s called General Conference). While this should provide some guidance for the resolution of future church property disputes, that also means that the ultimate decision will be determined in part by the current politics affecting SCOTUS. With the loss of Justice Kennedy and his likely replacement by a staunchly conservative judge, I think it’s likely that the United States Supreme Court will favor the deferential approach, though the opinion that comes down will ideally also include guidance as to when the netural principles approach may be safely employed. Of course, I have no crystal ball, and my own legal practice does not involve the close tracking of Supreme Court politics, so this is merely speculation.

The bigger issue (for local churches, at least) in the case of the Methodist Church is just how much our trust clause seems to mandate the deferential approach.

Comparing Clauses

The Episcopal Church’s trust clause (known popularly as the Dennis Canon) is a mere two sentences that simply states that local churches hold their property in trust for the greater Episcopal Church. This plain language allowed Texas courts to apply the neutral principles of law approach to disputes over property ownership without fear of First Amendment infringements (though it should be noted that the courts have abstained from addressing certain subissues briefed by the parties because they do involve internal church affairs).

The United Methodist Book of Discipline’s trust clause (Paragraph 2501) describes our trust clause as “an essential element of the historic polity” of the UMC and a “fundamental expression of United Methodism.” These phrases, along with the rest of the language of the UMC trust clause, quite firmly push our property ownership issues into grounds of doctrine and polity that may not be interfered with by the courts.

It is one thing to say that this simply means that the greater UMC will win against local churches in property disputes, but it also means that the courts will only reluctantly interject themselves in the dispute at all (though when they do, if my assessment is correct, they will ultimately side with the enforcement of the trust clause).

Thinking About Salazar

When I was first made aware of the Salazar case, it was described to me as indicating that “Texas had found the Episcopal Church’s trust clause to be unenforceable.”

That is partially correct, but only partially. The steps go like this: (1) The Court determined that the neutral principles of law approach applied. (2) Turning to Texas trust law, the Court determined that only the settlor (the grantor of property to a trust) may establish a trust relationship–a declaration by a putative beneficiary of the trust (as in the Dennis Canon) is not alone sufficient to create a trust relationship. (3) Thus, the Court stated that it must look to the language of the deeds conveying the property and to the governing documents of an intermediary non-profit organization that held some of the property to determine if a trust relationship had been properly created under Texas law. (4) In some cases, the Court determined that it had and property was awarded to the Episcopal Church; in others, the Court found no such trust relationship and awarded property to the local church(es). (5) In giving the Salazar opinion, the appellate Court did not reach certain additional issues that might change the distribution of property after the initial legal determinations described in (4). In particular, the Court did not reach teh Episcopal Church’s argument for constructive trust, a remedy that a court may apply under the right circumstances to deem that a bad actor, though having legal title to property, is really holding that property in trust for the plaintiff as matter of equity, thus transferring ownership to the plaintiff.

So, the following points are important to consider when we Methodists look to Salazar and other Episcopal Church litigation in trying to determine the future in the tragic event that our own church splits: (1) The issues in the Salazar case have not been fully litigated. (2) The U.S. Supreme Court has not yet weighed in. (3) The UMC’s trust clause is likely different enough than the Episcopal Church’s trust clause to lead to a different result. (4) In the event that the neutral principles approach is applied to the UMC, then additional factual determinations must be made to reach a conclusion (i.e. what is the language in the deeds to church properties?).

Conclusion

There is one thing that is certain from all of this. If the UMC splits–and I would urge that our current focus should be on finding a just and theologically-sound way to prevent a split rather than on any of the above–any legal conflict over successorship, use of names, and property ownership will be prolonged, expensive, and–most important–an extremely poor witness for Christ. Thus, should that situation present itself, laity and clergy alike at all levels of authority in the UMC must be willing to make sacrifices for and compromises with one another to quickly resolve such disputes without a need for litigation so that we can all keep our focus on making disciples for Jesus Christ for the transformation of the world.