The End of the Beginning

(This is the 9th of 17 posts in my “200 for 200” challenge. Please continue to repost, link, and send your friends my way!)

(The picture above is graciously provided by K, who is attending the Called General Conference as a witness for full inclusion.)

Today the Called Session of the General Conference of the United Methodist Church begins to determine the fate of the denomination. Many of us have waited with bated breath to see if these events will unfurl with justice and unity or unravel into division and fractiousness. After nearly fifty years of debate since the institution of anti-homosexual language into the first UMC Book of Discipline (by amendment from a layperson from the floor of the conference, against the advice of the committee who had prepared the language for the BoD) in 1972, there finally seems to be a move toward resolution of the issue.

But this is not the first time such a resolution has been broached–the General Conference established in 1988 a “Committee to Study Homosexuality” (which included no person who identified as belonging to the LGTBQ community) to report to the General Conference in 1992. The report included agreement by the Committee on four points: (1) the seven references to homosexuality in the Bible are artifacts of ancient culture and not definitive expressions of the will of God; (2) Homosexuality is a normal sexual variation which can be expressed in a healthy way; (3) the Church should affirm committed and monogamous homosexual relationships; (4) God’s grace is visible in the life of lesbian and gay Christians.

The majority report from the Committee stated the following:

“The present state of knowledge and insight in the biblical, theological, ethical, biological, psychological and sociological fields does not provide a satisfactory basis upon which the church can responsibly maintain the condemnation of all homosexual practice.

The same year that this Committee reported, the General Conference voted 3 to 1 to affirm the language: “we do not condone the practice of homosexuality and consider this practice incompatible with Christian teaching.”

Since 1972, but particularly in the years since the 2016 General Conference, both conservatives and progressives have been maneuvering for advantage in the moment that is now, finally, at hand. Some of the loudest voices on the conservative side, such as Reverend Rob Renfroe at The Woodlands UMC, have long been advocates of a church split. Members of the Weslayan Covenant Association, the Good News Network and other conservative organizations have spent as much time pushing for a “graceful exit strategy” as for their conservative position; this is my mind has always been a strategy to make it easier for progressives to leave rather than advocate for justice rather than a real measure of grace. As one of the speakers at the last Texas Annual Conference argued (in paraphrase): “When your marriage is in trouble, you don’t begin the conversation with: ‘here’s our divorce plan if we can’t work things out, now let’s talk about the issue.'”

Unless some unforeseen and unlikely change happens over the next few days, the choice really comes down to the One Church Plan and the “Modified” Traditional Plan.

Under the One Church Plan, annual conferences will be able to decide whether they want to allow LGBTQ clergy, each pastor will be able to decide whether to perform LGBTQ marriages, and each congregation will be able to decide whether to host LGBTQ marriages in their facilities while, at the same time, no clergyperson may be forced to go against his or her conscience and perform a ceremony they do not want to perform.

Under the Traditional Plan, we maintain the status quo except to spend more time, energy and money on church trials for those who advocate for full inclusion.

I have written about both plans on this blog and rehashing them is not the point of this post.

Instead, I want to remind readers that the next few days, regardless of what happens, are not the end of the matter, but another beginning.

It is my sincere hope and prayer that, through both human agency and the movement of the Holy Spirit, the One Church Plan will pass. It is not a panacea and does not give the LGTBQ community the vindication and respect they are owed, but it is a step in the right direction that helps to maintain the unity of the UMC.

Regardless of the result, some congregations will leave the Church. At least some of those who remain will view the events of this Called General Conference as a “loss” for their “side.” There will be hurt feelings, fear, disappointment, anger–and another General Conference in 2020 where, depending upon what happens in the next few days, there may be an attempt to undo what happens in this Called Conference and/or a need to find a way to allow the exit of some congregations without the decades of litigation that have followed the split of other denominations.

Regardless of result, there will be an increased need for Christians of all theologies within the UMC to do what all Christians are called to do–to love their neighbors, to show grace to others, and to be agents of peace and reconciliation, not causes of discord nor gloaters in some imagined “victory.”

As such, no one should view the next few days as the end of anything, only another step in the path. For those who, like myself, are progressives with theologies of full inclusion, there will be a very difficult line to walk if the One Church Plan passes. We will need to continue to advocate for the rights of our LGBTQ brothers and sisters within the Church while showing grace to conservatives and ensuring that they remain welcome and valued members of the UMC. We are much more than our positions on homosexuality and related issues, and the people involved in this debate, regardless of position, are well-meaning with the intention of seeking after Christ in a genuine and faithful manner. There is much good done in the name of Christ by the conservatives, even if I wholeheartedly believe that their actions regarding human sexuality have been misguided at best. I am proud to call them my brothers and sisters in Christ.

How do we progressives walk this fine line of the One Church Plan passes? I must admit that I do not know. But I do know that we must seize opportunities for reconciliation, healing, and increased respect and understanding between the conservatives and the progressives in the wake of the Called Conference. Even as we wait for events to unfold over the next few days, we must remember that our work is far from done and that there will be much of great import to do in the days that follow as we try to bring the Kingdom of Heaven a little bit closer to Earth.

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.

 

Jeff Sessions, Romans 13 and Separating Families

(Note: I started writing this post this morning and then had to prioritize work. Now that I’m returning to finish, I’m given to understand that the President is signing an executive order ending family separation. I thought about not finishing the post, but I figured I might as well given that the points I’m arguing below have more applicability than just this situation).

Given how much coverage, discussion and debate the crisis at our border has already had, I’ve been reluctant to write about it myself–what is there that hasn’t been said? I have realized, though, that, even if I’m rehashing the same ideas, it means something to publicly stand with my righteous brothers and sisters calling for an end to this abominable practice. So that’s what I’m doing.

Since theology is a large part of what I write about, let’s start with the theological arguments that have been made in favor of the issue. First, let me point out that Attorney General Jeff Sessions is a member of the United Methodist Church. I must admit embarrassment by that, but also some satisfaction with the response from at least some members of the UMC–over 600 members of the UMC, both clergy and laity, have filed a complaint against Sessions under the UMC Book of Discipline–our version of canon law. The complaint alleges that Sessions’ actions–and his use of scripture to justify them–constitutes potential child abuse, immorality, racial discrimination and the teaching of doctrines contrary to those held by the church. Details can be found here.

As both a Methodist and an attorney, I am quite interested in how this plays out. I find the latter three claims to be quite straightforward under the circumstances, but the child abuse claim is an interesting one to me because it will be difficult to resolve. The major issue here is one of causation–are the AG’s actions a direct-enough cause to hold him to culpability? I see arguments on both sides, though I lean toward affirming–in part because we’re not talking about criminal culpability, but a desire to reconcile Mr. Sessions to the teachings of the UMC. The tougher question is what we mean by the term “child abuse?” Herein lies my biggest reservation with this portion of the complaint.

Is the government’s policy wrongly causing children (and parents) to suffer? Undoubtedly. Is this a violation of human rights and general decency? I believe so. Is this practice causing deep trauma, some of which will never heal? Unreservedly, yes. Should we call it child abuse? I’m not so sure.

Yes; it matters. If we expand the societal definition of child abuse, more parents will be subject to claims of abusing their children–not criminally, but giving the poisonous and often hateful nature of online forums and public denunciation in our society, great potential to harm remains. This issue concerns me not directly because of Jeff Sessions, but because of how the construct of “child abuse” might be unreasonably expanded in the future if we are quick to call Jeff Sessions a child abuser.

When we talk about child abuse, I don’t think that there is any question that physical injury, endangerment, or sexual exploitation constitutes child abuse. I think we’d all further agree that emotional abuse is real and can have lasting effects on persons of any age, but especially children. Here, though, is where we run into problems. First, where do we draw the line between negative emotional treatment that is not abusive and treatment that is? Second, how do we separate emotional trauma that results as a byproduct of particular actions from emotional trauma directly inflicted? Are they both “abuse.” I do not have answers to these questions–they require much deeper moral, spiritual and logical analysis than there is space for here. So, I leave this topic with a caution: If you believe that Jeff Sessions is complicit in the violation of human rights by needlessly separating families, fine; I can understand that. If you want to call him a child abuser, I am very hesitant to agree. Is he wrong, morally, in the general sense? Absolutely.

Is he wrong theologically? Also absolutely. Let’s spend some time on that. Sessions stated that there is Biblical support for the governments separation policy by citing Romans 13:1, which reads: “Let everyone be subject to the governing authorities, for there is no authority except that which God has established.”

Okay, that is something that “the Bible” says. But coming to the conclusion Mr. Sessions would have us reach requires a very particular–and not very logical–approach to interpretation of scripture, one that ignores (and must ignore) much for the argument to not fall apart under its own weight. Benjamin Corey would call this the “Swiss Army Knife” approach to Biblical interpretation, where we see the Bible as intended to apply usefully and directly to any human situation whatsoever and then to pick and choose verses from the Bible, while ignoring others, to accomplish that. For Corey, and I agree, the fundamental problem of this (see what I did there?) is that it views all parts of scripture as equal in authority and status.

Let’s start local, shall we? Let’s be legalistic for a moment and invoke Rule 107 of the Texas Rules of Evidence, the “Rule of Optional Completeness.” This rule allows an adverse party to inquire into any part of a writing when the other party has introduced a portion of that writing into evidence.

If we read all of Romans 13:1-5, we get the following: “Let everyone be subject to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God. Consequently, whoever rebels against the authority is rebelling against what God has instituted, and those who dos o will bring judgment upon themselves. For rules hold no terror for those who do right, but for those who do wrong. Do you want to be free from fear of the one in authority? Then do what is right and you will be commended. For the one in authority is God’s servant for your good. But if you do wrong, be afraid, for rulers do not bear the sword for no reason. They are God’s servants, agents of wrath to bring punishment on the wrongdoer. Therefore, it is necessary to submit to the authorities, not only because of possible punishment but also as a matter of conscience.”

The presumption of these verses is righteous rulership by a just ruler who sees himself as a servant of God (and presumably also the people). It does not address behavior when the authorities are acting unjustly and immorally. If we are to act as “a matter of conscience,” it is conceivable that there are situations in which resisting authority is the righteous action.

Both in Biblical history and the ancient world in which Paul lived, we have a multitude of examples of unrighteous rulers. Chronicles and Kings give us plenty of rulers of Israel who “commit the sins” of their fathers before them or who “did evil in the eyes of the Lord.” The dominance of Rome and its rulers in Judea certainly demonstrated exploitative and unjust rulership. It is important, and perhaps ironic, that Paul writes this letter to the Romans and includes the words of 13:1-5. At the time Paul is probably writing, the Roman authorities had little interest in the nascent Christian movement, mostly because they weren’t really sure how to differentiate them from Jews. Persecution would soon ramp up, but at this point things were still relatively calm. Even so, Paul’s argument about the divine right of kings, though supported by the Old Testament stories of the early kings, was not entirely borne out by the long history of kings of Israel and Judah. That oughtn’t be ignored in evaluating Paul’s words.

Still in Romans 13 (verses 8 and 10), Paul writes: “Let no debt remain outstanding, except the continuing debt to love one another, for whoever loves others has fulfilled the law….Love does no harm to a neighbor. Therefore love is fulfillment of the law.”

So, even within the same chapter (remember that chapters are an artificial interpolation, so I use this term to mean “very nearby in the text”), Paul provides us with scripture stating that the government’s position is violation God’s law because it is causing harm.

As a side note, my instinctual response to a leader that cites Romans 13 in, however understated, a claim to divine right and authority is that that person doesn’t understand servant leadership and therefore cannot be the type of ruler described in this passage.

As important as the local landscape of Romans 13:1 is, we must interpret Paul’s words here by reference to the Bible as a whole–with particular attention paid to Jesus’ words and actions.

Here, let us start with other things that the Pauline epistles say of similar tone. I should preface this by saying that, although Romans is one of the epistles about which there is little doubt that Paul is indeed the author, both Ephesians and Colossians are of more disputed authorship, with many arguing that they are Deutero-Pauline, that is, in line with Pauline thought but not written by Paul himself.

Ephesians 6:5-6 reads: “Slaves, obey your earthly masters with respect and fear, and with sincerity of heart, just as you would obey Christ. Obey them not only to win their favor when their eye is on you, but as slaves of Christ, doing the will of God from your heart.” Colossians 3:22 says almost exactly the same thing. This repetition leads to three primary interpretations, I think: (1) the author of Ephesians and Colossians is the same person; (2) the writer of Ephesians had access to Colossians, or vice versa; or (3) this statement is based on something Paul said or wrote that is not directly attested.

If we are comfortable that these epistles conform with Pauline thought, regardless of authorship, we need not resolve the authorship issue (which is good, because we can’t).

Modern Christianity has rejected slavery in all of its forms–we have reject Pauline thought here in favor of “doing no harm” as a truer practice of Christian love. If we have rejected this logic as flawed, we have decided that, inspired as the author(s) of the epistles might have been, they are prone to error in judgment at times. So why not conduct the same analysis of the statement in Romans 13?

For the best resolution of any ambiguity here (which I’ll admit remains somewhat speculative and incomplete), we have to look to the words and actions of Jesus Christ.

In Matthew 22:15-22, when confronted by the Pharisees about whether Caesar’s tax should be paid, Jesus tells them, “So give back to Caesar what is Caesar’s, and to God what is God’s.” Here, Jesus clearly separates temporal rulership from divine rulership. What’s more, if the interpolated punctuation accurately reflects the rhetoric employed, Jesus has set temporal rule and divine rule in contrast or opposition to one another.

If we want to put a fine point on it, we might refer to Mark 9:37, where Jesus says, “Whoever welcomes one of these little children in my name welcomes me; and whoever welcomes me does not welcome me but the one who sent me.”

Or Mark 10:14, “Let the little children come to me, and do not hinder them, for the kingdom of God belongs to such as these.”

Here we might also comment that Jesus Christ, as Messiah, defied messianic expectations by refusing to foment military overthrow of Roman (and generally foreign) dominance. There are several viable interpretations for this–nonviolence, a lack of interest in immediate temporal affairs over divine and eternal ones, a theological statement through choice of action that comments on how the Jews might have misunderstood God (especially those in the apocalyptic schools of thought of the time). I tend to believe that Jesus’s focus on love and mercy says everything it needs to about the evaluation of temporal power. Combined with Paul’s words on Romans 13 on love that follow the argument for obeying authority, I think there’s plenty here to support the stance that Jesus’s words (and actions) tell us not just that we ought to oppose unjust authorities of the world, but that we ought to do so peacefully whenever that is possible.

If we look to Jesus’ actions in driving out the money changers at the Temple, we see that (related in Matthew 22:12-13, but also in Mark 11:15-18 and Luke 19:45-47) Jesus does not shy away from taking action against those who abuse their position–though the extent to which there is any real “violence” in this act is highly debatable, as I’ve explored somewhat in my series, “The End of Violence.”

When we look more completely at the statements of Romans 13, comparing it to other parts of the scriptures, looking to our own traditions and to our experiences of rulership in history and even in the modern world we know, and when we apply logic to prioritize ideas that are contradictory (or at least not readily in line with one another), we see that we must take the position that Paul’s statement in Romans 13:1 needs to be read as speaking to a specific situation and time, needs to be nuanced, or needs to be rejected altogether in light of the example of Christ and our call to love our neighbors–especially when loving our neighbors requires standing against injustice.

Would that anyone who wants to support an argument using scripture would take such a broad and careful approach before relying on a single verse at face value!