The UMC “Traditional” Plan is a Fantasy

When the United Methodist Church’s Commission on a Way Forward and Council of Bishops presented their initial proposals for the upcoming called session of the Church’s General Conference in February, the “Traditional” Plan was not slated to actually go to discussion and vote before the Conference.

Through political maneuvering through the Judicial Council of the Church (the UMC’s version of a supreme court) by certain conservative leaders within the UMC, judgment was rendered that the Traditional Plan must be presented before the GC if a petition for it to be included is made. From the perspectives of jurisprudence and polity within the UMC, that is absolutely the right call. But it ignores the reason that the Commission on a Way Forward and the Bishops did not include it as potential legislation in their report–it isn’t a way forward.

To a certain extent, I understand the conservatives’ frustration with the Commission and the Bishops: the delay claimed for the need to translate the report before making it public–and the delay in even getting that process started–seems to indicate unhelpful politicking on all sides of the issue. Uncollaborative work only hurts the Church as a whole without benefitting either side at this point.

On the other hand, I vehemently disagree with the conservative complaint that the Commission and Bishops didn’t really provide a way forward, they just gave us the same plan that’s been offered and failed many times before. The conclusion of the Commission after deliberation and prayerful investigation is itself a message–the way forward must be one of compromise, and the fact that conservative elements within the Church have remained implacable in their position does not mean that they should get their way. The “same old thing” is the “same old thing” because nothing else has changed–the conservatives’ best offering for a “way forward” is that we do everything the way we’ve always done it, we just spend more time (and congregants’ money) prosecuting those clergy who disobey the Book of Discipline on moral grounds.

The cynical side of me sees the greater strategy here: conservatives have decided that they have two ways to win: (1) get the Traditional Plan passed at the called General Conference or (2) insure that nothing else gets passed. The fight to get the Traditional Plan included at General Conference is really an effort to avoid honestly coming to the table with progressives at all, not really a matter of what is fair and just. As a lawyer, I’m well familiar with the difference between legal and just.

Conservatives understand that, if nothing happens at the called GC, many progressives will give up on the UMC and leave–which is what the conservatives have wanted all along. See Woodlands UMC senior pastor Rob Renfroe’s book, Are We Really Better Together? An Evangelical Perspective on the Division in the UMC, for a clear example of this. If it is the progressives that leave, the case for conservatives to keep the United Methodist Church name–and perhaps the greater part of collective Church assets–will be stronger.

I’ll also note that, in my observation (for what that’s worth), it has been the conservatives who have been most concerned with ensuring in advance that “graceful exit” language is included in any proposed legislation before the GC. I do not believe that this is about the conservatives’ fear that they will have to sacrifice assets and property if things don’t go their way, it’s about trying to make it easier for the progressives to leave. The progressive–and even the majority at the Texas Annual Conference in May–response has been that “we’re not there yet, and that’s not how you start the conversation when you’re trying to keep everyone together.”

Also in my experience, some of the most conservative Methodists I know are also deeply concerned with reaching the unchurched and the younger generations. They should be, as all Christians should be, but I must note some irony when they want to simultaneously be attractive to younger seekers and maintain what those seekers see as at best an unjust position and at worst a hypocrisy.

As I’ve said before, the societal belief about whether homosexuality is morally wrong or not is not determinative of the objective position established by God. On the other hand, there is legitimate theological argument in favor of not viewing homosexuality as sin, and history gives us numerous examples of Christianity being used to support systems and ideas ultimately determined to be immoral (and thus un-Christian). Since neither side can determinatively prove its position, the statement of being unwilling to see that someone else–even another Christian–might be right about something with which you disagree plays right into the hands of stereotypes of Christians that should not be true (but often are). That’s not going to be enticing to seekers of younger generations, who–despite all the talk about their “relative morality”–tend to have a strong sense of right and wrong and a significant allergy to perceived hypocrisy (real or imagined).

So the split within the UMC, even if it leaves the conservatives holding most of the cards, does not mean a resurgence of conservativism among Methodists–it means a slow death lamenting the “way it used to be.” While there will always be conservative Christians and theologians, and there always should be for us to honestly and eagerly explore theological issues, the Methodist Church is not on the more conservative side of most issues (at least not within our Social Principles), making the conservative position on homosexuality stand out more than seem to be in line with the rest of Methodist positions. This regressivism matches a certain political movement in our country largely based in privilege and the fear of sharing with others.

The Judicial Council will decide this month on the constitutionality of all three plans to be sent to the called General Conference in February. With regard to the Traditional Plan, the only real question of constitutionality falls on the modifications proposed to the status quo–enhanced enforcement and prosecution. But the Council’s decision on this doesn’t really matter. Eight UMC Annual Conferences (Baltimore-Washington, California-Nevada, California-Pacific, Desert Southwest, New England, New York, Northern Illinois and Oregon-Idaho) have already passed resolutions collectively refusing to participate in trials of homosexual clergy or clergy who perform same-sex marriage ceremonies.

The Virginia Annual Conference voted in favor of full inclusion for LGBTQ members and to allow both LGBTQ clergy and same-gender marriages, despite the Book of Discipline, the Judicial Council or the General Conference.

In purposefully electing the first openly-gay bishop in the UMC (Bishop Karen Oliveto), the Western Jurisdictional Conference opted to ignore sexual orientation as an appropriate qualification for clergy.

With this intentional civil disobedience, the Traditional Plan could not be enforced across the US UMC jurisdictions. It’s dead on arrival, a guaranteed split in the church.

To be fair, there are plenty on the progressive side of the issue who have done much to make some form of compromise and reconciliation impossible. We, too (at least corporately), are responsible for the conference-stopping protests at recent General Conferences, the demonization of conservatives, and a refusal to make any compromise in place of “total victory” (which, let’s be honest, is not a thing here at all, regardless of result).

The Methodist doctrine expressed in the Book of Discipline prefers that decisions in the governance (of the local church at the committee level, at least) be made through discernment and consensus-building rather than through purely political democratic vote.

And perhaps that’s the real problem here. While the Book of Discipline does allow us to follow a “take a vote, majority wins” approach, it also understands that that approach is not the best way for the church to operate–without some consensus-building and compromise, the only option is winner-take-all politics. Even if you don’t find that ideologically troublesome in the church-context, the history of the question of human sexuality in The United Methodist Church since 1972 is ample evidence that a tyrannical rule of the majority can’t solve this problem.

A vote for the Traditional Plan in February will not end the issue, it will only force the issue by insisting that there is no place for progressive Christians within the UMC. The same is true of the “no result” strategy, as I’ve discussed above. So why aren’t we calling the Traditional Plan what it really is–the “No Compromise Doctrine”? It’s been clearly articulated outside of the “official” channels of the church, so why not be honest about it within the polity?

 

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.

 

The UMC’s One Church Plan: Pragmatic Grace

The United Methodist Church’s Council of Bishops recently released a report after the progress of the Commission on a Way Forward, detailing three potential plans for the United Methodist Church regarding sexuality issues and recommending that one of those plans be adopted.

If you’re not part of the UMC, you may not be aware of what all this means; I’ll summarize briefly, and you should feel free to skip down some if this is all old hat. The United Methodist Church polity is governed by the Book of Discipline–essentially our canon law. The BoD describes our core theological beliefs, our social principles and devotes a great amount of time and space to the labyrinthine workings of the Church as a whole, from the governance of churches at the local level to the election of bishops to the various conferences and the operation of the Judicial Council for handling complaints agaisnt clergy for violations of the Discipline.

Prior to 1972, the UMC Book of Discipline contained the phrase, “persons of homosexual orientation are persons of sacred worth.” The UMC General Conference of 1972 initiated an unfortunate period of oppression of and prejudice toward the LGBTQ community. (As an aside: I understand that the language about homosexuality in Book of Discipline does not truly address the full spectrum of persons, identities and orientations that are included within the LGBTQ moniker, but for practical purposes, I think that we can treat it as intending to do so). That conference saw the addition of the language, “We do not condone the practice of homosexuality and consider it incompatible with Christian teaching…”

If that condemnation were not bad enough, in the 1976 General Conference, despite an attempt by some delegates to remove the 1972 language, the conference passed three measures to ban the use of church funds to “promote homosexuality,” whatever that means, and added to the Social Principles the statement, “We do not recognize a relationship between two persons of the same sex as constituting marriage.”

In 1980, conservative delegates attempted to add the language “no self-avowed practicing homosexual therefore shall be ordained or appointed in The United Methodist Church.” On a positive note, the language in the Social Principles regarding same-sex marriage was removed, but replaced by a statement that, “We affirm the sanctity of the marriage covenant…between a man and a woman.”

Further insult and injury occurred at the 1984 General Conference, where the delegation passed a change adding language to the BoD that, “Since the practice of homosexuality is incompatible with Christian teaching, self-avowed practicing homosexuals are not to be accepted as candidates, ordained as ministers, or appointed to serve in the United Methodist Church.” Coincidentally, the 1984 General Conference also added language to show grace to divorced heterosexual persons, recognizing “divorce as regrettable” but also recognizing “the right of divorced persons to remarry.” Strange that there was a movement toward grace on one issue but not the other.

I think that it is more hurtful than helpful that th 1984 language allowed LGBTQ persons called to ministry in the Church to serve, but only if they renounced any chance for meaningful romantic relationship–a sacred gift from God to which all God’s children are entitled.

Since 1984, attempts have been made to remove, soften, or change the Book of Discipline’s statements about homosexuality. The history of the polity shows that, since 1972, there have been advocates for equal standing and treatment for homosexual persons (and the greater LGBTQ community) within the church–but they have remained a significant minority compared to conservatives.

As the Church remained mired in injust and ultimately unjustified traditions of the past, the world changed around us. As a matter of conscience, LGBTQ rights have become increasingly accepted in the world at large. C.S. Lewis’s “natural law” comes to mind here–when our conscience tells us that something is an injustice on a visceral level without the need for an application of logic, we might do well to consider that the movement of the Spirit within us (and for Lewis, this is evidence of God’s existence and active role in Creation).

Other churches (the Episcopal Church and the Presbyterian Church) have already addressed the issue–though it has lead to much difficulty and even a congregational split in the Presbyterian polity.

The Northwest Conference of the (U.S. Jurisdiction of) the United Methodist Church elected an openly-gay Bishop in 2016, Karen Oliveto. Although the UMC Judicial Council ruled that her election was a violation of the Book of Disicpline, it wisely chose to allow her to remain in her episcopal seat.

Young Methodists who are informed of the Church’s official stance see it as backward and wrong, going so far as to wonder why it’s such a big deal in the first place. Many young pastors I know in the UMC are in favor of full inclusion within the Church, but many keep their feelings private either because they are commissioned but not yet fully-ordained or because they fear (perhaps rightly so) that being outspoken on this issue will hurt their future appointments or take away from their ability to minister to all of their congregants.

I also find that many of the conservative laypersons on this issue are generally conservative in their political and theological positions, often such that they would be extremely surprised and frustrated if they took the time to find out what the UMC’s official Social Principles say about things like immigration, the environment, and abortion.

As I’ve written elsewhere, this issue has become (at least since I have been active as a delegate to the Texas Annual Conference of the UMC, but most probably well before that) a proxy war for the larger theological issue of Biblical interpretation, with conservatives on the homosexuality issue generally having conservative theological positions that tout the phrase “authority of Scripture” as a buzzphrase for their more literal interpretation of the Bible while those who are more liberal on the homosexuality issue (myself included) tend to put forward arguments about the primacy of love in counterpoint to the conservative position.

Of course, nothing is so simple. The phrase “authority of Scripture” does not really mean anything without a lot of unpacking, and it’s grossly unfair to say that theological progressives have rejected the authority of Scripture, though their approach to its authority certainly differs from conservatives. Likewise, the question of what it means to “love your neighbor” as Christ commands is also so complex that it’s unfair to claim of conservatives that they do not have loving intentions in their position on homosexuality either (however misguided, ultimately wrong, and actually based in fear I may argue those intentions to be).

With respect to the issue of full inclusion (including the performance of same-sex marriage and the ordination of LGBTQ persons), the conflation of that argument with broader issues of theological hermeneutics is not helpful, but only further divides us.

We should certainly, I think, see the divisions on this issue as heavily influenced by the at-large divisiveness and demonization of those who disagree that currently grips this nation. As Christians, that’s exactly the sort of thing we should be rising above, but neither side of the debate has accomplished this.

This is the context into which the United Methodist Council of Bishops announced at the General Conference in 2016 that a Commission on a Way Forward would be formed to offer potential solutions to the divide in the UMC.

The amount of time that the Commission and the Council of Bishops have taken in preparing their recommendations, though absolutely justified given the gravity of the situation and the far-reaching consequences of any recommendation to the Church at large, has given the various interest groups time to maneuver without them. The Weslayan Covenant Association and its affiliates have prepared for an exodus from the Church if there is any change to the Book of Discipline except for stronger enforcement against LGBTQ persons and those ordained persons who do not fall into that category but who perform a same-sex marriage. Even since the Council of Bishops has released its summary of the three plans being sent to the special called General Conference in 2019, the WCA has threatened to “pick up its ball and go home” if it does not get its way (the “Traditional Model” included in the three plans).

While pushing all three plans to the delegates of the General Conference, the Council of Bishops has made clear that a majority of them support the One Church Model, even if they really would prefer a more conservative or progressive plan to be put in place.

Under the One Church Model, the “incompatibility” language of the Book of Discipline–including the prohibitions on the performance of marriage for same-sex persons and the ordination of “self-avowed practicing homosexuals” would be removed. In its place, however, would be placed protections on those persons who, “as a matter of conscience” refuse to perform same-sex marriages or to ordain LGBTQ persons.

The idea of this model is to preserve unity wihin the UMC (to the extent possible) by allowing ministry to be conducted “contextually.” More simply put, it allows local congregations and pastors to decide their theological approach to issues of human sexuality and gender identity.

I am disappointed that this approach will–as I see it–allow discrimination to continue in the guise of “conscience.” When the Methodist Church changed the Book of Discipline to integrate people of color into the Church, or to allow for the ordination of women, this was done in the name of social justice and did not give room for certain parties to claim “conscience” and continue to discriminate. I believe that the current issue is more analagous to those than different.

However, I recognize that, at least in a limited sense (without making this a broader issue of proper Biblical interpretation or the practice of love), issues of human sexuality and gender identity are not core aspects of our faith–no particular position on the issue is required to be “a Christian.” That being the case, I would rather remain in communion with those with whom I disagree (where we can continue to share ideas in hopes of better aligining our doctrines and dogmas with God’s desires) than to divide from them. If this compromise is necessary to do that, I’m happy to make that compromise.

I do believe that the progressive side of this issue will win out and that, eventually, there will need be no more arguments about whether Christianity is “compatible” with homosexuality. I also think that this proposal, while not the giant leap I’d really prefer to see, helps to move us in that direction. Most of all, I think that the One Church Model demonstrates the kind of “pragmatic grace” that puts people ahead of ideologies, an approach Jesus Himself employed: we can tell one another to “go and sin no more,” but we’ll love one another regardless.

The other two plans (the Traditional Model and the Connectional-Conference Plan) will lead to a schism in the Church. I don’t believe that that is good for our witness or for our congregations. Only the One Church Plan allows for grace to be shown one side for the other in a way that actually does move us forward. And the world definitely needs more grace right now.