HOW UMC “TRUST CLAUSE” AND IMPENDING TUSSLE OVER ASSETS COULD COLLAPSE THE “PROTOCOL”
To begin let me say this, in the United Methodist Church there is no constitutional provisions in our Book of Discipline that allows an annual conference to vote whether to leave the denomination. No Division, Section, or Article in the Constitution of The United Methodist Church has directly established or assigned such authority to the annual conference.
On January 3, 2020, a group of United Methodists announced that they had unanimously reached an agreement for separating The United Methodist Church into different denominations as a way to resolve the disputes and dilemmas involving human sexuality. They described their agreement as a “protocol” for the action that they envisioned. Several weeks later, the group and their allies released a package of legislative proposals for implementing the so-called “protocol.” Although it was intended to be a petition to the 2020 General Conference, the package came too late for submission to the General Conference. However, under an option in church law that lets annual conferences submit petitions at a later time, at least three annual conferences affirmed the “protocol legislation” and submitted it as a petition. One piece of the package builds upon the assumption that an annual conference has authority to vote to leave the denomination, cites Judicial Council Decision 1366 as justification for this assumption, declares the authority of the General Conference to write legislation for the implementation of this assumption, and displays in legislative language the process for an annual conference to depart from the denomination.
But the crucial detail is that the proposed “protocol legislation” relies on Judicial Council Decision 1366. It assumes that the “concept” of annual conference authority to leave the church is constitutional. It assumes that a simple majority of voting delegates at General Conference can enact a church law to overturn the constitutional authority granted to jurisdictional and central conferences for determining the number, names, and boundaries of the annual conferences. By relying upon these assumptions, the proposed “protocol legislation” would avoid the process of amending the Constitution, which would require approval from two-thirds of the delegates at the General Conference and two-thirds of the aggregate votes of the annual conference members in the entire denomination. In its current form as a Petition to the General Conference, it could become law simply by securing one-half of the delegates’ votes plus one. That would put constitutional rights under the rule of political power. Persuading delegates to examine the constitutional issues at stake and the risks of litigation in the civil courts of multiple nations would swirl in parliamentary politics. If the advocates of the “protocol” wish to empower an annual conference with authority to leave the denomination, the appropriate step would be to amend the Constitution, grant that authority to the annual conference, and then enact enabling legislation to implement it. The Council of Bishops has asked the Judicial Council to review this proposed legislation before the General Conferences meets to discuss it. There are legitimate concerns about a ruling on proposed legislation, as the saga of Petition demonstrates.
A substantial part of the Protocol agreements has to do with assets sharing which in my view was not adequately addressed to consider the diverse nationalities that make up the connection of the United Methodist Church. The Protocol lacking of adequate consideration of the diverse nationalities that made up the United Methodist Church may subsequently lead to the collapse of the Protocol plan.
In this article, I will highlight how this lack of adequate consideration of assets sharing as it relates other countries outside the United States is problematic and can lead to the collapse of the protocol even before the General Conference meets in 2022 or 2014 depending on how fast African gets vaccinated for Covid-19.
One thing that is so critical for us to understand is the fact that the United Methodist Church assets are part of a complex system that is strongly tied together and difficult to undo. This complex system has its roots both in Wesleyan tradition and Western laws which as subject to laws in other countries where United Methodist Church exist. Under many countries laws, property can only be owned by legal entities. Organizations can be legal entities, but as stipulated in the Book of Discipline, The United Methodist Church itself is not a legal entity. Thus, UMC assets are actually owned by thousands upon thousands of separate legal entities – local churches, annual conferences, jurisdictions, central conferences, church-related institutions, and general boards and agencies. This creates a complex system of property ownership in the UMC.
This complexity is tied together by the trust clause, which binds all these assets to the United Methodist Church. The trust clause, in combination with legal restrictions on how various assets can be disposed of, makes it very difficult to simply untangle the present system of UMC assets. This difficulty is in part exactly what Wesley wanted when he instituted the trust clause and in part a function of how institutions and financial systems developed over the course of the 20th century.
The biggest challenge that Africa and countries outside the US are bound to face if adopted the Protocol is a lawsuits on any attempt to undo the system of UMC assets. Because the present system of UMC assets is difficult to undo, any attempts to undo it run the risk of being challenged in court. For example in Nigeria corporate assets are held in trust for an organization by its board of trustees for the use of that particular corporation. The law in Nigeria does not allow those leaving particular organization to depart with the organization’s assets without any form of compensation as far as that organization is validly registered. Like Nigeria, other countries outside the United States have similar laws on assets, and where the State law does not permit the terms of the Protocol then serious lawsuits will surface which will add to the already existing challenges of the Church in Africa.
Many cases in Africa will be local congregations wanting to keep their building no matter what, annual conferences wanting to keep church buildings, some wanting to leave and join the GMC new denomination will go to court against United Methodists wanting to stay in the denomination. This will be problematic in Africa where State law does not allow those exiting an existing organization to depart with the organization’s assets held in trust.
I am not sure whether an amendment to the terms of the Protocol can save this situation in Africa and other countries, whether such amendment could still hold the Protocol together. Someone has said “the terms of the Protocol were negotiated in very rigorous and conflictual discussions. Each term was the result of a careful compromise between various viewpoints. For a majority of the delegates to change even one of the terms of the Protocol could jeopardize support for the whole package.” This is the predicament of the Protocol. Even now that it is heading for free for all amendments at the General Conference, some us do not see possibility of saving assets lawsuits from happening and this will be devastating to the fast growing United Methodist Church in Africa.
This why the Christmas Covenant has a better offer for the Church in Africa than the Protocol, the reason in Africa we do not have debate over human sexuality in our Churches that can push us to be involve in Separation and subsequently taking ourselves to court over church.