November 4, 2010

Judicial Retention and the Trust Clause of the UMC

This week in Iowa, three Supreme Court Justices were voted out of office.  And I'm a little upset about it.

A huge part of my frustration comes from the fact that they were voted out because of a homophobic reaction to one decision they made during the course of their tenures.  In a unanimous ruling by the court, a law that limited marriage between a man and a woman was deemed unconstitutional.  The decision itself can be read here.  It is extremely well written, and worth the read. One of the first responses our bishop, Bishop Julius C. Trimble, made was that in no way does that decision impact what we do or do not have to do as clergy.  We are not being forced to marry those whom our Discipline says we are not allowed to marry.  But as far as the state is concerned, as far as the institution that the state is concerned with, the rights should be granted to all. 

I realize that folks are of all sorts of different opinion about the issue of same-sex marriage.  I respect your beliefs.  I hope you will respect mine. 

My frustration is with the precedent that this particular retention vote sets for the future of our judiciary.  In conversations that I have had with others in the past week, I have become ever more aware of two things. 

1) Folks don't understand the role of the judicial system.  There are all sorts of arguments going on saying that a court shouldn't be making law and shouldn't be accepting cases of such a highly volitile nature and I have even heard more than once that the courts don't get to interpret the law - they just need to enforce it.  Basic civics lesson - the courts job IS to interpret the law.  It is to recieve cases, brought by the people or the state, that bring forth questions of constitutionality.  Is a particular law constitutional?  The congress can't decide that, the people can't decide that, the executive branch can't decide that... it is the court's role to interpret the law and hold it against the constitution to deem its worthiness.  AND - they issue opinions.  That is their role.  Their rulings are deemed opinions because they are interpretations in particular times and places.   The executive branch enforces the law, the congressional branch makes the law, but the judicial branch interprets.  It always has been and always will be its role.  The congressional branch is absolutely free to make amendments to the constititution that will then change what that opinion might be in the future... that's part of the checks and balances system.  Instead of being upset with the unanimous decision of the justices, the anger in this case should have been directed towards those who refused to bring an amendment to the table.

2) In a facebook conversation, someone mentioned that folks who voted "no" on retention were afraid to speak up and tell why they did so.  "don’t you think the fear of being personally and politically attacked keeps people from having a civilized conversation about this subject or any other for that matter?"  I responded, " ironically, the fear of being personally and politically attacked for an unpopular opinion is exactly why that vote is so damaging to our judiciary system."   The very reason that we moved away from an elected judiciary is so that money could not buy court decisions.  The very reason this vote is so troubling is that it will take balls for justices to make unpopular rulings in the future.  To always be wondering who you might upset because of your decision takes the unbiased factor out of the judicial system.  Now, I'm prone to be naive... but I will admit that there are flaws in the system we have.  It was pointed out that each of the justices currently on the court are registered democrats... however, two of those voted out were appointed by a conservative governor.   In any case, for the retention vote to be used not as a means of disposing of poor judges, but as a referrendum on one particular issue destroys the objectivity of the court.

Perhaps I am so frustrated by point number two, because I feel like there should be some protections there to enable justices to go against the flow, to rule for what is right and not what is popular, to make a stand for actual justice.  I say that because I, myself, like all other pastors, regularly have to make those sorts of decisions.

The very nature of the pastorate means that we have to speak the truth - even when it is not popular.  We are called upon to comfort the afflicted... but also to afflict the comfortable.  We are called to speak truth to power.  We are called to pull at people and challenge them to grow.  We are called upon by Christ to turn the values of this world upside down and inside out.  And constantly, that means that we are called upon to lift up the concerns of those who have no voice, those who have no power, those who have no hope.  The bible tells us to leave our gleanings for the poor and not gather them up for ourselves.  The bible tells us to be good to the foreigner in our midst.  The bible tells us to forgive, to turn the other cheek, to love our enemies.  To preach the gospel often means that we are speaking out on behalf of the minorities in our country.  It often means saying unpopular things.

Which is why I am grateful for some protection.  If a pastor depended on their popularity to maintain their pulpit - the gospel would never be preached.  But in my tradition and in others as well, we have this lovely little thing called the Trust Clause...
 Which means... any United Methodist Church belongs to the Church and not the people.  Any pastor who serves in said church is accountable to the Church and not the people.   That may be a slight oversimplification... but I hope you get the point. 
In trust, that said premises shall be used, kept, and maintained as a place of divine worship of the United Methodist ministry and members of The United Methodist Church; subject to the Discipline, usage, and ministerial appointments of said Curch as from time to time authorized and declared by the General Conference and by the annual conference within whose bounds the said premises are situated.  This provision is solely for the benefit of the grantee, and the grantor reserves no right or interest in said premises.

John Wesley used something called the "model deed" to protect the security of the places where the Methodists worshipped.  It created a sense of conformity... in that those who preached must hold to the doctrines espoused by the church, but it also meant according to one scholor that the preaching houses, "cannot be alienated from their original intent and are not subject to the theological or ecclesiastical fancies of local leadership." 

If you preach against gambling in a community that has just recieved permission to build a new casino - you can't be kicked out of the church.  If you preach tolerance and welcoming of the sojourner in a community frustrated by an influx of migrants - you can't be kicked out of the church. Just because something is unpopular does not mean that it is grounds for dismissal.

I think part of the reason this retention votes is so disheartening is because I empathize with those who are called sometimes to make unpopular and difficult decisions.  I have watched them over the course of this campaign refuse to fight back, refuse to give in, and I have watched them and supporters of the judiciary work to educate the public. 

When I am called upon to be prophetic, to speak hard things, it would be easy to argue back when others disagree... but I am inspired by the courage and respect that these three justices in particular showed. 

I am lucky enough to be a part of a system that allows me to make tough decisions and I get to keep my job.  My heart goes out to those not only for whom that was not the case here in Iowa, but for those across the world who take tough stands every single day and are punished for it, who are ridiculed, who are persecuted, and who die for those decisions.  I am more lucky that I realize.  And I pray that I might use this gift for good and not squander it.

1 comment:

  1. Well said. I was saddened to hear of the vote on the Iowa judges. In my state, we also vote on judicial retention. I voted to retain all judges, even those I totally disagree with, on constitutional principle.

    I loved how you connected the judges' vote to the freedom of the pulpit and demand to speak truth to power. Interestingly enough, I used to be UMC, but became UCC because I believed that I would have more freedom to speak Gospel in the congregational polity than in the connectional one I had always known. It is refreshing to hear you articulate how a more episcopal hierarchy can also offer freedom to afflict the comfortable. Thanks.