The Property of Congregations, by Rev. Andrew Simcak

December 26th, 2008 Post by

(Rev. Simcak writes on behalf of the Texas Confessional Lutherans. Their other posts can be found on the Regular Columns page of the website.)

 

Even if our church body were not in doctrinal turmoil, it would be meet, right, and salutary for all of us to carefully examine the terminology in our church Constitutions and Bylaws to ascertain what they actually say about the ownership of our church property. Now that there is an ever escalating problem of doctrine and practice within our synod, it is even more necessary to make certain that our church constitutions affirm what we really want them to affirm. It should be stated in very crystal clear language what happens when a group seeks to leave the congregation for any reason, especially when doctrinal matters are involved.

 

It would be well for all of us to heed the words of Dr. C.F.W. Walther, the leading spirit among the founders of the LCMS. He delivered an essay at the first convention of the synod’s Iowa District in 1879. The essay subject: “Some of the Main Obligations of a Synod which wants to Bear the Name of an Evangelical Lutheran Synod Rightly.”

 

Here are some of his words of wisdom on this extremely relevant matter:

We have always said that our dear congregations should not include in their constitution the sentence: We shall always be associated with the Missouri Synod. We do not want this. The name of the Missouri Synod should not appear at all in the constitutions of congregations. This is, of course, not a sin. But only then, not when there is added to this: so long as the Missouri Synod continues to adhere to the pure doctrine which it now has.   Without this additional declaration, the statement (“we shall always be associated with the Missouri Synod”) is false; no one should enslave himself to men. Rather, freedom again to leave the synod at any moment should be retained, so that it cannot be said, You are traitors if you leave. For God has given no law saying that at least three, five, or ten congregations should constitute themselves a single body, send delegates to it, and let these formulate resolutions for them…All of this is a matter of freedom…So, let no one worry as though we were lusting after the property of congregations. Indeed, if congregations should want to present their property to us, we would say: “You are mad! Why, you need it yourself; and we do not need it.”…That it is most foolish that a congregation loses its church property by joining a synod is to be seen from the fact that the matter is precisely reversed. For, when congregations join the Synod, they become joint possessors of the synod’s institutions and of all of its property, towards which they have not contributed a cent, while the  synod never acquires right of possession of a congregation’s property…But this we desire, that there should always be in the constitution of the congregation the statement: If contention arises within the congregation, those who continue in the pure doctrine, the Confession of the                   Lutheran Church, should retain the church property. We do not want to catch people through craftiness.

 

The Commission on Constitutional Matters (CCM) in all of its wisdom has decreed in submitting “Guidelines For Constitutions” on May 1-2, 2006: “Although not essential, since membership in the Synod is not determined by a statement in a congregation’s constitution, congregations are advised to designate their membership in the Synod.”  Thus saith the CCM!

 

What does this mean? If it is not essential, why have it in the constitution?

 

I believe we need some advice from attorneys and experts on church constitutional matters who can advise us what precise terminology to use in our church constitutions in stating who owns the church property, who owns the property when there is a schism or separation in the congregation, etc. etc.

 

The time is ripe for legal advice. I for one would be grateful for any and all legal advice relative to the ownership of church property.

 

Rev. Andrew Simcak, Jr.

The Texas Confessional Lutherans

Houston, Texas


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  1. Michael
    December 26th, 2008 at 09:36 | #1

    Synod does not consider alterations to constitutions valid unless the alterations are approved by your distict constitutional committee. Such unauthorized alterations have been taken to court and invalidated.

    michael

  2. Josh Sullivan
    December 26th, 2008 at 10:54 | #2

    Michael – thanks for the input. What happens in the District refuses to accept your alterations or a new constitution? What are the legal ramifications of having an unacceptable constitution according the your District? I’m only curious as we have amended our constitution before I arrived and we are pondering some more amendments. Thanks.

    josh

  3. Anonymous
    December 26th, 2008 at 13:24 | #3

    I am an expert on nothing, but I know that there have been some very bad ideas that have come from congregations as well as good ones. Commitees catch what is not good and shoot it down. Could work the opposite. The moral of the story is, the election of district committes are vitally important.

    If they don’t accept your changes you can’t make them.

    Here is what our constitution says: If at any time a division should take place on an account of doctrine the property of a congregation and all benefits connected therewith shall remain with those communicant members who continue to adhere in confession and practice to Section 3 of this constitution, (Confessional Standard) as determined by the adjudication procedures of the Synod.

    That last line could be problematic

    michael

  4. Califiowan
    December 26th, 2008 at 15:19 | #4

    Essentially, and theoretically, you lose your voting rights as a member of Synod/District. You forfeit pastoral/lay representation/voting at Circuit Forum/District Convention, or election as delegate to Synod Convention. You lose the (dubious?) “assistance” of the District President in the csll process. In short, you are no longer considered a member of Synod.
    In addition, also theoretically, your pastor could be removed from Synod’s roster for serving a non-member congregation.
    In practice, these things aren’t always strictly enforced. A lot depnds on the District Pesident.
    Our congregation’s Articles of Incorporation state that we will be a member of the LCMS, but not do not state “always.” They also state that, in the event of division, property shall remain with those, even if a minority, which hold to the Articles in their entirety (which include our Confession of Faith…subscription to the Canonical Books of the Bible and the Book of Concord of 1580.) Our Bylaws do not address the subject, although they do repeat the Confession of Faith found in the Articles.
    Ed Weise

  5. Bubbles
    December 26th, 2008 at 16:29 | #5

    Being a watcher of the disintegration of the UPC/USA, I can safely say that you don’t want to be tied to the ownership of a synod no way, no how. Leaving a bad Presbytery is worse than getting a bad divorce, I think, all the way down to the histrionics and the division of properties (which leads me to the unrelated question: why would gay people ever WANT to be married when they could just live together?).

    It would be bad to see congregations leaping from synod to synod, but at the same time it’s good to have no impediment to leaving when a synod goes bad.

  6. December 26th, 2008 at 16:42 | #6

    Hmnnn….

    While this is certainly good for people to know, and I agree with Walther that our churches should be free of binding to the Synod (as it’s been said, that someone joins the Synod so that they are held accountable for their theology, not so that they can hold others accountable unless they are deemed worthy to do so from those in the Synod), I’m a little concerned at the alarmism that seems to be the background of this post.

    Might I ask what is meant by, “the time is ripe for legal advice”?

    in Christ,
    jW

  7. Califiowan
    December 26th, 2008 at 19:24 | #7

    jW,
    I think it should be obvious.
    If your Bylaws (Or Constitution)state something like “shall always” or “henceforth and forever be” a member of the LCMS, you’ve got real problems in the event of a division in the congregation.
    It’s not only a “Synod” matter, it’s a civil (State) matter as well. Best not handled by amateurs!
    Granted, unlike the ELCA, PCUSA, Episcopalians, and others, the LCMS Constitution specifically states that the Synod has no equity rights to a congregation’s property. (Constitution, Article VII, 2–2004 “Handbook.) But who know what’s coming down the pike in 2010 or later with the proposed “restructuring”?

  8. December 26th, 2008 at 19:36 | #8

    Thank you, Andrew, for a timely note. Greetings, Josh. Here is what we have written in our parish’s recently-revised (with District okey-dokey) Constitution: “ARTICLE ELEVEN – PROPERTY RIGHTS – If at any time a separation should take place on account of doctrine, the property of the congregation and all benefits therewith connected shall remain with those communicant members who continue to adhere in confession and practice to Article Four of this Constitution. . . . ”

    However, I did accidentally notice that the only pastors which our parish may have are those approved by the LCMS — THAT, too, could be problematic, I suppose. Here is what one of our articles says (and it probably deserves the same kind of consideration and a re-write as Pr. Simcak notes in his article): “ARTICLE NINE – THE OFFICES OF THE PASTOR AND TEACHER – The pastoral office of this congregation, as well as the office of a called teacher in a parochial school, shall be conferred only on such ministers, teachers and candidates who profess and adhere to the confessional standards set forth in Article Four of this Constitution, possess in sufficient measure the qualifications of a minister of the Gospel as prescribed in the Word of God, have been declared qualified by Synod and are properly and rightly called by the congregation. Pastors and teachers shall, in the call extended to and accepted by them, be pledged to this confessional standard.”

    Related to the article and above posts: are judges and attorneys more ready to involve themselves in a “church fight” than they used to be? They used to be MOST reticent to get involved in such an argument. Curious . . .

    Thanks to Andrew, as always, for timely writing.

  9. December 27th, 2008 at 09:39 | #9

    Ahhh….so the restructuring business is what makes the time “ripe”.

    I’m a little in the dark as to what all is supposed to happen in the restructuring that would cause a faithful LCMS church to no longer think the Synod is being faithful to the confessions.

    From what I gathered, the restructuring seeks to highlight congregational rights rather than understate them. Am I incorrect in this?

    in Christ,
    jW

  10. Steven Bobb
    December 27th, 2008 at 10:06 | #10

    The “restructuring” will put more power and authority in the office/person of the SP and thus many changes can/will happen that may not be good for the congregations.

  11. December 27th, 2008 at 21:46 | #11

    A constitution that does a decent job of this may be found at http://holytrinitylc.com/htconst.htm.

    (Please note, if any Confessions references seem different from what you read there, that all Confessions references in this constitution and its associated ‘handbooks’ are from the 2nd edition of the only complete translation of the Lutheran Confessions from German into English. that of the Henkel brothers of the old Tennessee Synod. Said edition typically costs several hundred dollars in print, since it’s been out of print for so long, but that you can now acquire a searchable electronic copy for your own computer[s] and indicate your desire to own a print version by going to Grabauski.com…and support the training of pastors in Sri Lanka at the same time.)

    EJG (boy, I sure hope that plug wasn’t too subtle…)

  12. Rev. Klieve
    December 29th, 2008 at 12:02 | #12

    My 10 cents worth: As was shown in the case of Grace which was the campus church for River Forest the statements reguarding the property remaining with those who uphold pure doctrine or the doctrine of the Unaltered Augsburg Confession etc. do not stand up in court. The court will always rule that “majority rules”.

    Secondly: The lose of property rights will not come by a clear statement, but like the old ALC, it will happen by a change in the structure like we are going to be presented. As a byproduct of an issue that does not appear to deal with property rights, ownership will be shifted from the local congregation to the Synod. After the structureal change has been completed the congregations will be asked if they was to take part in that changes structure. If the congregation does not want to go along with it they will be voting themselves out of their building.

    I think CFW was dead on right we must realize that we are structurally and legally a long way from that position.

  13. December 29th, 2008 at 22:57 | #13

    As was shown in the case of Grace which was the campus church for River Forest the statements reguarding the property remaining with those who uphold pure doctrine or the doctrine of the Unaltered Augsburg Confession etc. do not stand up in court. The court will always rule that “majority rules”

    While I agree 100% that you are correct on this, I still think that the statement belongs there, if for no other reason than to be able to demonstrate the injustice of a liberal majority stealing the property of Christ’s Church.

    EJG

  14. Rev. Klieve
    January 1st, 2009 at 09:12 | #14

    I did not mean to say that the statement should not be there (I think it should, as a confession) but that a congregation having it there should not feel confident that they have secured the property.

  15. January 1st, 2009 at 20:43 | #15

    I did not mean to say that the statement should not be there (I think it should, as a confession) but that a congregation having it there should not feel confident that they have secured the property.

    That’s what I thought you meant; I’m sorry that I didn’t make that clear.

    EJG

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