(This is part two in a series.)
Thankfully the “threat” of the synod to take legal action against Todd Wilken and Jeff Schwarz is over. At the same time we need to understand from the scriptures whether any legal action against Todd Wilken or Jeff Schwarz would have necessarily, in the nature of the case, been wrong. President Kieschnick strongly suggests that such is the case in his Letter to the synod dated February 26, 2009. He says:
As indicated during our Council of Presidents discussion of that topic earlier this week, contrary to allegations and rumors you and I have recently received, I have not filed, initiated, supported, or encouraged any lawsuit against Rev. Todd Wilken or Mr. Jeff Schwarz, nor have I ever had a desire to do so. Any allegations or rumors to the contrary are simply untrue. As an individual Christian, as a Lutheran pastor, and as President of The Lutheran Churchâ€”Missouri Synod, I take seriously the Holy Spirit-inspired words of St. Paul in 1 Corinthians 6:1-7 regarding such matters.
President Kieschnick seems to be saying that for him to have to have “filed, initiated, supported or encouraged any lawsuit” would necessarily be inconsistent with “taking seriously the Holy Spirit-inspired words of St. Paul in I Corinthians 6:1-7 regarding such matters.”
If this is the correct interpretation of his words then we must ask if President Kieschnick is correct in his understanding of this passage. We must establish whether it is always wrong for Christians to use the secular courts. Listen to the words of Greg Lockwood, “Paul’s sharp denunciation of Christians who take one another to court may lead us to ask whether secular courts are to be totally shunned by the Christian. To this the apostles would certainly answer no.” 
While Rev. Lockwood’s position seems to conflict with that of President Kieschnick, Lockwood is in accord with our Lutheran Confessions. Luther, in his discussion of the eighth commandment in the Large Catechism asks what you should do with someone who does not perform his duty within his vocation. Luther recommends that in such cases you should “bring the matter before the public, either before the civil or the ecclesiastical court.”  And the Apology discusses the accusation that the Christian Church “would destroy the commonwealth by its prohibition of legal redress.” The answer is that the church should teach that “the spiritual kingdom does not change the civil government….Public redress through a judge is not forbidden but expressly commanded, and it is a work of God according to Paul (Rom. 13:1ff).”  Paul himself appealed to the secular courts of his day when he demanded that his case be heard in Rome. Romans 13, cited by the Apology, expressly says that God himself has established the secular government and its rulers. That includes, it would seem, judges.
Even common sense says that legal action between Christians or Christian agencies is sometimes necessary. People have brought criminal charges against sexual predators within the Roman priesthood and even against LCMS pastors or church workers. Are we willing to say that these charges are displeasing to God and that they rightfully should be settled by the church? Such recklessness could easily end the “ecclesiastical judge” in trouble with the civil law himself as more than a couple Roman Dioceses have discovered. It is precisely the church’s insistence that she should be the arbiter in criminal matters that lead to the justifiable charge sited above that a complete disuse of secular law by Christians would “destroy the commonwealth.”
Or imagine getting rear-ended during a Minnesota snow storm. It’s a bad wreck and the cops show up. They want to see everyone’s license and proof of insurance. Data is exchanged. The next day you call your insurance agent who assures you that your insurer will take the necessary legal steps to get your car paid for. What do you say? Should you say, “Thanks. I’ll leave it your hands?” Or, should you say, “Wait a minute. I noticed a fish symbol on the bumper of the other guy’s car. I can’t allow you to bring suit on my behalf against the insurance company of the other driver. We are Christians and we have to settle the problem out of court. We need a Christian arbiter.” Imagine your relief if your insurance agent said, “Actually the reason they hit you is that the car was driven by a man who was cheating on his wife with another women who was in the car with him.” Then you could reply, “Sue the jerk. He’s no Christian.” Or imagine if your insurance guy saying, “We’re all Christians here. We will make sure this whole thing is done in a Christian way.” Would that allay your sensitive conscience?
Imagine a class action suit against a Christian businessman who inadvertently sold peanut butter tainted with salmonella. Would the business man have to deal with the Christians who are part of the class action through ecclesiastical courts but the unbelievers through the secular court? Do we have to know the faith status of anyone with whom we might contend? Must we know who the Christians are before we settle issues before a judge for fear of violating I Corinthians 6?
Obviously not every secular legal action involving Christians is wrong. At the same time Paul must be referring to something in I Corinthians 6. It has to have some application since all Scripture is profitable.
So how do we know? We will discuss that question next.