CHURCH PROPERTY OWNERSHIP ““ Legal Advice Needed! By Andy Simcak, Texas Confessional Lutherans

On December 26, 2008 I submitted an article to BJS. You can read the entire article under the heading of “Regular Columns or by clicking on “Texas Confessional Lutherans” at the end of this article.”  It focused on “The Property of Congregations.”  To me and I hope all agree this is a matter which requires our immediate attention and which seeks expert legal advice as to how we can make certain that in case of a schism in the congregation or a withdrawal from synod we can make certain that the property of confessional congregations will remain with the congregation and not be subjected to legal action by the synod.

I had hoped that by now we would be able to find expert legal opinions as to what precise terminology we should use in our church constitutions and bylaws to prevent legal action by the synod, which will seek to retain the property. To my knowledge no one has offered us any advice. What should spur us on is the example of what is happening to the three valiant confessional ladies in a California congregation, who are now being sued by the synod.

It is my hope that we can take care of this matter with dispatch. In my estimation it is a matter that requires our immediate attention. I do not have a legal mind (is that the opposite “an illegal mind”?). Let’s all of us (as we say in Texas): “grab the bull by the horns and run with it.”

Allow me one quote from my December 26 article. It is a pertinent quote from Dr. C.F.W. Walther:

We have always said that our dear congregations should not include in their constitutions the sentence: We shall not 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 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 to catch people through craftiness.

We all agree with C.F.W. However, we need precise legal advice. Once we get such advice, it will take time to change our constitutions and bylaws. It is for this reason that I encourage someone in our ranks to   give us precise terminology to insert in our constitutions and if we have no one in our ranks, let’s reach out and find someone who can provide us with the exact legal terminology to protect us from losing our congregations when and if such protection is needed.

Rev. Andrew Simcak, Jr. President,

About Pastor Tim Rossow

Rev. Dr. Timothy Rossow is the Director of Development for Lutherans in Africa. He served Bethany Lutheran Church in Naperville, IL as the Sr. Pastor for 22 years (1994-2016) and was Sr. Pastor of Emmanuel Lutheran in Dearborn, MI prior to that. He is the founder of Brothers of John the Steadfast but handed off the Sr. Editor position to Rev. Joshua Scheer in 2015. He currently resides in Ocean Shores WA with his wife Phyllis. He regularly teaches in Africa. He also paints watercolors, reads philosophy and golfs. He is currently represented in two art galleries in the Pacific Northwest. His M Div is from Concordia, St. Louis and he has an MA in philosophy from St. Louis University and a D Min from Concordia, Fort Wayne.


CHURCH PROPERTY OWNERSHIP ““ Legal Advice Needed! By Andy Simcak, Texas Confessional Lutherans — 8 Comments

  1. Give your local Bar Association a call. They may have the names of Lawyers who have experience in that area.

    Rev Jack A Kozak

  2. I agree w/Rev. Kozak. You should really get legal advice from an attorney skilled in non profit organizations.

  3. It would be superfluous for the Blue Ribbon Task force on Structure to institute a top down structure Administratively ( as Res 8-01A of the 2004 Houston Convention did theologically ) and not want to control the property of the congregations as well as this is will keep all of them as a captive audience.

    I believe the case in California is a test case and also one of intimidation for all to notice.

  4. Deacon Hughes,
    You have a good point. I hope you are wrong, but I also expect worldly men to do such things. Congregations need to get ready now, just in case, before it’s too late. It would be a shame if a congregation needed to leave the LCMS for doctrinal reasons only to find that she must do so without her property. Imagine being forced to start all over from scratch while you and your congregation watch your old church building sold in order to fund the local LCMS mega-church’s coffee shop.

  5. Pr. Simcak refers “the three valiant confessional ladies in a California congregation, who are now being sued by the synod.” I’m not sure how he comes to the conclusion that these ladies are confessional, if they brought in an Episcopal priestitute to conduct services. I wouldn’t take Jack Cascione’s word on anything without verification. He has a history of going about as a gadfly who inserts himself into places he does not belong. Recall that he offered to commune a young man who had been excommunicated from Pr. Zill’s congregation in Wyoming. He also has been know to make up events that never happened. He once attacked a pastor I know, claiming he had delivered a prayer to protect us against Pieper.

    As to the lawsuit involving those women in Oakland and the CNH District, I’m not sure either one is in the right here. I don’t trust either side.

  6. There is no way to formulate some legal wording that can prevent a lawsuit. The reality is that it will only be decided in a court of law and that highly depends on the strength of the legal teams and the judge before whom the case is brought.

    Also, property law is (mostly) a states issue and will vary greatly depending on the indivudual law of the state, the individual court system of the state, the jurisdiction of the individual state, and the judge under whom the law suit is brought. In this regards, case law is only valid within the bounds of an individual state.

  7. @Dutch #2 @Kevin #6

    Dutch is right to get legal advice.
    Kevin is right you can never avoid lawsuits. Angry people like to litigate.

    Bring a copy of your congregations current bylaws and constitution with you to your lawyer. In the end this is a contract and property dispute. What’s written in your constitution about the rights to property will matter.


  8. I’m not sure how he comes to the conclusion that these ladies are confessional, if they brought in an Episcopal priestitute to conduct services. –Stan

    I don’t know why they put up with it, but the “Episcopal priestitute” was brought in by the man who is now trying to gain control of the property, with the connivance of the District and the Synod. The last, for all GK’s denials, is evidenced by the pack of St Louis lawyers including his pet, Sherri Strand, flying back and forth (at our expense).

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