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,

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