Troubling Hierarchical Language from LCMS Attorney

Editor’s Note: The following is from an e-mail from Reclaim News. For more information you can go to:

LCMS Tells Court It Is Hierarchical and Owns Churches
Since its founding in 1847, the Lutheran Church-Missouri Synod has claimed that its member congregations are autonomous and that it holds no equity in church property.  However, on September 9, 2010, the LCMS told Judge Marshall Whitley in Alameda County Superior Court Oakland CA that the LCMS is “hierarchical” and that a congregation’s membership in the Synod gives the Synod Episcopal rights over church property.
Attorney Sherri Strand, legal counsel to the LCMS Board of Directors, filed a Motion to Reconsider in the LCMS-CNHD suit against Sharon Bowles, Mary-Ann Hill, Portia Ridgeway, and Celia Moyer for the church property of Our Redeemer Lutheran Church of Oakland, CA (case number RG07363452).  Strand’s motion quoted a new Opinion from the Synod’s Commission on Constitutional Matters (CCM) which says the LCMS is “hierarchical” in property rights.
In its motion, the Synod argues that according to the Handbook, membership in the LCMS gives the LCMS the right to a congregation’s property.  If Strand’s Motion to Reconsider convinces the Judge to reverse his early Order against the Synod, the LCMS will have established a legal precedent that they are the owners of all LCMS congregations.  This will give the Synod at least 10 billion dollars in new collateral.  The bold type illustrates the key phrases that Strand writes to the court as follows:
The LCMS is a connectional religious denomination, under which each member congregation has agreed to and are committed to act in accord with the Synod’s Bylaws and Constitution.  (Resp. Fact 1).  The LCMS more resembles—at least for present purposes involving secular court determinations of properly disputes—a “hierarchical” structure where the congregation is “itself part of a large and general organization of some religious denomination, with which it is more or less intimately connected by religious views and ecclesiastical government.”  Episcopal Church Cases, 45 Cal.4th at 480 (citing Watson v. Jones, 80 U.S. 679, 726-27 (1871)).  Therefore, the cases resolving property disputes involving so called “hierarchical” churches are most applicable to resolving a property dispute within the LCMS.  In such cases, as here, “whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these [“hierarchical”] church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them.”  Id. at 408 (citing Watson, 80 U.S. at 727; Serbian Orhodox [sic] Diocese v. Milivojevich, 426 U.S. 696, 710 (1976)).
The LCMS Handbook Article VII.2 reads: “Membership of a congregation in the Synod gives the Synod no equity in the property of the congregation.”
However, Strand argues that ownership of church property is a matter of doctrine and the Court has to accept whatever meaning or interpretation the LCMS wants to apply to its own Handbook.  Strand writes: “This Court “must accept as binding “any church adjudication ‘regarding question s [sic] of discipline, or of faith, or ecclesiastical rule, custom, or law…” Id. as 483 (citing Jones, 443 U.S. 595).  In short, “if resolution of a property dispute involves a point of doctrine, the court must defer to the position of the highest ecclesiastical authority that has decided the point.”
The CCM, the highest ecclesiastical authority in the LCMS, ruled in May of 2004 that its Opinions are binding all congregations, pastors, and officers of the LCMS.  The CCM is now claiming that CCM rulings are also binding on American Courts based on the separation of church and state.
The CCM wrote its new Opinion CCM 10-2581 for the Court the day before the Judge was to make his final ruling against the LCMS on September 10th, 2010.
The Synod is claiming that no court has the right to decide its matters because it is a church.  What is at stake here is if the Constitutional right of the Freedom of Religion exempts the LCMS from laws governing constitutional rights to own private property.  In other words, when a church joins the LCMS, it is saying that a church gives up its right to ownership as a condition of membership in the LCMS.
Therefore, the LCMS can tell its member congregations that they are autonomous in the Handbook, but only the LCMS has the right to determine what that means because they are a church.  The Judge must defer to the LCMS’s own dictionary for the meaning of words on the basis of religion.  According to the freedom of religion, a church can say whatever it wants a word to mean because there is no definition of religion in the U. S. Constitution.
We will see if the Judge agrees that the Freedom of Religion gives a church not only the authority to interpret the Bible but also Webster’s Dictionary.  What if the LCMS also decides that its Handbook gives it the right police power?
At this time, there are only two people standing in the way of the LCMS’s claim to own all member congregations: Defense Attorney Paul Nelson and Judge Marshall Whitley.  If the Judge rules in favor of the Synod, congregations will have to go to court to reverse the ruling.  Thus far it has cost the defendants about $600,000 to force this admission of owning church property from the LCMS.
LCMS pastors are not informing their congregations about what is taking place.  The new LCMS president is not speaking about the suit.  There is a total news black-out about this suit in the LCMS including all districts offices.  The only source of information about the suit is Christian News, this writer’s blog (Reclaim News), and the courts website.
Most lay people in the LCMS have never heard of the CCM and are under the delusion that the LCMS claims a literal interpretation of the Bible and its own Handbook.  Silence from the congregations only convinces the Synod it is safe to continue to sue Our Redeemer Lutheran Church in Oakland CA.
Ten Billion is a lot of collateral in anyone’s portfolio.  The LCMS Council of Presidents is attempting to accomplish in an Alameda County Superior Court what it could never accomplish in a Synodical Convention.

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.


Troubling Hierarchical Language from LCMS Attorney — 73 Comments

  1. Does anyone know the implications of this when applied to say, a child molestation case? In the past victims of clergy abuse were limited to sueing the congregation. Does this make the synod liable?

  2. @Rev. Jody Walter #51
    In a case about which I have knowledge, the family sued the individual, the congregation, and the district and via the district the Synod. Thing just marched up the chain of command so to speak.

  3. @Dutch #49

    Dutch, you said a lot, and it’s all true. The hierarchical claim goes too far. Usually, lawyers should be utilized as technicians who are supposed to be competent in the workings of the legal system — and no more. Too often they have the last word on issues they are not competent to address. This is not necessarily the fault of the attorney. It is the fault of a client who fears the legal system more than the truth.

    Every client is responsible for the positions it takes and the arguments it makes via its mouthpiece. An attorney is typically not an expert in doctrine and will make any argument that might help the client win. If what Cascione reported is true, the synod has to stop this. One has to have the courage to go against legal advice when legal advice is contrary to what you are. Legal advice has been used as the excuse for one pusillanimous act after another in our society, from the dismantling of playgrounds to people being afraid to help a stranger in distress to pastors being afraid to preach against some sins.

    We have to fear God more than lawsuits. Luther feared God more than imprisonment and death.

  4. @Carl Vehse #47
    As for the laypeons, they can be reminded their Stephanite duty is to pray, pay, and obey… and trust BOD.

    Just for balance here, Rick, I will record that I’ve lived under some clerical dictators who claimed to be strict Waltherians. [Also one who was ordained in Germany and probably wouldn’t know what you were talking about. Nevertheless, the saying was that the church treasury was in his left pocket and his personal funds in the right… or was it the other way ’round?] 🙁

  5. I haven’t read all of this post or even all of the comments, but I wanted to clarify one important thing.

    Synod’s legal counsel does not report to the president of Synod. Synod’s legal counsel reports to the Board of Directors.

    The Board or legal counsel can share information with the president’s office, and the previous president got himself involved in this case by consulting (or not consulting, as the case may be) DP Newton.

    But in general, the Synodical President is entrusted with ecclesiastical supervision and to provide leadership for Synodical programs.

    The Board of Directors handles finances and legal matters.

  6. Whether or not this hubbub is justified, it breeds distrust among pastors and pew sitters. LCMS may win a property worth several million, but it will lose a whole lot more both financially and with regard to other more important things.

  7. Mollie :I haven’t read all of this post or even all of the comments, but I wanted to clarify one important thing.
    Synod’s legal counsel does not report to the president of Synod. Synod’s legal counsel reports to the Board of Directors.
    The Board or legal counsel can share information with the president’s office, and the previous president got himself involved in this case by consulting (or not consulting, as the case may be) DP Newton.
    But in general, the Synodical President is entrusted with ecclesiastical supervision and to provide leadership for Synodical programs.
    The Board of Directors handles finances and legal matters.

    Hopefully with a more pastoral president, and some of the new memebers elected to the BOD, wiser heads will prevail. This lawsuit needs to go away. And if not, I do hope that LCMS, Inc. loses. Humility is in order, and a reminder to the hierarchy that they are not all powerful.

  8. At some point the identity of those BOD members responsible for initiating or maintaining the lawsuit will need to be revealed.

  9. Mollie,
    Here’s what I don’t get about this. And trust me, I’m not the sharpest knife in the drawer.

    In effect, isn’t an attorney, making an ecclesiastical statement, by stating the district in question is “hierarchial”? It is my understanding the LCMS is considered,
    congregationalist in polity, not hierarchial. The LCMS polity by Synod or District, wouldn’t that fall under ecclesiastical history? Or does it fall under the category of governance?

  10. @Mollie #55
    Synod’s legal counsel reports to the Board of Directors.

    True, but the SP is a member of some sort of the BOD, and ought to have been aware of this as it developed. (With his St Louis lawyer on it, it’s hard to believe he wasn’t.) Sorry about that.

    No, really! I am sorry that we could not trust our administration for almost all the last decade.
    I pray that will change!

  11. @Dutch #59

    > Here’s what I don’t get about this. And trust me, I’m not the sharpest knife in the drawer.

    Dutch, I don’t see any reason for the excessive humility. What are you supposed to do if the facts in public records are not explained to you from the synod’s perspective?

  12. M that was sooo not excessive humility, lol.

    How Synod is synod, the Districts are but aren’t, congregations are but not not always, and individual congregational members, aren’t at all. The President is the head of Synod, but not really, the BOD, is under the President, but not really….

    See, not the sharpest knife in the drawer.

  13. @Dutch #62

    Dutch – I’m reading the filings, which I should have done before, and which I hope everyone interested will do. The actual filings from the plaintiffs (synod side) clearly state that the district is part of the synod. Understand that there is a faction in that church that tried to take over, and even ran an illegitimate voter meeting to kick out the president, who was a member for a very long time. Cascione glosses and waves his hands over the faction’s rank heresies that ran on for a long time. The president and a couple of other legitimate members of the congregation are who is suing the faction. The district and synod took his side and provided assistance. There’s no pastor so what is the district president to do with his mandate to exercise supervision over the congregation’s pastor? Who disciplines the faction (or the whole congregation) when there is no pastor?

  14. M,
    The BJS archives address what ya said, in post 63. M, did the dispute/resolution process follow until it’s ultimate end? Were these 4 women, those that chose to follow their lead & those who took part in the illegitimate voter’s assembly & voted to oust the President, excommunicated, formally, with the Circut, District or with/at Synodical level?

  15. @Dutch #64

    Hi Dutch,

    I totally agree that the process you describe should have been followed. However, as I understand it, the faction is physically holding the property! If that’s the case, it’s a clear-cut case of having to bring in the law.

  16. M,
    This didn’t happen over the course of days, or even weeks. Part of holding offices of authority, such Congregational President, Circut Counselor, or District President, is handling issues of discipline & dispute. In a merciful & but very timely manner, & when all else fails.. to excommunicate, per individual or a congregation. The positions are what they are, & hold the authority the do for a reason.

    M, it’s highly unlikely, that the other congregations in the area, circut, or the District itself, didn’t know the issues, prior to the cause of petitioning the California court to decide. Every cog in this wheel failed, and now, the court found in favor (temporarily) of the defendants. The burden of proof, began & still lies with the plantiffs. Now, the court will decide to reconsider, or not.

  17. Wow, talk about irony!

    While we’re here discussing the LCMS head lawyer’s claim in a California court that the Missouri Synod is hierarchical (contradicting 163 years of history), an AP story, “US judge asks Vatican to serve court paper to pope,” reports that Vatican lawyers are claiming the pope “isn’t liable for clerical sex-abuse cases because according to canon law and the structure of the Catholic Church, bishops — not Rome — are responsible for disciplining pedophile priests.” IOW, they’re claiming the Roman Church, headed by the pope, isn’t really hierarchical.

  18. CV,
    Yeah, saw that on the Mail this morning, about 5am. Hierarichial, is like sooo way more profitable than Congregationalist, in polity. That depends on what suit or court papers your filing……

    Take a mosey over to the armed guard article, & see what ya think. It is tough, to think the way the world sees & thinks of all this, but understanding, isn’t partaking,rationalizing, or agreeing.

    I live near Milwaukee, & the Deaf RC case, is ever in our news. Is also on apologetic sites, as well. The RC doesn’t have the best & brightest of records, here in Milwaukee (decades).
    Why, in any shape or form, no matter what, (prayer, service, liturgy, doctrine, mentality, etc) would anyone forsake Luther & hop the Tibre, I have no clue. The Office is Divine, the man/men who may hold it for a time, are most certainly not!

    The Pope, is not Divinely or magically absolved, nor are any of our holders of the Divine Office. Hierarchial, is sooooo way worse, than Congregational. Unless, your speaking about, assets, claiments, or absolvability. Oi vey, what a world, in which we live.

  19. > connectional

    I finally looked this word up. I had presumed wrongly that the attorney made this word up or used a secular term. Not so. I don’t think Walther would be pleased.

    “Connectionalism is the theological understanding and foundation of Methodist polity.”

  20. @Dutch #66

    Dutch, I basically agree with you. However, I do not see any effort on Pastor Cascione’s part to be impartial, and to be as accommodating to Ron Lee and the other individual plaintiffs as to the Four. I have my own very unpopular ideas for how the MO synod can communicate better to the people, but the fact is that we need to try to balance what Pastor Cascione is putting out, and we need to do that based on the filed statements.

  21. @John E #3

    “I’m just curious if the whole story is being told here. The main determination seems to have been who is really in “charge” at Our Redeemer, Oakland CA. And not necessarily a power play on the Synods part to grab property.”

    We are certainly not getting the whole story: the Synod will say, “we can’t comment, it’s under litigation.”

    Attorney Strand’s pleading specifically states that Synod now sees itself as a hierarchical church which does have authority over the propery of all the congregations of Synod.

    In any case, the real problem is with the CCM’s ruling. Here’s the CCM’s “Catch 22” — A congregation can appeal the D.P.’s decision, but only the D.P. determines who represents the congregation. Therefore, anyone who rejects his decision can simply be told, “You don’t represent the congregation, and so have no standing for an appeal.” Therefore, D.P.’s have full tyrannical authority to do as they please, and no real appeal is possible.

    I can hear the Treatise on the Power and Primacy of the Pope spinning in its grave …

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