What’s Wrong with the Commission on Constitutional Matters?

The LC-MS Commission on Constitutional Matters (hereafter CCM) needs reform NOW, at this convention, if not complete dismantling. Why?

Martin NolandFirst, any person who has been involved as a “complainant” (i.e., plaintiff) or a “respondent” (i.e., defendant) in a “dispute resolution” (i.e., church court) case that involved an “opinion” (i.e., binding ruling) received from the CCM and/or from the Commission on Theology and Church Relations (hereafter CTCR), pertaining to theological or constitutional issues, has been denied due process and has been denied his or her right to be judged by an independent adjudication commission. In all such cases, the Courts of the United States may assume jurisdiction if they find that the adjudicatory process of the church did not meet the requirements of due process. It seems to me that this puts the synod at great risk for legal liability and court costs.

Second, any member of synod may use the CCM to avoid “supervision over the doctrine, life, and administration of office” by the authorized church officer by obtaining a favorable “opinion.” This process threatens to subvert the authority of all LCMS church officers, the national convention, as well as the Constitution, Book of Concord, and Scriptures; and it has already done so.

Convention delegates can find fifty pages of fine print at the back of the 2013 Convention Workbook with some of the “opinions” of the CCM adopted in the last triennium (see pp. 281-337 here ). This term “opinion” is a misnomer, because it is binding–IT IS THE LAW IN OUR CHURCH. It is binding, unless and until it is overruled by the synod in convention. These “opinions” supersede all synodical resolutions, bylaws, and Constitution articles that they interpret.

How can synodical delegates overrule these CCM “opinions” at a national convention? They don’t receive the Convention Workbook until after the deadline for overtures has passed. In addition, the Convention Workbook does not contain all of the “opinions,” only those the CCM decides it wants the church to see. The rest are in the minutes of the CCM, which only recently became available online here. Fortunately for the synod, some legal “eagles” have been watching the CCM closely. The South Wisconsin District Board of Directors, as well as the Lincoln Circuit of the Central Illinois District, submitted Late Overtures for the 2013 convention. These are L4-73 and L4-77 at the front of Today’s Business: Proposed Resolutions 2013 (see pp. 34-35, 37-38 ).

The floor committees deemed these late overtures so important that they created two separate resolutions to address the issues involved: Resolutions 4-09 and 4-07 (see pp. 92-94. Both resolutions need to be passed.

If 4-09 and 4-07 are not passed, then the CCM has “struck down” the LC-MS prohibition of syncretism with respect to altar fellowship. For more on this issue, see my Lutheran Clarion article titled “Word of God Determines Doctrine, Not Commission on Constitutional Matters” (see here ; also kindly posted by Brothers of John the Steadfast on June 25, 2013 at their website, with the same title).

A more recent case came to light after the publication of Today’s Business. This was published by the CCM at the synod’s website in June 2013 here. In the May 16 – 17, 2013 CCM minutes, look at Item #204, Opinion 13-2699. This is a challenge of the Synodical President’s authority, posed by six unnamed district presidents. The six district presidents know how to “set up the game” for the CCM, so they asked the CCM, in so many words: “Does the district president OR the synodical president have supervision?” The CCM followed the false dichotomy set up by the six district presidents, with the result that the synodical president is deemed to have no authority in the districts of the synod. Read CCM Opinion 13-2699 for yourself if you think I am wrong or confused.

Since all members of synod are members of districts, this “opinion” could be construed to mean that the synodical president has no authority whatsoever. This is patently contrary to Constitution XI.B.3 which states “The President has and always shall have the power to advise, admonish, and reprove. He shall conscientiously use all means at his command to promote and maintain unity of doctrine and practice in all the districts of the synod” (my emphasis). This Constitutional article is as “clear as the northern skies over International Falls, Minnesota on a mid-winter’s night.” If CCM Opinion 13-2699 is not overruled at this convention, then the CCM has “struck down” the primary authority of the LC-MS synodical president. For more on this point, see my comment here.

How did the synod get a CCM with this sort of authority? Prior to 1962, the CCM was your typical constitution committee, primarily maintaining the Constitution and Bylaws of the synod—like the Commission on Handbook does now. It also gave advisory interpretations of the same when requested. In 1962 the Synodical Survey Commission gave the CCM two more powers, namely, interpreting synod’s resolutions in cases of controversy and giving “binding opinions” on the Constitution, Bylaws, and resolutions of the synod.

In 1967, the CCM obtained the additional power of interpreting resolutions anytime it received a request for the same, not just for cases of controversy (1967 Resolution 5-19). In 1992, the CCM and CTCR were given the authority of final ruling in adjudication and appeal cases, when they were asked for an opinion by an adjudication or appeal “panel.” The selection process was also changed in 1992, so that five CCM candidates were “selected” by the Council of Presidents, one of whom would be appointed by the synodical president. So the present CCM is a group of individuals hand-picked by the ruling majority of the Council of Presidents. They can be expected to defend the District President’s interests when that is at stake, as it is in the case of CCM Opinion 13-2699.

Besides its original function of giving advice about the Handbook of synod, why do we really need a CCM? We don’t. It is the brainchild of certain theologians and lawyers, who think that the synod’s affairs are too complicated for the common man and rank-and-file pastor. The Supreme Court of the United States disagrees with the presumption of such theologians and lawyers when it speaks to the matter of the law: After all, legislation, when not expressed in technical terms, is addressed to the common run of men, and is therefore to be understood according to the sense of the thing, as the ordinary man has a right to rely on ordinary words addressed to him. (see “Addison v. Holly Hill Fruit Products, Inc. – 322 U.S. 607 (1944)” found here ). I, for one, believe in the competence of the common man and I am a rank-and-file pastor.

The hidden story behind the current powers of the CCM is that, in 1990, the venerable and faithful Commission on Appeals was locked in “mortal combat” with the Synodical President and his personal appointees on the CCM. In 1990 the CCM was still appointed by the Synodical President at his sole discretion. The synodical president and his CCM were arguing that the CCM had the authority to make “binding” opinions in adjudication cases. The Commission on Appeals disagreed, arguing that the CCM authority was “advisory.” So the Synodical President succeeded in getting rid of the Commission on Appeals and giving the CCM binding legal authority through constructing a new adjudication system in 1992.

In 1990 the synodical president and LC-MS board of directors were warned that the CCM rulings are rendered ex parte ( see here ), without notice, and without hearing, and are therefore not in accord with the requirements of due process. Due process includes proper notice to all parties, requirement that all parties be present, and a fair and unbiased hearing. The president and board of directors were warned that to give finality to CCM rulings, in many cases, will have the effect of denying notice, compulsory presence, and a fair and unbiased hearing to those who appear before the adjudicatory commissions, in those cases where theological and constitutional issues are involved. Neither the CCM nor the CTCR provided these due-process safeguards in making their “binding” rulings in 1990 and they still don’t today. This means that all synodical church-workers are not only denied the federal and state protections that are given to employees in all other lines of work (see Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 565 U.S.__ [2012]), but they are also denied due process, in many cases, within the church courts themselves.

So what can we do about this, besides adopting resolutions 4-07 and 4-09? I gave one suggestion for dismantling the CCM here. If that is too sudden for the delegates, then they should consider adopting Overture 6-26 (p. 244 in Today’s Business, found here ). This would be a substitute resolution in place of Resolution 6-16 (see p. 142-143 in 2013 Convention Workbook, found here ). Delegates need to learn about the “Behnken Rule” in order to accomplish that parliamentary move (see the “Special Standing Rules” at the beginning of Today’s Business). We can thank the Montana District Board of Directors for keeping at this subject for many years. Maybe this time the synodical convention will listen to them.

I believe in the competence of the common man and the rank-and-file pastor. I agree with the Supreme Court that “the ordinary man has a right to rely on ordinary words addressed to him.” This was the premise of Luther’s Reformation based on the Word of God. This was the premise of layman’s authority in the church given to us by the forefathers of the Lutheran Church–Missouri Synod. Maybe the laymen and the rank-and-file pastors can reaffirm that premise in July 2013 at Saint Louis by adopting Resolutions 4-09 and 4-07 and Overture 6-26.


What’s Wrong with the Commission on Constitutional Matters? — 31 Comments

  1. Why stop there?

    Why not give both the CCM ***and the CTCR*** a gold watch and a round of applause?

    Think of the dollar savings in these tight financial times–what, a million or more?

  2. Relevant to the Resolutions 4-09 and 4-07 are the discussion (or implications) during two recent CCM conference calls.

    In the Commission on Constitutional Matters Telephone Conference Call, May 31, 2013, the minutes contained only this business related text:

    206. Convention-Related Issues

    The commission began this discussion in executive session to discuss certain sensitive matters. It then exited executive session to discuss at length proposed 2013 Res. 4-09 and CCM Opinion 11-2598.

    In the Commission on Constitutional Matters Telephone Conference Call, June 6, 2013, the minutes contained only this business related text:

    206. Convention-Related Issues

    The commission continued its discussion from its May 31 telephone conference call meeting. After lengthy discussion of Opinion 11-2598 and proposed Res. 4-09, it was agreed (1) to invite conversation with the President of the Synod on this subject on Wednesday, July 17 (Secretary Hartwig will pursue arranging this meeting); and (2) to request time with Floor Committee 4 to discuss Res. 4-09 when the committee meets just prior to the convention (Chairman Sohns will write a letter requesting time and sharing resource materials that were given consideration by the commission in arriving at Opinion 11-2598).

    An image of a smoke-filled backroom at the IC comes to mind.

    Members of the Commission on Constitutional Matters:
    (Chairman) Sohns, Wilbert J., Gatesville, TX
    Esala, Philip J., Centerville, OH
    Gude, George J., Dorsey, IL
    Hartwig, Raymond L., St. Louis, MO
    Lorenz, Daniel C., Portland, OR
    Owen, R. Neely, Keswick, VA

  3. Dear Carl,

    Thanks for the additional data.

    It should also be mentioned that, according to the bylaws, the Secretary of Synod, Dr. Ray Hartwig, is an ex officio member of that commission and is a non-voting member. In other words, he has to do a whole lot of work and has no say on its decisions. That means, also, that three members of the commission can control all the decisions. Modern technology with conference calls and online groups makes that very easy to do.

    So if someone faults a decision of the CCM, that fault does not rest on Dr. Hartwig’s shoulders, and possibly not on two other members either. I did not intend to name the individuals on the Commission, but since you did, I think it is important to realize where credit or blame may lie.

    I hope that synodical delegates realize that more is involved here than simply particular decisions. There is a long-standing problem with CCM authority and functions–and that also needs to be addressed.

    Yours in Christ, Martin R. Noland

  4. If the convention decides to keep the CCM, they should require that CCM opinions be issued with the voting members identified as to whether they voted for or against the issued opinion.

    After all, the CCM shouldn’t need to maintain top-secret security like the Opus Dei or the United List. 😉

  5. Did the CCM decide that Pastor Robert Steunkel (LC-MS) could commune with his wife (ELCA)? Isn’t this the “real issue” behind their sophistry about “taking part” in sacramental rights, etc.?

    If this is the case, it strikes me that the ccm’s perversions are less about ideas and more about personal friendships.

    Thoughts from the more informed?

  6. Todd Wilkens at thebarebulb.com wrote a nice piece on “taking part”. Everyone should go there and read it along with the comments.

  7. Rev. Dr. Noland,

    Would you happen to have an email address that I may contact you directly?

    I am a lifelong Lutheran and first time convention delegate and have many questions.

    Thank you,

    Daniel Wilant

  8. @Dan #7

    Dear Mr. Wilant,

    Thanks for your question. Like all LCMS rostered workers, my contact information is available here: http://locator.lcms.org/search.asp I avoid putting e-mail addresses on web-sites, blog posts or comments, because of the threat of web-bots.

    The locator includes my e-mail address, which I always keep updated. We are expecting a change in Internet service at the office soon, so I will change it at the LCMS Locator as soon as that happens.

    For you and others who might write, I try to respond to e-mail the same day of receipt, but only do so from the office, since that is where all my files and books are located. Normal hours are usually 9-5, M-F. I am not in the office on weekends and holidays.

    Yours in Christ, Martin R. Noland

  9. @Dan #7,

    Besides any theological advice Rev. Noland will provide you, here’s one recommendation to you as a delegate: Memorize as much as you can of the Robert’s Rules of Order book you have undoubtedly already read and will be taking with you.

  10. @J. Dean #10 : “Is there any sort of check on the CCM’s power?”

    According to Bylaw (c), “An opinion rendered by the [C]ommission [on Constitutional Matters] shall be binding on the question decided unless and until it is overruled by a convention of the Synod. Overtures to a convention that seek to overrule an opinion of the commission shall support the proposed action with substantive rationale from the Constitution, Bylaws, and resolutions of the Synod.

    However, according to Bylaw, “The Commission on Constitutional Matters shall interpret the Synod’s Constitution, Bylaws, and resolutions upon the written request of a member (congregation, ordained or commissioned minister), official, board, commission, or agency of the Synod.”

    Also Bylaw states, “The Commission on Constitutional Matters shall examine all reports, overtures, and resolutions to the Synod asking for amendments to the Constitution and Bylaws of the Synod or which in any manner affect the Constitution and Bylaws, to determine their agreement in content with the Constitution and Bylaws of the Synod.”

    So if the CCM doesn’t agree with an overture or resolution dealing with a CCM opinion or the CCM, it can either refuse to approve the overture, interpret the resolution, or determine the resolution is not in agreement with the Constitution and Bylaws.

  11. “In all such cases, [“pertaining to theological or constitutional issues”] the Courts of the United States may assume jurisdiction if they find that the adjudicatory process of the church did not meet the requirements of due process.”

    Really? What is your source for this information? Sounds like pure propaganda to me. Pastor Noland, are you a lawyer too? – Oh, right, you stayed in a Holiday Inn last night.

  12. Thanks, Dr. Noland for an excellent article. I appreciate your interpreting the CCM opinions. They are not “ordinary words” to me either.

    Thanks, Carl Vehse for your insights and research into the matter.

    God’s Blessings in Christ Jesus,
    Ginny Valleau

  13. 2013 Delegates:

    Here are suggestions to add to the beginning of the Resolveds of Res. 6-16:

    Resolved, That all past CCM Opinions be advisory and that all future CCM Opinions be advisory only; and be it further

    Resolved, That all past decisions of synodical boards, panels, etc., that were based on CCM Opinions, be upheld; and be it further

    Ginny Valleau

  14. 2013 Delegates:

    Here is a brand new resolution:

    Background: The Commission on Constitutional Matters (CCM) has caused much controversy in Synod because they have the authority to produce Opinions that are binding on Synod and Synod Members may not even be aware of the Opinions. The CCM now rules on theological matters (Opinion 11-2598) without any authority from Synod. The fact that their opinions are binding places them above God’s Word, the Lutheran Confessions and the Synod Constitution and Bylaws.

    Further, the appointment process for the CCM (appointments made by the President of Synod from names submitted by the Council of Presidents) is biased.

    WHEREAS, Since the LCMS places God’s Word above all of man’s opinions and the Commission on Constitutional Matters (CCM) has tried to exceed the authority of God’s Word, therefore be it

    Resolved,, That the CCM be dissolved effective July 26, 2013.

    Ginny Valleau

  15. According to LCMS Bylaw 3.1.6:

    “Reports and overtures shall be submitted to the President of the Synod not later than 20 weeks prior to the opening date of the convention.”

    “(a) No report or overture received subsequent to that date shall be accepted for convention consideration unless a committee consisting of the President, the First Vice-President, and the Secretary adjudge it to be a matter of overriding importance and urgency which is not adequately covered by documents already before the convention.”

  16. @Dave Schumacher #12

    Mr. Schumacher,

    I have been working on this issue since the synod first created this system in 1992. Since that time, which is now over 20 years, I have asked numerous lawyers–LCMS, Christian, and non-Christian–this question:

    “Will the Courts of the United States assume jurisdiction if they find that the adjudicatory process of the church did not meet the requirements of due process?”

    Some said yes, some said no, some admitted they didn’t know.

    The book I have relied on over the years is Richard B. Couser, Ministry and the American Legal System (Miinneapolis: Fortress Press, 1993). It is still the standard work on this subject. It is clear from Couser that the courts will not attempt to judge matters of theology. Nor will they attempt to judge on matters of church polity or procedures, since almost every church has a unique polity and ways of doing things.

    But they will judge and assume jurisdiction in cases of fraud, according to Couser. I quoted the page number in Couser where he says this at the end of my 1994 speech “Law and Due Process in the Kingdom of the Left and the Kingdom of the Right,” which you can find cited in footnote 10 of my recent Lutheran Clarion article.

    The Grassley US Senate Committee on Finance investigations (2007-08) prove that the government is very interested in non-profit, religious fraud when it comes to excessive remuneration and closely-held religious corporations. Three of the ministries investigated claimed that they were immune, but the Senate disagreed. I don’t know the final outcome of that.

    The recent IRS investigations of conservative religious organizations also demonstrates the government concern–and rightly so–that some religious organizations are religious false-fronts pasted on a political advocacy group. This is another type of fraud.

    I am saying that a church court system which claims to be impartial, fair, and unbiased, but which by design and in actual practice is not impartial, fair, and unbiased and is in violation of standard notions of “due process”–is in fact a fraud. “Fraud” is “fraud.” Maybe the civil courts are only interested in financial fraud; but that doesn’t seem to be what Couser was saying.

    Therefore based on Couser, on this logic, and all the lawyers who can’t agree on the subject, I concluded that the courts may assume jurisdiction. I didn’t say that they will.

    I am not giving legal advice. I am giving counsel to my synod to think about these matters and give careful attention to them. LCMS rostered church-workers may someday regret that they did not do this when they had a chance. It is their careers and livelihood which is at stake.

    Yours in Christ, Martin R. Noland

  17. @diesirae #5

    Dear Mr. “Days of Wrath,”

    I explained the CCM’s ruling 11-2598 here: http://lutheranclarion.org/images/NewsletterJul2013.pdf

    The CTCR first upheld Article VI.2b. Then the CCM voided it. The case did begin in the Rocky Mountain District. I don’t think the official “opinions” referred to people by name, and that is a good practice, as I have explained before.

    It is unfair to the CCM to say that “personal friendships” were the reason for the ruling. The LCMS is actually a “pretty small world,” and a lot of people are “friends” with each other. The real issue is whether or not the CCM was willing to uphold the LCMS Constitution. It was not. The person posing the official question to the CCM may have known the CCM’s position in advance. Why the CCM did not uphold the constitution remains a mystery. Trying to answer that question does not help solve the problem. Let’s solve the problem, not find scapegoats.

    Yours in Christ, Martin R. Noland

  18. Can anyone explain the issue driving 4-08 “To Retain Trinitarian Formula When Baptizing”. The rest of the resolutions in this area are driven by ongoing issues….. A bit surprised to see this particular resolution.

  19. @Vincent #22
    At our circuit meeting last week our pastoral delegate said that some in the Synod had been using the phrase ‘Creator, Redeemer, and Sanctifier’ in baptisms.

  20. diesirae :Did the CCM decide that Pastor Robert Steunkel (LC-MS) could commune with his wife (ELCA)?

    This got talked about a few months back at ALPB.

    Pr. John Hannah (I believe an Atlantic circuit counselor) said he has been reinstated, immediately followed by a handful of other assumed liberals rejoicing. But if you read the entire thread (which I keep up to date on when I lurk) I don’t ever remember an official source cited. (and I am not going to reread all 63 pages/931 posts to find out) I also don’t remember any hay made out of it at LutherQuest.

    Considering that we have a resolution to vacate the CCM OPINION, my guess is that this was read as you state: it’s okay to commune as heterodox/apostate e_ca congregations. Our pattern has been “let them stay on the roster.” It has worked for Benke/Yankee Stadium, Becker at Valpo, and forced Pres. Harrison to apologize for Newtown interference.

  21. @Vincent #22

    Because e_ca is using it, and more frequently. Their emasculation of the Godhead is one of the many issues the LC-MS is having with them. I hear their new hymnal has 10 Divine Service settings (too many options???), and half of them are gender neutral. (I really need to get myself a copy of it)

    And as an example, I found a cute retort by Peter Speckhard, and LC-MS layman and ALPB moderator, to Charles Austin, infamous e_ca cheerleading pastor newsman. Read the link to see the original. 🙂

  22. @Dave Schumacher #18

    Re. “Holiday Inn” joke

    Dear Mr. Schumacher,

    Apparently you have not read Plato. E.g., in the Protagoras, both Socrates and Protagoras agree that matters of virtue and justice are not fields that are the domains of specialists or experts, but of all “citizens.”

    In Western civilization, every citizen has been expected to understand virtue and justice, and do his duty for his city by participating in matters of government. The fact that many people are incapable of doing so today is due to changes in American education over the last fifty years. We have become a culture of passive consumers, instead of active participants in our culture.

    I am not a “rocket scientists,” “nuclear physicist,” or “lawyer,” nor has my work on the CCM been exceptional. I am just doing my duty as an LCMS church historian in matters that are the domain of all people in the synod.

    Delegates to the synodical (or district) conventions should be selected for their common sense knowledge and for some knowledge of LCMS affairs and government. This also is not the domain of specialists.

    Part of the role of the synodical historian is to educate the synod public in matters of “church civics.” My predecessors in office at Concordia Historical Institute (CHI) all did that faithfully and superbly; their many books and articles testify to that.

    The real reason that CHI exists is to educate the LCMS public (i.e., layman and rank-and-file pastor) in our history and polity, so that they can participate intelligently in the government of congregations, circuits, districts, and synod.

    I encourage you and BJS bloggers to read some of the excellent church history works by August Suelflow, C.S. Meyer, W. G. Polack, Ludwig Fuerbringer, Walter Forster, Carl Mundinger, Roy Suelflow, and others (see http://www.cph.org; other resources can be found at http://www.lutheranhistory.org ). It will help you appreciate the unique and truly Lutheran government that the LCMS has.

    For many first-time convention delegates, the national convention is an eye-opening experience into just how big and blessed our church-body is. They should take that insight and put it to work in learning about our history when they get home.

    Delegates who may have some time to visit the International Center should go down to the second floor and walk through the CHI Museum there. A quick walk through might take twenty minutes. If you really want to read and learn, it might take an hour.

    Yours in Christ, Martin R. Noland

  23. >>The rest are in the minutes of the CCM, which only recently became available online here.

    Dr. Noland, the CCM meeting minutes have been posted on the LCMS website at that location for at least the last six years that I have been looking at them (since 2007), as have the CTCR’s (http://lcms.org/ctcr) and BOD’s (http://lcms.org/bod).

  24. Vincent :
    Can anyone explain the issue driving 4-08 “To Retain Trinitarian Formula When Baptizing”. The rest of the resolutions in this area are driven by ongoing issues….. A bit surprised to see this particular resolution.

    I believe the final resolved explains the most important issue.

    In receiving new members, it is no longer sufficient to ask, “Were you baptized?” Now the question will need to be, “Were you baptized in the name of the Father and of the Son and of the Holy Spirit.” Some Christian denominations have recently begun allowing or using other baptismal formulae which bring into question whether the person so “baptized” actually received a Christian baptism. This resolution seeks to make the synod aware of this issue and to help pastors and congregations respond to it.

  25. If the synodical convention approves the CTCR’s April 2012, report, “Response to Human Sexuality: Gift and Trust” (Todays Business, p. 391ff), in which the CTCR declared,

    “The ELCA has now taken this step, embodying apostasy from the faith once delivered to the saints.”

    another question will have to be asked, “Were you ‘baptized’ in the XXXA during or after April 2012?”

  26. @Tim S. #28

    Dear Tim S.,

    Thanks for letting our readers know this. “Recently” is a comparative term, since I began studying the history, resolutions, etc. of the synod back when I was in college, ca. 1976. The only accessible materials back then were in Convention Workbooks and Proceedings, which were in the reference section at Klinck Memorial Library at CU-River Forest.

    Yours in Christ, Martin R. Noland

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