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