CPH Not Permitted to Dispense with Doctrinal Review on Its Own

Bylaw 1.9 of The Lutheran Church–Missouri Synod (LCMS) ordinarily requires that material of a religious or theological nature be submitted to the Synod’s prescribed procedure for doctrinal review before publication. Boards, commissions, and subordinate groups of the Synod may, however, dispense with doctrinal review for study documents and exploratory material. (We will see what “study and exploratory material” means below.) Such unreviewed material must be plainly designated as such.

Recently the Commission on Constitutional Matters (CCM) of the LCMS published an opinion about whether Concordia Publishing House (CPH) may dispense with doctrinal review on its own. In other words, for material not originating with some other board, commission, or subordinate group of the Synod where that other entity is exercising its prerogative to dispense with doctrinal review, but originating instead in CPH itself, may CPH dispense with doctrinal review autonomously?

In history, CPH has published material without doctrinal review when the publication originated from some other entity in the Synod that may direct CPH to publish it for them simply because CPH is the synodical publishing house. In such cases, CPH is not itself dispensing with doctrinal review. It is serving another entity of the Synod that has its own prerogative and is exercising it.

In history, CPH also has published material without doctrinal review, but with approval from the Commission on Doctrinal Review (CDR). An example is Albrecht Peters’ commentaries on Luther’s catechisms. Those commentaries, while useful, contain higher critical treatments of Scripture contrary to the doctrine of the Synod. CPH published them and the preface said, “We thank the Commission on Doctrinal Review of The Lutheran Church—Missouri Synod for their approval to publish these volumes for study purposes.” Thus, CPH did not dispense with doctrinal review on its own. The material was submitted to the CDR and CDR granted approval to publish them. They were marked with the warning required by Bylaw 1.9 that they were not doctrinally reviewed and contain some material contrary to the doctrine of the Synod.

The CCM’s new decision was made in its June 8-11, 2023 meeting. Its new opinion is No. 23-3010. It appears on pages 36-37 of 2023 Today’s Business, First Edition, for the upcoming triennial synodical convention. There you can read it for yourself.

The upshot of the CCM’s ruling is that CPH may not dispense with doctrinal review on its own for materials to be disseminated to the public of a religious or theological nature. It is important to see how the CCM reached this conclusion. The best way for its rationale to be presented is via extensive quotation.

[T]he category of “study documents and exploratory material” (Bylaw 1.9.1.1 [b]) is not without limitation. Since this term is not defined within the Bylaws, we must look to the natural meaning of the term and the context in which it is used. The most natural import of this term is that it is intended for a limited purpose. Indeed, the notice that is required under Bylaw 1.9.1.1 (b) for such materials includes that the material “is being released for study and discussion purposes.”

Could any board, commission, or other subordinate group produce material for study on any topic? Could, for instance, the Commission on Constitutional Matters produce study materials on exegetical or doctrinal topics? By no means. There must be a nexus between the Synod’s charge of the board, commission, or other subordinate group and the study materials it is producing. In the previous example, the Commission on Constitutional Matters is not charged under the Constitution and Bylaws with matters of exegesis or doctrine; therefore, it would not be appropriate for the commission to be producing such study materials outside of its purview. Any such materials would not aid the commission in the carrying out of its duties; instead, the production and publication of such would be more of a usurpation of responsibilities assigned to others under the Constitution and Bylaws. The commission finds that the scope of “study documents and exploratory material” conceived of as being produced, possibly without doctrinal review, by a given “board [], commission [], or other subordinate group [] of the Synod,” is limited by the specific charge given to the particular entity in the Constitution and Bylaws of the Synod. Materials that would not be in keeping with the charge of a particular “board [], commission [], or other subordinate group [] of the Synod,” are not hereby authorized to be produced and published by that group. (Of course, where CPH is not itself generating a work but “supply[ing] publishing and distribution services for the agencies of the Synod as required,” Bylaw 3.6.3 [a], the applicable limitation on the scope of “study documents and explanatory material” is determined by the charge of the entity generating the document. The generating entity also bears the burden of satisfying the applicable requirements of doctrinal review.)

This understanding of Bylaw 1.9.1.1 (b) comports with the history of that bylaw and historical practice. As originally enacted in 1971, the provision that has become Bylaw 1.9.1.1 (b) read:

“The right to produce study documents and exploratory material plainly designated as such and published by boards, commissions, or other subordinate groups of the Synod is recognized. When such material is to be issued publicly, it shall be subject to doctrinal review.”

It is clear from this language that study materials were meant to be used by a particular board, commission, or other subordinate group (which use could include dissemination to a sphere of competent discussion partners in a study process of limited scope); not publicly. And if such materials were to be used by a particular board, commission, or other subordinate group, it naturally follows that such materials would be related to the charge of that board, commission, or other subordinate group. A key aspect of this system is discernment. A particular board, commission, or other subordinate group and its “sphere” as described above is competent to review and evaluate critically those items which fall within its purview. This discernment is also a key aspect of the related concept of dissenting from doctrinal positions of the Synod, wherein objections are first raised “within the fellowship of peers (that is, with those who are competent to evaluate the issue critically)” (Bylaw 1.8.2) and then to the Commission on Theology and Church Relations. It would be nonsensical for a group to produce study material unrelated to its charge but to be used only by that group. Instead, these materials serve essentially as “penultimate” documents intended to result in a clearer or more correct public presentation of doctrine or practice in subsequent documents or efforts. Given this context, it is not surprising that the bulk of the study documents historically have originated with the Commission on Theology and Church Relations (Bylaw 3.9.5), which has explicit charges in this regard (Bylaws 1.6.2 [b][1-2], 1.8.2, 3.9.5, and 3.9.5.2-3.9.5.2.1).

In 2007, the language of Bylaw 1.9.1.1 (b) was changed by deleting the final sentence of the original language (as included above) and inserting the provisions related to the required notice that exists in the current version of the Bylaw. The commission finds that the 2007 change did not fundamentally change the scope or purpose of “study documents and explanatory materials.” It changed the potential scope of distribution of such materials by removing the restriction on public issue of such items prior to doctrinal review. It did so while continuing to satisfy the concern that such documents be shared with discernment and not be understood as reliably teaching the doctrine of the Synod by requiring them to feature prominently the noted caution (Bylaw 1.9.1.1 [b]).

Since CPH’s edition of Albrecht Peters’ Commentary on Luther’s Small Catechism (2009-13; hereafter, Commentary) was cited as an example in the materials provided to the commission related to this question, the commission finds it necessary to briefly discuss historical materials with doctrinal content (that is, falling under Bylaw 1.9.1.1 [a]; cf. Bylaw 3.6.3 [d]). Unlike materials that have not been published yet or materials of which the author is still living and able to make changes, these historical materials are not malleable. Yet, these texts may contain positions on doctrine that are not in alignment with Synod’s positions. The Bylaws do not provide an exception to doctrinal review for these materials, unless their distribution is contemplated strictly within the parameters of “study documents or exploratory materials” described above; their “historical” nature does not of itself render them such.

The commission notes that the doctrinal review of these “historical materials” may require a more nuanced approach by the Commission on Doctrinal Review. One possibility for approval of such documents that are, on a whole, profitable for use, with discernment, in the Synod would be for the originating body to identify and include clearly in prefatory or other accompanying published material, to the satisfaction of the Commission on Doctrinal Review, statements identifying doctrinal errors or statements that are “inadequate, misleading, ambiguous, or lacking in doctrinal clarity” (Bylaw 1.9.2 [f]) in the historical texts. “[P]ositions deviating from the doctrinal resolutions of the Synod” shall be “clearly identified as such” (Bylaw 1.9.2 [g]). It may be a more difficult path to follow, but the path cannot be avoided as the Bylaws require such review. While the Commentary preface included the statement that the content had not been doctrinally reviewed, its being a study document, it also included such statements, which may—given the apparent intended audience of the work—satisfy any concerns about doctrinal statements included in the historical text itself (which obviously cannot simply be adjusted away).

With respect to CPH specifically, it is a “board[], commission[], or other subordinate group[]” under Bylaw 1.9.1.1 (b) and is therefore able to produce study materials. But as with any other board, commission or subordinate group, the study materials it can produce are those that relate to matters that fall within its purview. CPH’s purpose is “to proclaim the Gospel of our Lord Jesus Christ.” (Bylaw 3.6.3). It does this “by developing, producing, marketing, and distributing” certain materials (ibid., emphasis added). Study materials produced by CPH, with no other originating board, commission, or other subordinate group, would be limited to study and exploration of development, production, marketing, and distribution. This sphere of responsibility would be very unlikely to generate a study document in the sense contemplated here. Bylaw 3.6.3 (d) requires that any of those materials CPH publishes that are of a religious or theological nature must be “approved through the Synod’s prescribed procedure for doctrinal review before publication.” (The interplay of Bylaws 3.6.3 [d] and 1.9.1.1 [b] will be discussed in the below opinion). This restriction makes sense in that if CPH were to publish materials that were not doctrinally sound, it would undermine its purpose of proclaiming the Gospel of Jesus Christ.

Some takeaways are (to avoid constant repetition of the phrase “board, commission, or subordinate group of the synod,” they will be referred to simply as “entities.”):

• There is no entity that may dispense with doctrinal review on just any topic, in just any purview, realm, or sphere.

• For any entity to dispense with doctrinal review, there must be a nexus between the Synod’s charge to that entity and the material. Entities are limited to their purview, realm, or sphere as assigned to them by the Synod.

• Like every entity, the Board of Directors of CPH is limited to its own purview, realm, or sphere as assigned to it by the Synod.

• “Study materials produced by CPH, with no other originating board, commission, or other subordinate group, would be limited to study and exploration of development, production, marketing, and distribution.”
  
  Why? Because that is its charge, purview, realm, or sphere. CPH must stay in its lane.

• “This sphere of responsibility would be very unlikely to generate a study document in the sense contemplated here. Bylaw 3.6.3 (d) requires that any of those materials CPH publishes that are of a religious or theological nature must be ‘approved through the Synod’s prescribed procedure for doctrinal review before publication.’ … This restriction makes sense in that if CPH were to publish materials that were not doctrinally sound, it would undermine its purpose of proclaiming the Gospel of Jesus Christ.”

I am thankful for two things in this event:

1. That CPH submitted the question to the CCM instead of going off rogue. Kudos to the CPH Board of Directors for its properly submissive approach.
   
   
2. The CCM’s opinion and rationale. The rationale is clear, sensible, and definitive. Beyond just answering the inquiry submitted about CPH, the rationale covers many synodical entities and shows how the various entities coordinate. Each entity has a “lane” so to speak – its charge, purview, realm, or sphere – and is to stay in its own lane.

With some of the goings on in the synod these days, such as the rebellion of the Board of Regents of Concordia University Texas, it would have been an inopportune time to give any encouragement to any entity of the synod to go rogue and exceed its charge. The CCM has taken an excellent step is safeguarding the doctrinal fidelity of our synod.