From: President Gerald B. Kieschnick
Subject: LCMS Board of Directors and Bylaws
Regarding: Opinions of Commission on Constitutional Matters
Date: May 23, 2004
In accord with the Constitution of The Lutheran Church–Missouri Synod it is my duty as president to report to the Synod that the Board of Directors of the LCMS (BOD/Board) has taken actions that “may be in violation of the Constitution, Bylaws and resolutions of the Synod” (Bylaw 3.101 B 5). The primary issue at hand is the adoption of two resolutions by majority vote of the Board at its meeting in Miami, November 20-22, 2003, stating that the Board “cannot agree with or accept” eight specific opinions of the Synod’s Commission on Constitutional Matters (CCM/Commission) and declaring these opinions “of no effect.”
Specifically, the Board of Directors resolved that:
- “for the sake of the Synod and its best interests, present and future, and in carrying out its fiduciary obligation to comply with the Constitution, Bylaws, and resolutions of the Synod, (the Board) cannot agree with or accept” the eight specific opinions of the Commission;
- “because the CCM exceeded its authority and acted contrary to the Constitution, Bylaws, and resolutions of the Synod when issuing Opinions 02-2259, 03-2357, 03-2358, 03-2359, and 03-2365, those opinions are of no effect;” and
- “CCM Opinions 02-2296, 02-2309, and 03-2330 (sic — actually CCM Opinion 02-2320) are of no effect to the extent that they purport to prevent a member who has persisted in offensive conduct (such as criminal conduct or immoral lifestyle) from being expelled from the Synod …”
For many months the BOD has expressed concern about these CCM opinions, resulting from the Board’s acute awareness of its responsibilities as “the legal representative of the Synod and the custodian of all of the property of the Synod” (Bylaw 3.181). Especially during the past 6 months the Board and Commission have exchanged dialog regarding this matter. As President of the Synod and a member of the BOD, I have both understood the Board’s proper concerns for protection of Synod assets from liability or litigation and also questioned Board actions and decisions regarding these CCM opinions.
In response to various questions regarding ecclesiastical supervision and general fiscal and supervisory authority of the BOD, the CCM had rendered its official opinions in three separate meetings from June 2002 to September 2003. The CCM later affirmed its opinions and clarified its opinion regarding ecclesiastical supervision by indicating, in part, that “The protections of one’s membership in the Synod (are) not a protection from the duty and responsibility to constantly consider the appropriateness of one’s actions in view of the Word of God Opinion 02-2309 specifically references official duty and action, not personal offensive conduct Thus, personal offensive conduct or conduct that is illegal or criminal can certainly not be included in the context of the quoted prior opinion” (03-2338).
The Bylaws of the Synod state that a CCM opinion “shall be binding on the question decided unless and until it is overruled by a synodical convention” (Bylaw 3.905 d). The Constitution of the Synod clearly stipulates, “The officers of the Synod must assume only such rights as have been expressly conferred upon them by the Synod” (LCMS Constitution Article XI A 1). The rights conferred upon the Board of Directors “to call up for review, criticism, modification, or revocation any action or policy of a program board, Commission, or council” specifically and expressly exclude the rights to do so with “opinions of the Commission on Constitutional Matters” (Bylaw 3.183 d 2).
Summarily, the position of the Synod is that any congregation or other entity of the Synod taking issue with any or all opinions of the Commission on Constitutional Matters, if it is entitled to submit an overture to a convention of the Synod (Bylaw 3.19 a 2), may ask a synodical convention to overrule that specific opinion. Unless and until the Synod in convention overrules an opinion of the CCM, it is binding. No individual, congregation, board, agency, commission, council or other entity of the Synod has the authority to ignore the binding nature of CCM opinions unless and until those opinions have been overruled by the Synod itself, including the Board of Directors, which, as mentioned above, is expressly forbidden by the Bylaws of the Synod from doing so.
This official report comes at the conclusion of many months of numerous meetings and collegial communications with the BOD, CCM and Council of Presidents, addressing the propriety of the Board resolutions and Commission opinions. Most recently, in late April I phoned or visited each individual member and officer of the BOD to be certain I fully understood the perspective of each, particularly those who voted in favor of the two resolutions in question. In addition, on May 4, 2004, I wrote to each Board member and officer a letter including these concluding paragraphs:
“In light of such clear wording of the Constitution, Bylaws and synodical resolution (Resolution 7-03C of the 2001 LCMS Convention) referenced above, it is my duty to express this pastoral admonition, evangelical plea and respectful request that the Board of Directors alter or reverse the two resolutions adopted by majority vote at the November 20-22, 2003, Board meeting in Miami. I respectfully ask for a response from the Board to this letter not later than the conclusion of the next regularly scheduled meeting of the Board May 20-22, 2004. Thank you for your serious and prayerful consideration of this request.
“Please be assured that this letter is written with deep concern for each individual member of the Board, with absolute respect for the duties to which we have been elected by the Synod and with resolute commitment to my constitutional duties and obligations as President of the Synod. One such duty is to see to it that all officers, including the Board of Directors, “act in accordance with the Synod’s Constitution, to admonish all who in any way depart from it, and, if such admonition is not heeded, to report such cases to the Synod” (LCMS Constitution Article XI B 2).”
During the referenced May 20-22 BOD meeting just concluded, the Board of Directors discussed this letter of pastoral admonition. Its response was the adoption of a resolution entitled “To Encourage the Synod to Adopt Commission on Structure Overtures.”
Following prayerful consideration, reflect
