LCMS Convention Workbook St. Louis, Missouri — 2010, Page 256

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256

OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS

Synod can legitimately and in good faith urge that the rights granted
under the state and federal constitution supersede or preempt an apparent conflict with non-profit laws of the State of Missouri. To the
extent considered necessary or appropriate, the board may choose to
interact with secular authorities to assure that the State of Missouri
recognizes the validity of the governance model chosen by the Synod.
Question 2: Bylaw 3.3.5.2 states: “The Board of Directors shall have
the powers and duties that have been accorded to it by
the Articles of Incorporation, Constitution, Bylaws, and
resolutions of the Synod, and the laws of the State of
Missouri. If there is a conflict between the “governing”
documents of the Synod and “the laws of Missouri,”
should the Synod’s Board of Directors, as the Synod’s
legal representative, defend the Synod’s right to govern
itself (granted under its First Amendment rights) or turn
over the governance of the Synod’s ecclesiastical and
secular business to a “secular” state government’s directives (laws)?
Opinion: See the answer to question 1.
[Note: After again referencing Bylaw 1.2.1 (d) (3) and Bylaw
3.3.5.2, as well as sections of the Missouri Religious Freedom Restoration Act, the writer referenced excerpts from section 175 of the
November 2006 Board of Directors minutes:
The chair ruled that the motion was in order because it was not included in the previous action. After discussion, the resolution was adopted as follows (Yes: 7; No: 6):
Resolved, That in consideration of the Board’s discussions of its authority held on November 16, 2006, the Board reaffirms its responsibility to abide by civil law, recognized in Bylaw 1.2.1 (d) (3).]

Question 3: (a) In addition to honoring the non-profit laws of the
State of Missouri (Chapter 355), would not the Board
of Directors also have to protect the rights of the Synod
as granted in Missouri Law as found in Section 1.303,
1.307, and 1.020 (11)? (b) Even if Missouri’s non-profit
laws are considered “laws of general applicability,”
would the laws of the State of Missouri’s own Religious
Freedom Restoration Act (as found in the Missouri
Code Section 1.302 [and 1.307]) serve to maintain the
Synod’s “authority and autonomy”?
Opinion: In response to part (a) of this question, the Synod has expressed clearly in Bylaw 1.2.1 that it intends to retain all authority
and autonomy allowed a church under the laws and Constitution of
the United States and the State of Missouri. It is the responsibility
of the Board of Directors to carry out that bylaw. Regarding part
(b) of this question, again, the Commission is not charged with the
responsibility for interpretation of the laws of the state of Missouri.
[Note: The questioner here quotes in part Bylaw 3.9.2.2 of the
Synod’s Bylaws: “The Commission on Constitutional Matters shall
interpret the Synod’s Constitution, Bylaws, and resolutions upon
the written request of a member … of the Synod.” He then notes
that the “Brief Statement” was adopted in a resolution by the Synod
in 1932 and quotes from it:
Accordingly we condemn the policy of those who would have the
power of the State employed “in the interest of the Church” and who
thus turn the Church into a secular dominion; as also of those who, aiming to govern the State by the Word of God, seek to turn the State into
a Church.]

Question 4: What is meant in Chapter 34 of the “Brief Statement”
by the phrase “turn the Church into a secular dominion,” as in the statement: “Accordingly, we condemn
the policy of those who would have the power of the

State employed ‘in the interest of the Church’ and who
thus turn the Church into a secular dominion”?
Opinion: The full text of the referenced section of the “Brief Statement” reads:
34. Although both Church and State are ordinances of God, yet
they must not be commingled. Church and State have entirely different aims. By the Church, God would save men, for which reason the
Church is called the “mother” of believers Gal. 4:26. By the State, God
would maintain external order among men, “that we may lead a quiet
and peaceable life in all godliness and honesty,” 1 Tim. 2:2. It follows
that the means which the Church and State employ to gain their ends are
entirely different. The Church may not employ any other means than the
preaching of the Word of God, John 18:11, 36; 2 Cor. 10:4. The State, on
the other hand, makes laws bearing on civil matters and is empowered
to employ for their execution also the sword and other corporal punishments, Rom. 13:4.
Accordingly we condemn the policy of those who would have the
power of the State employed “in the interest of the Church” and who
thus turn the Church into a secular dominion; as also of those who, aiming to govern the State by the Word of God, seek to turn the State into
a Church.

In the abstract, it would be impossible for us to discuss or delineate
all of the implications of this section of the “Brief Statement.” Fundamentally, the Synod recognizes that the church is ordained by God
to save men, and the state is ordained by God to maintain civil order
among men. The questioned reference is to those who would have
the state assume the responsibilities and functions of the church, and
attempt to make the functions of the church the functions of the state.
Question 5: After making further references to excerpts from the
October 30, 2006, and November 15–17, 2006, minutes of the Board of Directors regarding motions made
and not adopted, the questioner raised issues regarding
the potential applicability of the earlier quoted section
from the “Brief Statement” to the action proposed and
defeated.
Opinion: Because the motions from the minutes of the Board of Directors quoted by the questioner were defeated and therefore never
adopted by the board, the commission believes that it would be
unhelpful to the Synod to comment on such failed motions.
[Note: The questioner here quotes from Synod Constitution Art.
XI, Section A, line 1: “Officers of the Synod must assume only such
rights as have been expressly conferred upon them by the Synod,”
and from the minutes of the October 30, 2006, and November 15–17,
2006, Board of Directors meetings: “This can be accomplished by a
declaration of the board explicitly stating that it will at all times and
in all respects follow Missouri Law and not allow the CCM to usurp
the legal authority of the Board of Directors” (sections 162 and 172 of
the minutes). The questioner then adds that this specific request was
made in the minutes by a member of the Board of Directors seemingly to restructure the Synod and more specifically to restructure the
authority of the Commission on Constitutional Matters supposedly to
comply with Missouri non-profit law without convention approval.]
Question 6: (a) Since the Synod’s structure was established by the
convention of the Synod, is this particular request by
a member of the Board of Directors to restructure the
Synod an exceeding of its authority and responsibility as
granted to the board by the Synod? (b) Does the Board
of Directors of the Synod have constitutional authority as found in the Synod’s organizational documents
(Articles of Incorporation, Constitution, or Bylaws) to
even demand such a change in the Synod’s structure and
disavow rulings of the Commission on Constitutional
Matters without Synod convention approval? (c) Is

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