LCMS Convention Workbook St. Louis, Missouri — 1998, Page 299

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OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS 299

of that board, since one position would be elective and the other
appointive. It would also allow for the same person to be elected to
the Board for Higher Education and to be appointed to a college or
university Board of Regents by members of the Board of Regents
under the provisions of Bylaw 6.01 b 3.

The majority of the commission believes that it is clear that the
Synod deliberately chose to limit the positions which a single indi-
vidual would be permitted to hold and the limitations are cited in
Bylaw 3.75 a.

Given these conditions, the majority of the commission con-
cluded that the same person may not serve on both the Board of
Regents and the Board for Higher Education even though that per-
son serves in one position by virtue of his office as a Vice-President
and in the other as the President's representative. It also concluded
that any Vice-President other than the one sitting on the Board of
Regents or, for that matter, anyone the President of the Synod
chooses may be appointed to serve as the President’s representa-
tive on the Board for Higher Education.

The commission believes that Bylaw clarification should be
provided and recommended that Bylaw 3.75 be referred to the Biue
Ribbon Committee on Structure for consideration.

Adopted Oct. 22, 1995

Congregational Constitution and Women’s Positions

The Chairman of the District Constitution Committee had writ-
ten to the Commission on Constitutional Matters, requesting that
it review the constitution of a congregation. The commission re-
sponded to the request by indicating that the guidelines for the con-
stitution and bylaws of a congregation which had been prepared by
the Commission on Constitutional Matters were just that, guide-
lines, no more. As Constitution Art. VII states, ‘... with respect to
the congregation’s right of self-government, it [Synod] is but an
advisory body.” It further stated that in keeping with that, it has
never been required that a statement about offices which women
may not hold must be included in the bylaws of the congregation.
This opinion was provided by the commission many years ago.
Nevertheless, when questions about this matter have been received
by the commission, it has always responded by saying that whether
or not the statement is included, congregations are expected to
honor and uphold the resolutions of the Synod, including any reso-
lutions referring to the issue of positions which women may hold in
the congregation.

Adopted Oct. 22, 1995

District Vice-President Membership Requirement

A letter had been received from a District Vice-President re-
questing an opinion regarding his removal from office by the Dis-
trict President because he was serving as the pastor of an indepen-
dent congregation. It was his contention that Bylaw 4.52 c of the
1992 Handbook does not intend to forbid the pastor on the clergy
roster serving an independent congregation from holding the office
of Vice-President of the District, and that Bylaw 5.11 supports that
argument since it specifically states that a Circuit Counselor may
be chosen only from the “member congregations of the Circuit or
from among the emeriti who hold membership in one of the mem-
ber congregations of that Circuit” while such specific language is
not found in Bylaw 4.51 a when giving the requirements for being
elected to the office of President or Vice-President or Circuit Coun-
selor. Bylaw 4.51 a, he stated does not intend to prohibit an emeri-
tus or a pastor of an independent congregation from being elected
to the office of President or Vice-President of a District. He noted
that a pastor on the clergy roster serving an independent congrega-
tion could be elected to the office of President of the District and
that if that office were full-time, the pastor could then resign his
call as pastor of the independent congregation, accept the office of
President, and join a member congregation of the District. He
would be treated the same as a pastor on the clergy roster serving
an educational institution or as a District staff counselor, or the like.

The commission began a discussion of the matter and before
concluding it, emphatically stated that its concern and considera-
tion was based on interpretation of the Bylaws of the Synod. Since

the Bylaws of a District cannot be in contradiction to the Bylaws of
the Synod, they must be interpreted in the context of the latter, i.e.,
the synodical Bylaws. With this understanding, the commission
stated that it had drawn the following conclusions:

1. Bylaw 2.15 c allows for membership in an independent congre-
gation as an exception for remaining on the clergy roster. You
are, therefore, correct in concluding that you are on the clergy
roster of the Synod while you are serving as the pastor of an in-
dependent congregation.

2. The commission concludes, however, that it is not correct to
equate the status of one who serves an independent congrega-
tion with the status of an emeritus pastor. Bylaw 2.17 specifi-
cally states, without exception, that to remain an emeritus pastor
one must be a member of a member congregation of the Synod.

3. Bylaw 4.51 c (not 4.52 c) clearly states that “All officers and
members of boards shall be members of member congregations
upon assuming office and during the course of their tenure.”
Bylaw 4.51 a does not nullify that requirement.

4. Bylaw 4.51 c does not differentiate between full or part-time
officers. Consequently, if one is elected in either category, he
is required to be and remain a member of a member congrega-
tion upon assuming and during the course of his tenure.

5. It is true that one who serves an independent congregation and
is elected to serve as District President could resign and transfer
his membership to an LCMS congregation. Since all officers
are to be members of LCMS member congregations, there is no
reason to believe that if one is elected to be and wishes to serve
as a Vice-President of the District he would not do likewise. In
fact, the Bylaw argues against ever electing the pastor of an in-
dependent congregation as an officer, whether that office be
President, Counselor, or a Vice-President of the District.

6. By joining the independent congregation which he started with
minority members of the congregation he formerly served, the
pastor in question has forfeited his position as a Vice-President
of the District.

Adopted Oct. 22, 1995

Excommunication and Reconciliation Process

In a letter signed by the head elder and the president of the
church council of a congregation, the following questions had been
posed for consideration by the Commission on Constitutional Mat-
ters:

1. Based upon Bylaw 8.01, can an individual person who is a
member of an LCMS congregation, but not a member of Synod
itself, has not been excommunicated, and does not hold any po-
sition in the Synod or any District or with any organization con-
trolled by the Synod, compel a member of Synod to proceed
through the dispute resolution process of chapter VIII of the By-
laws?

2. Does a District President, under Art. XII of the Constitution or
elsewhere in the Constitution or Bylaws, have the authority to
excommunicate a person or declare the person excommunicated
from a congregation when the congregation has not excommu-
nicated the person, particularly in light of Art. VII of the Con-
stitution?

3. Does the Secretary of the Synod or a District President have the
authority to make the decision to bypass the reconciliation
process of Bylaws 8.05 and 8.07 because one of the parties to
the dispute states that he is not interested in reconciliation? Are
there any circumstances where Bylaws 8.05 and 8.07 can be by-
passed?

In clarifying the background for the questions, the Secretary had
pointed out that the pastor, and probably the church council, had
placed some members of a congregation under the “minor ban.”
These members had not been allowed to receive Holy Communion
for almost a year, during which time the District President had met
with the members and congregations officials to seek to resolve the
issues. Finally, he had declared that what was reported to be the
minor ban had become a de facto excommunication which would
allow the members to utilize the dispute resolution process.