LCMS Convention Workbook St. Louis, Missouri — 1998, Page 305

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OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS 305

the District. Nevertheless, in an effort to be helpful, the Commission
makes several observations.

1. While a larger majority might be desirable, the commission is
not aware of any requirement other than a simple majority for
the acceptance of a constitution forming a new congregation.

2. Since the two congregations continue to exist independently
until a new congregation is established, it would be appropriate
for each to vote separately on the proposed constitution. The
commission notes that each congregation has stated its “desire
to have our congregations unite” and the resolution called for
the new congregation to “be formed” {emphasis added]. How-
ever, it would also not be improper for both congregations to
meet together and by majority vote determine whether or not to
accept, modify, or reject the proposed constitution. A case could
be made for that approach.

3. Finally, the commission would observe that it would be the pre-
rogative of the congregations separately or together to determine
if there is a desire to require more than a simple majority for ac-
ceptance of the constitution and consequent formation of the
new congregation. If that were the decision of the congregations
and the required majority could not be achieved, it would be a
simple step back to the continuance of existence as two sepa-
rate congregations.

If, in the process of adopting a constitution, changes are made in
that which has already been approved by the District Constitution Com-
mittee, that Committee will have to be notified of the changes for their
approval.

What is being offered here is merely advice. You should be aware
that the congregations are quite free to approach this issue as they wish,
subject to the requirements, if any, of the District Constitution Com-
mittee.

Adopted July 15, 1996

Meaning of the Word Clear in Bylaw 3.928
as Related to Worship Materials

In a previous telephone conference held on May 8, 1996, the
commission had begun consideration of a request, asking for an in-
terpretation of the word clear in the Bylaw which states that the
Commission on Worship is to “clear all literature related to corpo-
rate Christian worship in liturgy and hymnody made available
through the Synod’s various boards, commissions, auxiliaries, and
recognized service organizations and through Concordia Publishing
House.” It was noted that some feel that the word clear means that
the Commission on Worship should receive worship materials and
offer its opinions to the originating entities which may then either
accept these opinions and make the changes indicated or not ac-
cept the opinions and proceed as they have planned. Others feel
that the word clear means “approve for use” and thereby the com-
ments made by the commission on Worship in regard to worship
literature are to be heeded and any changes required thereby are to
be made before the materials are routed out to the Synod.

After reviewing its previous discussion and a possible response,
the commission determined that it would provide the following
opinion:

You have asked the Commission on Constitutional Matters to inter-
pret the meaning of the phrase “clear all literature related to corporate
Christian worship in liturgy ...” in Bylaw 3.928 b of the Handbook of
the Synod. You have also indicated that it appears that the words re-
view, approve, authorize, and clear seem to be used synonymously in
that document.

In considering this matter, the commission became aware of the fact
that on Jan. 29, 1970, a response had been provided to the Commission
on Worship to a closely related. if not identical, question in respect to
what was then Bylaw 11.113 b 2. That response stated

In its meeting of Jan. 22-23, 1970, the Commission on Consti-
tutional Matters ruled that Bylaw 11.113 b 2 states that all literature
related to corporate Christian worship should be cleared with the
commission and that the words must be taken precisely as they read
at present.

It did not, however, specifically define what is meant by the word
clear.

Turing to this issue, the commission observes that in considering
the meaning of the word clear as it appears in Bylaw 3.928, it seems
quite obvious that more is meant than that the Commission on Worship
“should receive worship materials and offer its opinions to the originat-
ing entities, which may then either accept these opinions and make the
changes indicated, or not accept the opinion and proceed as they have
planned.” There appears to be little difference between the meaning of
the word clear and the word approve. Whether, however, its use in
Bylaw 3,928 means that the Commission on Worship may arbitrarily
and/or unilaterally approve “all literature related to corporate Christian
worship in liturgy and hymnody made available through the Synod’s
various boards, commissions, auxiliaries, and recognized service orga-
nizations and through Concordia Publishing House” is another matter.

We have used the term “arbitrarily and/or unilaterally” above be-
cause it is our opinion that unless objective standards have been estab-
lished and stated by the Synod on the basis of which worship materials
are to be measured, any “clearance” or “approval” would be based on
the subjective views of the reviewer or of that Commission on Worship
which exists at a given time. If these objective standards were estab-
lished and stated, use of the words clear or clearance would be compa-
rable to their use in relation to the activities and judgments of doctrinal
reviewers or opinions of the Commission on Constitutional Matters.

Objective standards against which doctrinal materials are measured
are the Scriptures and the Lutheran Confessions. The objective standard
against which the Commission on Constitutional Matters measures pro-
posed Bylaws and provides “clearance” or denies it is the Constitution
and other Bylaws of the Synod. We are not aware of a similar objec-
tive standard with respect to music or other characteristics of worship
materials (if they are considered as literature) which has been approved
by the Synod. Obviously, all such materials must pass doctrinal review,
i.e., be in agreement with the Scripture and the Lutheran Confessions.
However, it is not at all certain that in Bylaw 3.928 the Commission on
Worship has been delegated that function. Doctrinal review is dealt with
elsewhere in the Bylaws and does not identify the Commission on Wor-
ship as having that function for worship materials.

Further, it should be noted that with respect to decisions of doctrinal
reviewers there are provisions for appeal. The same is true of decisions
of the Commission on Constitutional Matters. None, however, are pro-
vided for decisions of the Commission on Worship with respect to wor-
ship materials unless one considers the possibility of such appeal di-
rectly to the President of the Synod.

In view of the above, it is the opinion of the Commission on Con-
stitutional Matters that what is envisioned in the term clear is not arbi-
trary or unilateral action on the part of the Commission on Worship.
What is rather envisioned is a meeting with the unit preparing the ma-
terial with the goal of resolving differences of opinion with regard to
matters other than doctrinal issues. Unless there are specific, objective
standards approved by the Synod for these other issues, this agreement
might involve or require compromise.

Adopted July 15, 1996

Herman Otten Eligibility

At the 1995 synodical convention it had been determined that a
special committee should study the materials and issues pertinent to
the Herman Otten case, attempt by God’s grace to reach a solution
which would promote peace and harmony in the Synod, report its
findings and recommendations to the President of the Synod, who
would be respectfully directed to take appropriate action to con-
clude this matter in accordance with the Bylaws of the Synod. Any
solution achieved was to be viewed as unique to this case without
any precedential value.

The committee had been constituted and had met on several oc-
casions. As a result of its discussions, it determined to forward a
number of questions to the Commission on Constitutional Matters
for consideration. The chairman of the committee proposed two
questions from the committee and one from himself. These ques-
tions were as follows:

1. According to the new Bylaws regarding entering the pastoral
ministry by colloquy, is Herman Otten eligible to apply and seek
to go this route for certification? (Bylaws 6.87—6.103)

2. Does Res. 7-18A of the 1995 synodical convention in effect re-
scind the 1965 synodical convention Res. 5-30, which said that
“the case of Herman Otten is closed”? If Res. 5-30 is not re-
scinded, would a future convention have to declare it to be so