LCMS Convention Proceedings St. Louis, Missouri — 2004, Page 83

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REPORT OF THE PRESIDENT
additional discussion, the Board adopted the following resolution:
WHEREAS, The Commission on Constitutional Matters (CCM) has precisely defined service functions described in Bylaw 3.905 of the Handbook, including the
interpretation of the Constitution, Bylaws, and resolutions of the Synod upon written request (paragraph d);
and
WHEREAS, CCM Opinions 02-2296, 02-2309, and 022320 exceed the service function of the CCM provided
in Bylaw 3.905 d; and
WHEREAS, Article XIII of the Constitution states that
members shall be expelled from the Synod if they act
contrary to the confession laid down in Article II or persist in an offensive conduct; and
WHEREAS, CCM Opinions 02-2296, 02-2309, and 022320 conclude that the Synod is precluded from taking
any action to terminate membership of a member who
has in fact acted contrary to Article XIII when the conduct is done with the advice and counsel of the member’s ecclesiastical supervisor; and
WHEREAS, Neither Article XIII nor any other provision in the Constitution or Bylaws creates an exception
for expulsion from the Synod simply because a member’s false confession or offensive conduct is done with
the advice and counsel of his ecclesiastical supervisor,
and CCM Opinions 02-2296, 02-2309, and 02-2320 are
selective in their quotations from the Constitution and
Bylaws when concluding otherwise; and
WHEREAS, CCM Opinions 02-2296, 02-2309, and 022320 as written apply to actions of members that involve both “confession” and “offensive conduct,” both of
which are grounds for expulsion from Synod under Article XIII; and
WHEREAS, While actions of members that involve
matters of “confession” are protected in any civil action
by the First Amendment to the United States Constitution, acts of “offensive conduct” may not be and could
create legal liability problems; and
WHEREAS, One consequence of these opinions would
be to allow a member of the Synod to commit gross,
grievous crimes or other wrongdoing, but be exempt
from expulsion from the Synod if his or her conduct was
allegedly done with the advice or counsel of his ecclesiastical supervisor, which could create significant legal
liability to the Synod or its agencies and others if these
opinions were allowed to remain applicable as to matters of “offensive conduct”; and
WHEREAS, This is of great concern to the Board of Directors, this concern having been expressed to the CCM
twice, once with representatives of the Board of Directors meeting with representatives of the CCM and a
second time when the entire Board of Directors met
with the entire CCM, and despite being informed of the
concerns of the Board of Directors, the CCM has not
withdrawn or modified these opinions; and
WHEREAS, Silence by the Board of Directors could
suggest that the Board acquiesces to these opinions,
which could have very harmful legal and financial consequences to the Synod; therefore be it
Resolved, That the Board of Directors, for the sake
of the Synod and its best interests, present and future,
and in carrying out its fiduciary obligation to protect
the Synod from legal liability and other risks, because
of its obligation to ensure that others within the Synod
comply with the Constitution, Bylaws, and resolutions
of the Synod, cannot agree with or accept CCM Opinions 02-2296, 02-2309, and 02-2320; and be it further
Resolved, That CCM Opinions 02-2296, 02-2309,
and 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; and be it
finally

83

Resolved, That this resolution of the Board of Directors does not apply to these opinions as they relate to
matters of “confession” (doctrine), because such are
purely ecclesiastical in nature and more appropriately
the subject of action by the Synod in convention.

LR1-8 Appendix B

Response of Commission
on Constitutional Matters to Board
of Directors Request
March 22, 2004
254. Communication to the Council of Presidents and
the Board of Directors
Chairman Walter Tesch spoke of his attendance at the
February 6–7, 2004, joint meeting of the Council of Presidents and the Board of Directors, where he volunteered
that the Commission on Constitutional Matters would
again review the eight opinions to which the Board of Directors has objected. Accordingly, the Commission discussed their review of the opinions in light of the documents furnished by the Board of Directors detailing the
Board’s specific objections to the opinions. The Commission
decided to offer the following response, sent on March 23 to
the chairmen of the Council of Presidents and the Board of
Directors.
COMMUNICATON TO THE COUNCIL
OF PRESIDENTS
AND THE BOARD OF DIRECTORS
At the recent joint meeting of the Council of Presidents and the Board of Directors, the chairman of the
Commission on Constitutional Matters (CCM) stated
that the CCM would again revisit its eight opinions
which the Board of Directors has resolved to be “of no
effect.” This the CCM has done.
At its February 2004, regular meeting, the Board of
Directors passed a resolution entitled, “Board of Directors Resolutions Regarding CCM Opinions.” Several of
the resolves of that action pertain directly to the CCM
and the eight opinions. They are as follows together
with the CCM’s response.
Resolved, That the Board of Directors requests the
Commission on Constitutional Matters to reconsider
Opinions 02-2296, 02-2309, 02-2320, 02-2259, 03-2357,
03-2358, 03-2359, and 03-2365.
Response: As promised to the Council of Presidents and
the Board of Directors, the members of the CCM have
again reviewed the eight opinions.
Resolved, The Board of Directors requests the Commission on Constitutional Matters to withdraw these
opinions to allow the issues involved to be addressed by
the 2004 synodical convention.
Response: Having reviewed the eight opinions, the
CCM remains of the opinion that these opinions are
correct, appropriate, and consistent with the Constitution and Bylaws of the Synod. Further, it is not necessary for these opinions to be withdrawn in order to
allow the issues involved to be addressed by the 2004
synodical convention. Bylaw 3.905 d provides that any
opinion of the CCM shall be binding on the question decided unless and until it is overruled by a synodical convention. Thus the Synod has reserved unto itself the
right to review, revise, modify, alter, or reject any opinion of the CCM and thereby address the issue involved.
Resolved, That, immediately upon such action being
taken by the Commission on Constitutional Matters,
the two Board of Directors’ resolutions adopted at its

2004 Convention Proceedings