LCMS Convention Workbook St. Louis, Missouri — 2007, Page 297

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OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS 297

laws or resolutions, does that opinion have any binding
effect under Bylaw 3.905 d? In other words, can the
CCM bind the entire Synod until overruled by a con-
vention to opinions that are beyond the function of the
CCM? If so, what specific bylaw gives the CCM this
power?
Opinion: The answer to the question as stated is “no.” The Com-
mission on Constitutional Matters ‘as prescribed in the Bylaws,”
(3.51 b) renders “‘a precisely defined service function of the Synod
and [is] responsible...to the Synod in convention...”(Bylaw 3.51
b). While the answer is “no,” if there is a question whether or not
an opinion is in fact under the “precisely defined service function,”
it is the Synod in convention that reserves unto itself alone the
right to determine if in fact any of the opinions, interpretations (an
opinion or interpretation is one and the same), or other functions
of the CCM went beyond it’s prescribed functions. Bylaw 3.905 d
clearly states, “An opinion rendered by the commission shall be
binding on the question decided unless and until it is overruled by a
synodical convention.”

Question 2: Are the Synod’s Bylaws required to be consistent with
the Synod’s Constitution?

Opinion: Yes, the Bylaws of the Synod are to be consistent with
the Constitution of the Synod. This is implied in Bylaw 14.01 | a
and d, which states, “Amendments to the Bylaws may be made by
the convention provided they are not contrary to the Constitution”
and “examined by the Commission on Constitutional Matters prior
to presentation to the convention to determine that they are not in
conflict with the Constitution and Bylaws of the Synod.” In an
opinion of the CCM dated February 21, 1975 concerning “Removal
from Office as a Result of Expulsion fi Membership in the
Synod,” the Commission opined, “The Constitution of the Synod
provides for the adoption of bylaws. All duly and regularly adopted
bylaws which remain in force and effect are an extension of the
Constitution.”

Question 3: If a bylaw conflicts with the Constitution, what con-
trols, the bylaw or the Constitution?

Opinion: If a bylaw conflicts with the Constitution of the Synod,
the Constitution controls. However if a bylaw conflicts with the
Constitution, it is the CCM which is to initially consider the matter,
and ultimately the Synod in convention that makes that determina-
tion. The Bylaws which are presently in existence have been
adopted by the Synod in convention and are included in the Hand-
book as directed by the Synod through its Bylaws. ‘The delegate
convention of the Synod is the legislative assembly which ulti-
mately legislates policy, program, and financial direction to carry
on the Synod’s work on behalf of and in service to the member
congregation...” (Bylaw 1.07 a). The national convention of the
Synod “is the principal legislative assembly, which amends the
Constitution and Bylaws, considers and takes action on reports and
overtures, and handles appropriate appeals” (Bylaw 3.01).

Bylaws, as an extension of the Constitution, are binding regula-
tions for the Synod and it’s conduct and governance. Bylaw 1.05 d
states, “...while congregations of the Synod are self-governing
(Art. VID, they, and also individual members, commit themselves
as members of the Synod to act in accordance with the synodical
Constitution and Bylaws under which they have agreed to live and
work together and which the congregations alone have the author-
ity to adopt or amend through convention.” And in regard to the
relation of the Synod to its members, “the Constitution, Bylaws,
and all other rules and regulations of the Synod apply to all con-
gregational and individual members of the Synod” (Bylaw 2.39 a).

Question 4: Are the Bylaws required to be consistent with Article
ll of the Constitution?

Qpinion: Since all bylaws of the Synod are to be consistent with
all articles of the Constitution and not contrary to the Constitution,
this includes being consistent with Article II of the Constitution.
However any article of the Constitution, including Article II, is also
best understood, observed, practiced, or used in the full context of
all the Articles of Synod’s Constitution (Example: Article III be-
gins with “The Synod, under Scripture and the Lutheran Confes-
sions, shall -;” Articles V, VI, XIII and XIV reference Article II;

Articles XI and XII sets forth the supervision over the doctrine).
And as the understanding and application of Article II cannot be
isolated from the other articles of the Constitution, Article IT cannot
be isolated from the synodical bylaws which not only help eluci-
date the articles but which provide a certain prescribed polity which
must be followed in order to carry out Synod’s Constitution and all
its articles.

Question 5: Is the CCM required to issue opinions consistent with
Article II of the Constitution? If the opinion issues an
opinion that is not consistent with Article II of the
Constitution, is the opinion binding? If so, are the ec-
clesiastical supervisors, officers, and members of
Synod required to follow the CCM opinion or Article
II of the Constitution? If a member follows the CCM
opinion, and thereby acts contrary to Article II, can the
member be expelled from Synod under Article XIII of
the Constitution for acting contrary to Article II?

Qpinion: Since one of the Commission’s functions is to “interpret
the Synod’s Constitution, Bylaws, and resolutions,” the Commis-
sion’s opinions must be consistent not only with Article II but with
all the constitutional articles, the Bylaws and the resolutions of the
Synod. While an opinion rendered by the Commission shall be
binding on the question, the Synod in convention has reserved unto
itself the power to overrule any opinion of the Commission that it
considers to be inconsistent with the Constitution and Bylaws (see
the answers to the above questions).

It must be noted however that it is not a function of the Com-
mission to interpret the Scriptures and the Confessions, the confes-
sional position as set forth in Article IJ. The authority for such in-
terpretation is the responsibility of the Synod (the Synod has
reserved this right to itself) on the basis of procedures as defined in
the Handbook. The provisions or polity for determining the collec-
tive will and understanding of the Synod’s confessional position
(Article IT) are set forth in Bylaw 1.09 and Bylaw 2.39. Those pro-
visions involve the Commission on Theology and Church Relations
to which you may address questions of interpretation.

If it is demonstrated by action of the Synod in convention that a
CCM opinion is inconsistent with Article II, such an opinion is not
binding on the ecclesiastical supervisors, officers, and members of
Synod, who are required to follow the collective will of the Synod
as expressed in its Constitution, Bylaws, and resolutions. While an
ecclesiastical supervisor or perhaps the CCM or CTCR are in-
volved in the process, the decision whether or not to expel a mem-
ber from synodical membership under Article XIII of the Constitu-
tion rests ultimately with a Dispute Resolution Panel which alone
determines the facts in the case and acts according to procedures
set forth in Bylaws 2.27 and Chapter VIII.

Adopted May 20-24, 2004

Question Regarding the Relationship of the
Circuit Counselor to Member Congregations (04-2387)

In an e-mail sent April 30, 2004, an ordained member of the
Synod submitted a question regarding the Circuit Counselor’s rela-
tion to member congregations.

Question: Since the Bylaw [5.13 j] envisions only visits with ‘‘con-
gregation{s],” is it appropriate for the Circuit Counselor
to meet with a dissident faction within a congregation to
receive accusations against other members or the pastor
of the congregation, and does meeting with a dissident
faction within a congregation constitute such “extraordi-
nary circumstances” that it is permissible for a Circuit
Counselor to schedule such a meeting without prior con-
sultation with the president or other officers of the con-
gregation (much less the pastor), much less without
‘inviting’ them to be present to answer accusations
against them?

Opinion: One of the functions of a District President is to inquire
into the prevailing spiritual conditions of the congregations of his
District and he may cal] upon the Circuit Counselor to assist him
(Bylaw 4.73). Bylaw 4.75 states that a District President, even
without a formal request therefor, may through the proper channels

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