LCMS Commission on Constitutional Matters — Minutes St. Louis, Missouri — September 24-25, 1976, Page 1

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143. Draheim Brief on AELC Opinion (Ag. 1109): The entire evening was devoted to a point by point
discussion of this brief, the members indicating repeatedly dissent from the positions taken.
144. Rehearing on AELC Opinion (Ag. 1083, 1083A,B 1109, 1080, 1102, 1089, 1088): On Saturday
morning the Commission continued the discussion of the entire matter at the MAC. At 9:30 Dr. J.A.0.
Preus and Legal Counsel Phil Draheim entered the room for their presentations. Since Dr. Preus had to
leave at 11:00 it was asked whether Mr. John Schuelke could take his place at that time. The request was
granted. Mr. Schuelke entered already at 9:40 and Mr. Earl Haake of the Worker Benefit Plans was called
into the room at 10:45. With the exception of Dr. Preus who left at about 11:00 these all remained until
the end of the hearing at approximately 1:00 p.m.
Dr. Preus explained that he had asked for this rehearing both on his own initiative and also because he had
been requested to do so by the missions department, the pension department, Dr. Carpenter, the Church
Extension Fund, the Executive Committee of the Board of Directors, and several District presidents.
Chairman Freise made an opening statement that the Commission had thoroughly gone through the brief
prepared by legal counsel and that it was in deep disagreement with the same, feeling that most of the
points were greatly exaggerated. Among other things, only some 45 congregations are involved at the
present time, while there are at least 16,000 pastors and teachers in the Synod. Furthermore, it seemed to
him that those who would be affected by the opinion of the CCM had no access really to the courts. Even
if the ruling of the Commission is wrong, the Bylaws state that it is to be binding on all concerned unless
and until it is overthrown by a synodical convention.
Doctor Preus stated that he was not coming in an adversary position but in the hope of an amicable
settlement. He personally had no argument as to whether an individual was able to belong to two church
bodies at one and the same time. But he was not willing to recognize the AELC as a church body. He was
inclined to reply to Elwyn Ewald's letter requesting recognition: "Who are you? What is the AELC? Is it
organized?" Furthermore, there are administrative problems and it is not certain whether we have
necessary bylaws to carry the decision out. He stressed the alleged legal liability of the Synod and of its
officers if the opinion were to be put into effect. When should it become effective, how, and by whom
should it be carried out these are questions. At one point Dr. Preus was about to make a reply which
seemed to agree with the position of the CCM when legal counsel interrupted him and finished the
statement for him, going in a different direction.
Draheim denied that the AELC is a church body. He gave a direct response to Freise's opening statement.
He disagreed with the claim that an opinion of the CCM is binding even if it is wrong. He felt this would
be ridiculous. The CCM could rule that pastors must be six feet tall in order to be members. This was
disputed later by the Commission members, stating that the membership qualification set forth in its
opinion is rooted firmly in the Constitution of the Synod itself in what Article II and Article III state about
the act of schism. Schism is a division, a rupture. It separates. Draheim went on to say that the opinion is
poorly placed in regard to terminating membership, that the Commission has acted beyond the scope of
its authority. He also rejected the idea that he had no right to advise administrative officers. In this
connection he was later asked whether he could point to any article in the Constitution or Bylaws which
states that the legal counsel has the right to overrule an opinion of the Commission on Constitutional
Matters or has the right to advise officers of the Synod to overrule such an opinion when the Bylaws
themselves state that the opinion is binding on all concerned until the next convention. His reply was to
point to his role as legal counsel of the Synod and its officers. He stated it as his intention to share the
brief with all members of the Board of Directors because of the liability which they have. He insisted that
the Commission should point to chapter and verse in the Handbook which says what the Commission
states. In reply it was pointed out that the legal counsel has his area of relationship but that the CCM also