Board: Attorneys` letters raise many questions, `stir things up`

By Joe Isenhower Jr.

The Synod’s Board of Directors says in its new online “Board Briefs VI” that recent letters from attorneys who disagree with the outside legal opinions that the Board commissioned last year “have raised many questions publicly and have stirred things up again [at] a time when the Board hoped to help restore peace and unity.”

In a Feb. 3 letter to Synod President Gerald Kieschnick, attorney L. Martin Nussbaum of Colorado Springs, Colo., takes issue with the opinions obtained by the Board from the Bryan Cave and Armstrong Teasdale law firms of St. Louis.  Nussbaum, who specializes in representing religious organizations, sent copies of the letter to the Synod’s Council of Presidents, Board of Directors, Commission on Constitutional Matters and others.

The outside legal opinions obtained by the Board deal basically with the Board’s authority under Missouri law.  The Board has not made them public but in February adopted a resolution referring them to the Commission on Structure “for consideration [of] any necessary changes to the Constitution and Bylaws so as to add clarity to … the extent that there is any ambiguity, inconsistency, confusion, or conflict with Missouri law.”

The same resolution said the Board would withdraw two resolutions adopted in November that declared eight opinions of the Commission on Constitutional Matters to be “of no effect” if the commission would withdraw those opinions, “so as to allow the issues involved to be addressed by the 2004 synodical convention.”

In separate letters distributed with Nussbaum’s letter, two Missouri attorneys — law professor Carl H. Esbeck of Columbia and Michael K. Whitehead of Kansas City — said they agree with Nussbaum’s analysis.

In a subsequent letter to the same distribution list, Nussbaum wrote March 10, “We have tried to show that the attempt by some within the Synod to hand over to the Missouri legislature the ability to define the governance of the Synod is not only contrary to the religious beliefs important to the Synod, it is also neither required by the Missouri Non-Profit Code nor permitted by either the Missouri Religious Freedom Restoration Act or the First Amendment Doctrine of Church Autonomy.”

In his 20-page Feb. 3 letter, Nussbaum had written that he “was asked to analyze and comment” on three questions.  Here are those questions and summarized answers from Nussbaum:

1. “Does the Missouri Non-Profit Corporation Act modify The Lutheran Church–Missouri Synod’s polity or allocation of authority?”

“The answer … is that while the Missouri Non-Profit Corporation Act may appear to conflict with certain portions of the Synod’s polity or allocation of authority, these provisions of the Act are almost certain to have no effect because of the repeated and explicit deference which the Act itself gives to an institution’s own organizing documents and because of the even greater deference by the Klix decision for the benefit of religious institutions.”

Of the “Klix decision,” a 1909 Missouri case involving a Roman Catholic parish, Nussbaum said, “This construction of Missouri corporation law in a manner that accommodates the faith-defined polities of churches and other religious institutions is not only commended but required by the First Amendment Doctrine of Church Autonomy.”

2. “Does the United States Constitution and, specifically, the First Amendment to the Constitution, limit the effect, if any, that the Missouri Non-Profit Corporation Act can have upon The Lutheran Church–Missouri Synod’s polity or allocation of authority?”

“Based upon our review of the cases articulating the First Amendment Doctrine of Church Autonomy nationally, in Missouri, and in cases involving The Lutheran Church–Missouri Synod itself, we think it almost inconceivable that any court would attempt to refashion the Synod’s faith-based polity where it conflicted with provisions of the Missouri Non-Profit Corporation Act.”

3. “What is the authority of the Commission on Constitutional Matters vis-…-vis the Synod’s Board of Directors?”

“The answer … is that until the synodical Convention passes contrary resolutions, every officer, director, commission, and member of the Synod is bound by CCM’s opinions interpreting the organizing documents or resolutions of the Synod.”

The Board of Directors says in “Board Briefs VI” that it discussed the Feb. 3 letters from Nussbaum and the other two attorneys during a March 4 telephone-conference-call meeting.

“The Board decided that it had no choice but to once again request the assistance of special legal counsel,” it says. “Upon receipt of that counsel, the Board will respond publicly to the letters in ‘Board Briefs VII’ and any other means that are necessary and appropriate.”

Synod Secretary Raymond Hartwig told Reporter March 11 that he expects the response from outside legal counsel “to come within a matter of days.”

“Board Briefs VI” says that Nussbaum’s statements in his Feb. 3 letter “are not true” when he says “that ‘the Synod’s Board of Directors is apparently considering amendments to its theologically informed organizational documents’ and ‘before the Synod hands over to the Missouri Legislature the power to reshape synodical policy and governance’ it should study certain Bible passages.”

“They are also inflammatory,” it says of those statements, “at a time when many in the Synod, including the Board of Directors, are interested in peace and unity based upon truth and good order.”

For “Board Briefs,” go to on the Web.

In his March 10, letter, Nussbaum asks a number of questions of “those who are privy to the Bryan Cave report.”  Hartwig said that the Board has “not had time to meet” to discuss that letter.

A question in “Board Briefs VI” asks if it was “appropriate for Mr. Nussbaum to distribute these letters across the Synod.”

“Although the Board of Directors is responsible for the legal affairs of the Synod,” the Board answers, “Mr. Nussbaum has never directly communicated with the Board of Directors.  He has communicated only with the president of the Synod and has done so without the Board’s knowledge.  He has refused to identify his clients who requested and paid for his services.  He has distributed these letters across the Synod at the very time that the Board had taken steps to restore peace and unity by allowing for a peaceful solution of these issues.”

Asked by Reporter about the Nussbaum letters and “Board Briefs VI,” Kieschnick reiterated in writing what he has said before about the Board’s action declaring eight CCM opinions “of no effect”:

  • “I understand the concerns of the Board of D

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