In many respects churches have greater autonomy in governance than

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					                              B RADLEY A. M ORTON
                                   Attorney at Law
                                     Landmark Lakehills
                               23332 Mill Creek Drive - Suite 230
                                Laguna Hills, California 92653

To:    Fellow Members of the Lutheran Church Missouri Synod

Re:    LCMS Governance Dispute

Date: May 19, 2004

Based on the highest law of the land, the federal constitution, the Nussbaum report
properly concludes that the State of Missouri does not have jurisdiction to permit the
LCMS Board of Directors to circumvent the LCMS governance policies instituted and
long-exercised by the collective actions of LCMS congregations.

In many respects churches have greater autonomy in governance than states do under the
United States Constitution. For that reason, it is basically irrelevant what type of
corporate law any state has, or whether it has any special statutes for religious protection,
when analyzing the authority of states in matters of religious governance.

My office has reviewed the various reports made public in the LCMS Governance
Dispute along with the LCMS organic governing documents as well as selected Federal
and State Statutes and Law. My practice is predominantly in the area of collective
governance – including corporations, businesses, and non-profit associations. In law
school I was selected to Law Review and was the recipient of the American
Jurisprudence Award in legal writing and research. Additionally, at the request of a
sitting judge, I performed accredited studies by conducting an extensive research and
analysis project on the First Amendment and religion.

The LCMS has been a blessing in my life. I was baptized and confirmed in the Wyoming
District. My wife and I moved to Chicago in 1968, and soon thereafter relocated to
California. It has been my pleasure to serve in many capacities, including K-8 school
board chairman. Our two children matriculated from Lutheran elementary and high
schools, and graduated from Concordia University. I appreciate the opportunity to serve
our synod by preparing this legal comment.

My focus is the constitutional issue; first, because this is the over-arching law on this
subject; secondly, because the Edwin Fryer letter dated April 5, 2004 (hereafter “Fryer”),
representing the Bryan Cave Law Firm and the LCMS Board of Directors, mistakenly
assesses constitutional law as it relates to the LCMS.

The Fryer constitutional argument makes reference to Jones v Wolf, City of Boeme v.
Flores, and Employment Div. Dept. of Human Resources of Oregon v. Smith. But these
cases are not on point and not applicable to the LCMS matter. These cases discuss the
narrow ability of courts to address church disputes which are secular, not involving
religious issues. Based on the factional rift in LCMS, the issues afoot in this dispute are
certainly not secular, despite Fryer’s attempt to characterize otherwise. The cases cited by
Fryer are therefore not appropriate, because state involvement is precluded in disputes
regarding ministerial acts, governance and matters related to church doctrine:

       In one case cited by Fryer, City of Beoeme (1997), the court rejected the
       ability of Congress to pass an Act which defined the doctrine of church
       autonomy. The court found Congress thereby infringed on the separation of
       powers by misappropriating the interpretive role of the judicial branch. But
       the decision did not overturn the long standing judicial cases preventing
       government entanglement with the internal affairs of religious groups.

       In Smith (1990), also cited by Fryer, no rule of law was established allowing
       governmental involvement with internal religious matters, as illustrated later
       by three federal circuit courts:

               Gellington v. Christian Methodist Episcopal Church, Inc. (11th
               Cir., 4/17/2000: “We agree with the Fifth and D.C. Circuits and
               hold that the ministerial exception created in McClure has not
               been overruled by the Supreme Court's decision in Smith.
               (continuing the long-standing tradition that churches are to be
               free from government interference in matters of church
               governance and administration . . . the Court's rejection in Smith
               of the compelling interest test does not affect the continuing
               vitality of the ministerial exception.”

       Fryer’s interpretation of Missouri state law is contradicted by The Missouri
       Court of Appeals Western District, WD60120, May 21, 2002, when it
       clarified the limited scope of the exceptions under neutral principles of law.
       (State of Missouri ex rel., John R. Gaydos, Bishop of the Diocese of
       Jefferson City, Father Jerry Kaimann, and Sister Ann Marie Bonvie,
       Relators, v. Channing D. Blaeuer, Special Judge, Circuit Court of Howard
       County, Missouri):

       “It is clear that the First Amendment does not preclude court
       intervention in disputes between co-religionists when the issue is
       purely one of whether a religiously neutral civil law -- such as a
       civil action for damages for battery--is presented. Gibson v.
       Brewer, 952 S.W.2d 239, 246-47 (Mo. banc 1997); Weaver v.
       African Methodist Episcopal Church, Inc., 54 S.W.3d 575, 581
       (Mo. App. 2001). The mere status of an individual as an officer
       of a religious entity does not insulate the individual from all
       liability for tortious conduct. Weaver, 54 S.W.2d 575. Also, the
       courts have exercised jurisdiction over claims asserting
       intentional torts against religious organizations where it was
       alleged that the organization knew that serious damage would be
       inflicted on others through the actions of the miscreant clergy
       member. Gibson, 952 S.W.2d at 248. Despite these exceptions,
       the First Amendment still stands as a limitation on civil court
       jurisdiction over disputes which are either essentially
       religious in nature or are sufficiently intertwined with church
       polity as to constitute a threat of entanglement with religious
       doctrine or practice. Milivojevich, 426 U.S. at 710-12.”
       (emphasis added)

The third case cited by Fryer, Jones v. Wolf, also did not overturn the
constitutional prohibition against court or governmental involvement in
ministerial, governance, or doctrinal issues. It simply affirmed the use of
neutral principles of law to review secular matters unrelated to church

Perhaps the most recent explanation of the rule was by the California
Supreme Court in a decision on March 1, 2004, Catholic Charities of
Sacramento, Inc., v. The Superior Court of Sacramento County, even though
the doctrine of church autonomy was found not applied there, due to a
secular nature of the dispute. (Catholic Charities admitted it was not a
religious employer under applicable law and many of its affected employees
were not members of the Catholic Church):

       “The high court in Watson, supra, 80 U.S. 679, offered two
       reasons for deferring to religious authorities on religious
       questions. The first justification was that civil courts are
       simply "incompetent" to decide matters of faith and
       doctrine. (Id., at p. 732.) Courts have no expertise in religious
       matters, and courts "so unwise" as to attempt to decide them
       "would only involve themselves in a sea of uncertainty and
       doubt . . . ." (Ibid.; see also Serbian Orthodox Diocese v.
       Milivojevich, supra, 426 U.S. 696, 714-715 & fn. 8.) The

               second reason was that the members of a church, by joining,
               implicitly consent to the church's governance in religious
               matters; for civil courts to review the church's judgments
               would "deprive these bodies of the right of construing their
               own church laws" (Watson, at pp. 733-734; see also id., at pp.
               728-729) and, thus, impair the right to form voluntary
               religious organizations (id., at pp. 728-729; cf. Serbian
               Orthodox Diocese v. Milivojevich, supra, at pp. 724-725).”

Courts have consistently refused to intervene in disputes between religious factions,
except to let stand the decisions made by church bodies or officials to whom power had
been delegated by constituents. In the LCMS it is clear the ultimate control or protection
of church doctrine has been delegated and reposed by congregations with the Convention,
the Committee on Constitutional Matters, and the President, although that power is
perhaps coveted by the Board of Directors.

Fryer evidently is attempting to assert that church governance is somehow secular and
separable from the religious purpose and doctrine of the church. But the policies and
practices of synod governance were implemented precisely to protect the religious
doctrine and purpose of the church. To tinker with governance would be to change the
gatekeeper for the ultimate function of controlling that unique religious and doctrinal
foundation of the Missouri Synod. That is exactly what the U.S. Constitution, the
Doctrine of Church Autonomy, and the Supreme Court have pledged to prevent.
Therefore it is legally inconceivable, in my analysis, that any government agency or court
would become involved applying state secular law to change religious governance similar
to the LCMS.

Nussbaum properly reviewed and stated relevant decisions by the U.S. Supreme Court. It
appears Fryer has tried to stretch the narrow legal concept of ‘neutral principles’ beyond
its scope, because that concept is not applicable when the ‘entanglement prong’ of the
Establishment Clause is involved, under which courts “may not inquire into or review the
internal decision making or governance of a religious institution.” Odenthal I, 649
N.W.2d at 434. (citing Jones v. Wolf, 443 U.S. 595, 602, 99 S. Ct. 3020, 3025 (1979)).

The fallacy of Fryer’s position is underscored by the repeated subsequent legal decisions
by state courts, regardless of varying state laws. The state courts, based on the directives
of the U.S. Supreme Court under the First and Fourteenth Amendments, affirm
Nussbaum’s conclusion, deriving from Kedroff:

       Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952): “churches must have
       the "power to decide for themselves, free from state interference, matters of
       church government as well as those of faith and doctrine."

       Singleton v. Christ The Servant Evangelical Lutheran Church, 541 N.W.2d
       606, 613 (Minn. App. 1996): refusing claim connected to issues of church
       doctrine and governance, and rejecting neutral principles of law argument
       citing Black, 471 N.W.2d at 720 (citing Serbian Eastern Orthodox Diocese
       v. Milivojevich, 426 U.S. 696, 96 S. Ct. 2372 (1976)), “[w]hen claims
       involve “core” questions of church discipline and internal governance, the
       [United States] Supreme Court has acknowledged that the inevitable danger
       of governmental entanglement precludes judicial review.

       Bryce v. Episcopal Church in the Diocese of Colorado (10th Cir., No. 00-
       1515, 4/30/02). The court found that the church autonomy doctrine
       "prohibits civil court review of internal church disputes involving matters of
       faith, doctrine, church governance, and polity"

Let me conclude on a personal note. For the past seven years I have served as chairman
of a secular advocacy group promoting integrity in government. In addition, my practice
involves disputes regarding governance. Based on the above review of our constitutional
freedoms, it would lack legal and ethical integrity if the LCMS Board of Directors should
attempt to circumvent our time-honored faith-based organic governing documents.
Hopefully the Board is not seeking an outside secular tool to achieve that purpose. And
hopefully the Board is not attempting to seize interpretive and doctrinal control of the
church. That would be historically reminiscent of the Catholic Church opposed by


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