Constitutional Musings (March, 2011)

Started by Richard Johnson, May 07, 2011, 06:29:00 PM

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Richard Johnson

Constitutional Musings
By Richard O. Johnson
Forum Letter, March 2011
©2011 American Lutheran Publicity Bureau. All rights reserved.

It is an unusual person who is enamored of constitutions. Most of us find our eyes glazing over when the conversation turns to these provisions, written in "legalese" and often incomprehensible without very careful study. Sometimes even after study things aren't that clear.

I admit that I personally kind of like constitutions. I served on the constitution committee of what was to become my synod in the months preceding the merger. My bedtime reading right now is a new book on the process through which the states ratified the U. S. Constitution. Strange, I know, but that's me.

So it is with considerable interest that recently I have been reading the proposed constitutional amendments coming before the ELCA's 2011 Churchwide Assembly in Orlando next August. The constitution itself requires that such proposals be published six months ahead of the assembly date, and Secretary David Swartling duly released the proposals—some 32 pages worth—in February.

LIFT those deck chairs
The bulk of these have to do with the adoption and implementation of the recommendations of the "Living into the Future Together: Renewing the Ecology of the ELCA (LIFT) Task Force." (Sidebar observation: the longer the name of a task force, the less likely it is to accomplish anything significant.) Some of these are pretty good; having churchwide assemblies every three years instead of biennially has got to be a good idea. Others make one think about deck chairs and the Titanic.

What is generating the most discussion, however, is certain changes to the model constitution for congregations, and particularly provisions for how a congregation can leave the ELCA. CORE Connection, the newsletter of Lutheran CORE, made these proposals the lead article last fall when the Church Council first considered them. "ELCA Council proposes changing rules to make it harder for congregations to leave," the headline screamed.

I suppose that is one way to read it—not a very charitable way, to be sure, and actually a bit overblown, making it sound as if the ELCA, desperately trying to keep dissident congregations, has proposed draconian provisions to stem the tide of defections. A less passionate reading might suggest that the experience of the past year has made it clear the current system has some ambiguities which need to be clarified. This is actually often the way constitutions evolve; language is written to deal with various eventualities, and when those eventualities happen, it becomes apparent that not everything was thought through clearly. That's why constitutions have amendment provisions in the first place.

Bishops in the loop
So what are the proposals, exactly? First, one amendment would require that the bishop of the synod be given notice of the intent to take a "first vote" to leave the ELCA at least 30 days prior to that vote, and that the congregation "shall consult with the bishop" or his/her designees. This is a sensible enough proposal; some bishops have been taken by surprise, having heard nothing of a congregation's intent to consider leaving until after the first vote is taken. Bringing the bishop into the loop from the beginning seems a helpful provision on both sides; a responsible bishop (which certainly would include many, if not all) would want to work with the congregation to be sure that all constitutional provisions have been carefully followed from the get-go.

The CORE article is uncomfortable with the fact that "the times and manner of the consultation shall be determined by the bishop in consultation with the congregation council." Well, somebody has to determine this, and why not the bishop? Generally the bishop will be the one with the most difficult schedule to accommodate; an angry congregation council (and let's face it, a council wanting to leave is likely to be angry) could just say to the bishop, "Fine, be here at noon tomorrow," and think they've fulfilled their responsibility. Clearly the legislation intends this consultation to be mutually arranged. That's what "in consultation with" means.

The 30-day notice is also not unreasonable. Presumably the congregation will have to amend its constitution to accomplish this withdrawal, and that generally requires members to be notified 30 days in advance; so nothing onerous is being required here. At the very least, withdrawing from one's denomination is even more serious a matter than amending one's constitution, so plenty of advance notice is a good thing.

No Grand Inquisitor
Nor is the provision that the consultation may be with the bishop's "designees" something nefarious. A simple reading suggests that the bishop may ask someone to consult with the congregation in his or her stead—the synod vice president, a bishop's assistant. CORE's concern about this sounds like they think the bishop will be sending the Grand Inquisitor.

An issue that has become contentious in some situations is the question of what happens when a vote to
leave—either the "first" or the "second" vote required by the current process—narrowly fails. In some congregations, another meeting has been called promptly, and another vote taken. ELCA David Swartling has ruled that if a second vote fails, the congregation must start the process from scratch—i.e., it can't take another "second vote" without going through the whole process (first vote, consultation with the bishop, second vote) again.

Cooling off
His ruling falls under the category of "that might be a reasonable idea, but the constitution doesn't actually say it." But now, with these proposals, that question would be clarified. A motion to leave (on either the first or the second vote) that failed to achieve two-thirds would stop the process in its tracks for at least six months. If it were the second vote that failed, the congregation would have to go back to square one, with another "first vote" preceded and followed by consultation with the bishop.

Congregations currently wanting to leave will not like this provision, of course, and especially those where the vote is likely to be close. Certainly this is one area where it could be accurately said the proposed provision "makes it harder" for a congregation to leave. On the other hand, where a congregation is closely divided enough that it cannot easily attain a two-thirds majority, a six-month cooling-off period might well be a salutary thing for everyone.

Conclusive presumption
A different issue addressed by the proposed legislation is the question of whether and how a congregation decides to join another church body. This is significant because the constitution has required (and, with these amendments, continues to require) that a congregation leaving the ELCA affiliate with another Lutheran body; if they do not, they cannot take their property with them unless their synod council agrees to it.

The new legislation would require that a congregation vote by a two-thirds majority to affiliate with another body at the same time it votes to leave the ELCA. If it does not do so, the proposal says, "the congregation will be conclusively presumed to be an independent or non-Lutheran church"—and thus could be deprived of its property.

Again, this might be construed as "making it harder" to leave. But what is the alternative? If the requirement to affiliate with another body has justification—and I would argue that it does, for a variety of reasons—then a congregation's failure to do means de facto that the congregation has gone independent. The new language simply clarifies something that was previously a bit vague. Clarity is a good thing, especially in constitutions.

And this doesn't really put an undue burden on the congregation. I have many, many reservations about Lutheran Congregations in Mission for Christ (LCMC), but one convenient thing about them is that they are willing to take in most any ELCA congregation looking for a place to go, and they don't prohibit dual rostering. Several ELCA congregations have affiliated with LCMC "for the time being" until they discern what they want to do in the long term. This seems to be just fine with LCMC, and it is an easy way for an ELCA congregation wanting to leave to fulfill this requirement.

Clarity always makes things easier
The bottom line, it seems to me, is that these proposals for the most part clarify some things that are ambiguous in the present constitution. One might even argue that rather than "making it harder" to leave, this clarity makes it easier to do so since it gets everyone—congregations, bishops, synod councils, and the ELCA Secretary—on the same page as to how the process works.

Nonetheless, a number of congregations who are still thinking about what to do have been thrown into something of a panic by all this, wondering if they should speed up the process and get out while the getting is good. That's almost certainly a mistake. Such congregations should take their time, make their decisions with due consideration. The new provisions, if approved, may mean the process takes a little longer, but they will not stop any congregation from leaving if that is what they decide to do.

The limits of conformity
And of course the provisions, if adopted by the 2011 Churchwide Assembly, do not automatically get inserted in a congregation's constitution. At least that's one reading of how this works. When such amendments are approved, a congregation may incorporate them into their own constitution by an expedited process. There is no requirement that a congregation do so.

This has always been a bit confusing, because there is a provision in the ELCA constitution requiring thatwhen a congregation seeks to amend its constitution, the amendment must conform to the model constitution's required paragraphs. This has been interpreted somewhat differently from synod to synod; in some cases, the understanding has been that only the provision being amended must conform to the model, while in others the synod has ruled that any amendment requires the whole constitution to conform to the required sections of the model. (It makes one think that this would be an excellent place for some clearer language.)

It can be argued persuasively, however, that a congregation is governed by its own governing documents, and if the congregation has not incorporated revisions coming from churchwide, those provisions do not apply to that congregation. As far as I know, this has never been litigated in court; but I suspect that, if it were, a congregation duly incorporated under the laws of its state could successfully claim that it is governed by its own documents, and not by provisions in the ELCA documents to which it has not agreed. And I can't imagine the ELCA going to the expense of trying to argue otherwise in court.

Whither our periodical?
There's one other interesting provision in the proposal which hasn't attracted much notice. The current constitution states that when a congregation has successfully voted to leave, the synodical bishop must notify the ELCA secretary, who in turn publishes an announcement "in the periodical of this church." Under the proposed change, the secretary instead "reports the termination to the churchwide assembly."

Now that's an intriguing change. One could read it as an attempt to suppress the information, so that a public report is only made every two—or, if the other proposals pass, every three—years. The Lutheran already made the decision not to report departing congregations as they leave, but only once or twice a year.

Or maybe the provision should be read as a prediction that "the periodical of this church" may not be around for the long haul, or at least as insurance in case that unfortunate scenario should come to pass. Whichever way you take it, this doesn't seem to be a design for greater transparency. But then that's about what we've come to expect.

Sloppy proofing
One final note about constitutions: Since they are legal documents, they need to be coherent, and when it comes to proposed amendments, that requires proofreading. Maybe the layoffs at Higgins Road have left the secretary's office without proofreaders. And certainly mistakes slip through. I have a fine stable of proofreaders here at Forum Letter, but hardly an issue goes by without a typo or grammatical error of some kind.

Still, by the time proposed amendments to the constitution are made public, one would think somebody would have gone over them with a fine-toothed comb. Yet here are two sentences from the very last recommendation on page 32 of the proposed amendments. Try reading this out loud:"Upon the request of ____ voting members of the congregation, the Congregation Council shall such notice and recommendations. Following the adoption of an amendment, the secretary of the congregation call such a meeting and submit shall submit a copy thereof to the synod."

Sloppy, just sloppy. One hopes that Secretary Swartling finds some clever way to fix this and still satisfy the six months prior notice requirement.
   —by Richard O. Johnson, editor

©2011 American Lutheran Publicity Bureau. All rights reserved.

The Rev. Richard O. Johnson, STS

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