The Anatomy of a Court Case: Grace Lutheran Church vs. the LCMS

Pr. Dean Lueking, Pastor Emeritus, Grace Lutheran Church, River Forest, Illinois

January 28, 2016

This is the third article on the advisory role of the Synod. It is important because the court case cited below demonstrates that a civil court has ruled that Article VII of the Constitution of the Synod takes precedence over the resolutions and bylaws of the Synod. This might give pause to any disciplinary actions that are taken by officials against members of the Synod who believe the Synod resolutions “are not in accordance with the Word of God or are inexpedient as far as the condition of a congregation is concerned.” Ed.

 

BACKGROUND

In 1928, Grace Lutheran Church, then located in Oak Park, Illinois, began negotiations with the LCMS toward purchasing a plot of land on the northeast corner of the campus of Concordia Teachers College in River Forest. Grace congregation and school had outgrown its facilities built at the turn of the century and needed to expand. Pastor Otto Geiseman had established strong ties with the Concordia faculty and students since his arrival in 1922. Moving closer to Concordia made sense.

Initially, the Synod proposed leasing the land to Grace rather than selling it outright. Grace disagreed. Next, and prophetically, the Synod proposed that in the event of a falling out, those members remaining loyal to the LCMS would retain ownership of the church and school. Again, Grace disagreed. With negotiations now stalled, the Grace leadership searched elsewhere for a suitable site, found one, and made a down payment to purchase.

That prompted the Synod leaders to re-open negotiations for Grace to purchase a site on the CTC campus. After much back-and-forth, it was agreed that Grace would be the sole owner of the property. The congregation then signed a land contract to purchase the site for $20,000. Grace paid the full amount and took ownership. Within days of that action, the stock market Crash of l929 came down hard on everybody, the Grace parishioners included.

At no point did Grace congregation ever agree to a lease arrangement whereby the Synod retained ownership of the site. This needs clarifying since confusion and misinformation about Grace’s sole ownership has occurred from time to time.

 

TERMS OF THE CONTRACT

In my conversations with Pr. Otto Geiseman soon after my arrival and ordination in 1954 as an assistant pastor at Grace, I recall his concerns about the wording of the contract. He and the congregation accepted it, however, as the best under the circumstances. Geiseman’s concerns reflected what he experienced as one of the 44 LCMS leaders who signed “A Statement” in 1945, protesting the doctrinaire legalism that was smothering the free course of the Gospel in the LCMS. He sensed that the shelving of the “Statement of the 44” would bring no peace. His misgivings were realized by what erupted two decades later.

The terms of the contract contained this language regarding the conditions under which the LCMS could repurchase the property from Grace:

Whenever Grace Church decides to “affiliate, consolidate or merge with any other corporation, association not affiliated with the Missouri Synod,” or

Whenever Grace Church shall “fail or decide not to teach and preach the scriptures as set forth under Article II of the Missouri Synod Constitution and in accordance with the rules, regulations, and customs of the Missouri Synod.”

I recall Dr. Geiseman comment that such wording must have come at a midnight hour after several martinis.

 

THE 1973 LCMS CONVENTION AND THE GRACE RESPONSE

With the 1969 defenestration of Oliver Harms as LCMS president and the elevation of the Preus Statement to binding force at the 1973 New Orleans convention, the stage was set for a Grace – LCMS collision that would soon follow. This affected Grace directly, as Dr.  Paul Zimmerman was named president of Concordia Teachers College and began the purge of the religion faculty composed mainly of respected Grace parishioners. In the early 1970’s a series of open meetings were held for Grace members to find out what was going on. Hundreds cared enough to attend as a sense of crisis deepened.

Late in 1973 I joined with Pr. Bertwyn Frey, an LCMS pastor in a Cleveland suburb, in forming a counter movement to the Preus program. We did little to stem the tide of the political takeover in the Synod but did succeed in garnering support for colleagues ousted from their teaching and administrative positions.  Doing so put me in the cross hairs of attack and thus made Grace parishioners more aware of the dark side of the controversy. Unprecedented yellow journalism in the Synod slandered Grace Church as a place of rank denial of basic Christian truth. My personal letters and papers regarding Synodical issues were stolen from my office files and sent to Robert Preus in St Louis for use against me and what I stood for. I shared these things with the elders and church council but kept it out of sermons and our ongoing congregation ministry. Finally, however, the time came for Grace to decide whether or not to remain in the LCMS. September 20, 1977, was the date set for a special congregation meeting to make a decision.  Several weeks beforehand a letter from the church council was sent to the membership proposing this course of action:

That Grace Evangelical Lutheran Church, River Forest, Illinois, withdraw its membership from the LCMS effective October 1, 1977, and continue its mission and ministry as an independent Lutheran congregation according to the standards of faith set forth in Article ll of the constitution of the congregation.

That letter included more than a proposal for denominational withdrawal. With these words it sought to explain why:

We hope to put behind us the crippling Synodical controversy and the serious spiritual disruption that has invaded our Voter’s Assemblies, pastoral ministry, and worship life in the past half dozen years. We confess our own sins in the breakdown of love and trust among us. We re-state our support of the confessional basis set forth in Article ll of our constitution. As an independent Lutheran congregation, we are still based on the fundamental articles of faith which unite us in Christ with all Lutherans and which form the bridge of unity with all Christians. We wish to focus our energies, our gifts, our resources on strengthening each other for the great task of living the Gospel in an increasingly secular world and sharing God’s grace with all who are without it.

 

OUR LEGAL DEFENSE

Ten days after our September 20 decision to withdraw, the LCMS Board of Directors informed us of its intention to buy back Grace Church and property for $750,000. Despite the disgracefully under-priced offer, and with no substantiation of its alleged right to exercise its option to repurchase, the letter was nonetheless the first step in a legal process initiated by the Synod to repurchase our property. If we made no response within 90 days the LCMS would have us in court in St Louis, claiming that Grace’s withdrawal from the Synod had broken the terms of the 1929 contract. We learned this from the legal counsel we had sought when it became clear that a court case was being mounted against us. Although the LCMS had admonished Grace Church not to take the matter to a civil court (I Corinthians 6:1-8), they in fact were doing just that.

Previous efforts to resolve the dispute out of court had gone nowhere. The Grace elders and I had met with the LCMS Board of Directors in St. Louis, and with their delegates in Chicago to hear their proposal. The first was that Grace abide by an out of court settlement arranged by the Synod’s lawyer. When that was rejected their next proposal was that the members unhappy with the Synod leave Grace Church and join a nearby congregation of the American Lutheran Church. There were no further negotiations.

During this time we learned that LCMS representatives were meeting with a group of disgruntled Grace members who opposed our withdrawal from the Synod, a discovery that did nothing to inspire trust the Synod was negotiating in good faith. Nevertheless, Grace remained open to discussing the fundamental issues behind the land contract of 1929 and said so. When no reply came, we took the matter to the Cook County Circuit Court and filed for a declaratory judgment.

A declaratory judgment meant that we asked the court to legally affirm our right to continue in our church and school and that withdrawal from the LCMS for independent status did not breach the terms of the contract. The church council, authorized by the congregation to act in its behalf, took this step after prolonged  discussion, prayer, listening to all sides, and respect for the earlier generations of members who built and paid for Grace Church and school during the worst of the Depression years.

 

THE BASIS FOR THE COURT DECISION

Although the Grace membership had 19 attorneys, all of whom were ready and willing to volunteer their time and talent, the congregation sought outside legal help for expertise in church and state matters in this matter of real estate law. The Chicago firm, Kirkland and Ellis, handled our matter with professionalism and care for our predicament as a congregation that did not want to be in court but had to be there. One of their key attorneys, William Theiss, was assigned to our case.  He grew up in a LCMS household, the son of Otto Theiss who was a legendary figure in the youth ministry of the Synod in the 1930’s.

The Cook County Court ruled in our favor. The issue was unambiguously clear:  the First Amendment of the United States constitution prevents a civil court from adjudicating a religious matter – in our case to decide who was and who wasn’t preaching and teaching the Word of God correctly. The court also recognized that the LCMS is indeed what its constitution says it is, an advisory body only and not a hierarchical government. The Synod let us know their advice. We responded by not accepting it. Our move to become an independent Lutheran congregation was not forbidden by the land contract, which specified that only if we joined a non-LCMS church body would the option to repurchase be triggered. Our action was by circumstance not choice. Becoming independent had to do with things man-made, not with our baptismal identity with Christ and the Una Sancta – which is anything but independent.

The land contract litigation dragged on for eight years. This was caused by the repeated LCMS appeals to reverse the decision of the 1978 Cook County Court in our favor. That groundwork decision carried all the way to the United States Supreme Court, which, by refusing to take on the case against Grace, ended all litigation in 1985.

The decisive issue that determined the outcome was Article VII of the LCMS constitution:

In relation to its members the Synod is not an ecclesiastical government exercising legislative or coercive powers, and with respect to the individual congregation’s right of self-government it is but an advisory body. Accordingly, no resolution of the Synod imposing anything upon the individual congregation is of binding force if it is not in accordance with the Word of God or if it is inexpedient as far as the condition of a congregation is concerned.

I know of no denomination that defines its advisory character more clearly than that. The clarity of the Synod as an advisory body rather than an ecclesiastical government is all the more unambiguous when tested by a civil court at the county level, the state appellate level, and finally the Supreme Court level.

The constitutional structure of the LCMS as an advisory body in its relation to its member congregations is now written into case law. Article VII may be in a much embattled state due to efforts within the Synod to twist it out of shape. But in case law its advisory status is firmly established.

The irony is that the LCMS, once the most self-consciously non-hierarchical church body in America, has through years of shredding its own self-definition become the most hierarchical church body in the land.

 

LEARNINGS ALONG THE WAY

I realize that I tell this story through the lens of my experience as pastor of Grace Church during the years of controversy. I claim no infallibility. The simul justus et peccator truth embedded in the theology of Martin Luther has become more deeply embedded in me through what I’ve experienced. That said, the facts of this story are not invented but real. As a personal aside I wish to say that I would not trade the whole experience for the choice to have sidestepped it altogether.   When enduring conflict for the sake of the Gospel, the Holy Spirit builds pastor and people more deeply into a bond that is cruciform in its shape. I’ve learned that. It is both precious and  humbling. As friend Martin Marty reminds us in his seven word summary of the Christian faith: in Jesus Christ God accepts us anyway.

For those interested in the course of the congregation after September, 1977, here are blessings we count. Our financial support increased by 20% in the years following our withdrawal. The Grace membership did not plummet but grew. While we regretted the decision of those who transferred their membership to LCMS congregations, we bade them Godspeed in their new affiliations. In 1994 Grace called Phyllis Kersten and, later, Kelley Faulstich, to the pastoral staff at Grace, enabling us to realize the greater diversity of the Spirit’s gifts. Women now serve in every office of the congregation. Grace School continues to flourish as an essential partner in  the total Grace ministry. In the freedom of the Gospel we have been able to join with other Christians in broadened mission locally and globally. We have grown in the providential wisdom needed to take on contentious issues of racial integration, sexual ethics, and finding our ministry amidst the new challenges of world religion relationships. When calling pastors and teachers we have received fraternal cooperation from the Chicago Metro Synod and seminaries of the ELCA. Our staff members are rostered with the ELCA. The Concordia Plan of the LCMS has been exemplary in its long term service to our staff in health insurance and pension matters. We continue to support LCMS mission work where we can and strive for positive ties with Concordia University Chicago on the campus that we share. Our support of the Lutheran Child and Family Service of Illinois and the Lutheran Social Services of Illinois continues without change.

To those within the LCMS who might be considering withdrawal I can only stress that it is a deeply serious step and should finally be taken for one reason only – that the Word may have free course and be preached to the joy and edifying of Christ’s holy people. That is the single reason that matters. When such a step is taken it must be as the last resort and after much prayer, open discussion, and trying every means to clear away the roadblocks obstructing the mission of the Gospel. Let me add here how much I admire, feel kinship with and wish to encourage all of you carried along by the Daystar stream within the LCMS. Your witness blesses me and many more beyond.

 

WHERE FROM HERE?

The land contract of 1929 will expire on January 1, 2028. The congregation will then be seeking God’s guidance going forward and learning how and with whom the congregation may be institutionally connected. My prayer is that such a course will be as fully orbed as possible within the twin purposes of the church – outward in mission and inward in mutual up-building.

By 2028, mirabile dictu, I will be easing into my 100th year. Or, better said, I will already have closed my eyes on all things earthly as I await the resurrection of the body and eternal life with Christ and all the faithful of all the ages.

In the light of that towering hope, the experience I’ve described in our small corner of the Vineyard is but a dot on the vast canvas of the Holy Spirit’s work in the world. Tiny though it is, it’s still counts as the witness of one band of flawed pilgrims who keep on seeking and finding God’s merciful acceptance  – anyway.