On the Freedom of a Congregation: Legal Considerations When Lutherans Look to Change Denominational Affiliation

Abstract

The mainline Protestant churches are currently undergoing significant internal division over the role of homosexual persons in the Church. The Episcopal Church, in particular, has seen scores of local churches leave the national denomination in the four years since it ordained its first openly gay bishop. The Evangelical Lutheran Church in America will confront these issues at its 2009 Churchwide Assembly, and decisions made there may prompt a similar exodus. When these churches leave, litigation ensues. The Supreme Court's First Amendment case law requires the courts to place each denomination in one of several categories based on principles of internal church organization. There are published articles specifically addressing the appropriate legal categorization for Episcopalian, Methodist, Presbyterian, Baptist, and United Church of Christ congregations. The enclosed article will fill a major void in this literature by providing legal analysis specific to Lutherans.

The article evaluates legal precedent and theology to categorize the polity of the ELCA as either hierarchical or congregational. While there are arguments both ways, the article concludes that congregational polity is a better fit, especially as to church property.

Keywords: Law & Religion, Lutheran, Jones v. Wolf, Church Property Disputes