The Executive Committee of the Southern Baptist Convention has weighed in with a legal brief defending the SBC North American Mission Board in a defamation lawsuit brought against NAMB by Will McRaney, former leader of the Baptist Convention of Maryland and Delaware.
“Amicus brief” might well be the word of the year for the SBC because these legal filings have become so important and so frequently mentioned in news coverage of the SBC. There are currently more than two dozen known lawsuits pending against the SBC and its entities.
Whether the latest amicus brief from the Executive Committee was authorized by the full board of trustees is not clear.
A firestorm continues to brew about another amicus brief filed earlier this year by the SBC, the Executive Committee, Lifeway Christian Resources and Southern Baptist Theological Seminary opposing a woman who was the victim of sexual abuse at the hands of her father, who was a lay leader in their Southern Baptist church in Kentucky. That SBC officials would take any action to oppose an abuse victim seeking justice has horrified the abuse survivor community and its allies and undone any goodwill resulting from the independent abuse investigation released two years ago.
Yet none of the four SBC entities involved in that Kentucky brief have backed down — despite a massive outcry against the brief and the message it sends to abuse survivors.
A key question in the Kentucky case is who within the SBC has the authority to file friend-of-the-court briefs on any matter. A second question concerns when it is advisable to take such action at all because of the potential for misunderstanding or controversy.
This was presumably the topic of conversation at a called meeting of the Executive Committee in November, although that meeting was held in executive session and the only thing reported out of it was the future appointment of a task force to study the issue.
Whether the latest amicus brief from the Executive Committee was authorized by the full board of trustees is not clear. That brief was filed Dec. 4 in the Fifth Circuit U.S. Court of Appeals.
(On Wednesday, Dec. 6, BNG learned the court told the Executive Committee’s lawyers they had filed the brief prematurely, as petitioners must receive permission from the court to file such briefs. BNG also learned the same day that McRaney has objected to the Executive Committee brief on the grounds that the Executive Committee and NAMB are essentially the same entity, since the SBC is the “sole member” of NAMB as a corporation.)
Executive Committee’s interest
The Executive Committee says it has standing to file the brief because it “has extensive knowledge of the internal polity of the Southern Baptist Convention and of the autonomous, independent self-governing nature of churches cooperating with the Southern Baptist Convention.”
The brief also positions the Executive Committee as knowledgeable about the so-called “ecclesiastical abstention doctrine” it claims is key to the McRaney case.
This important legal doctrine is important to many of the current legal cases involving the SBC. The doctrine says secular courts may not intervene in the internal religious decisions of churches and church-related groups. The concept is derived from the First Amendment’s protections for separation of church and state.
McRaney contends the key issue is not about doctrine but instead about whether the SBC operates as a hierarchy or not.
In his case, however, McRaney contends the key issue is not about doctrine but instead about whether the SBC operates as a hierarchy or not. The SBC — and most other Baptist groups — operate differently than the United Methodist Church or the Roman Catholic Church, for example. Those denominations are built on connected and hierarchical structures, with bishops and dioceses and tiers of governance.
Baptists historically have claimed to be non-connectional and to operate with full autonomy. That means no church or denominational body has any power over any other. Those who work together do so through voluntary cooperation, not hierarchical supervision.
This matters in McRaney’s case because he claims one SBC entity (the North American Mission Board and its president, Kevin Ezell) pressured another autonomous body (the BCMD) to fire him as executive director because he opposed a changing partnership agreement between the regional convention and NAMB. Further, McRaney claims NAMB and Ezell defamed him to others by urging them not to hire McRaney for consulting work and speaking engagements.
McRaney is not alone among former SBC leaders who claim Ezell has carried out a vindictive and petty campaign of defamation against anyone who opposes him.
Content of the new brief
The Executive Committee notes its amicus brief was filed with the consent of NAMB but without the consent of McRaney.
In direct and emphatic contradiction to an earlier brief filed with the U.S. Supreme Court by the SBC Ethics and Religious Liberty Commission related to the McRaney case, the latest brief declares: “The SBC is not a hierarchal church.”
The latest brief declares: “The SBC is not a hierarchal church.”
The brief explains the SBC as an entity exists only two days a year when “messengers” from churches convene at the SBC annual meeting. The Executive Committee is given authority to manage affairs of the convention the rest of the year.
Thus, the current brief “is filed on behalf of SBC by (the Executive Committee) pursuant to its ad interim authority and responsibility.”
The brief speaks of Baptists as champions of religious freedom since Colonial days and quotes the belief that “a free church in a free state is the Christian ideal.”
This religious liberty and the Baptist belief in autonomy mean all Baptist bodies are to “decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.”
That sets up the Executive Committee’s appeal to the ecclesiastical abstention doctrine, which is the heart of its agreement with NAMB that McRaney’s case should be dismissed as irrelevant to secular courts.
“The hallmark of Southern Baptist polity is cooperation and not control,” the brief states.
It adds: “The Southern Baptist Convention is not over the state conventions or the associations. All are autonomous as are the churches.”
On this point, the Executive Committee and McRaney would agree. But the Executive Committee brief takes a sharp turn in a different direction after that by attempting to shield all personnel management decisions at every level through the ecclesial abstention doctrine.
While acknowledging the BCMD is “an independent and self-governing organization” with “no intrinsic relationship with the SBC,” the brief also classifies written partnership agreements between state conventions and NAMB as religious doctrine outside the purview of secular courts.
“It changed the relationship from that which existed under Southern Baptist polity.”
“NAMB and BCMD entered into a formal contract known as the Strategic Partnership Agreement. In that agreement ‘the two partners jointly develop, administer and evaluate a strategic plan for penetrating lostness through church planting and evangelism,’” the brief says. “The SPA created legal, operational and financial entanglements between NAMB and BCMD which did not previously exist. It changed the relationship from that which existed under Southern Baptist polity.”
This is new language in the debate presented by the McRaney case. The Executive Committee now argues that adoption of a Strategic Partnership Agreement dissolves autonomy and shields personnel decisions as religious doctrine.
The brief quotes an earlier court ruling that found the Strategic Partnership Agreement involved decisions between NAMB and the BCMD that are “steeped in religious doctrine.”
The Executive Committee argues: “For the court to adjudicate the merits of the claims presented in this case would necessarily entangle it in the religious doctrines, faith, Scripture-based tenets, beliefs, governance, polity and missionary objectives of BCMD and NAMB. Such judicial review would unquestionably run afoul of the jurisdictional bar under the ecclesiastical abstention doctrine.”
McRaney claims his firing and alleged defamation had nothing to do with religious doctrine but was solely a power play in which an autonomous partner of NAMB was extorted with the threat of losing $1 million in funding if it did not fire its leader and replace him with someone favorable to NAMB’s agenda.
The Executive Committee brief claims an irrefutable belief in “the ability of religious bodies like those at the center of this controversy to self-govern and appoint and remove those in ministerial leadership positions free from undue governmental interference.”
“The mere fact that the plaintiff’s action is cloaked in the form of tort-based claims does not insulate them from an application of the ecclesiastical abstention doctrine,” the brief says.
Why this matters
One of the reasons the McRaney case has carried on for seven years and has had so many legal ups and downs is the difficult nature of the principles it presents. It lands right at the heart of balancing Baptist polity with American laws.
Had McRaney been a United Methodist who was fired by a district conference at the behest of a higher-level denominational leader, there would be no case. The connectional nature of the United Methodist Church offers a near-complete shield for personnel decisions being doctrinally related.
Because McRaney is a Baptist, the question turns on where a line should be drawn between doctrinal decisions and de facto hierarchies the SBC claims do not exist.
But because McRaney is a Baptist, the question turns on where a line should be drawn between doctrinal decisions and de facto hierarchies the SBC claims do not exist.
McRaney claims his firing had no doctrinal basis. NAMB, and now the SBC Executive Committee, claim for a court to figure out whether that is true or not would itself violate the ecclesial abstention doctrine.
In short, even though a court might eventually agree with McRaney that NAMB and Ezell defamed him without religious reason, the discovery required to prove that truth would violate the First Amendment.
To understand the implications of this argument, consider the following different scenario: The executive director of a state Baptist convention carries a grudge against a pastor of a local church and wants to get that pastor fired. The state convention official tells church leaders a lie that implicates the pastor in some kind of scandal. The church, acting on false information, then fires the pastor.
According to the logic of NAMB and the Executive Committee, that pastor has no legal standing to sue the executive director of the state convention for defamation. This is not about the pastor suing the church for wrongful termination — a case not likely to see the light of day in any jurisdiction — but about the pastor suing an outside party for defamatory interference.
To continue the example, what if that state executive director also called around to other pastorless churches in the state and warned them not to hire the recently fired pastor or else they would fall out of favor with him and the help he has to offer? Again, NAMB and the Executive Committee claim the fired pastor should have no legal recourse for that kind of outside interference because the whole Baptist world, while not connected, is subject to the ecclesial abstention doctrine.
Now, a more generous reading of the Executive Committee’s position is that the Strategic Partnership Agreement changes everything. That legal agreement — which by the way would be unenforceable in a court of law — makes two autonomous bodies part of the same religious community and therefore no longer autonomous.
The Executive Committee is treading on thin ice here. By arguing the norm of autonomy may sometimes be superseded by special agreements, they are potentially opening the door to a new kind of ascending liability.
What happens, for example, if a local church has a written partnership with Lifeway Christian Resources or with the International Mission Board and a leader in that church is credibly accused of sexual abuse — not an abstract idea in the present moment.
In the past, the SBC and its entities have been shielded from claims of ascending liability because of autonomy. But under the new definition put forward by the Executive Committee, that special agreement would override autonomy and allow Lifeway or the IMB to be sued along with the church for enabling or not reporting sexual abuse.
You’re going to have a hard time convincing a court today the ecclesial abstention doctrine shields perpetrators or enablers of sexual abuse. Yet that’s not too far-fetched from the point the four SBC entities are currently peddling in Kentucky, where they do not want the statute of limitations expanded or the scope of who may be held liable for inaction expanded.
All these amicus briefs are dangerously related.