A Tale of Two Governments: By Robert Renaud and Lael Weinberger (Dunrobyn Publishing, St. Louis, MO: 2012)
Reviewed by Lee Duigon
This little volume belongs on every pastor's bookshelf.
The authors' purpose is to teach churches how to protect themselves from being sued if they try to exert church discipline. Actually, what lawyers Renaud and Weinberger are doing is informing pastors and elders that they can, and sometimes should, exert church discipline.
As John MacArthur points out in his foreword to the book, Americans have "an unbreakable addiction to self-esteem" (p. 8). If they sin, and their church tries to subject them to discipline, they are apt to be incredulous. And if the church is serious about enforcing discipline, the offending member just might drag the elders into court.
But "the purity of the church is the ultimate and non-negotiable goal," MacArthur says (p. 7). Therefore the church must not, for fear of a lawsuit, throw up its hands and let the offender go on sinning-which is what too many churches do, these days, and which is why the book was written.
A Case in Point
It must first be noted that the book does not address the question of how to apply church discipline when the church itself is lawless. A new pastor in my church once told me she was "happy" when a couple of members involved in an adulterous affair with one another showed up in the pews on Sunday. "Adultery," she said, "is no big deal." (I must add that this is not my church anymore.)
This book is for churches that recognize the authority of God's Word and try to see that their members and officials abide by it. And the good news is: they can.
A case in point: in Texas, in 2009, a marriage counselor made a career change and became the pastor of a church. Some of his clients followed him. These included a woman engaged in an adulterous affair. Now a pastor instead of a counselor, Buddy Westbrook pleaded with the woman, face to face in private, to stop committing adultery. She refused. When he asked her again, in front of two confidential witnesses, she refused again. So the pastor informed the whole congregation in a letter, and exhorted them to break fellowship with the woman until she repented and ceased from her sin.
So of course the woman sued the pastor and the church for revealing these details of her private life. The case went to the Texas Supreme Court, where the nine justices ruled unanimously in the church's favor, finding that the case was not about the woman's privacy, not about her outraged feelings, but rather that "It was about the relationship between church and state" (p. 63).
Lawyers Renaud and Weinberger painstakingly present their argument, delving into legal history and case law all the way back to Colonial times-an argument backed up solidly with facts, not to mention 384 footnotes in a mere 110 pages. But don't be put off by that. Their presentation is admirably clear and cogent, and written in plain English instead of legalese.
In a nutshell, American law and jurisprudence hold that church and state are two separate spheres of authority and jurisdiction, and that neither is to trespass on the other's turf.
"It's the good news that the government is limited and not all-powerful-and that the church in America has the freedom and the legal protection that Christians have struggled to obtain for centuries" (p. 14). That is, "Separation of church and state, at its most basic, simply means that the church and state are separate and distinct institutions" (p. 18).
Can this be so? We're used to hearing militant atheists shouting "separation of church and state" as their battle cry in a crusade to erase every vestige of Christianity from American public life. But this familiar rhetoric, the authors demonstrate, is a political and social doctrine, not a legal doctrine. In law, "separation of church and state" is usually invoked to defend the church against encroachment by the state, not the other way around.
Nor, say the authors, should it be confused with "two kingdoms theology," which postulates that "God's redemptive work is only going to occur through the church (and therefore efforts by Christians to redeem other institutions of culture are more or less misguided)" (p. 34). It's needful to clear away such misconceptions before pastors and elders can learn how to use "separation of church and state" as the legal basis for church autonomy.
"Church autonomy" is the legal principle recognized by American courts since the founding of the country. After building the historical case for church autonomy-from St. Augustine to Luther and Calvin, and the Pilgrims and the Puritans-the authors go on to show how, in James Madison's words, "religion is wholly exempt" from the jurisdiction of the civil magistrate (p. 59).
You Don't Have to Keep Your Organist
The First Amendment, say the authors, "was all about jurisdiction ... It prohibited the national civil government as an institution from interfering with the church as an institution" (pp. 60-61).
In a very recent case (2012) before the United States Supreme Court, the federal Justice Department argued that the Lutheran Church ought to be forced to re-hire a former church school teacher. The government lost, 9-0, because the judges-including the "liberals" we so often see ruling to expand the powers of the government-found that the state does not have the authority to tell the church who can be a minister in the church and who can't. The church in America has always enjoyed a "ministerial exemption" from various laws regulating employment or selection of church personnel. "The legal basis for church autonomy doctrine," say the authors, "is as solid as anything gets in the law" (p. 66).
What if, for instance, a church decides to fire its organist because the elders discovered he was involved in an adulterous affair and wouldn't stop? What if the organist sues to get his job back? This particular case is not covered in the book, but it's the kind of thing that might suddenly crop up in any church, and Renaud and Weinberger provide the guidance which the church will need.
First, "federal courts require that church autonomy be raised as a regular defense at the outset of the lawsuit, not a jurisdictional defense that can be brought up anytime" (p. 69). The case may not get as far as federal court, but it's vital to raise the church autonomy defense from the beginning.
In our hypothetical case, the organist may not have a formal title such as "music minister." He may be simply an employee. Nevertheless, the 2012 U. S. Supreme Court case shows that the church may still claim a ministerial exemption even when the employee has not been formally ordained a minister.
Church autonomy doctrine protects the church's authority to enforce discipline, and also its rights in the selection and appointment of its officers (p. 72). And, "the civil government is to respect and defend the jurisdiction of the church to exercise its own discipline" (p. 76). A plethora of cases is cited to show that churches enjoy a ministerial exemption to anti-discrimination laws (p. 78).
All well and good: the church can fire the hypothetical organist, and win in court in case he brings a suit. But given that "Disgruntled parishioners have been creative in the kinds of lawsuits they bring" (p. 75), how shall a church maintain discipline among the congregation?
"The decline of church discipline is perhaps the most visible failure of the contemporary church," Albert Mohler, president of Southern Baptist Theological Seminary, said in 1998 (p. 100). In 1985 the Missouri Synod of the Lutheran Church reported a decline in church discipline due to "fear of criticism" in the media (p. 101). "But thanks to church autonomy doctrine," say Renaud and Weinberger, "America's churches have robust legal protections when they handle disciplinary matters properly" (p. 102).
It would be an injustice to the authors, and make for an overly long book review, to repeat all the details of their prescription for successfully applying church discipline. But it would be unjust to readers to say nothing about it at all. Bearing in mind that "The true purpose of church discipline is restoration" of the sinner to the church, with forgiveness following sincere repentance and turning away from the sin (p. 93), we ought at least to mention the highlights.
The authors very strongly advise churches not to "make it up as you go" (p. 103). That is, "church government must be in place at the time that the disciplinary procedure was initiated," with all the rules in writing (p. 103). Warning: house churches, and other informal kinds of churches, are apt to neglect this. Such a church should still be operated as a church, and not a social club.
Churches should have, in writing, "clear membership requirements" known to all members at the time they join the congregation (p. 104). Don't take it for granted that everybody knows the rules! The church should always have, preferably in writing, a "clear doctrinal basis for action" (p. 104). That, after all, will be the grounds for the defense in any lawsuit filed by a disgruntled member.
The church should document every step of any disciplinary process (p. 104). It's important to have a written record, which can be presented to a court of law, of everything that's been done. Never, the authors warn their audience, never rely on just a phone call! Otherwise it's easy to wind up with a "he said, they said" argument that a court will not easily resolve.
Finally, the authors exhort churches always to leave the door open for
the sinner's restoration to the church (p. 105). Ideally, excommunication is temporary-as St. Paul reminded the church in Corinth when it had to excommunicate one of its members. "Sufficient to such a man is the punishment, which was inflicted of many. So that contrariwise ye ought rather to forgive him, and comfort him, lest perhaps such a one should be swallowed up with overmuch sorrow. Wherefore I beseech you that ye would confirm your love toward him" (2 Cor. 2:6-8).
Only God is Sovereign
"We have seen that church discipline is not meant to be harsh or vengeful," the authors conclude, "but is rather practiced out of love and concern for the body of Christ" (p. 106). Without discipline, it is impossible to maintain the purity of the church-as can be easily seen in such churches where discipline has been allowed to fade into obsolescence.
Only God is sovereign-not the state, and not the church-"and thus no human institution can be either all-powerful or ‘sovereign' in an absolute sense. Personal liberty follows from this limit on human institutions" (p. 107).
With either church or state all-powerful, there can be, in the long run, no personal liberty at all. For churches to refrain from disciplining errant members or officers because they're afraid of being sued in court is to surrender the church's sphere sovereignty to the state. There is no need for this. When the church so timorously and incorrectly limits itself, the state doesn't have to try to encroach upon the church's sovereignty: church sovereignty is then lost by the church itself, and state power expanded by default. It is surely in the best interests of our constitutional republic for the churches to maintain their sovereignty.
Meanwhile, A Tale of Two Governments also satisfactorily answers questions about church property disputes and situations in which a pastor or an elder might be criminally liable for some violation of the civil law-in which case the doctrine of church autonomy will definitely not protect him.
Readers are told pretty much all they need to know about the history and practice of church discipline down through the ages. Most importantly, we are told clearly and simply how to revive church discipline where it has lapsed.
The book will be on sale by the end of the year, available through amazon.com in both standard book and Kindle formats. We have no hesitation about recommending it.
- Lee Duigon
Lee is the author of the Bell Mountain Series of novels and a contributing editor for our Faith for All of Life magazine. Lee provides commentary on cultural trends and relevant issues to Christians, along with providing cogent book and media reviews.
Lee has his own blog at www.leeduigon.com.