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NAMB en banc request denied by 5th Circuit; Confusion regarding amicus brief addressed

NEW ORLEANS (BP) – A request by the North American Mission Board for an en banc hearing in a lawsuit brought by a former SBC leader was denied last week in a split decision by the 5th U.S. Circuit Court of Appeals. Additionally, an amicus brief filed in the case by an outside group in support of the en banc request has caused some concern over the essentials of Southern Baptist polity.

NAMB requested the en banc hearing in August 2020 after a lawsuit against the mission board was remanded back to a district court by a federal appeals court on July 16. The appeals court reversed a dismissal decision from April 2019 which stated the court could not consider claims made by Will McRaney, the Baptist Convention of Maryland/Delaware’s (BCMD) former state executive director, because of the ecclesiastical abstention doctrine, which prevents the government from interfering in church or religious matters.

In his dissenting opinion accompanying the 8-9 decision, Circuit Judge James C. Ho argued in NAMB’s favor, stating: “If religious liberty under our Constitution means anything, it surely means at least this much: that the government may not interfere in an internal dispute over who should lead a church – and especially not when the dispute is due to conflicting visions about the growth of the church. But it turns out that nothing is sacred, for that is precisely what we are doing here.”

McRaney disagreed, issuing a statement saying: “This was the correct ruling given the lack of authority of NAMB over state conventions and the lack of hierarchy in the SBC in spite of the shameful coordinated deception to the courts by NAMB, ERLC and the BCMD. NAMB attorneys were either misinformed or participated in the deception, as did NAMB’s Carlos Ferrer via affidavit, BCMD’s CFO Tom Stolle via affidavit, and ERLC’s Russ[ell] Moore through the lies shared in the amicus brief they filed.

“I look forward to having truth emerge and justice served as we move toward having Ezell and other NAMB staff and Trustees testify under oath, as well as BCMD pastors and leaders,” McRaney continued. “The NAMB trustees have refused to make Ezell meet with me or give an account under cross examination. Sadly, the court may do it for them unless they act quickly.”

NAMB legal counsel George McCallum said: “This was not a ruling on the plaintiff’s unfounded allegations against NAMB, which we have consistently denied. As long as the plaintiff chooses to continue his lawsuit against our ministry, NAMB will continue to vigorously defend itself and religious liberty in the appropriate forum.”

In April 2019, Senior Judge Glen Davidson of the U.S. District Court Northern District of Mississippi dismissed the lawsuit, ruling the court could not consider McRaney’s claims because of the ecclesiastical abstention doctrine. McRaney’s counsel argued in the appeal that the ecclesiastical abstention doctrine did not apply.

The July reversal stated “the relevant question is whether it appears certain that resolution of McRaney’s claims will require the court to address purely ecclesiastical questions. At this stage, the answer is no.”

It continued: “At this time, it is not certain that resolution of McRaney’s claims will require the court to interfere with matters of church government, matters of faith, or matters of doctrine. … If NAMB presents evidence of these reasons and the district court concludes that it cannot resolve McRaney’s claims without addressing these reasons, then there may be cause to dismiss.”

In an August 2020 petition for the en banc hearing, NAMB was represented by First Liberty Institute. Hiram Sasser, First Liberty’s executive general counsel, said at the time that the Supreme Court’s decision in July 2020 in Our Lady of Guadalupe School v. Morrissey-Berru “made it clear that the Constitution protects religious organizations’ independence and their right to choose their own leaders and ministers.”

The lawsuit, originally filed in 2017 by McRaney, alleges NAMB had intentionally defamed him and wrongfully influenced his 2015 termination by the BCMD after a dispute over collaborative missions efforts in the region.

Amicus brief causes confusion related to Southern Baptist polity

Two friend-of-the-court briefs were also filed in support of the request for the en banc hearing.

The first, from the attorneys general of Texas, Mississippi and Louisiana, stated how they “are deeply interested in protecting the First Amendment rights of their citizens” and in “freeing their own courts from constitutionally improper involvement in matters of religious doctrine and church governance.”

The other brief, written by the Thomas More Society and joined by the Ethics & Religious Liberty Commission of the Southern Baptist Convention, contained language foreign to Southern Baptist polity and created concern among many observers of the case.

The ERLC joined the case due to its importance, “because of the underlying principle that courts have no jurisdiction over churches,” ERLC vice president for public policy and general counsel Travis Wussow said.

Wussow recognized the confusion brought about by the language in the brief and said: “As Southern Baptists, we believe that every church is fully autonomous, and that means autonomous from any other church, entity, or hierarchy, and also autonomous from the state. The ERLC has defended the underlying legal doctrines in this case for many years, and we will continue to defend them because of their importance to all Southern Baptists.”

But the brief’s arguments contradicted long-held Southern Baptist polity, referred to the Southern Baptist Convention as the “umbrella Southern Baptist governing body” and described the convention of autonomous churches and groups as a “hierarchy.” Both descriptors incorrectly reflect Southern Baptist polity, according to a statement from the SBC Executive Committee.

Executive Committee president Ronnie Floyd corrected the error made by the brief’s authors, saying: “It is of highest importance that we are always clear about why we are organized and how we function as Southern Baptists. Our polity is driven by what we believe about Scripture as proclaimed in The Baptist Faith and Message, Article 6, ‘A New Testament church of the Lord Jesus Christ is an autonomous local congregation of baptized believers.’

“Since all Southern Baptist churches are autonomous and self-determining, they are not subject to any other church or organization, but only to the Lordship of Jesus Christ. Furthermore, our churches choose to cooperate together to reach every person for Jesus Christ in every town, every city, every state and every nation.

“The Baptist bodies serving our churches who undertake this great missional vision, such as associations, state conventions and national entities, do so knowing there is no relation of superiority or inferiority among our Baptist general bodies. There is no ‘hierarchy’ in any form or fashion in Southern Baptist polity. While each body is equal and autonomous, they serve the churches and operate with mutual respect for one another for the sake of cooperating together to advance the Good News of Jesus Christ to the whole world.”

Dates and court schedules for the continuation of the case in the U.S. District Court Northern District of Mississippi have not been set.