Looming Constitutional Crisis in the SBC

 The Southern Baptist Convention (SBC) is a convention of churches. It is not itself a church, and it is not a clerical body. It has no formal hierarchical structure beyond the local church. Each local church sends messengers to an annual meeting to vote on denominational decisions.

The messengers elect officers, such as the convention president. They also elect an Executive Committee, which exists to carry on convention business outside the annual meeting and manage denominational affairs in accordance with the convention’s wishes.

At this year’s annual meeting, the messengers voted overwhelmingly to create a task force, appointed by the convention president, to oversee an independent investigation into the Executive Committee’s handling of sexual-abuse allegations within the SBC. President Ed Litton complied, appointing the task force on July 9.

The motion the messengers voted on included details on how the investigation was to be conducted. It set deadlines. It set the scope of the investigation. It also included this sentence: “We further move that the task force agree to the accepted best-standards and practices as recommended by the commissioned third-party, including but not limited to the Executive Committee staff and members waiving attorney client privilege in order to ensure full access to information and accuracy in the review.”

The commissioned third party is Guidepost Solutions, a firm that has conducted other investigations related to sexual abuse in other organizations. The CEO of Guidepost, Julie Myers Wood, spoke to the Executive Committee at its most recent meetings on Monday and Tuesday and said the Executive Committee should waive attorney-client privilege. “Waiving privilege, she said, would give Guidepost access to all the documents it needs to understand how the Executive Committee responded to abuse,” reports Religion News Service.

The Executive Committee voted to approve funding of $1.6 million for the investigation. But it did not waive attorney-client privilege.

The Executive Committee’s actions directly contradict the motion passed by the messengers. Executive Committee president and CEO Ronnie Floyd has cast doubts on whether waiving attorney-client privilege is possible due to nonprofit law and SBC bylaws. Christianity Today reports that Executive Committee members opposed to waiving attorney-client privilege were also concerned about opening up the SBC to expensive litigation.

The Executive Committee oversees a budget of over $180 million. The convention runs six seminaries, a publishing company, a news organization, a domestic-missions board, an international-missions board, and other services. The Executive Committee exists to serve the member churches of the convention, and the member churches benefit from the services the convention provides. Insofar as this investigation would hinder the provision of those services, there’s an argument that the Executive Committee would be violating its fiduciary obligations to convention members. If it’s true that lawsuits could bankrupt the denomination, opening itself up to such lawsuits could be seen as a violation of the Executive Committee’s fiduciary responsibility to the convention.

Task force member Liz Evan, an attorney, sees it the other way. She writes that by refusing to waive attorney-client privilege, the Executive Committee is opening the SBC up to lawsuits. “In every lawsuit against the SBC thus far, the SBC has been able to argue that we are a bottom-up organization, and therefore the SBC itself has no authority over or liability for what happens at the local church level,” she writes. “That ended today. In every subsequent legal proceeding, plaintiffs can now use this vote to show that we are, in fact, a top-down organization and that the EC is in charge, not the churches.”

The vote on waiving attorney-client privilege was certainly not unanimous among the Executive Committee’s 86 members. Twelve members released a statement decrying the “unprecedented” decision to contradict the messengers’ wishes. Executive Committee chairman Rolland Slade believes they must waive attorney-client privilege to act in accordance with the motion, and he emphasized that negotiations between the task force and the Executive Committee are not over.

Southern Baptist pastor Bart Barber set out the stakes of this process for the denomination for Religion News Service:

Technically, said Barber, the Executive Committee is not obligated to heed the messengers on the question of waiving privilege. That decision is in the hands of Executive Committee members. But defying the will of the messengers was a “nuclear option,” Barber said, and could have significant consequences. The SBC’s entire governance model is built on “a rope of sand.”

“What makes that rope of sand work is trust,” he said.

Trust in the Executive Committee was already extremely low going into this process. The meetings of the past two days do not show signs of improvement. The constitution of the SBC is based on government by the messengers assembled at an annual meeting. If the Executive Committee presses forward with contradicting their express wishes, it would be hard to call it anything other than a constitutional crisis.