I do not envy the journalists who are attempting to cover the current meetings of the Southern Baptist Convention’s Executive Committee.

The financial and moral stakes are huge. Many of the questions being debated have, from a congregational polity point of view, theological as well as legal implications. You have some activists who want the SBC to take steps that, under its system of governance, it can’t really take. You also have SBC leaders who don’t appear willing to take the actions that they can take, in order to be transparent on sexual-abuse cases.

This may sound strange, but I think it may help to look at the top of the Baptist Press report covering the opening day of the meetings in Nashville. Yes, Baptist Press is an SBC operation and its leaders report directly to the Executive Committee. That makes one statement here even more important:

NASHVILLE (BP) — In its first meeting since messengers to the June 2021 Southern Baptist Convention Annual Meeting called for an independent, third-party review of the SBC Executive Committee, the EC responded to several routine motions and moved to fund the independent review but declined to waive attorney-client privilege for the time being.

After a three-hour extra session Tuesday afternoon, the Executive Committee ultimately rejected a proposal from its officers and instead adopted a temporary measure to move the sexual abuse review forward leaving the details to be hashed out between the officers and the Sex Abuse Task Force within seven days. One of the most significant undecided details was whether or not the EC will agree to waive attorney-client privilege as Guidepost Solutions, the independent firm chosen by the task force to conduct the review, has requested. In the motion passed SBC messengers in June, the EC was instructed to abide by the recommendations of the third-party firm, up to and including the waiver of attorney-client privilege.

Did you catch that last sentence? That’s one of the most important facts in this standoff. The Executive Committee is charged with carrying on the work of the SBC when the national convention is not in session. However, in terms of authority, the EC’s powers come from the local church “messengers” attending the annual SBC national convention.

It appears that a majority of the Executive Committee think they get to debate whether or not to approve the waiver of attorney-client privilege as part of a third-party investigation of how the EC, or some of its leaders, handled accusations of sexual abuse. However, “messengers” at the national convention already voted to approve that step.

What’s the bottom line here? Here’s a nice summary from the hard-news report at Christianity Today:

Ronnie Floyd, president and CEO of the EC, reiterated the group’s stance against “all forms of sex abuse, mishandling of abuse, mistreatment of victims and any intimidation of abuse survivors.” During the meeting, he encouraged members to work with the task force and Guidepost “in every way possible, but within our fiduciary responsibilities as assigned by the messengers.”

Those opposed to waiving privilege worried that the move would open up the EC and its members to litigation and possibly “bankrupt” the SBC. Joe Knott, an attorney and former EC secretary, spoke up to defend the EC’s responsibility for keeping SBC entities solvent. He favored moving forward and addressing attorney-client privilege “at the end.”

As I see it, the key battle here concerns this piece of that puzzle — “Those opposed to waiving privilege worried that the move would open up the EC and its members to litigation and possibly ‘bankrupt’ the SBC.”

Say what? Let’s back up a bit.

Any lawyer knows that, when filing lawsuits for damages (after sexual abuse, in this case), the goal is to sue the institution that has the largest insurance policies and financial resources.

However, the SBC is a convention of independent local congregations. The national convention has no ability to control the actions or policies of a local church, other than to kick that church out of SBC fellowship because of its failure to voluntarily follow policies recommended by the convention.

As veteran SBC-watcher Bob Smietana of Religion News Service noted in his report:

The nation’s largest Protestant denomination, the SBC has long struggled to respond to sexual abuse in its churches. A 2019 investigation by the Houston Chronicle reported hundreds of abuse cases in Southern Baptist churches over decades. In response, SBC leaders held a service of lament and launched a new denominational program to care for abuse survivors. The denomination also set up a system to cut ties with any church that fails to take abuse seriously.

Earlier this year, the SBC Executive Committee ousted a pair of churches that had abusers on staff.

In denominations and churches with hierarchical structures — think United Methodist, Episcopal, Roman Catholic, Eastern Orthodox — abuse by a local pastor can lead to claims against the church authorities who are the ultimate bosses of that pastor and who, to varying degrees, assigned that pastor to the local church.

There are legal ties that bind. That is not the case under Baptist polity.

Ah, but what about individual agencies and institutions created by Southern Baptists? If a woman or man was abused at an SBC seminary, lawyers can go after that school and its leaders. I would assume the same is true of cases involving victims involved in jobs or programs with an SBC missions agency.

But what about the Executive Committee, which is clearly an office or agency of the SBC itself? What insurance policies and budgets does the EC have that could be targeted by victims and their legal teams?

Here is my big question: Can someone who believes she or he has been damaged by the actions of the Executive Committee, and is seeking damages from its financial resources, sue the EC and its leaders without attempting to sue the entire administrative structure of the national convention, which draws its authority from independent local churches?

Clearly, some EC members — a majority at this point — are trying to nix that option, even if that means ignoring a vote of “messengers” at the national meeting. They appear to think that keeping some of their legal business under wraps will protect the SBC as a whole.

But what if the opposite is true? Consider this large chunk of an SBC Voices weblog post by attorney Liz Evan, a member of the SBC’s Sex Abuse Task Force. Note: I added some bold-face type.

If you are a Southern Baptist, you need to understand what has just happened in your Executive Committee.  They have flagrantly defied the overwhelming will of the Messengers. A few dozen folks in Nashville decided they know better than the 17,000 Messengers appointed by the churches. Waiver of privilege was not something the Messengers delegated to the EC to consider in their discretion; waiver was a direct and specific command from the Messengers, and it was flouted.

Please understand the implications of this. They have just opened up the SBC to MASSIVE liability. 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.

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.

More importantly, there are significant moral implications as well. Waiver of attorney-client privilege in this instance was not only overwhelmingly mandated by the Messengers, it was the right and moral thing to do.

If the Executive Committee doesn’t answer to the national convention “messengers,” then who holds legal authority over this SBC office or agency?

Let me conclude with some material from the Nashville Tennessean report by Liam Adams. Readers will want this as background to whatever actions unfold today or in future EC meetings (without reporters on site).

Oh, and what a welcome to the Nashville religion beat for Adams! Let’s start at the top:

A top Southern Baptist Convention committee balked Tuesday at allowing a third-party firm access to communication with its lawyers as part of a wide-ranging investigation into how it responded to the sexual abuse crisis within the network of conservative evangelical churches.

The Southern Baptist Convention's executive committee took the action Tuesday during two days of meetings in Nashville. 

The waiver would have allowed Guidepost Solutions, the firm investigating 21 years of executive committee history over the next eight months, to review materials involving the executive committee and its attorney. The investigation would be far less comprehensive without the waiver, said sexual abuse survivors and representatives of a Southern Baptist Convention task force overseeing Guidepost’s work.  

Later, we hit that key fact mentioned earlier in this GetReligion post:

… (D)uring the convention's annual meeting in June, some Southern Baptist messengers, the denomination's voting delegates, raised concerns about whether the executive committee could properly oversee an investigation of itself. As a result, the convention approved a measure creating a task force appointed by newly elected SBC President Ed Litton to oversee the Guidepost inquiry and requested the executive committee waive its attorney-client privilege. 

“Our biggest fear should not be a legal matter. It should be a fear of God,” Litton said Monday. “We need to win the trust of our people again.”

Stay tuned. If the Executive Committee is an SBC agency, the legal teams working with victims can certainly go after the funds linked to the EC’s work. But if the Executive Committee does not answer to the SBC itself — in the form of its national-convention messengers — then that implies there there is an SBC hierarchy and, well, all bets are off.

FIRST IMAGE: Baptist Press photo of Executive Committee meeting, by Brandon Porter.