NAMB argues for ascending release but does that not set the stage for ascending liability?

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New legal arguments in case of McRaney v. NAMB opens SBC to new risk.

The North American Mission Board (NAMB) of the Southern Baptist Convention (SBC) asserts in its legal filings in the Will McRaney case that when McRaney signed a release with the Baptist Convention of Maryland/Delaware that the release applied also to NAMB.

However, this could have several unintended consequences. Does it open the door for ascending liability?

NAMB claims in its court filings that it provides support to the BCMD. As evidence, an affidavit it filed with the federal court details that between fiscal year 2013 and fiscal year 2018, NAMB gave financial support to BCMD total $5,237,886.

Of course, during that same period, BCMD gave to the SBC gifts totaling $18.8 million with $7,181,382 reaching NAMB.

There are also other questions about the affidavit that require scrutiny. The NAMB affidavit appears to imply that money was given to BCMD directly; however, the money NAMB provided to BCMD was its share of a partnership agreement.

If this seems very confusing—that is because it is.

The SBC and state conventions are independent entities. And that is important because independence offers Baptist churches a degree of immunity. For example, unlike hierarchical denominations a sex abuse crime at a local church does not create legal liability for the state convention or the SBC. Instead, the liability is localized.

This is something the SBC celebrates. The Baptist and Reflector profiled James Guenther, an SBC attorney instrumental in defending this arrangement.

According to the B&R, “For 63 years, Guenther has interpreted Southern Baptist polity and structure to state and federal agencies and courts, including the United States Supreme Court. He regularly defends the SBC and state conventions (including Tennessee) in cases brought against them. The cases involve efforts by plaintiffs to hold conventions liable for alleged wrongs which occurred in churches.

“Because Southern Baptists are not hierarchical, and the convention does not control churches, Guenther and his firm have never lost an ascending liability suit. He estimates that he has had approximately 50 of those cases over the years.”

Now, Guenther is mentioned in the article as contributing to a 1984 book on Ascending Liability in Religious and Other Nonprofit Organizations. The book warns that liability can be ascending, descending and even lateral.

In a footnote on page 3 of the book it states, “Both descending and lateral liability may arise when related organizations are viewed as part of a larger and indivisible enterprise.”

This should make state conventions take a deep breath. If NAMB were to make a case that there is linkage between NAMB and the state conventions, then what is to stop claims against NAMB finding their way into claims against the state conventions?  

Or, to put it another way, perhaps the state conventions might become liable for Kevin Ezell’s bad conduct. How would that suit the state conventions?

Oh, and there is more from the B&R article. Guenther issues a warning to the SBC.

“We have got to always be diligent that we practice what we preach, and conventions need to take care to respect what the Baptist Faith and Message says about local church autonomy,” Guenther told the B&R.

One might expand that warning to include all SBC entities along with local associations and state conventions.

Some SBC and state Baptist leaders seem more concerned about their personal and ministry comfort than standing for righteousness. Too many are trusting the CP instead of trusting God. The silence of the SBC Executive Committee and the vast majority of State Baptist Convention Executive Directors is deafening. 

NAMB’s legal theories in the Will McRaney case present serious dangers for the Southern Baptist Convention. It threatens the national denomination and even state conventions with new liabilities that were previously localized.

What Southern Baptists must ask themselves, if there is ascending release, then why is there not also ascending liability? If these are all supporting organizations, then why is there not ascending and even descending liability?

The SBC would not have to consider these issues were it not for Kevin Ezell. Ezell and NAMB are expending a significant amount of legal effort to avoid responsibility for their actions. They failed at the Fifth Circuit Court of Appeals and the Supreme Court—and that was good for the SBC.

Will they fail this time?

Southern Baptists who prize autonomy should hope so.