Amici Acrimony

On the SBC Amicus Brief Controversy 

As the calendar now inches toward Thanksgiving, the Southern Baptist Convention (SBC) finds itself embroiled in yet another leadership controversy.

At its core lies an amicus brief filed in February, relating to the tragic case of Samantha Killary, whose adoptive father confessed to sexually abusing her as a child. Killary sued him, her grandfather, her father’s girlfriend, and their employer, the Louisville Police Department, alleging that they knew of the abuse and violated their legal duties to her by failing to report the abuse. Some defendants have asked the Kentucky Supreme Court to rule that Killary waited too long to sue.

Four SBC entities—the Southern Baptist Convention, its Executive Committee, Lifeway Christian Resources, and Southern Baptist Theological Seminary—have stepped into this legal fray as “amici,” or “friends of the court.”

Amicus briefs alert judges to outsiders who might be impacted by a ruling. Other SBC entities file them routinely, usually reflecting an SBC consensus view on religious liberty. But at times they go off the rails.  In 2019, the Ethics and Religious Liberty Commission (ERLC) filed an amicus brief in support of its sister entity, the North American Mission Board (NAMB), as it sought to stifle a defamation suit. The brief butchered Baptist polity so badly that the ERLC later notified the Fifth Circuit that the brief had made false statements.
The crux of the SBC’s argument in the Killary case is that the Defendants are right about the law, whether or not they did the terrible things alleged against them. The legal issue revolves around Kentucky Revised Statutes 413.249, a statute of limitation for certain sex abuse claims. The SBC’s stance is twofold: first, that the legislature didn’t intend to revive claims against third parties when it amended the statute in 2021, and second, that even if it did, such revival is legally untenable. Kentucky law, they say, gives them a vested legal right to be free of future claims, and it cannot be taken by the legislature. This argument, if upheld, could see a pending lawsuit against the four SBC entities dismissed. In that case, Hannah Kate Williams claims that multiple SBC entities knew her father was abusing her, and failed to act. But in Williams’ case, the father has not been convicted of abuse.

Statutes of limitation are common, related to the ancient doctrine of “laches.” Such limitations acknowledge that old claims can be unfair. Memories fade, witnesses move or die, and exculpatory evidence can be unwittingly discarded. This makes the facts less and less certain. And so the judgments tend to be less and less just. Courts and legislatures have long required litigants to be vigilant, and have  therefore barred stale claims.

But these traditional legal doctrines collide with moral arguments presented by abuse advocates. They contend new science shows the limitations are unjust in child sex abuse cases, given the often-delayed disclosure by child sex abuse survivors. For example, a study from ChildUSA says most survivors linked to the Boy Scouts of America made their first disclosures after age 50, long after a typical ten- or twenty-year statute might run.

Critics of the SBC argument have been vociferous, calling it a “betrayal,” and drawing parallels between the SBC and institutions like the Catholic Church and Michigan State University. They cite an SBC resolution that apologizes for prioritizing institutional reputation over justice for survivors, and say the entities have violated it.

Many Baptists have understood the SBC abuse reform effort in terms of brochures, websites, and trainings about how churches can prevent grooming and abuse.  But the brief brouhaha highlights the area of “caring well” or “responding to abuse victims,” which can involve modern, social justice ideas and extra-biblical therapeutic assumptions.  It has been clear to careful observers that some prominent SBC voices have made reckless promises while seeking emotional rapprochement with hurting victims. As a result, the SBC is being pilloried for failing to deliver.

Advocates, of course, are agents for a viewpoint, and they are an integral part of an adversarial system. They want better recoveries for victims. But they are not impartial judges giving balanced consideration of all the legitimate interests. The “institutions” they deride represent people and promises, too: innocent missionaries, seminarians, church planters, and their families. Baptist leaders have promised to “hold the rope” back home, and that donations to these causes will go to certain ministries. It is not selfish to account for these promises.
If “justice” means never pleading legal limitations, the SBC should understand it is a call to fold up. Some have said that’s their goal. One self-styled advocate in the SBC calls for the SBC to promise “illimitable care” to survivors.  Another gloats of impending SBC bankruptcy. Yet another is quoted in an insurance industry publication: “if the SBC winds up needing to sell nearly all its assets for the sake of providing reparations and restitution to those it has so grievously harmed, then this would be for the good.”  Believe them. The CDC estimates the cost of childhood sexual abuse north of $9.3 billion a year; the SBC’s Cooperative Program has brought in only $7 billion since 1930. As much as a Baptist ladder-climber might be tempted to treat offering plate dollars like Monopoly money, and use them to chase praise from advocates, he simply would not have enough to foot the bill. Even if the Cooperative Program redefined its entire mission around “responding well to abuse victims” its coffers would be drained before year’s end.

Advocates have called for the SBC to withdraw the amicus brief, or even to apologize and waive the claimed limits, saying the SBC position aligns with insurance companies more than victims. But if it has insurance, then these are the victims for which the SBC has paid premiums. Insurance lets victims be compensated while the entity keeps its promises to staff and ministry, not to mention Southern Baptist churches. Most policies stipulate that if the insured does not cooperate with the insurer’s defense, coverage is waived. This presents a dilemma: should the SBC waive its legal defenses,  jeopardizing its promises to missionaries and educators, or should it assert these defenses, potentially limiting the victim’s legally-required compensation?

Of course, the SBC shouldn’t assert frivolous defenses or rely on mere technicalities. It must be a moral defendant. Wherever possible, the Convention should seek to settle claims through mediation, offering reasonable amounts to true victims. If liability and the amount of compensation are clear, the SBC should push insurers to pay promptly.  But where legitimate disagreements persist, SBC leaders must also honor their commitments to Southern Baptists and their ministries. If this proves impossible, transparency with messengers is essential.

Where a good-faith defense exists, statutes of limitations are part of the justice system, and for good reason. The same American system allows amicus briefs. The same American system protects the right to jury trials, unlike many other countries. A decision is not just because it is legal, of course.  But raising a traditional statute of limitations in this context is not inherently unethical, just as moving for summary judgment is not inherently unethical. Statutes and procedural rules and standards of evidence are regular features of litigation born of experience and intended to facilitate justice. Their invocation is not a signal of guilt or sleezy lawyering. A 2019 SBC resolution decries statutes that “unduly” protect abusers, at least leaving the door open to fair limitations. But this week, few people have been willing to acknowledge any due limitations or even the idea that stale claims can put defendants at an unfair disadvantage.
Finally, the brief is controversial because of how it was drafted and introduced. It seems clear that the brief originated from lawyers at the Bradley firm, which represents Lifeway in this case, and represents the SBCEC elsewhere.

One concern is whether Trustees at the SBCEC, SBTS and Lifeway were advised properly.   Shortly after a media report about the brief, Trustees of the Executive Committee started publicly disclaiming knowledge of it. Southern Seminary President Mohler issued a short statement that the brief had been filed at the recommendation of lawyers. Lifeway has thus far remained silent. Presumably Trustees can override their staff and lawyers if they think it is important enough.  But it is not clear that majorities of trustees want to take that extraordinary step here.

But it was especially disconcerting to see the power of the Convention’s voice – usually reserved for democratic, Spirit-led group decisions – used without clear authorization. Messengers never approved a mechanism to sign the Southern Baptist Convention and its 45,000 churches on to this kind of brief. The entire point of the Executive Committee of the Southern Baptist Convention is that the Convention cannot act quickly during the year.  Rather than trust one person, the Convention gives that power to an 80+ member board.  And even when most of them agree on something, it is a power used with trepidation; the Executive Committee usually acts “for” the Convention, not “as” the Convention.

Regardless of the merits of the arguments, who put the churches and messengers behind this brief?

On Monday, SBC President Bart Barber disclosed that SBC lawyers had asked him to approve the brief for the Convention in August. Dr. Barber said he did so, on short notice, in a whirlwind of other legal meetings. He did not apologize for the arguments, but did apologize for not doing more to learn about its context.

This has raised predictable hand wringing about protecting leaders from lawyers. The Guidepost report blamed old SBCEC leaders for letting legal counsel handle matters in secret, without oversight. In 2021, some aspiring leaders promised that if they were put in charge, they wouldn’t listen to lawyers — in fact, they’d tell them precisely what to say and do. Former SWBTS President Adam Greenway boldly declared, “Attorneys are paid to give you the advice you need in order to make the best case for what you want to either accomplish or prevent. That’s what they do.”  Greenway apparently never considered that good lawyers might tell His Majesty that some laws don’t bend to his will, just as good CPAs wouldn’t let him shove a Hemi-powered espresso machine into whatever budget line item he wants. I have feared that only desperate mercenaries would accept the job under these conditions.

But when it is all said and done, Baptists may need to step in to protect the lawyers from these leaders.  It seems four firms gave four clients reasonable advice, and filed a competent, if controversial, brief on a legal dispute.  But who told these lawyers that the Bunyan Gavel is a Baptist Mjolnir? Since when does our honorary chairperson convene meetings of the Great Commission Council, decide how much “we” will cooperate with the DOJ investigation, and sign 45,000 churches on to legal briefs without a vote or instruction?  Someone is sabotaging the lawyers with bad polity.

When he named his Cooperation Group a few weeks after signing the brief, Dr. Barber commissioned them to rewrite the fundamental compact between the Convention and churches, because “the terms of the agreement have changed, as evidenced by the unprecedented things that we are doing.” 

As much as I think the SBC needs to change in ways, this kind of unprecedented thing should not be the new polity. Healthy change looks like going back to the fundamentals, the old, proven way to build trust and cooperation: Baptist entities, held by Baptist trustees, accountable to Baptist messengers, from churches that are like-minded in the Baptist Faith and Message.

Image Credit: Unsplash

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Jonathan Whitehead

Jonathan Whitehead represents churches, denominations, colleges, and religious organizations on matters of corporate governance and compliance. He played a leading role in landmark Missouri cases on the relationship between denominational groups and their related entities. He has authored numerous amicus briefs and been co-counsel on cases before the United States Supreme Court. In 2018, he was named an "Influential Appellate Advocate" by Missouri's Lawyers Weekly. He is a graduate of Southwest Baptist University (2001) and Harvard Law School (2004). He is also a Blackstone Fellow (2002).

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