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Pastor, Church & Law
written by Richard R. Hammar, J.D., LL.M., CPA
This four-volume set is known as the most comprehensive and practical legal reference for churches and clergy. The complete set covers all your legal questions concerning the church, including: employment, liability, property laws, government regulations, first amendment issues, and more.
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Preface
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Chapter 1: Definitions and Status
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Legal Briefs
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Instructional Aids
- § 1-01
Distinctions Between the Terms Pastor, Clergy, Minister
- § 1-02
Definition of the Terms Pastor, Clergy, and Minister—In General
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Table 1-1: Selected Judicial Definitions of the Terms Pastor, Clergyperson, and Minister
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Table 1-2: Cross-Reference Index
- § 1-03
Status—Employee or Self Employed
- § 1-03.1
Social Security
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Table 1-3: Are Ministers Employees or Self-Employed for Federal Income Tax Reporting Purposes—A Summary of all Relevant Cases and Rulings in PCL Chapter 1
- § 1-03.2
Income Tax
- § 1-03.3
Retirement Plans
- § 1-03.4
Legal Liability
- § 1-03.5
Miscellaneous Federal and State Statutes
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Table 1-4: Employee or Self-Employed: Selected Differences
- § 1.04
Status—Ordained, Commissioned, or Licensed
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Chapter 2: The Pastor-Church Relationship
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Legal Briefs
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Instructional Aids
- § 2-01
Initiating the Relationship—In General
- § 2-01.1
Congregational Churches
- § 2-01.2
Hierarchical Churches
- § 2-01.3
Compliance with a Church's Governing Instrument in the Selection
- § 2-01.4
Civil Court Review of Clergy Selection Disputes—The General Rule of Non-Intervention
- § 2-01.5
Civil Court Review of Clergy Selection Disputes—Limited Exceptions to the General Rule
- § 2-01.6
Negligent Selection
- § 2-02
The Pastor-Church Relationship—The Contract
- § 2-03
The Pastor-Church Relationship—Compensation
- § 2-04
The Pastor-Church Relationship—Termination
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Chapter 3: Authority, Rights and Privileges
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Legal Briefs
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Instructional Aids
- § 3-01
General Scope of a Minister's Authority
- § 3-02
Officer of the Church Corporation
- § 3-03
Property Matters
- § 3-04
Performance of Marriage Ceremonies
- § 3-05
Exemption from Military Duty
- § 3-06
Exemption from Jury Duty
- § 3-07
The Clergy-Penitent Privilege—In General
- § 3-07.1
The Clergy-Penitent Privilege—Defining "A Communication"
- § 3-07.2
The Clergy-Penitent Privilege—Defining "Made in Confidence"
- § 3-07.3
The Clergy-Penitent Privilege—Defining "To a Minister"
- § 3-07.4
The Clergy-Penitent Privilege—"Acting in a Professional Capacity as a Spiritual Advisor"
- § 3-07.5
The Clergy-Penitent Privilege—"In the Course of Discipline"
- § 3-08
The Clergy-Penitent Privilege—Miscellaneous Issues
- § 3-08.1
Clergy-Parishioner Relationship
- § 3-08.2
Marriage Counseling
- § 3-08.3
Who May Assert the Privilege
- § 3-08.4
When to Assert the Privilege
- § 3-08.5
Waiver of the Privilege
- § 3-08.6
The Privilege in Federal Courts
- § 3-08.7
Constitutionality of the Privilege
- § 3-08.8
Child Abuse Reporting
- § 3-08.9
Confidentiality
- § 3-08.10
Disclosure to Civil Authorities
- § 3-08.11
Church Records
- § 3-08.12
Death of the Counselee
- § 3-09
Visiting Privileges at Penal Institutions
- § 3-10
Immigration of Alien Ministers
- § 3-11
Miscellaneous Benefits
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Chapter 4: Liabilities, Limitations and Restrictions
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Legal Briefs
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Instructional Aids
- § 4-01
Negligence
- § 4-02
Defamation
- § 4-02.1
Pastors Who Are Sued for Making Defamatory Statements
- § 4-02.2
Pastors Who Are Victims of Defamations
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Table 4-1 Elements of Defamation
- § 4-02.3
Defenses for Defamation
- § 4-03
Undue Influence
- § 4-04
Invasion of Privacy
- § 4-05
Clergy Malpractice
- § 4-06
Contract Liability
- § 4-07
Securities Law Violations
- § 4-08
Failure to Report Child Abuse
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Table 4-1 Application of Child Abuse Reporting Laws to Ministers and Lay Church Workers—A Summary
- § 4-09
Diversion of Church Funds
- § 4-10
State Regulation of Psychologists and Counselors
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Table 4.2 State Laws Exempting Clergy from Psychologist Licensure Requirements
- § 4-11
Sexual Misconduct
- § 4-11.1
Theories of Liability
- § 4-11.2
Defenses to Liability
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Eligibility to Perform Marriage Ceremonies
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Eligibility of Clergy for Jury Duty
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Clergy-Penitent Privilege
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Child Abuse Reporting Laws
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Table Appendix 4: 50-State Survey of Child Abuse Reporting
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Preface
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Chapter 5: Definitions
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Legal Briefs
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Instructional Aids
- § 5-01
Tax Legislation—Federal
- § 5-01.1
Churches
- § 5-01.2
Mail Order Churches
- § 5-01.3
Other Religious Organizations
- § 5-02
Tax Legislation—State
- § 5-03
Zoning law
- § 5-03.1
Churches
- § 5-03.2
Accessory Uses
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Chapter 6: Organization and Administration
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Legal Briefs
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Instructional Aids
- § 6-01
Unincorporated Associations
- § 6-01.1
Characteristics
- § 6-01.2
Personal Liability of Members
- § 6-01.3
Creation and Administration
- § 6-02
Corporations
- § 6-02.1
The Incorporation Process
- § 6-02.2
Charters, Constitutions, Bylaws and Resolutions
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Table 6-1 Provisions Commonly Found in Governing Documents
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Table 6-2 Priority Among Governing Documents in Congregational Churches
- § 6-03
Church Records
- § 6-03.1
Inspection
- § 6-03.2
"Accountings" of Church Funds
- § 6-03.3
Public Inspection of Tax-Exemption Applications
- § 6-03.4
Government Inspection of Donor and Membership Lists
- § 6-03.5
The Church Audit Procedures Act
- § 6-03.6
Who Owns a Church's Accounting Records?
- § 6-04
Reporting Requirements
- § 6-04.1
State Law
- § 6-04.2
Federal Law
- § 6-05
Church Names
- § 6-06
Officers, Directors and Trustees—In General
- § 6-06.1
Election or Appointment
- § 6-06.2
Authority
- § 6-06.3
Meetings
- § 6-06.4
Removal
- § 6-07
Officers, Directors and Trustees—Personal Liability
- § 6-07.1
Tort Liability
- § 6-07.2
Contract Liability
- § 6-07.3
Breach of the Fiduciary Duty of Care
- § 6-07.4
Breach of the Fiduciary Duty of Loyalty
- § 6-07.5
Violation of Trust Terms
- § 6-07.6
Securities Law
- § 6-07.7
Wrongful Discharge of an Employee
- § 6-07.8
Willful Failure to Withhold Taxes
- § 6-07.9
Exceeding the Authority of the Board
- § 6-07.10
Loans to Directors
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Table 6-3 Selected State Laws Prohibiting Loans to Directors by Nonprofit Corporations
- § 6-08
Immunity Statutes
- § 6-08.1
Directors and Officers Insurance
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Table 6-4 Personal Liability of Church Officers, Directors and Trustees
- § 6-09
Members—In General
- § 6-09.1
Selection and Qualifications
- § 6-09.2
Authority
- § 6-10
Members—Discipline and Dismissal
- § 6-10.1
Judicial Nonintervention
- § 6-10.2
"Marginal" Civil Court Review
- § 6-10.3
Preconditions to Civil Court Review
- § 6-10.4
Remedies for Improper Discipline or Dismissal
- § 6-11
Members—Personal Liability
- § 6-12
Meetings of Members
- § 6-12.1
Procedural Requirements
- § 6-12.2
Minutes
- § 6-12.3
Parliamentary Procedure
- § 6-12.4
Effect of Procedural Irregularities
- § 6-12.5
Judicial Supervision of Church Elections
- § 6-12.6
Who May Attend
- § 6-13
Powers of a Local Church
- § 6-14
Merger and Consolidation
- § 6-15
Dissolution
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Chapter 7: Church Property
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Legal Briefs
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Instructional Aids
- § 7-01
Church Property Disputes—In General
- § 7-02
Church Property Disputes—Supreme Court Rulings
- § 7-03
State and Lower Federal Court Rulings
- § 7-03.1
Congregational Churches
- § 7-03.2
Hierarchical Churches—the Compulsory Deference Rule
- § 7-03.3
Hierarchical Churches—Neutral Principle of Law
- § 7-04
Church Property Disputes—Dispute Resolution Procedures
- § 7-05
Transferring Church Property
- § 7-06
Zoning Law
- § 7-06.1
The Majority View: Churches May Build in Residential Zones
- § 7-06.2
The Minority View: The Government May Restrict Church Construction in Residential Zones
- § 7-06.3
Legal Remedies Available to Churches
- § 7-06.4
The Religious Land Use and Institutionalized Persons Act (RLUIPA)
- § 7-07
Restricting Certain Activities Near Church Property
- § 7-08
Building Codes
- § 7-08.1
Lead Paint on Church Property
- § 7-09
Nuisance
- § 7-10
Landmarking
- § 7-11
Eminent Domain
- § 7-12
Defacing Church Property
- § 7-13
Restrictive Covenants
- § 7-14
Reversion of Church Property to the Prior Owner
- § 7-15
Materialmen's Liens
- § 7-16
Religious Discrimination in the Sale or Rental of Church Property
- § 7-17
Removing Disruptive Individuals
- § 7-18
Adverse Possession
- § 7-19
Accounting for Depreciation
- § 7-20
Premises Liability
- § 7-20.1
Liability Based on Status as Invitee, Licensee, or Trespasser
- § 7-20.2
Defenses to Premises Liability
- § 7-20.3
Use of Church Property by Outside Groups
- § 7-20.4
Assaults on Church Property
- § 7-20.5
Skate Ramps
- § 7-20.6
Sound Rooms
- § 7-21
Embezzlement
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Table 7-1 How Embezzlement Occurs: Common Examples of Poor Internal Control
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Preface
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Chapter 8
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Chapter 8, Part 1: Selection of Employees
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Chapter 8, Part 2: Compensation and Benefits
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Legal Briefs
- § 8-06
Introduction
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Table 8-4 Application of Workers Compensation Laws to Religious Employers
- § 8-07
Workers Compensation
- § 8-07.1
Treatment of Churches
- § 8-07.2
Compensating Employees Who Are Receiving Workers Compensation Benefits
- § 8-07.3
Dismissing Employees for Filing a Workers Compensation Claim
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Table 8-5 Application of Workers Compensation Laws to Religious Employers
- § 8-08
Fair Labor Standards Act
- § 8-08.1
Enterprises
- § 8-08.2
Individual Coverage
- § 8-08.3
Federal Court Rulings
- § 8-08.4
Department of Labor Opinion Letters
- § 8-08.5
Exemptions
- § 8-08.6
Ministers
- § 8-08.7
State Laws
- § 8-08.8
Individual Coverage of Church Employees
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Chapter 8, Part 3: Employment Discrimination
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Legal Briefs
- § 8-09
Introduction to Federal Employment and Civil Rights Laws—The "Commerce" Requirement
- § 8-09.1
Counting Employees
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Table 8-6 Application of Selected Federal Employment and Civil Rights Laws to Religious Organizations
- § 8-10
The "Ministerial Exception" under State and Federal Employment Laws
- § 8-10.1
Cases Recognizing the Ministerial Exception
- § 8-10.2
Cases Not Recognizing the Ministerial Exception
- § 8-11
Procedure for Establishing a Discrimination Claim
- § 8-12
Title VII of the Civil Rights Act of 1964
- § 8-12.1
Application to Religious Organizations
- § 8-12.2
Application to Religious Educational Institutions
- § 8-12.3
Religion as a Bona Fide Occupational Qualification
- § 8-12.4
Discrimination Based on Religion or Morals
- § 8-12.5
Sexual Harassment
- § 8-12.6
The Catholic Bishop Case
- § 8-12.7
Failure to Accommodate Employees' Religious Practices
- § 8-12.8
The Religious Freedom Restoration Act
- § 8-12.9
The Civil Rights Act of 1991
- § 8-13
The Age Discrimination in Employment Act
- § 8-14
The Americans with Disabilities Act
- § 8-14.1
Discrimination in Employment
- § 8-14.2
Discrimination in Public Accommodations
- § 8-15
Family and Medical Leave Act
- § 8-16
Employer "Retaliation" Against Victims of Discrimination
- § 8-17
Discrimination Based on Use of Military Status
- § 8-18
Employee Polygraph Protection Act
- § 8-19
Occupational Safety and Health Act
- § 8-20
Display of Posters
- § 8-21
Discrimination under State Laws
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Chapter 8, Part 4: Termination
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Legal Briefs
- § 8-22
Termination of Employees
- § 8-22.1
Severance Agreements
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Chapter 8, Part 5: Miscellaneous Issues
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Legal Briefs
- § 8-23
National Labor Relations Act
- § 8-24
Reference Letters
- § 8-25
Employee Evaluations
- § 8-26
Employment Interviews
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Table 8-8 Interview Questions
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Table 8-9 Permitted and Prohibited Interview Questions Under the ADA
- § 8-27
Arbitration
- § 8-28
Employee Handbooks
- § 8-29
Employee Privacy
- § 8-30
Insurance
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Preface
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Chapter 9: Government Regulation of Churches
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Legal Briefs
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Instructional Aids
- § 9-01
Introduction
- § 9-02
Regulation of Charitable Contributions
- § 9-03
Limitations on Charitable Giving
- § 9-04
Federal and State Securities Law
- § 9-05
Copyright Law
- § 9-05.01
Securing Copyright Protection
- § 9-05.02
The Deposit Requirement
- § 9-05.03
Copyright Ownership
- § 9-05.04
Works Made for Hire
- § 9-05.05
Duration of Copyright Protection
- § 9-05.06
Registration
- § 9-05.07
The Copyright Owner's Exclusive Rights
- § 9-05.08
Infringement
- § 9-05.09
The "Religious Service" Exemption to Copyright Infringement
- § 9-05.10
Other Exceptions to Copyright Infringement
- § 9-05.11
Electronic Media
- § 9-06
Government Investigations
- § 9-07
Judicial Resolution of Church Disputes
- § 9-08
Political Activities by Churches and Other Religious Organizations
- § 9-09
Bankruptcy Law
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Chapter 10: Church Legal Liability
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Legal Briefs
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Instructional Aids
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Table 10-1: The Top Ten Sources of Church Liability from 2000-2007
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Table 10-2: The Top Five Categories of Church Liability from 2000-2007
- § 10-01
Negligence as a Basis for Liability
- § 10-02
Vicarious Liability (Respondeat Superior)
- § 10-02.1
The Requirement of Employee Status
- § 10-02.2
Negligent Conduct
- § 10-02.3
Course of Employment
- § 10-02.4
Inapplicability to Nonprofit Organizations
- § 10-03
Negligent Selection of Church Workers—In General
- § 10-04
Negligent Selection of Church Workers—Sexual Misconduct Cases Involving Minor Victims
- § 10-04.1
Court Decisions Recognizing Negligent Selection Claims
- § 10-04.2
Court Decisions Rejecting Negligent Selection Claims
- § 10-04.3
Risk Management
- § 10-04.4
Using Homosexuals as Youth or Children's Workers
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Table 10-3: Why Sexual Misconduct Is One of the Greatest Legal Risks Facing Churches Today
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Table 10-4: Ten Risks Associated with Sexual Misconduct
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Table 10-5: Criminal Records Checks: A Summary of the Options
- § 10-05
Negligent Selection of Church Workers—Sexual Misconduct Cases Involving Adult Victims
- § 10-05.1
Court Decisions Recognizing Negligent Retention Claims
- § 10-05.2
Court Decisions Rejecting Negligent Retention Claims
- § 10-05.3
Risk Management
- § 10-06
Negligent Selection of Church Workers—Other Cases
- § 10-07
Negligent Retention of Church Workers—In General
- § 10-07.1
Court Decisions Recognizing Negligent Retention Claims
- § 10-07.2
Court Decisions Rejecting Negligent Retention Claims
- § 10-07.3
Risk Management
- § 10-08
Negligent Supervision of Church Workers—In General
- § 10-09
Negligent Supervision of Church Workers—Sexual Misconduct Cases Involving Minor Victims
- § 10-09.1
Court Decisions Recognizing Negligent Supervision Claims
- § 10-09.2
Court Decisions Rejecting Negligent Supervision Claims
- § 10-09.3
Risk Management
- § 10-10
Negligent Supervision of Church Workers—Sexual Misconduct Cases Involving Adult Victims
- § 10-10.1
Court Decisions Recognizing Negligent Supervision Claims
- § 10-10.2
Court Decisions Rejecting Negligent Supervision Claims
- § 10-10.3
Risk Management
- § 10-11
Negligent Supervision of Church Workers—Other Cases
- § 10-11.1
Risk Management
- § 10-12
Counseling—In General
- § 10-12.1
Counseling—In General
- § 10-13
Breach of a Fiduciary Duty
- § 10-13.1
Court Decisions Recognizing Fiduciary Duty Claims
- § 10-13.2
Court Decisions Rejecting Fiduciary Duty Claims
- § 10-13.3
Risk Management
- § 10-14
Ratification
- § 10-15
Defamation
- § 10-16
Defenses to Liability
- § 10-16.1
Contributory and Comparative Negligence
- § 10-16.2
Assumption of Risk
- § 10-16.3
Intervening Cause
- § 10-16.4
Statutes of Limitations
- § 10-16.5
Charitable Immunity
- § 10-16.6
Release Forms
- § 10-16.7
Insurance
- § 10-16.8
Other Defenses
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Table 10-6: Selected State Statutes Extending the Limitations Period in Cases of Child Sexual Abuse
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Table 10-7: Insurance Coverages for Churches
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Table 10-8: Claims Made and Occurrence Coverage
- § 10-17
Damages—In General
- § 10-17.1
Punitive Damages
- § 10-17.2
Duplicate Verdicts
- § 10-18
Denominational Liability—In General
- § 10-18.1
Court Decisions Recognizing Vicarious Liability
- § 10-18.2
Court Decisions Rejecting Vicarious Liability
- § 10-18.3
Defenses to Liability
- § 10-18.4
Risk Management
- § 10-18.5
The Legal Effect of a Group Exemption Ruling
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Table 10-9: Ascending Liability Using the OFCCP 27-Factor Analysis
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Table 10-10: Group Exemption Requirements
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Table 10-11: Liability of Denominational Agencies for the Sexual Misconduct of Affiliated Clergy and Lay Workers—A State-By-State Review of Selected Cases
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Chapter 11: A Summary of Constitutional History
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Chapter 12: Landmark Supreme Court Decisions Interpreting the First Amendment Religion Clauses
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Legal Briefs
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Instructional Aids
- § 12-01
Everson v. Board of Education
- § 12-02
People of State of Illinois ex rel. McCollum v. Board of Education
- § 12-03
Zorach v. Clauson
- § 12-04
Engel v. Vitale
- § 12-05
School District of Abington v. Schempp
- § 12-06
Walz v. Tax Commission
- § 12-07
Wisconsin v. Yoder
- § 12-08
Lemon v. Kurtzman
- § 12-09
Chambers v. Marsh
- § 12-10
Wallace v. Jaffree
- § 12-11
Employment Division v. Smith
- § 12-12
Board of Education v. Mergens
- § 12-13
Lee v. Weisman
- § 12-14
Mitchell v. Helms
- § 12-15
Santa Fe Independent School District v. Doe
- § 12-16
Zelman v. Simmons-Harris
- § 12-17
Watchtower Bible and Tract Society v. Village of Stratton
- § 12-18
McCreary County v. American Civil Liberties Union
- § 12-19
Van Orden v. Perry
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Chapter 13: The Present Meaning of the First Amendment Religion Clauses
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Legal Briefs
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Instructional Aids
- § 13-01
The Establishment Clause
- § 13-01.1
The Lemon Test
- § 13-02
The Free Exercise Clause
- § 13-02.1
The Smith Case
- § 13-02.2
The Religious Freedom Restoration Act
- § 13-02.3
The City of Boerne Case
- § 13-02.4
Conclusions
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Chapter 14: Significant First Amendment Issues
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Legal Briefs
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Instructional Aids
- § 14-01
The Right to Witness
- § 14-02
Prayer on Public Property other than Schools
- § 14-03
Prayer During Public School Activities
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Table 14-1: Public and Nonpublic Fora
- § 14-04
Display of Religious Symbols on Public Property
- § 14-05
Recurring Use of Public Property by Religious Congregations for Religious Services
- § 14-06
Nonrecurring Use of Public Property by Adults for Religious Events and Activities
- § 14-07
Use of Public School Property by Students for Religious Purposes
- § 14-08
Sunday Closing Laws
- § 14-09
The Right to Refuse Medical Treatment
- § 14-10
Definition of "Religion" and "Religious"
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