Pastor, Church & Law
Understand the laws affecting pastors and why they are important for church boards and ministers to know. Richard Hammar uses court cases to help define and explain the legal distinction of ministerial status and its implications for pastors and church boards. This volume addresses clergy employment contracts, compensation, termination, legal privileges and conditions of ministers, and the legal authority of ministers on behalf of the church. Also, the more common theories of clergy legal liability are reviewed.
The starting point for a study of legal issues facing pastors needs to begin with definitions. There are several important terms associated with clergy, including pastor, minister, and clergyman, and a number of laws use these terms, so it is important to understand their meaning. To illustrate, would a volunteer youth pastor who has no ministerial credentials be considered a "minister" for purposes of the clergy-penitent privilege? Would such a person be eligible to perform marriage ceremonies? What about eligibility for a housing allowance under federal tax law? These questions demonstrate the importance of understanding legal definitions.
It is also important to establish the concept of ministerial status. Ministers may be either employees or self-employed, and this distinction is important in a number of contexts including income tax and Social Security reporting. In addition, some laws use the terminology of an ordained, commissioned, or licensed minister. The courts and government agencies have often expressed discomfort when called upon to define these terms, noting that they are not prepared to define ecclesiastical terminology. As we will see throughout this text, attempts by courts and government agencies to define ecclesiastical terms often are clumsy, naive, and inadequate. Yet, the use of these terms in a number of statutes makes it necessary for the courts and agencies to define them.
Along with understanding key definitions and ministerial status, the chapters that follow will acquaint you with the legal principles that apply to the three phases of a minister's relationship with a local church: (1) initiation of the relationship; (2) terms and conditions of the employment relationship, including the employment contract and compensation; and (3) termination of the relationship.
All of these phases carry significant legal responsibilities for the church and the pastor. The termination of the pastor-church relationship presents more troublesome legal questions than either of the first two phases of the relationship. Whether and when a church can terminate a minister's employment is a legal question whose answer ordinarily depends upon the terms of the employment contract (if any), whether the minister was employed for a specified term or for an indefinite period, and terms of the church's constitution and bylaws. Again, it is crucial that a church follow the procedures set forth in its governing instrument in discharging a minister. If these procedures are not followed, the discharge may not be legally valid.
The increasing secularism of our society has led to a sharp reduction in the number of legal privileges enjoyed by ministers. Nevertheless, some important privileges remain. This volume of Pastor, Church & Law also examines the nature and extent of a minister's legal authority.
While ministers continue to enjoy a few legal privileges because of their status, they are treated no differently than other citizens for purposes of most laws and regulations. As a result, they can be sued, and they are subject to government regulations. The more common forms of legal liability, such as negligence, defamation, undue influence, malpractice, contracts, securities, failure to report child abuse, diversion of church funds, counseling, and sexual misconduct are covered in the last chapter. As you read the text you will realize that the widespread belief that ministers enjoy a privileged legal status is largely a misconception. Ministers are being sued today in increasing numbers for a wide variety of reasons. A thorough understanding of these liabilities and theories used to defend against them in court will help you and your church avoid many of the kinds of behavior that may result in legal liability.