Pastor, Church & Law
Learn which local, state, and federal laws and regulations apply to religious organizations and which ones do not. This volume addresses the church's legal liability on: negligent employee selection, retention, and supervision, counseling, breach of fiduciary duty, ratification, and defamation. Finally, Richard Hammar discusses the religion clause of the first amendment - it's interpretation, inclusions, and exclusions.
Over the past several decades, the number of laws and regulations enacted by legislative and administrative agencies of federal, state, and local governments have increased enormously. Inevitably, questions have arisen as to the application of these laws and regulations to religious organizations. After all, it is one thing for a statute to apply to a local dry cleaner or fast food restaurant. But it is quite different to apply the same law to a church, since churches are protected by the First Amendment guaranty of religious freedom as well as similar provisions in state constitutions.
How far, then, can government go in applying legislation and regulations to religious organizations without violating the First Amendment? The amenability of religious organizations to some regulation is not seriously disputed. For example, few protest the application to churches of laws and regulations prohibiting fraud in the sale of securities, requiring donated funds to be expended for the purposes represented, protecting copyright owners against infringement, or prohibiting activities that cause physical harm, property damage, or material disturbance to others. Similarly, churches routinely comply with municipal building codes and zoning regulations in the construction of worship facilities. In short, most churches have acknowledged that religion should not be used as a means of avoiding laws and regulations that are designed to protect the life, health, or safety of members of the public, or that impose fair and reasonable obligations upon those activities of churches that are not intrinsically religious.
But some attempts by the government to regulate the activities of churches are more objectionable. For example, should the government have the authority to invalidate any gift to a church simply because it was contained in a will or deed executed within a prescribed time prior to the donor's death? Should the government have the ability to regulate a church's solicitation of funds? Or, should the government have the authority to apply anti-discrimination requirements to churches? Such governmental assertions of authority are opposed by many churches as unreasonable intrusions into the life of the church. While many of these issues have been addressed in previous chapters, in this volume we will look at additional examples of government regulation of church activities and available exemptions from such law.
Along with studying the laws that apply to churches and other religious organizations, in this volume you'll also examine the liabilities churches face as a result of specific acts and omissions.
To illustrate, churches can be vicariously liable for the negligence of employees committed within the course of their employment under the legal principle of respondeat superior, a concept that is explained and applied in various case studies. Churches also may be liable on the basis of negligence in the selection, retention, or supervision of employees and volunteer workers. In recent years, some courts have found churches liable on the basis of a breach of a fiduciary duty for injuries occurring on their premises or in the course of their activities. With every liability, chapter ten places a special emphasis on "risk management" practical ways your church can reduce its risk of legal liability.
Chapters 11, 12, and 13 delve into constitutional history and our courts' views on First Amendment freedoms. Since the United States Supreme Court is the highest court in the federal judicial system, its pronouncements have the ultimate authority. An interpretation of the Constitution by the Supreme Court becomes the supreme law of the land until the court reverses itself or until a constitutional amendment is ratified that alters the Court's interpretation. The importance of Supreme Court interpretations of the First Amendment religion clauses should thus be apparent.
Can persons engage in religious "witnessing" or proselytizing in residential neighborhoods on a door-to-door basis? Can persons use public parks for religious meetings? Under what circumstances can voluntary prayers be uttered on public property? Can a city display a cross or nativity scene on public property during the Christmas season? Can a court display a picture of the Ten Commandments? Can the federal government constitutionally print the national motto "In God We Trust" on all of our nation's currency? What activities are included within the term "religious"? What activities are excluded? Such questions present the courts with difficult choices. We conclude Volume 4 with a review of the application of the First Amendment religion clauses in several contexts.