The Lemon Test
Key point 12-01.01. For decades, the most commonly applied test for evaluating the validity of a law or government practice under the First Amendment’s nonestablishment of religion clause was the three-part “Lemon” test. Under this test, a law or government practice that conveyed some benefit on religion would be considered constitutional if it (1) had a clearly secular purpose; (2) had a primary effect that neither advanced nor inhibited religion; and (3) did not foster an excessive entanglement between church and state. All three parts of the test needed to be met in order for the law or practice to be deemed constitutional. In 2022, the US Supreme Court overturned this test, largely because the Court itself said it often criticized or ignored the test. Going forward, the Court said cases should be decided through interpreting the Establishment Clause “by reference to historical practices and understandings.”
In 1971, the Court held that its establishment clause decisions since Everson could be embodied in a three-pronged test: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster 'an excessive governmental entanglement with religion.'"[17] Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). This test, known as the three-pronged or "tripartite" Lemon test, enshrined the dubious interpretation of the Establishment Clause announced in Everson. The Court, in amplifying on this test, has observed that "[t]he purpose prong of the Lemon test asks whether government's actual purpose is to endorse or disapprove of religion. The effect prong asks whether irrespective of government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval. An affirmative answer to either question should render the challenged practice invalid."[18] Lynch v. Donnelly, 465 U.S. 668 (1984). With regard to the primary effect prong, the Court has further observed that "not every law that confers an 'indirect,' 'remote,' or 'incidental' benefit upon [religion] is, for that reason alone, constitutionally invalid."[19] Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 771 (1973). "Excessive entanglement" between church and state connotes "comprehensive, discriminating, and continuing state surveillance."[20] Lemon v. Kurtzman, 403 U.S. 602, 619 (1971). But see Wallace v. Jaffree, 472 U.S. 38 (1985) (dissenting opinion of Justice Rehnquist). The Court suggested in Lemon that laws or government practices having the potential for "political divisiveness" may violate the entanglement prong. However, the Court later confined this aspect of entanglement to "cases where direct financial subsidies are paid to parochial schools or to teachers in parochial schools."[21] Mueller v. Allen, 463 U.S. 388, 403 n.11 (1983).
Application of the Lemon standard resulted, predictably, in the invalidation of many accommodations of religious practice. For example, the Supreme Court outlawed several programs providing limited assistance to private education;[22] See, e.g., Meek v. Pittinger, 421 U.S. 349 (1975); Wolman v. Walter, 433 U.S. 229 (1977); Levitt v. Committee for Public Education, 413 U.S. 472 (1973). a Kentucky law requiring a copy of the Ten Commandments to be posted in each public school classroom;[23] Stone v. Graham, 449 U.S. 39 (1980). a state law specifying that each public school day should begin with a minute of silence during which students could pray, meditate, or occupy themselves in any other manner they chose;[24] Wallace v. Jaffree, 472 U.S. 38 (1985). a state law requiring that public schools present both the theories of evolution and creation science;[25] Edwards v. Aguillard, 482 U.S. 578 (1987). and a nativity display maintained in a county courthouse building during the Christmas season that was not a part of a larger display containing secular symbols.[26] County of Allegheny v. American Civil Liberties Union, 109 S. Ct. 3086 (1989). Lower federal courts invalidated scores of religious practices on the basis of the Lemon test.
The Supreme Court has often expressed misgivings about the Lemon formulation. In 1971, the Court called the Lemon test a mere "guideline."[27] Tilton v. Richardson, 403 U.S. 672 (1971). It later described the test as "no more than [a] useful signpost,"[28] Mueller v. Allen, 463 U.S. 388 (1983). and expressed an unwillingness to be "confined to any single test or criterion."[29] Lynch v. Donnelly, 465 U.S. 668 (1984). Similarly, the Court has noted that the test "is not easily applied"[30] Meek v. Pittinger, 421 U.S. 349 (1975). and "sacrifices clarity and predictability for flexibility."[31] Committee for Public Education v. Regan, 444 U.S. 646 (1980). The Court has disregarded the Lemon test on at least two occasions. In 1982, the Court deviated from the Lemon test in striking down a Minnesota statute requiring certain religious organizations to register with the state prior to soliciting contributions.[32] Larson v. Valente, 456 U.S. 228 (1982). The Court, observing that the Lemon test was "intended to apply to laws affording a uniform benefit to all religions," announced the following two-part test to be used in assessing the constitutionality of a law that discriminates "among religions": (1) The law must be justified by a compelling governmental interest, and (2) it must be closely fitted to further that interest.
In 1983, the Court again deviated from the Lemon test in upholding the practice of legislative chaplains,[33] Marsh v. Chambers, 463 U.S. 783 (1983). reversing a federal appeals court ruling that invalidated the practice on the basis of the Lemon test. The Court, noting that the very Congress that approved the First Amendment Establishment Clause also voted to appoint and pay a chaplain for both houses, concluded that "it would be incongruous to interpret that clause as imposing more stringent First Amendment limits on the states than the draftsmen imposed on the federal government." Such cases are a repudiation, at least in part, of the hostility that the Court has shown to religious practice since Everson. They suggest that there is hope for a repudiation of Everson and the Lemon test, and a return to an interpretation of the Establishment Clause that is faithful to its history and purpose.[34] If the citizens of this country are dissatisfied with the framers' intent, the Constitution itself provides a remedy—amendment. It is the people, through the power to amend the Constitution that should have determined whether or not the First Amendment should be expanded beyond the original intention to prohibit established churches, and whether the First Amendment's Establishment Clause should be applied to state and local governments.
Until the three-part Lemon test is repudiated, it likely will continue to be the primary analytical tool employed by the courts in Establishment Clause cases, with the following limitations:
- Laws that discriminate between religious groups. Laws that discriminate between religious groups will be upheld against a claim that they violate the Establishment Clause only if (1) they are justified by a compelling governmental interest, and (2) they are closely fitted to further that interest.[35] Larson v. Valente, 456 U.S. 228 (1982).
- Certain accommodations of religious custom and practice. Certain accommodations of religious custom and practice may be validated by history. For example, in 1984 the Supreme Court upheld the practice of including a nativity scene on public property as part of a Christmas display.[36] Lynch v. Donnelly, 465 U.S. 668 (1984). While the Court validated the practice on the basis of Lemon, its application of the Lemon test was influenced if not controlled by historical precedent. Noting that the nativity scene had the secular purpose of depicting the origins of Christmas, did not have a primary effect of advancing religion, and did not create an excessive entanglement between church and state, the Court concluded, "It would be ironic, however, if the inclusion of a single symbol of a particular religious event, as part of a celebration acknowledged in the Western World for 20 centuries, and in this country by the people, by the Executive Branch, by the Congress, and the courts for two centuries, would so taint' the City's exhibit as to render it violative of the establishment clause." Similarly, the court upheld the constitutionality of legislative chaplaincies in 1983 on the basis of historical precedent without any reference to the Lemon test.[37] Marsh v. Chambers, 463 U.S. 783 (1983). The Court found controlling the fact that the first Congress, which approved the First Amendment Establishment Clause, also voted to appoint and pay a chaplain for each House.
- Public welfare legislation. The benefits of public welfare legislation cannot be denied to any group of persons "because of their faith, or lack of it."[38] Everson v. Board of Education, 330 U.S. 1 (1947). For example, the Establishment Clause does not require that a law authorizing free transportation of children to school must exclude children attending private religious schools.
- Neutrality. As noted in the following section of this chapter, the principles underlying the establishment clause can in some cases conflict with the values embodied in the Free Exercise of Religion Clause. Therefore, neither clause should be construed in isolation. The Establishment Clause, properly construed in light of the Free Exercise of Religion Clause, mandates governmental neutrality toward religion. Neither sponsorship nor hostility is permissible.
- Incidental accommodations religion. "[N]ot every law that confers an 'indirect,' 'remote,' or 'incidental' benefit upon [religion] is, for that reason alone, constitutionally invalid."[39] Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 771 (1973). See also Widmar v. Vincent, 454 U.S. 263, 273 (1981).
Table of Contents
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1Definitions and Status
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§ 1.01Distinctions Between the Terms Pastor, Clergy, Minister
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§ 1.02Definition of the Terms Pastor, Clergy, Minister — In General
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§ 1.03Status—Employee or Self Employed
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§ 1.03.01Social Security
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§ 1.03.02Income Taxes
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§ 1.03.03Retirement Plans
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§ 1.03.04Legal Liability
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§ 1.03.05Miscellaneous Federal and State Statutes
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§ 1.04Status—Ordained, Commissioned, or Licensed
2The Pastor-Church Relationship
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§ 2.01Initiating the Relationship—In General
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§ 2.01.01Congregational Churches
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§ 2.01.02Hierarchical Churches
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§ 2.01.03Compliance with a Church's Governing Instrument in the Selection of a Minister
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§ 2.01.04Civil Court Review of Clergy Selection Disputes—the General Rule of Non-Intervention
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§ 2.01.05Civil Court Review of Clergy Selection Disputes—Limited Exceptions to the General Rule
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§ 2.01.06Negligent Selection
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§ 2.02The Contract
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§ 2.03Compensation
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§ 2.04Termination
3Authority, Rights, and Privileges
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§ 3.01General Scope of a Minister's Authority
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§ 3.02Officer of the Church Corporation
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§ 3.03Property Matters
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§ 3.04Performance of Marriage Ceremonies
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§ 3.05Exemption from Military Duty
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§ 3.06Exemption From Jury Duty
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§ 3.07The Clergy-Penitent Privilege—In General
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§ 3.07.01A "Communication"
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§ 3.07.02Made in Confidence
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§ 3.07.03To a Minister
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§ 3.07.04Acting in a Professional Capacity as a Spiritual Adviser
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§ 3.07.05In the Course of Discipline
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§ 3.08The Clergy-Penitent Privilege—Miscellaneous Issues
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§ 3.08.01Clergy-Parishioner Relationship
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§ 3.08.02Marriage Counseling
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§ 3.08.03Who May Assert the Privilege
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§ 3.08.04When to Assert the Privilege
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§ 3.08.05Waiver of the Privilege
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§ 3.08.06The Privilege in Federal Courts
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§ 3.08.07Constitutionality of the Privilege
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§ 3.08.08Child Abuse Reporting
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§ 3.08.09Confidentiality
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§ 3.08.10Disclosure to Civil Authorities
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§ 3.08.11Church Records
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§ 3.08.12Death of the Counselee
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§ 3.09Visiting Privileges at Penal Institutions
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§ 3.10Immigration of Alien Ministers, Religious Vocations, and Religious Occupations
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§ 3.11Miscellaneous Benefits
4Liabilities, Limitations, and Restrictions
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§ 4.01Negligence
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§ 4.02Defamation—In General
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§ 4.02.01Pastors Who Are Sued for Making Defamatory Statements
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§ 4.02.02Pastors Who Are Victims of Defamation
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§ 4.02.03Defenses
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§ 4.03Undue Influence
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§ 4.04Invasion of Privacy
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§ 4.05Clergy Malpractice
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§ 4.06Contract Liability
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§ 4.07Securities Law Violations
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§ 4.08Failure to Report Child Abuse
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§ 4.09Diversion of Church Funds
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§ 4.10State Regulation of Psychologists and Counselors
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§ 4.11Sexual Misconduct
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§ 4.11.01Theories of Liability
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§ 4.11.02Defenses to Liability
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5Definitions
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§ 5.01Tax Legislation—Federal
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§ 5.01.01Churches
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§ 5.01.02Mail Order Churches
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§ 5.01.03Other Religious Organizations
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§ 5.01.04Tax Legislation—State
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§ 5.02Zoning Law
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§ 5.02.01Churches
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§ 5.02.02Accessory Uses
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6Organization and Administration
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§ 6.01Unincorporated Associations
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§ 6.01.01Characteristics
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§ 6.01.02Personal Liability of Members
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§ 6.01.03Creation and Administration
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§ 6.02Corporations
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§ 6.02.01The Incorporation Process
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§ 6.02.02Charters, Constitutions, Bylaws, and Resolutions
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§ 6.03Church Records
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§ 6.03.01Inspection
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§ 6.03.02“Accountings” of Church Funds
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§ 6.03.03Public Inspection of Tax-Exemption Applications
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§ 6.03.04Government Inspection of Donor and Membership Lists
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§ 6.03.05The Church Audit Procedures Act
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§ 6.03.06Who Owns a Church’s Accounting Records?
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§ 6.04Reporting Requirements
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§ 6.04.01State Law
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§ 6.04.02Federal Law
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§ 6.05Church Names
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§ 6.06Officers, Directors, and Trustees—In General
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§ 6.06.01Election or Appointment
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§ 6.06.02Authority
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§ 6.06.03Meetings
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§ 6.06.04Removal
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§ 6.07Officers, Directors, and Trustees—Personal Liability
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§ 6.07.01Tort Liability
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§ 6.07.02Contract Liability
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§ 6.07.03Breach of the Fiduciary Duty of Care
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§ 6.07.04Breach of the Fiduciary Duty of Loyalty
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§ 6.07.05Violation of Trust Terms
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§ 6.07.06Securities Law
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§ 6.07.07Wrongful Discharge of an Employee
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§ 6.07.08Willful Failure to Withhold Taxes
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§ 6.07.09Exceeding the Authority of the Board
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§ 6.07.10Loans to Directors
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§ 6.08Immunity Statutes
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§ 6.08.01Directors and Officers Insurance
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§ 6.09Members—In General
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§ 6.09.01Selection and Qualifications
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§ 6.09.02Authority
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§ 6.10Members—Discipline and Dismissal
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§ 6.10.01Judicial Nonintervention
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§ 6.10.02“Marginal” Civil Court Review
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§ 6.10.03Preconditions to Civil Court Review
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§ 6.10.04Remedies for Improper Discipline or Dismissal
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§ 6.11Members—Personal Liability
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§ 6.12Meetings of Members
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§ 6.12.01Procedural Requirements
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§ 6.12.02Minutes
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§ 6.12.03Parliamentary Procedure
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§ 6.12.04Effect of Procedural Irregularities
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§ 6.12.05Judicial Supervision of Church Elections
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§ 6.12.06Who May Attend
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§ 6.13Powers of a Local Church
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§ 6.14Merger and Consolidation
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§ 6.15Dissolution
7Church Property
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§ 7.01Church Property Disputes—In General
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§ 7.02Church Property Disputes—Supreme Court Rulings
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§ 7.03State and Lower Federal Court Rulings
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§ 7.04Church Property Disputes—Dispute Resolution Procedures
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§ 7.05Transferring Church Property
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§ 7.06Zoning Law
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§ 7.07Restricting Certain Activities Near Church Property
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§ 7.08Building Codes
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§ 7.08.01Lead Paint on Church Property
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§ 7.09Nuisance
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§ 7.10Landmarking
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§ 7.11Eminent Domain
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§ 7.12Defacing Church Property
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§ 7.13Restrictive Covenants
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§ 7.14Reversion of Church Property to the Prior Owner
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§ 7.15Materialmen’s Liens
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§ 7.16Religious Discrimination in the Sale or Rental of Church Property
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§ 7.17Removing Disruptive Individuals
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§ 7.18Adverse Possession
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§ 7.19Accounting for Depreciation
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§ 7.20Premises Liability
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§ 7.20.01Liability Based on Status as Invitee, Licensee, or Trespasser
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§ 7.20.02Defenses to Premises Liability
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§ 7.20.03Use of Church Property by Outside Groups
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§ 7.20.04Assaults on Church Property
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§ 7.20.05Skate Ramps
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§ 7.20.06Sound Rooms
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§ 7.21Embezzlement
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§ 7.22Places of Public Accommodation
8Employment Law
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§ 8.01Introduction: Selection of Employees
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§ 8.02New Hire Reporting
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§ 8.03Employment Eligibility Verification
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§ 8.04Immigration
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§ 8.05Negligent Selection
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§ 8.06Introduction: Compensation and Benefits
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§ 8.07Workers Compensation
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§ 8.08Fair Labor Standards Act
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§ 8.08.01Enterprises
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§ 8.08.02Individual Coverage
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§ 8.08.03Federal Court Rulings
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§ 8.08.04Department of Labor Opinion Letters
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§ 8.08.05Exemptions
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§ 8.08.06Ministers
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§ 8.08.07State Laws
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§ 8.08.08Case Studies
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§ 8.09Introduction to Federal Employment and Civil Rights Laws—The “Commerce” Requirement
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§ 8.09.01Counting Employees
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§ 8.10The “Ministerial Exception” under State and Federal Employment Laws
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§ 8.11Procedure for Establishing a Discrimination Claim
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§ 8.12Title VII of the Civil Rights Act of 1964
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§ 8.12.01Application to Religious Organizations
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§ 8.12.02Application to Religious Educational Institutions
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§ 8.12.03Religion as a "Bona Fide Occupational Qualification"
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§ 8.12.04Discrimination Based on Religion or Morals
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§ 8.12.05Sexual Harassment
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§ 8.12.06The Catholic Bishop Case
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§ 8.12.07Failure to Accommodate Employees’ Religious Practices
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§ 8.12.08The Religious Freedom Restoration Act
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§ 8.12.09The Civil Rights Act of 1991
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§ 8.13The Age Discrimination in Employment Act
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§ 8.14The Americans with Disabilities Act
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§ 8.14.01Discrimination in Employment
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§ 8.14.02Discrimination in Public Accommodations
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§ 8.15Family and Medical Leave Act
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§ 8.16Employer “Retaliation” Against Victims of Discrimination
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§ 8.17Discrimination Based on Military Status
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§ 8.18Employee Polygraph Protection Act
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§ 8.19Occupational Safety and Health Act
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§ 8.20Display of Posters
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§ 8.21Discrimination under State Laws
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§ 8.22Termination of Employees
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§ 8.22.01Severance Agreements
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§ 8.23National Labor Relations Act
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§ 8.24Reference Letters
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§ 8.25Employee Evaluations
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§ 8.26Employment Interviews
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§ 8.27Arbitration
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§ 8.28Employee Handbooks
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§ 8.29Employee Privacy
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§ 8.30Insurance
9Government Regulation of Churches
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§ 9.01Introduction
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§ 9.02Regulation of Charitable Solicitations
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§ 9.03Limitations on Charitable Giving
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§ 9.04Federal and State Securities Law
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§ 9.05Copyright Law
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§ 9.05.01Copyright Ownership
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§ 9.05.02Works Made for Hire
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§ 9.05.03Exclusive Rights
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§ 9.05.04Infringement
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§ 9.05.05The "Religious Service" Exemption to Copyright Infringement
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§ 9.05.06Electronic Media
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§ 9.05.10Other Exceptions to Copyright Infringement
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§ 9.06Government Investigations
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§ 9.07Judicial Resolution of Church Disputes
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§ 9.08Political Activities by Churches and Other Religious Organizations
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§ 9.09Bankruptcy Law
10Church Legal Liability
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§ 10.01Negligence as a Basis for Liability—In General
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§ 10.02Vicarious Liability (Respondeat Superior)
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§ 10.02.01The Requirement of Employee Status
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§ 10.02.02Negligent Conduct
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§ 10.02.03Course of Employment
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§ 10.02.04Inapplicability to Nonprofit Organizations
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§ 10.03Negligent Selection of Church Workers—In General
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§ 10.04Negligent Selection of Church Workers—Sexual Misconduct Cases Involving Minor Victims
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§ 10.05Negligent Selection of Church Workers—Sexual Misconduct Cases Involving Adult Victims
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§ 10.05.01Court Decisions Recognizing Negligent Selection Claims
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§ 10.05.02Court Decisions Rejecting Negligent Selection Claims
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§ 10.05.03Risk Management
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§ 10.06Negligent Selection of Church Workers—Other Cases
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§ 10.07Negligent Retention of Church Workers—In General
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§ 10.07.01Court Decisions Recognizing Negligent Retention Claims
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§ 10.07.02Court Decisions Rejecting Negligent Retention Claims
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§ 10.07.03Risk Management
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§ 10.08Negligent Supervision of Church Workers—In General
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§ 10.09Negligent Supervision of Church Workers—Sexual Misconduct Cases Involving Minor Victims
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§ 10.09.01Court Decisions Recognizing Negligent Supervision Claims
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§ 10.09.02Court Decisions Rejecting Negligent Supervision Claims
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§ 10.09.03Risk Management
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§ 10.10Negligent Supervision of Church Workers—Sexual Misconduct Cases Involving Adult Victims
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§ 10.10.01Court Decisions Recognizing Negligent Supervision Claims
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§ 10.10.02Court Decisions Rejecting Negligent Supervision Claims
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§ 10.10.03Risk Management
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§ 10.11Negligent Supervision of Church Workers—Other Cases
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§ 10.11.01Risk Management
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§ 10.12Counseling—In General
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§ 10.12.01Risk Management
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§ 10.13Breach of a Fiduciary Duty
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§ 10.13.01Court Decisions Recognizing Fiduciary Duty Claims
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§ 10.13.02Court Decisions Rejecting Fiduciary Duty Claims
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§ 10.13.03Risk Management
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§ 10.14Ratification
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§ 10.15Defamation
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§ 10.16Defenses to Liability
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§ 10.16.01Contributory and Comparative Negligence
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§ 10.16.02Assumption of Risk
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§ 10.16.03Intervening Cause
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§ 10.16.04Statutes of Limitations
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§ 10.16.05Charitable Immunity
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§ 10.16.06Release Forms
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§ 10.16.07Insurance
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§ 10.16.08Other Defenses
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§ 10.17Damages—In General
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§ 10.17.01Punitive Damages
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§ 10.17.02Duplicate Verdicts
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§ 10.18Denominational Liability—In General
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§ 10.18.01Court Decisions Recognizing Vicarious Liability
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§ 10.18.02Court Decisions Rejecting Vicarious Liability
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§ 10.18.03Defenses to Liability
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§ 10.18.04Risk Management
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§ 10.18.05The Legal Effect of a Group Exemption Ruling
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§ 10.19Risks Associated with Cell Phones
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§ 10.20Risks Associated with the Use of 15-Passenger Vans
12The Present Meaning of the First Amendment Religion Clauses
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§ 12.01The Establishment Clause
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§ 12.01.01The Lemon Test
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§ 12.02The Free Exercise Clause
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§ 12.02.01The Smith Case
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§ 12.02.02The Religious Freedom Restoration Act
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§ 12.02.03The City of Boerne Case
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§ 12.02.04Conclusions
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13Significant First Amendment Issues
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§ 13.01The Right to Witness
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§ 13.02Prayer on Public Property other than Schools
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§ 13.03Prayer During Public School Activities
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§ 13.04Display of Religious Symbols on Public Property
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§ 13.05Recurring Use of Public Property by Religious Congregations for Religious Services
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§ 13.06Nonrecurring Use of Public Property by Adults for Religious Events and Activities
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§ 13.07Use of Public School Property by Students for Religious Purposes
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§ 13.08Sunday Closing Laws
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§ 13.09The Right to Refuse Medical Treatment
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§ 13.10Definition of "Religion" and "Religious"
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