The Right to Witness
Key point 13-01. The courts have affirmed the right of persons to disseminate religious literature and doctrine on a door-to-door basis, and in public places. This right may be limited in order to preserve public safety, health, order, and convenience. Strict safeguards, however, must attend any limitations.
1. Door-to-Door Witnessing
The Supreme Court repeatedly has affirmed the right of persons to solicit religious contributions, sell religious books and merchandise, and disseminate religious doctrine on a "door-to-door" basis.[1] See, e.g., Murdock v. Pennsylvania, 319 U.S. 105 (1943); Largent v. Texas, 318 U.S. 418 (1943); Jamison v. Texas, 318 U.S. 413 (1943); Cantwell v. Connecticut, 310 U.S. 296 (1940). Municipal ordinances that condition the exercise of such a right upon the acquisition of a permit or license or upon the payment of a "tax" or fee generally have been found to be unconstitutional.
To illustrate, the Supreme Court struck down a city licensing scheme used by city officials to ban Jehovah's Witnesses from going door-to-door in heavily Catholic neighborhoods playing a phonograph record that attacked the Roman Catholic Church as an "enemy" and the church of the devil.[2] Cantwell v. Connecticut, 310 U.S. 296 (1940). Similarly, the Court invalidated a municipal "license tax" that was imposed upon the door-to-door solicitation and evangelistic activities of Jehovah's Witnesses.[3] Murdock v. Pennsylvania, 319 U.S. 105 (1943). The Court observed: "Those who can tax the privilege of engaging in this form of missionary evangelism can close its doors to all those who do not have a full purse. Spreading religious beliefs in this ancient and honorable manner would thus be denied the needy. Those who can deprive religious groups of their colporteurs can take from them a part of the vital power of the press which has survived from the Reformation."[4] Id. at 112. The Supreme Court also struck down a municipal ordinance that prohibited anyone engaged in distributing literature to summon the occupants of a home to the door.[ 5] Martin v. City of Struthers, 319 U.S. 141 (1943).
The Supreme Court has acknowledged that a city may protect its citizens from fraud by requiring strangers in the community to establish their identity and demonstrate their authority to represent the cause they espouse. Cities also may limit door-to-door proselytizing and solicitation where necessary to preserve public safety, health, order, and convenience. Strict safeguards, however, must attend any such limitations.[6] See the discussion of witnessing in public places later in this section.
Many lower federal court decisions have protected the rights of persons to engage in door-to-cdoor religious activities.[7] See, e.g., Troyer v. Town of Babylon, 483 F. Supp. 1135 (E.D.N.Y. 1980), aff'd, 628 F.2d 1346 (2nd Cir. 1980), aff'd, 449 U.S. 988 (1980) ("[r]equiring consent of householders before approaching their homes constitutes, in effect, an indirect unconstitutional imposition of a licensing fee; it generates costs which burden the exercise of First Amendment rights in direct proportion to the number of persons the speaker wants to reach"); Weissman v. City of Alamogordo, 472 F. Supp. 425 (D.N.M. 1979); McMurdie v. Doutt, 468 F. Supp. 766 (N.D. Ohio 1979); Levers v. City of Tullahoma, 446 F. Supp. 884 (D. Tenn. 1978); Murdock v. City of Jacksonville, 361 F. Supp. 1083 (M.D. Fla. 1973).
Example
The United States Supreme Court ruled that a city ordinance requiring Jehovah's Witnesses and other persons to obtain and display a permit before engaging in door-to-door witnessing violated the First Amendment. A city ordinance prohibited "canvassers" and others from "going in and upon" private residential property for the purpose of promoting any "cause" without first having obtained a "solicitation permit." Residents may prohibit solicitation even by holders of permits by posting a "No Solicitation" sign on their property. The Court concluded that the city ordinance, as applied to the Jehovah's Witnesses, violated the First Amendment guaranty of free speech. The city claimed that the permit requirement was justified by the legitimate interests of preventing fraud and crime, and protecting residents' privacy. The Court conceded that cities have a legitimate interest in protecting these interests, but in this case they went too far. It observed: "Central to our conclusion that the ordinance does not pass First Amendment scrutiny is that it is not tailored to the city's stated interests. Even if the interest in preventing fraud could adequately support the ordinance insofar as it applies to commercial transactions and the solicitation of funds, that interest provides no support for its application to [church members], to political campaigns, or to enlisting support for unpopular causes. The city, however, argues that the ordinance is nonetheless valid because it serves the two additional interests of protecting the privacy of the resident and the prevention of crime. With respect to the former, it seems clear that the ordinance, which provides for the posting of 'No Solicitation' signs … coupled with the resident's unquestioned right to refuse to engage in conversation with unwelcome visitors, provides ample protection for the unwilling listener. … With respect to the latter, it seems unlikely that the absence of a permit would preclude criminals from knocking on doors and engaging in conversations not covered by the ordinance." The Court concluded: "The mere fact that the ordinance covers so much speech raises constitutional concerns. It is offensive—not only to the values protected by the First Amendment, but to the very notion of a free society—that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so. … A law requiring a permit to engage in such speech constitutes a dramatic departure from our national heritage and constitutional tradition."[8] Watchtower Bible and Tract Society v. Village of Stratton, 536 U.S. 150 (2002).
2. Witnessing In Public Places
The Supreme Court has zealously protected the right to disseminate religious doctrine in public places. The Court has struck down a city ordinance that prohibited the distribution of handbills on city streets as applied to Jehovah's Witnesses who distributed religious handbills to pedestrians in a downtown area.[ 9] Jamison v. Texas, 318 U.S. 413 (1943). The Court also has invalidated a city ordinance under which a Baptist minister was convicted for holding a religious meeting on city streets without a permit.[10] Kunz v. New York, 340 U.S. 290 (1951). In striking down the ordinance, the Court held that no ordinance that gives city officials discretionary authority, in advance, to allow or refuse individuals the right to speak publicly on religious matters could ever be constitutionally valid. The Court did emphasize, however, that a carefully worded ordinance that conditions the right to hold public religious meetings in public places on the prior receipt of a municipal permit or license could be constitutionally valid if it (1) removed all discretion on the part of city officials by listing the specific preconditions for issuance of a license, and (2) the specified preconditions were constitutionally permissible, such as the preservation of public peace and order.
In another decision,[11] Cox v. New Hampshire, 312 U.S. 569 (1941). the Court upheld the conviction of five Jehovah's Witnesses who paraded through a city carrying a sign stating "Religion is a Snare and a Racket" in violation of an ordinance prohibiting "a parade or procession" on a city street without a license. The Court observed that the city officials had no discretion to grant or deny a license since the conditions for obtaining a license were specifically and clearly set forth in the ordinance. Also, the stated purpose of the ordinance and its various conditions were permissible: preserving the public safety, convenience, peace, and order by preventing conflicts in scheduling; controlling the time, place, and manner of each use of the public streets; and enabling the police to oversee each use and thus minimize the risk of disorder.
In conclusion, the following principles should be noted:
a. specific guidelines exist for determining whether to grant or disallow a license or permit, and the guidelines remove all discretion from those officials who must evaluate applications
b. guidelines only ensure public order, peace, health, safety, or convenience
c. no less restrictive public remedies to protect the peace and order of the community are appropriate or available
- No law or regulation that gives government officials unbridled discretion to permit or disallow a religious meeting or service or any other religious activity on public property can be consistent with the First Amendment guarantee of free exercise of religion.
- A law or regulation that requires a license or permit before a religious meeting or activity may be held on public property can be constitutionally valid if
- A permit or licensing scheme is unconstitutional unless it (a) provides for a ruling on an application within a specified brief period of time, (b) places the burden on the government of showing that the law's guidelines are not satisfied, and (c) makes available prompt, final, judicial resolution of the issue.[12] Freedman v. Maryland, 432 U.S. 43 (1977); Walker v. Wegner, 477 F. Supp. 648 (D.S.D. 1979).
Numerous lower federal court decisions have protected the rights of persons to engage in religious activities on public property.[13] See, e.g., Edwards v. Maryland State Fair and Agricultural Society, Inc., 628 F.2d 282 (4th Cir. 1980); International Society for Krishna Consciousness, Inc. v. Bowen, 600 F.2d 667 (7th Cir. 1979); Bacon v. Bradley-Bourbonnais High School District, 707 F. Supp. 1005 (N.D. Ill. 1989); International Society for Krishna Consciousness, Inc. v. City of New York, 501 F. Supp. 684 (S.D.N.Y. 1980); International Society for Krishna Consciousness v. Eaves, 601 F.2d 809 (5th Cir. 1979); International Society for Krishna Consciousness v. Bowen, 600 F.2d 667 (7th Cir. 1979); International Society for Krishna Consciousness v. Rochford, 585 F.2d 263 (7th Cir. 1978).
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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