Churches
Key point 5-02.01. Local zoning laws generally allow "churches" in residential areas. The courts have struggled with the application of this term to various activities and organizations other than traditional congregations meeting in a building for regular worship services.
Many other courts have been asked to decide whether various uses of church-owned property constitute a church under municipal zoning laws. The following uses have been found to be "churches":
- use of a home across the street from a church for women's fellowship meetings and religious education classes;[89] Twin-City Bible Church v. Zoning Board of Appeals, 365 N.E.2d 1381 (Ill. 1977).
- a single-family residence used by the United Presbyterian Church as a religious coffeehouse for university students;[90] Synod of Chesapeake, Inc. v. Newark, 254 A.2d 611 (Del. 1969).
- a priest's home, convent, and parochial school;[91] Board of Zoning Appeals v. Wheaton, 76 N.E.2d 597 (Ind. 1948).
- a 24-acre tract of land containing a large mansion that was used as a synagogue and a meeting place for the congregation's social groups and youth activities;[92] Community Synagogue v. Bates, 154 N.Y.S.2d 15 (1956).
- a kindergarten, play area, and parochial school;[93] Diocese of Rochester v. Planning Board, 154 N.Y.S.2d 849 (1956).
- a 37-acre estate used by an Episcopal church as a religious retreat and center for religious instruction;[94] Diocese of Central New York v. Schwarzer, 199 N.Y.S.2d 939 (1960), affd, 217 N.Y.S.2d 567 (1961).
- a church-owned day care center;[95] Noahs Ark Christian Child Care Center v. Zoning Hearing Board, 831 A.2d 756 (Pa. Common. 2003).
- a church-owned facility housing pregnant teenagers and including extensive spiritual counsel and enrichment;[96] Solid Rock Ministries v. Board of Zoning Appeals, 740 N.E.2d 320 (Ohio. App. 2000).
- a religiously affiliated student center at a state university;[97] Diocese v. Zoning Hearing Board, 899 A.2d 399 (Pa. Common. 2006).
- a monastery that contained 42 bedrooms, conference rooms, library, and dining hall;[98] Committee to Protect Overlook, Inc. v. Town Zoning Board, 806 N.Y.S.2d 748 (N.Y. App. 2005).
- a private school operated by a Baptist church.[99] City of Concord v. New Testament Baptist Church, 382 A.2d 377 (N.H. 1978). Accord Alpine Christian Fellowship v. Pitkin County, 870 F. Supp. 991 (D. Colo. 1994).
Other courts have concluded that certain uses of property do not constitute a church in the context of zoning laws. To illustrate, one court has held that an area restricted to residential and church uses could not accommodate temporary, open-air camp meetings.[100] Portage Township v. Full Salvation Union, 29 N.W.2d 297 (Mich. 1947). The court observed that not every place in which religious services are conducted is a church. It inferred that a church at the least must consist of "a building set apart for public worship," and thus could not include camp meetings. Another court held that a dwelling of 16 bedrooms and 12 bathrooms occupied by 25 people comprising four different families, all members of the American Orthodox Catholic Church, was not a church or parish house even though religious instruction was given daily for one hour to the children and three times a week to the adults.[101] People v. Kalayjian, 352 N.Y.S.2d 115 (1973). See also Heard v. Dallas, 456 S.W.2d 440 (Tex. 1970) (child care center operated in ministers residence held not to be a church). The court reasoned that "the principal use of the building … is that of a dwelling for residential purposes" and that "the incidental religious instruction provided to the families does not change this fact."
Other courts have held that the following activities were not churches under municipal zoning laws:
- a 28-acre tract used by a Jewish foundation for a conference center, leadership training center, and children's retreat;[102] State ex rel. BNai Brith Foundation v. Walworth County, 208 N.W.2d 113 (Wis. 1973).
- a private school operated by a local Baptist church;[103] Abram v. City of Fayetteville, 661 S.W.2d 371 (Ark. 1984).
- a religious school not operated or controlled by a church;[104] Chaminade College v. City of Creve Coeur, 956 S.W.2d 440 (Mo. App. 1997).
- camp meetings;[105] Portage Township v. Full Salvation Union, 29 N.W.2d 297 (Mich. 1947).
- a parish house used for Sunday school, choir practice, and church committee meetings;[106] Newark Athletic Club v. Board of Adjustment, 144 A. 167 (N.Y. 1928).
- a religious retreat house;[107] Independent Church of the Realization of the Word of God, Inc. v. Board of Zoning Appeals, 437 N.Y.S.2d 443 (1981).
- a dwelling of sixteen bedrooms and twelve bathrooms occupied by twenty-five persons comprising four different families, all members of the American Orthodox Catholic church;[108] People v. Kalayjian, 352 N.Y.S.2d 115 (1973).
- a child-care center operated in a minister's residence;[109] Heard v. Dallas, 456 S.W.2d 440 (Tex. 1970).
- a single-family residence used for organized religious services;[110] Grosz v. City of Miami Beach, 721 F.2d 729 (5th Cir. 1983); State v. Cameron, 460 A.2d 191 (N.J. App. 1983).
- a church-owned building used primarily for administration that contained a small sanctuary comprising six percent of the building;[111] North Pacific Conference v. Adventists v. Clark County, 74 P.3d 140 (Wash. App. 2003).
- a college.[112] Fountain Gate Ministries, Inc. v. City of Plano, 654 S.W.2d 841 (Tex. App. 1983).
Similarly, when a farmers' organization purchased a church building for meetings promoting agriculture and "higher ideals of manhood, womanhood, and citizenship," a court concluded that the building no longer could be considered a church.[113] In re Upper St. Clair Township Grange No. 2032, 152 A.2d 768 (Pa. 1959). "A church," observed the court, "[is] a place or edifice consecrated to religious worship, where people join together in some form of public worship."
Case studies
• A New York court ruled that a city zoning board acted improperly in denying a homeowner's application to use his home as a church. The court noted that "the inclusion of churches among uses permitted in the [residential] zoning district is tantamount to a legislative determination that the use is in harmony with the general zoning plan and will not be detrimental to the surrounding area. It is presumed that a religious use will have a beneficial effect in a residential area." However, this presumption may be "rebutted with evidence of a significant impact on traffic congestion, property values, municipal services and the like." The zoning board's refusal to allow the homeowner to use his home as a church was improper since it was "based on conclusory findings and not upon substantial evidence of significant adverse effects."[114] Neddermeyer v. Ontario Planning Board, 548 N.Y.S.2d 951 (1989).
• The Arkansas Supreme Court concluded that the word "church" in a state law prohibiting the sale of liquor within 200 yards of a church "means the place where a body of people or worshipers associate together for religious purposes." This definition included a congregation of forty members, thirteen of whom were active that met for religious services every Sunday morning.[115] Arkansas A.B.C. v. Person, 832 S.W.2d 249 (Ark. 1992).
• The use of a two-story residence and smaller buildings on the premises qualified as a church within the meaning of a zoning ordinance, when the use of the buildings included daily religious ceremonies, prayers, lectures, and a public feast held each Sunday.[116] Marsland v. International Society for Krishna Consciousness, 66 Haw. 119, 657 P.2d 1035 (1983).
• A North Carolina court ruled that a church-owned house used by a church for social events was not a "church" for purposes of a local zoning law. The zoning law permitted "churches" in a city's historic district. A church owned a house in the historic district that was used for such purposes as bridge club, social gatherings, community functions, and occasional choir practices and religious instruction. The church planned to sell the home to an individual who wanted to use the home for a "bed and breakfast" establishment. The city informed the purchaser that such a use would not be permitted. The purchaser argued that the church's use of the home was also a "nonconforming" use that was allowed by the city and that could be continued by future owners. A court agreed that the home, as used by the church, was "nonconforming" since it was not a church. The court noted that the term "church" is not defined in the zoning law. It continued: "The expression "church" ordinarily embraces three basic and related definitions: (1) a building set apart for public worship; (2) a place of worship of any religion; and (3) the organization of Christianity or of an association of Christians worshipping together." The city zoning commission insisted that the third definition applied in this case—a church is an organization for religious purposes. The commission claimed that the term "church" cannot be limited to a building where religious services are held, but must also include any building owned and used by a church. The court rejected this sweeping definition, noting that it "would produce the unreasonable result that every building owned by a church or 'organization for religious purposes' would qualify as a 'church' for purposes of the ordinance. … [W]e believe the plain and ordinary meaning of 'church' … to be 'a building set apart for public worship.'"[117] Hayes v. Fowler, 473 S.E.2d 442 (N.C. App. 1996).
• A Texas court ruled that even though an Episcopal vicar conducted religious worship and training in his rectory, this did not change what was essentially a day nursery into a "church" exempt from zoning regulations.[118] Heard v. City of Dallas, 456 S.W.2d 440 (Tex. App. 1970).
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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