Dissolution
Key point 6-15. The procedure for dissolving an incorporated church is specified by state nonprofit corporation law.
The dissolution of incorporated churches generally is regulated by state corporation law since the state alone has the authority to dissolve those organizations it has created.[443] FLETCHER CYC. CORP. § 7971 (perm. ed. 2008). Corporate dissolutions may be either voluntary or involuntary. A voluntary corporate dissolution is accomplished by the corporation itself. Most state religious and nonprofit corporation laws contain a specific procedure for voluntary dissolution, which generally consists of the following elements:
- Board resolution. The board of directors adopts a resolution recommending that the corporation be dissolved and directing that the question of dissolution be submitted to the church membership.
- Notice to members. All voting members are notified in writing that the question of dissolution will be discussed at a special or general meeting of the members.
- Approval. A resolution to dissolve the corporation is adopted if it receives at least two-thirds voter approval.
- Notice to creditors. Notice of the dissolution is mailed to all creditors of the former corporation.
- Payment of debts. All corporate liabilities are paid. Any assets remaining after payment of liabilities are transferred to the organization or organizations, if any, prescribed in the dissolved corporation's charter or in the controlling rules of a church hierarchy, if any, with which the church is affiliated. If neither the charter nor controlling rules of a religious hierarchy specifies how corporate assets are to be distributed following dissolution, the assets are conveyed to one or more organizations engaged in activities substantially similar to those of the dissolving corporation.
- Articles of dissolution prepared. The articles of dissolution are executed. The articles set forth the name of the corporation, the date of the meeting of members at which the resolution to dissolve was adopted, and an acknowledgment that a quorum was present, that the resolution was adopted by at least two-thirds of the members present at such meeting, that all debts of the corporation have been paid, and that all remaining assets of the corporation have been transferred to the organization specified in the corporation's charter, or, if no organization is specified, to an organization engaged in activities substantially similar to those of the dissolving corporation.
- Articles of dissolution filed. The articles of dissolution are filed with the secretary of state. If the articles of dissolution conform to all legal requirements, the secretary of state issues to a representative of the dissolved corporation a certificate of dissolution, which is recorded with the office of the recorder of deeds of the county in which the church had been located.[444] MODEL NONPROFIT CORPORATION ACT §§ 45-51.
It is important to recognize that the IRS maintains that every incorporated church must contain a provision in its charter ensuring that in the event of a dissolution the assets of the church will pass to a tax-exempt organization. The IRS has stated that the following provision will suffice:
Upon the dissolution of the corporation, assets shall be distributed for one or more exempt purposes within the meaning of section 501(c)(3) of the Internal Revenue Code, or the corresponding section of any future federal tax code, or shall be distributed to the federal government, or to a state or local government, for a public purpose. Any such assets not so disposed of shall be disposed of by a Court of Competent Jurisdiction of the county in which the principal office of the corporation is then located, exclusively for such purposes or to such organization or organizations, as said Court shall determine, which are organized and operated exclusively for such purposes.[445] IRS Publication 557. An abbreviated version of this language, which also is acceptable to the IRS, appears in Rev. Proc. 82-2, 1982-1 C.B. 367.
A church, of course, may specify in its charter the tax-exempt organization to which its assets will pass upon dissolution. A dissolution clause is necessary in order to ensure the tax-exempt status of a church, since a church will not be considered entitled to tax-exempt status if any part of its net earnings or assets is payable to or for the benefit of any private individual.[446] I.R.C. § 501(c)(3). The income tax regulations also specify that an organization is not organized exclusively for exempt purposes if its assets are payable to individuals or nonexempt organizations upon dissolution.
It is important to emphasize that the property of a dissolved church will be conveyed to a charitable organization having purposes and activities substantially similar to those of the dissolved church if neither the church charter nor controlling rules of an ecclesiastical hierarchy provide otherwise. To illustrate, one court ruled that the members of a dissolving church had no authority to distribute church assets to a theological seminary or a servicemen's center, since neither organization was substantially related in purpose or activity to the dissolving church.[447] Metropolitan Baptist Church v. Younger, 121 Cal. Rptr. 899 (1975). And, if a dissolving church is affiliated with a religious hierarchy whose internal rules require that the assets of a dissolving local church revert to the parent organization, the members of a dissolving church have no authority to distribute the church's assets to another organization.[448] Polen v. Cox, 267 A.2d 201 (Md. 1970); German Evangelical Lutheran St. Johannes Church v. Metropolitan New York Synod of the Lutheran Church in America, 366 N.Y.S.2d 214 (1975), appeal denied, 378 N.Y.S.2d 1025 (1975). In addition to the procedures specified by state corporation law, church corporations also are bound by the procedural requirements of their own charters and bylaws, or the controlling rules of a parent ecclesiastical body, in a dissolution proceeding.[449] Presbytery of the Covenant v. First Presbyterian Church, 552 S.W.2d 865 (Tex. App. 1977).
The corporation law of many states provides that church corporations may be dissolved involuntarily by the attorney general upon the occurrence of one or more of several grounds, including failure to pay fees prescribed by law, failure to file an annual report, fraudulent solicitation of funds, and exceeding the authority conferred by state corporation law.[450] MODEL NONPROFIT CORPORATION ACT § 51. Such laws typically permit church corporations to be dissolved involuntarily by a director or member if the directors are so deadlocked in the management of the corporation that irreparable injury to the corporation is being suffered; the acts of the directors are illegal, oppressive, or fraudulent; the corporation's assets are being wasted; or the corporation is unable to carry out its purposes.[451] Id. at § 54(a).
To illustrate, one court found that an involuntary dissolution of a church was warranted since dissension over the dismissal of one minister and the hiring of another was so bitter that the church could no longer conduct its operations.[452] Fuimaono v. Samoan Congregational Christian Church, 135 Cal. Rptr. 799 (1977). However, one court held that riots and violence within a church that lasted for only two weeks was not a frustration of the church's purposes and did not constitute an adequate basis for involuntary dissolution.[453] Hill v. Abyssinia Missionary Baptist Church, 370 So.2d 1389 (Ala. 1979).
Case study. An Illinois appeals court dismissed a lawsuit brought by members of a church seeking to dissolve their church and have a receiver appointed to liquidate church assets. A schism occurred in a Baptist church over the retention of the pastor. Problems worsened due to disagreements over the pastor's plan to use church funds to build a school. Some members opposed placing a mortgage on the debt-free church building to raise construction funds. When efforts to remove the pastor and those deacons who supported him failed, some of the disgruntled members filed a lawsuit in civil court seeking an order dissolving the church and transferring its assets to a receiver for distribution to another nonprofit organization. Illinois law permits a voting member or director to "involuntarily dissolve" a nonprofit corporation that is unable to carry out its purposes. The disgruntled members claimed that this procedure was available since the church was unable to carry out its purpose of conducting religious worship because of the controversy. A trial court agreed to dissolve the church and turn over its assets to a receiver for distribution to another nonprofit organization, but a state appeals court reversed this ruling on the ground that the persons who brought the lawsuit did not qualify as members of the church and therefore lacked "standing" to sue. The court noted that even if the former members had standing to sue, they could not prevail since the civil courts lack jurisdiction to determine whether or not the church "could carry out its purposes since the court's decision of that issue [would violate] the First Amendment's prohibition against civil courts' involvement in religious matters. … The underlying dispute, who will be the pastor at [the church], is an ecclesiastical matter which is not within the court's purview."[454] Hines v. Turley, 615 N.E.2d 1251 (Ill. App. 1993).
If a church, in the regular course of its affairs, is unable to pay its debts and obligations as they come due, the nonprofit corporation laws of many states permit an incorporated church to be involuntarily dissolved by a creditor whose claims are unsatisfied.[455] MODEL NONPROFIT CORPORATION ACT § 54(b).
Unincorporated churches having no affiliation with a religious hierarchy are mere voluntary associations of persons and may dissolve on their own initiative by a vote of the membership, by abandonment of the church, or by withdrawal of all members from the church, assuming that all applicable provisions in the church's bylaws or other internal rules are followed. The property of unincorporated churches generally is in the name of trustees.
The IRS maintains that an unincorporated church is not eligible for exemption from federal income taxes unless its organizational document stipulates that all assets held in trust for the use and benefit of the church will pass to another charitable, tax-exempt organization upon dissolution of the church. Obviously, neither the trustees nor former members have any personal claim to trust assets following the dissolution of a church. This requirement is based on the fact that the Internal Revenue Code prohibits tax-exempt status to any organization whose net earnings or assets are payable to or for the benefit of any private individual.[456] I.R.C. § 501(c)(3).
If an unincorporated church has failed to include a provision in its organizational document providing for disposition of trust assets following dissolution of the church, a court may nonetheless direct that all trust assets pass to another charitable organization having similar purposes to those of the dissolved church. This power of the courts to determine the status of the trust assets of a dissolved church is known as the cy pres doctrine.
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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