Effect of Procedural Irregularities
Key point 6-12.04. Most courts refuse to intervene in church disputes concerning the validity of a membership meeting that was not conducted in accordance with the procedural requirements specified in the church's governing documents. However, some courts are willing to intervene in such disputes if they can do so without inquiring into religious doctrine or polity.
As noted in the previous section, many courts have been willing to resolve challenges to the legality of actions taken by a church during a membership meeting that was conducted in violation of procedural requirements (i.e., notice, quorum, or voting) specified in the church's governing documents, so long as no interpretation of church doctrine is required.[400] Third Missionary Baptist Church v. Garrett, 158 N.W.2d 771 (Iowa 1968); Hollins v. Edmonds, 616 S.W.2d 801 (Ky. 1981); Bangor Spiritualist Church, Inc. v. Littlefield, 330 A.2d 793 (Me. 1975); Fast v. Smyth, 527 S.W.2d 673 (Mo. 1975); Atkins v. Walker, 200 S.E.2d 641 (N.C. 1973); Old Folk Mission Center v. McTizic, 631 S.W.2d 433 (Tenn. 1981). But other courts have refused to intervene in the internal affairs of churches, and will not review decisions made in church membership meetings even if the church disregarded procedural requirements specified in its governing documents.[401] See, e.g., White v. First United Baptist Church, 2002 WL 1575243 (Mich. App. 2002); Rodyk v. Ukrainian Autocephalic Orthodox Church, 296 N.Y.S.2d 496 (1968), aff'd, 328 N.Y.S.2d 685 (1972); Hill v. Sargent, 615 S.W.2d 300 (Tex. 1981). This view generally is based on the assumption that the First Amendment prohibits courts from interfering with the purely internal affairs of churches. Such an interpretation of the First Amendment may be too broad under the prevailing interpretation of that Amendment by the United States Supreme Court.
It is true that there is no room for civil court review of any internal church decision based on the interpretation of religious doctrine. On this point all courts would agree. But, many internal church disputes involve the interpretation of purely secular language in church charters, bylaws, deeds, and trusts. The Supreme Court has suggested that there is room for marginal civil court review of the internal decisions of churches and church tribunals where the reviewing court can resolve the dispute solely on the basis of "neutral principles" of law.[402] Jones v. Wolf, 443 U.S. 595 (1979). The Court in Jones expressly repudiated the apparent holding in Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976), that the courts must defer to the determinations of religious tribunals within hierarchical churches by noting that the first amendment did not require such a rule where no issue of religious doctrine is involved. The Court specifically held that "neutral principles" of law include nondoctrinal language in charters, deeds, and bylaws. One court in upholding the majority view observed that "we have no hesitancy in holding that this controversy is properly before us, our decisions being controlled entirely by neutral principles of law."[403] Bangor Spiritualist Church, Inc. v. Littlefield, 330 A.2d 793 (Me. 1975).
Procedural requirements pertaining to notice, quorums, and voting generally involve no references to religious doctrine and so actions adopted at a church membership meeting conducted in violation of a church's procedural requirements occasionally are invalidated by a civil court.[404] Id. In the case of incorporated churches, this rule has been justified on the ground that a religious corporation is an artificial entity created by law and capable of acting only in the manner prescribed by state law or its own internal regulations, and therefore compliance with such procedural requirements is a prerequisite to a valid meeting.[405] Id.
The subject of civil court intervention in internal church disputes is addressed more fully in chapter 9.
Case studies
- The Alabama Supreme Court ruled that a trial court acted properly in vacating a church election that was conducted in violation of the church's governing document. The court concluded that it could "properly exercise jurisdiction, given the financial and property rights of the church that were involved … and that the election violated the book of discipline in several material respects and also violated basic standards of due process." It emphasized that the parties in this case "argue no issues of differences in religious faith or creed, and argue no spiritual conflicts, or ecclesiastical doctrine. Rather, the underlying dispute revolves around the property of the church—control over its financial assets and affairs—and not God." The court concluded: "The record indeed supports a finding that … the procedures for elections, as enumerated in the book of discipline, were not followed. Thus, we hold today that the trial court did not err in setting aside the election." [406] Yates v. El Bethel Primitive Baptist Church, 847 So.2d 331 (Ala. 2002).
- A Florida court ruled that a church board's attempts to amend the articles of incorporation were invalid because procedural requirements were not followed. The court concluded that the First Amendment religion clauses did not prevent it from resolving this dispute since the case "implicates neutral legal principles only" and "precedent supports judicial resolution of the parties' dispute over corporate assets, the corporation's religious purposes notwithstanding." It further observed: "The doctrine of either side is … of no moment here. The courts are not concerned with the articles of faith of either, nor with the question as to whether or not the articles of faith or the religious doctrines of either are respected and observed. The only question which is sought to be presented here which may be addressed to the courts is in regard to the right to control the church property. The parties have asked neither us nor the trial court to become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrinal beliefs." [407] The Word of Life Ministry, Inc. v. Miller, 778 So.2d 360 (Fla. App. 2001). See also Rosenberger v. Jamison, 72 So.3d 199 (Fla. App. 2011).
- A New Jersey court held that procedural irregularities in a congregational meeting did not affect the congregation's vote to affiliate with a denomination. A local congregation was duly informed that a vote would be taken at its annual business meeting on whether or not to affiliate with the Catholic Church. The pastor of the church adjourned the business meeting and rescheduled it for a week later to allow representatives of the Catholic Church to speak. At the rescheduled meeting the congregation voted to affiliate with the Catholic Church. Members who voted against the affiliation sought a court order invalidating the vote on the ground that it was conducted at an improperly called meeting. The dissenters pointed out that the church's bylaws specified that only the board of trustees had the authority to adjourn and reschedule congregational meetings. The court concluded it would not invalidate the vote of the congregation despite the fact that the meeting was conducted in violation of the church's bylaws. It based this result on two factors. First, the civil courts have the authority to resolve property disputes within local congregations so long as they can do so without interpreting religious doctrine. There were two property interests involved in this case, the court observed—"the right to worship in a familiar surrounding," and a lease agreement entered into between the congregation and Catholic Church following the vote to affiliate. Second, the court concluded that the subject of the congregational meeting (whether or not to affiliate with the Catholic Church) was religious in nature and therefore the civil courts had no authority to interfere with what was done even though the bylaws had been violated. The court observed: "This court can discern a no more spiritual matter than a determination by the congregation of who should shepherd its flock. The majority of the congregation … chose to invite the priests of [the Catholic Church] to be its spiritual leaders. … To invalidate [the meeting and vote] would subjugate the will of the majority on the basis of a minor procedural infraction." [408] Ardito v. Board of Trustees, 658 A.2d 327 (N.J. Super. Ch. 1995).
- A New York court ruled that a congregational meeting called by members of a synagogue to vote on the rehiring of a dismissed rabbi was not valid since it was not called according to the synagogue's bylaws. The synagogue's membership was bitterly divided over the continued retention of their rabbi. The dispute was submitted to an arbitration panel which ruled that the synagogue's board of trustees was authorized to discontinue the rabbi's employment. In response to this ruling, a group of ten members called for a special meeting "concerning the tenure of our rabbi." At this meeting, the membership voted to rehire the rabbi. Members of the congregation asked a civil court to determine the legality of this special meeting, and the vote that was taken. A court ruled that the meeting was legally invalid because it was not called in accordance with the synagogue's bylaws. The bylaws permit any ten members to call for a special meeting, provided that at least five days notice of the meeting is given to members by the recording secretary. The court concluded that "since it is clear that the notice was not sent by the secretary of the synagogue, as required by the bylaws, to the members in good standing as of the date of mailing, I declare that the [special business meeting] was not validly held." [409] Holler v. Goldberg, 623 N.Y.S.2d 512 (Sup. 1995). See also Smith v. Ebenezer Baptist Church, 949 N.Y.S.2d 119 (N.Y.A.D. 2012).
- An Ohio court ruled that a church business meeting was invalid since the pastor had moved the time of the meeting from "immediately following the morning service" to 1:00 PM that afternoon. [410] Mt. Eaton Community Church, Inc. v. Ladrach, 2009 WL 56923 (Ohio App. 2009).
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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