Authority
Key point 6-09.02. Church members have such legal authority as is vested in them by their church's governing documents, and in some cases by state nonprofit corporation law.
In churches with a congregational form of government, the general rule is that a majority of the members represent the church and have the right to manage its affairs and to control its property for the use and benefit of the church, and that the law will protect such authority at least as it relates to civil, contract, or property rights.[236] Mitchell v. Dickey, 173 S.E.2d 695 (Ga. 1970); Wright v. Smith, 124 N.E.2d 363 (Ill. 1955); McHargue v. Feltner, 325 S.W.2d 349 (Ky. 1959). One court has stated the rule as follows: "The courts will give effect to the action of the majority of members of a congregational or independent religious organization … insofar as regards civil or property rights when they have acted in harmony with church rules, customs and practices at a meeting properly called."[237] Willis v. Davis, 323 S.W.2d 847, 849 (Ky. 1959).
The United States Supreme Court has observed that "majority rule is generally employed in the governance of religious societies."[238] Jones v. Wolf, 443 U.S. 595, 607 (1979). Other courts have held that a majority of a church's membership has the authority to sell a parsonage and acquire a new one;[239] McHargue v. Feltner, 325 S.W.2d 349 (Ky. 1959). to oust a minority group that had wrongfully and violently seized possession of the church building;[240] Mitchell v. Dickey, 173 S.E.2d 695 (Ga. 1970). to call a meeting of the church;[241] Willis v. Davis, 323 S.W.2d 847 (Ky. 1959). to expel members;[242] Smith v. Lewis, 578 S.W.2d 169 (Tex. App. 1979); Moorman v. Goodman, 157 A.2d 519 (N.J. 1960). to disaffiliate from one denomination and associate with another;[243] Foss v. Dykstra, 342 N.W.2d 220 (S.D. 1983); Douglass v. First Baptist Church, 287 P.2d 965 (Colo. 1955). to adopt bylaws;[244] First Baptist Church v. State of Ohio, 591 F. Supp. 676 (S.D. Ohio 1983); Lewis v. Wolfe, 413 S.W.2d 314 (Mo. 1967). to authorize church activity and direct or control disposition of church property;[245] Mt. Jezreel Christians Without a Home v. Board of Trustees of Mount Jezreel Baptist Church, 582 A.2d 237 (D.C. App. 1990) ("[w]e therefore hold that, as a general principle, bona fide members of a church have standing to bring suit as trust beneficiaries when there is a dispute over the use or disposition of church property"); Pilgrim Evangelical v. Lutheran Church-Missouri Synod Foundation, 661 S.W.2d 833 (Mo. App. 1983); Blair v. Blair, 396 S.E.2d 374 (S.C. App. 1990). and to select and remove a minister.[246] LeBlanc v. Davis, 432 So.2d 239 (La. 1983).
The general authority possessed by the members of a congregational church exists whether the church is incorporated or unincorporated. However, state corporate law may grant the members of an incorporated church additional specific powers. For example, the Model Nonprofit Corporation Act, which has been adopted in whole or in part in a majority of states, specifies that "all books and records of a corporation may be inspected by any member, or his agent or attorney, for any proper purpose at any reasonable time."[247] MODEL NONPROFIT CORPORATION ACT § 25.
The authority of a majority of members in a church with a congregational form of government is limited. Church members only have the authority vested in them by the church's governing documents or by state corporation law. In a leading case, a court rejected a demand by several church members that their church conduct a meeting at which the pastor and trustees would give a complete accounting of the affairs of the church, since neither the church's charter nor bylaws conferred such authority upon the membership. The court concluded that the members "have only such powers, if any, in the management of the affairs of the corporation as may be conferred upon them by the charter and bylaws."[248] First Baptist Church v. State of Ohio, 591 F. Supp. 676 (S.D. Ohio 1983); Evans v. Shiloh Baptist Church, 77 A.2d 160, 163 (Md. 1950). See also Katz v. Singerman, 127 So.2d 515 (La. 1961).
On the other hand, while no court has reached this conclusion, it would seem reasonable to regard a church's governing documents, like the United States Constitution, as a "delegated powers" instrument. The tenth amendment to the Constitution states that "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people." In essence, the citizens have delegated certain powers to the federal government in the Constitution, reserving unto themselves all powers not specifically delegated. Similarly, it could be said that the members who organize a church delegate various powers to the church and its officers, directors, and committees, and that any powers not specifically delegated are reserved unto the membership.
The charter governing documents of many congregational churches limit the authority of a simple majority of members. For example, some require that sales or purchases of property, elections of ministers, and amendments to the charter or bylaws be by a two-thirds or three-fourths vote of the church membership.
The courts generally will disregard the authority of a church's members when property rights or civil liberties protected under state or federal law are violated. As one court has observed, the rights that exist by virtue of state or federal law "cannot be overridden by a majority rule of any organization—church or otherwise."[249] Stansberry v. McCarty, 149 N.E.2d 683, 686 (Ind. 1958). See also Serbian Eastern Orthodox Diocese v. Ocokoljich, 219 N.E.2d 343 (Ill. 1966).
Members are under no compulsion to adhere to the tenets of their church, but they cannot impose their beliefs upon a majority that rejects them.[250] Katz v. Singerman, 127 So.2d 515 (La. 1961). Members of course have the right to withdraw from one church and join another.[251] Trett v. Lambeth, 195 S.W.2d 524 (Mo. 1946); Brady v. Reiner, 198 S.E.2d 812 (W. Va. 1973). But members who withdraw or whose membership is terminated by action of the church no longer possess any authority. They have no interest in church property, and they cannot represent members in any legal action against the church.[252] Stewart v. Jarriel, 59 S.E.2d 368 (Ga. 1950); Brady v. Reiner, 198 S.E.2d 812 (W. Va. 1973).
Several courts have noted that when persons become a member of a church, they do so upon the condition of submission to its ecclesiastical jurisdiction, and however much they may be dissatisfied with the exercise of that jurisdiction, they have no right to invoke the supervisory power of a civil court so long as their property, contract, or civil rights are not affected.[253] Stewart v. Jarriel, 59 S.E.2d 368 (Ga. 1950). Nor may a member deny the existence of a church's bylaws.[254] State ex rel. Morrow v. Hill, 364 N.E.2d 1156 (Ohio 1977).
Church members generally have no personal interest in church property since title ordinarily is vested in the church. If a church acquires property by a deed naming the church as grantee, the conveyance is to the church and constitutes no benefit or interest to any individual member.[255] Presbytery of Cimarron v. Westminster Presbyterian Church, 515 P.2d 211 (Okla. 1973).
Prior to 1969 the courts commonly ruled that church property was held in trust for the use and benefit of those members adhering to the original tenets of the church, and thus a majority of the members could not abandon the tenets of the church and retain the right to use the church's property so long as a single member adhered to the original doctrines of the church.[256] Wright v. Smith, 124 N.E.2d 363,365 (Ill. 1955) ("courts will raise and enforce an implied trust so that the majority faction cannot effect a fundamental change of doctrine"). This rule was abolished by the United States Supreme Court in 1969.[257] In Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440 (1969), the Supreme Court held that civil courts could no longer construe or apply religious doctrine in resolving church property disputes. See generally chapter 7, infra.
Members of churches affiliated with an ecclesiastical hierarchy generally are subject to the same limitations on their authority discussed above in connection with members of congregational churches, but in addition they are limited by the bylaws and tribunals of the parent denomination.[258] Presbytery of Cimarron v. Westminster Presbyterian Church, 515 P.2d 211 (Okla. 1973).
Case studies
- A Georgia court ruled that a church's entire board had properly been dismissed by the church members at a duly called special business meeting. The court relied on the Georgia Nonprofit Corporation Code which specifies that a nonprofit corporation shall hold a special meeting "if the holders of at least 5 percent of the voting power of the corporation sign, date, and deliver to any corporate officer one or more written demands … for the meeting describing the purpose or purposes for which it is to be held," unless otherwise specified in the corporation's articles or bylaws. The court noted that the church members properly followed the Nonprofit Corporation Code in scheduling the special meeting and voting to remove the church board members. It concluded: "At the meeting, a majority of the members selected a new board of directors of the church, and they chose not to nominate or elect [the original board members]. Accordingly, following their dismissal from the board, the original board members had no authority to control the temporal assets of the church." [259] Members of Calvary Missionary Baptist Church v. Jackson, 603 S.E.2d 711 (Ga. App. 2004).
- An Indiana court ruled that a majority of a congregational church's members, rather than the church's board of trustees, had the legal authority to determine whether or not to retain their pastor. The court noted that for churches of "congregational" polity, "the religious organization is represented by a majority of its members," and therefore "when presented with a dispute within a church of congregational polity, our courts will uphold the majority's decision, whether that is to purchase property or even remove the minister, unless the church has established its own decision-making body with the power to override the will of the majority." [260] Cole v. Holt, 725 N.E.2d 145 (Ind. App. 2000).
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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