Selection and Qualifications
Key point 6-09.01. The procedure for selecting members generally is defined by a church's governing documents. The civil courts have refrained from resolving disputes over the selection of members on the ground that the First Amendment guaranty of religious freedom prevents them from deciding whether or not individuals satisfy the requirements for church membership.
The essence of the relationship between members and a church consists of an agreement, a profession of faith, adherence to church doctrine, and submission to church governance.[225] Freshour v. King, 345 P.2d 689 (Kan. 1959); Henson v. Payne, 302 S.W.2d 44 (Mo. 1956); Second Baptist Church v. Mount Zion Baptist Church, 466 P.2d 212 (Nev. 1970); Western Conference of Original Free Will Baptists v. Creech, 123 S.E.2d 619 (N.C. 1962). The membership of a church is typically determined by reference to the church's governing documents and to any applicable state corporation law. It is well-settled that (1) the right to determine the qualifications for membership belongs to the church, (2) a determination as to who are "members in good standing" is an ecclesiastical question relating to the government and discipline of a church, and (3) a church's decision about either matter is binding on the courts.[226] Rodyk v. Ukrainian Autocephalic Orthodox Church, 296 N.Y.S.2d 496 (1968), aff'd, 328 N.Y.S.2d 685 (1972). See also Stewart v. Jarriel, 59 S.E.2d 368 (Ga. 1950); Fast v. Smyth, 527 S.W.2d 673, 676 (Mo. 1975) ("the determination of who are qualified members of a church is an ecclesiastical matter"); Eisenberg v. Fauer, 200 N.Y.S.2d 749 (1960); Presbytery of Beaver-Butler v. Middlesex, 489 A.2d 1317 (Pa. 1985) ("the view of a court as to who are heretics among warring sects is worth nothing, and must count as nothing if our cherished diversity of religious views is to prevail").
The United States Supreme Court has stated the general rule of judicial nonintervention in the ecclesiastical affairs of churches, including membership determinations, as follows:
But it is a very different thing where a subject matter of dispute, strictly and purely ecclesiastical in its character—a matter over which the civil courts exercise no jurisdiction—a matter which concerns theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them—becomes the subject of its action. It may be said here, also, that no jurisdiction has been conferred on the tribunal to try the particular case before it, or that, in its judgment, it exceeds the powers conferred upon it, or that the laws of the church do not authorize the particular form of proceeding adopted; and, in a sense often used in the courts, all of those may be said to be questions of jurisdiction. But it is easy to see that if the civil courts are to inquire into all these matters, the whole subject of the doctrinal theology, the usages and customs, the written laws, and fundamental organization of every religious denomination may, and must, be examined into with minuteness and care, for they would become, in almost every case, the criteria by which the validity of the ecclesiastical decree would be determined in the civil court.[227] Watson v. Jones, 80 U.S. 679, 733-34 (1871) (emphasis added).
The Supreme Court has also held that religious freedom encompasses the "power of [religious bodies] to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine."[228] Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116 (1952). And, the Court has stated that "religious controversies are not the proper subject of civil court inquiry."[229] Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713 (1976). This rule is often followed even when it is alleged that a church deviated from its own charter or bylaws in making a membership determination.[230] Evans v. Shiloh Baptist Church, 77 A.2d 160 (Md. 1950); Jenkins v. New Shiloh Baptist Church, 56 A.2d 788 (Md. 1948).
A number of courts, however, have been willing to review church determinations involving members as long as no "strictly and purely ecclesiastical" question is presented. For example, some courts have been willing to intervene if:
1) the church determination was the product of fraud or collusion;[231] Gonzalez v. Roman Catholic Archbishop, 280 U.S. 1 (1929). The United States Supreme Court has stated that "arbitrariness" is no longer a basis for civil court review of the ecclesiastical determinations of churches. Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976).
2) civil, contract, or property rights of members are affected;[232] See, e.g., Carden v. La Grone, 169 S.E.2d 168, 172 (Ga. 1969) ("a court of equity will not interfere with the internal management of a religious society where property rights are not involved"); Third Missionary Baptist Church v. Garrett, 158 N.W.2d 771, 776 (Iowa 1968) ("[i]t is a general rule recognized here and in foreign jurisdictions that ordinarily the courts have no jurisdiction over, and no concern with, purely ecclesiastical questions and controversies, including membership in a church organization, but they do have jurisdiction as to civil, contract, and property rights which are involved in or arise from a church controversy"); Mitchell v. Albanian Orthodox Diocese, 244 N.E.2d 276, 278-79 (Mass. 1969) ("courts do not interfere in a controversy that is exclusively or primarily of an ecclesiastical nature. Where civil or property rights or the construction of legal instruments are involved, however, the courts have been less reluctant to interfere"); Fast v. Smyth, 527 S.W.2d 673, 676 (Mo. 1975) ("the determination of who are qualified members of a church is an ecclesiastical matter. There is, however, a well recognized exception to this general rule in this state. Civil courts will review ecclesiastical matters where necessary to protect the property, contracts, or civil rights of members"). or
3) a legitimate dispute occurs over the meaning of the criteria for membership.[233] See, e.g., Smith v. Riley, 424 So.2d 1166 (La. App. 1982) (in the absence of any evidence to the contrary, the term members as used in a church charter includes females); Second Baptist Church v. Mount Zion Baptist Church, 466 P.2d 212 (Nev. 1970) (where church bylaws stipulated that failure to attend church or make financial contributions "without a reasonable excuse" resulted in termination of membership, the court resolved church dispute concerning the meaning of "without a reasonable excuse"); Honey Creek Regular Baptist Church v. Wilson, 92 N.E.2d 419 (Ohio 1950) (court agreed to hear church dispute concerning the issue of whether "extending the right hand of fellowship" was a requirement of church membership).
Case studies
- A Michigan court ruled that it was barred by the First Amendment from resolving an internal church dispute since it could not do so without delving into church doctrine. The court concluded: "Although a court may determine rights to church property where such can be determined by application of civil law, resolution of the property dispute in this case would require consideration of religious doctrine and ecclesiastical polity. … Accordingly, the trial court did not have subject matter jurisdiction over either parties' property claim and it properly dismissed the case." [234] Church of Christ v. Gill, 2002 WL 737801 (Mich. App. 2002).
- A Pennsylvania court refused to order church officials to explain why they refused to admit a person as a member. The court ruled that the civil courts are bound by the First Amendment guaranty of religious freedom to accept the decisions of religious organizations on matters of "discipline, faith, internal organization, and ecclesiastical rule, custom, and law." The court concluded that this case, which involved an individual's right to membership in a church, was the kind of ecclesiastical matter that was beyond the authority of the civil courts to resolve. It observed: "Membership in a congregation is purely an ecclesiastical matter subject to the church rules and controlled by the decisions of the appropriate church tribunals in so far as they do not contravene the civil law. The heart of [the member's] case is that he desires to become a member in [another church]. Accordingly, it is clear that this case involves a purely ecclesiastical matter." [235] Gundlach v. Laister, 625 A.2d 706 (Pa. Cmwlth. 1993).
Table of Contents
-
1Definitions and Status
-
§ 1.01Distinctions Between the Terms Pastor, Clergy, Minister
-
§ 1.02Definition of the Terms Pastor, Clergy, Minister — In General
-
§ 1.03Status—Employee or Self Employed
-
§ 1.03.01Social Security
-
§ 1.03.02Income Taxes
-
§ 1.03.03Retirement Plans
-
§ 1.03.04Legal Liability
-
§ 1.03.05Miscellaneous Federal and State Statutes
-
-
§ 1.04Status—Ordained, Commissioned, or Licensed
2The Pastor-Church Relationship
-
§ 2.01Initiating the Relationship—In General
-
§ 2.01.01Congregational Churches
-
§ 2.01.02Hierarchical Churches
-
§ 2.01.03Compliance with a Church's Governing Instrument in the Selection of a Minister
-
§ 2.01.04Civil Court Review of Clergy Selection Disputes—the General Rule of Non-Intervention
-
§ 2.01.05Civil Court Review of Clergy Selection Disputes—Limited Exceptions to the General Rule
-
§ 2.01.06Negligent Selection
-
-
§ 2.02The Contract
-
§ 2.03Compensation
-
§ 2.04Termination
3Authority, Rights, and Privileges
-
§ 3.01General Scope of a Minister's Authority
-
§ 3.02Officer of the Church Corporation
-
§ 3.03Property Matters
-
§ 3.04Performance of Marriage Ceremonies
-
§ 3.05Exemption from Military Duty
-
§ 3.06Exemption From Jury Duty
-
§ 3.07The Clergy-Penitent Privilege—In General
-
§ 3.07.01A "Communication"
-
§ 3.07.02Made in Confidence
-
§ 3.07.03To a Minister
-
§ 3.07.04Acting in a Professional Capacity as a Spiritual Adviser
-
§ 3.07.05In the Course of Discipline
-
-
§ 3.08The Clergy-Penitent Privilege—Miscellaneous Issues
-
§ 3.08.01Clergy-Parishioner Relationship
-
§ 3.08.02Marriage Counseling
-
§ 3.08.03Who May Assert the Privilege
-
§ 3.08.04When to Assert the Privilege
-
§ 3.08.05Waiver of the Privilege
-
§ 3.08.06The Privilege in Federal Courts
-
§ 3.08.07Constitutionality of the Privilege
-
§ 3.08.08Child Abuse Reporting
-
§ 3.08.09Confidentiality
-
§ 3.08.10Disclosure to Civil Authorities
-
§ 3.08.11Church Records
-
§ 3.08.12Death of the Counselee
-
-
§ 3.09Visiting Privileges at Penal Institutions
-
§ 3.10Immigration of Alien Ministers, Religious Vocations, and Religious Occupations
-
§ 3.11Miscellaneous Benefits
4Liabilities, Limitations, and Restrictions
-
§ 4.01Negligence
-
§ 4.02Defamation—In General
-
§ 4.02.01Pastors Who Are Sued for Making Defamatory Statements
-
§ 4.02.02Pastors Who Are Victims of Defamation
-
§ 4.02.03Defenses
-
-
§ 4.03Undue Influence
-
§ 4.04Invasion of Privacy
-
§ 4.05Clergy Malpractice
-
§ 4.06Contract Liability
-
§ 4.07Securities Law Violations
-
§ 4.08Failure to Report Child Abuse
-
§ 4.09Diversion of Church Funds
-
§ 4.10State Regulation of Psychologists and Counselors
-
§ 4.11Sexual Misconduct
-
§ 4.11.01Theories of Liability
-
§ 4.11.02Defenses to Liability
-
5Definitions
-
§ 5.01Tax Legislation—Federal
-
§ 5.01.01Churches
-
§ 5.01.02Mail Order Churches
-
§ 5.01.03Other Religious Organizations
-
§ 5.01.04Tax Legislation—State
-
-
§ 5.02Zoning Law
-
§ 5.02.01Churches
-
§ 5.02.02Accessory Uses
-
6Organization and Administration
-
§ 6.01Unincorporated Associations
-
§ 6.01.01Characteristics
-
§ 6.01.02Personal Liability of Members
-
§ 6.01.03Creation and Administration
-
-
§ 6.02Corporations
-
§ 6.02.01The Incorporation Process
-
§ 6.02.02Charters, Constitutions, Bylaws, and Resolutions
-
-
§ 6.03Church Records
-
§ 6.03.01Inspection
-
§ 6.03.02“Accountings” of Church Funds
-
§ 6.03.03Public Inspection of Tax-Exemption Applications
-
§ 6.03.04Government Inspection of Donor and Membership Lists
-
§ 6.03.05The Church Audit Procedures Act
-
§ 6.03.06Who Owns a Church’s Accounting Records?
-
-
§ 6.04Reporting Requirements
-
§ 6.04.01State Law
-
§ 6.04.02Federal Law
-
-
§ 6.05Church Names
-
§ 6.06Officers, Directors, and Trustees—In General
-
§ 6.06.01Election or Appointment
-
§ 6.06.02Authority
-
§ 6.06.03Meetings
-
§ 6.06.04Removal
-
-
§ 6.07Officers, Directors, and Trustees—Personal Liability
-
§ 6.07.01Tort Liability
-
§ 6.07.02Contract Liability
-
§ 6.07.03Breach of the Fiduciary Duty of Care
-
§ 6.07.04Breach of the Fiduciary Duty of Loyalty
-
§ 6.07.05Violation of Trust Terms
-
§ 6.07.06Securities Law
-
§ 6.07.07Wrongful Discharge of an Employee
-
§ 6.07.08Willful Failure to Withhold Taxes
-
§ 6.07.09Exceeding the Authority of the Board
-
§ 6.07.10Loans to Directors
-
-
§ 6.08Immunity Statutes
-
§ 6.08.01Directors and Officers Insurance
-
-
§ 6.09Members—In General
-
§ 6.09.01Selection and Qualifications
-
§ 6.09.02Authority
-
-
§ 6.10Members—Discipline and Dismissal
-
§ 6.10.01Judicial Nonintervention
-
§ 6.10.02“Marginal” Civil Court Review
-
§ 6.10.03Preconditions to Civil Court Review
-
§ 6.10.04Remedies for Improper Discipline or Dismissal
-
-
§ 6.11Members—Personal Liability
-
§ 6.12Meetings of Members
-
§ 6.12.01Procedural Requirements
-
§ 6.12.02Minutes
-
§ 6.12.03Parliamentary Procedure
-
§ 6.12.04Effect of Procedural Irregularities
-
§ 6.12.05Judicial Supervision of Church Elections
-
§ 6.12.06Who May Attend
-
-
§ 6.13Powers of a Local Church
-
§ 6.14Merger and Consolidation
-
§ 6.15Dissolution
7Church Property
-
§ 7.01Church Property Disputes—In General
-
§ 7.02Church Property Disputes—Supreme Court Rulings
-
§ 7.03State and Lower Federal Court Rulings
-
§ 7.04Church Property Disputes—Dispute Resolution Procedures
-
§ 7.05Transferring Church Property
-
§ 7.06Zoning Law
-
§ 7.07Restricting Certain Activities Near Church Property
-
§ 7.08Building Codes
-
§ 7.08.01Lead Paint on Church Property
-
-
§ 7.09Nuisance
-
§ 7.10Landmarking
-
§ 7.11Eminent Domain
-
§ 7.12Defacing Church Property
-
§ 7.13Restrictive Covenants
-
§ 7.14Reversion of Church Property to the Prior Owner
-
§ 7.15Materialmen’s Liens
-
§ 7.16Religious Discrimination in the Sale or Rental of Church Property
-
§ 7.17Removing Disruptive Individuals
-
§ 7.18Adverse Possession
-
§ 7.19Accounting for Depreciation
-
§ 7.20Premises Liability
-
§ 7.20.01Liability Based on Status as Invitee, Licensee, or Trespasser
-
§ 7.20.02Defenses to Premises Liability
-
§ 7.20.03Use of Church Property by Outside Groups
-
§ 7.20.04Assaults on Church Property
-
§ 7.20.05Skate Ramps
-
§ 7.20.06Sound Rooms
-
-
§ 7.21Embezzlement
-
§ 7.22Places of Public Accommodation
8Employment Law
-
§ 8.01Introduction: Selection of Employees
-
§ 8.02New Hire Reporting
-
§ 8.03Employment Eligibility Verification
-
§ 8.04Immigration
-
§ 8.05Negligent Selection
-
§ 8.06Introduction: Compensation and Benefits
-
§ 8.07Workers Compensation
-
§ 8.08Fair Labor Standards Act
-
§ 8.08.01Enterprises
-
§ 8.08.02Individual Coverage
-
§ 8.08.03Federal Court Rulings
-
§ 8.08.04Department of Labor Opinion Letters
-
§ 8.08.05Exemptions
-
§ 8.08.06Ministers
-
§ 8.08.07State Laws
-
§ 8.08.08Case Studies
-
-
§ 8.09Introduction to Federal Employment and Civil Rights Laws—The “Commerce” Requirement
-
§ 8.09.01Counting Employees
-
-
§ 8.10The “Ministerial Exception” under State and Federal Employment Laws
-
§ 8.11Procedure for Establishing a Discrimination Claim
-
§ 8.12Title VII of the Civil Rights Act of 1964
-
§ 8.12.01Application to Religious Organizations
-
§ 8.12.02Application to Religious Educational Institutions
-
§ 8.12.03Religion as a "Bona Fide Occupational Qualification"
-
§ 8.12.04Discrimination Based on Religion or Morals
-
§ 8.12.05Sexual Harassment
-
§ 8.12.06The Catholic Bishop Case
-
§ 8.12.07Failure to Accommodate Employees’ Religious Practices
-
§ 8.12.08The Religious Freedom Restoration Act
-
§ 8.12.09The Civil Rights Act of 1991
-
-
§ 8.13The Age Discrimination in Employment Act
-
§ 8.14The Americans with Disabilities Act
-
§ 8.14.01Discrimination in Employment
-
§ 8.14.02Discrimination in Public Accommodations
-
-
§ 8.15Family and Medical Leave Act
-
§ 8.16Employer “Retaliation” Against Victims of Discrimination
-
§ 8.17Discrimination Based on Military Status
-
§ 8.18Employee Polygraph Protection Act
-
§ 8.19Occupational Safety and Health Act
-
§ 8.20Display of Posters
-
§ 8.21Discrimination under State Laws
-
§ 8.22Termination of Employees
-
§ 8.22.01Severance Agreements
-
-
§ 8.23National Labor Relations Act
-
§ 8.24Reference Letters
-
§ 8.25Employee Evaluations
-
§ 8.26Employment Interviews
-
§ 8.27Arbitration
-
§ 8.28Employee Handbooks
-
§ 8.29Employee Privacy
-
§ 8.30Insurance
9Government Regulation of Churches
-
§ 9.01Introduction
-
§ 9.02Regulation of Charitable Solicitations
-
§ 9.03Limitations on Charitable Giving
-
§ 9.04Federal and State Securities Law
-
§ 9.05Copyright Law
-
§ 9.05.01Copyright Ownership
-
§ 9.05.02Works Made for Hire
-
§ 9.05.03Exclusive Rights
-
§ 9.05.04Infringement
-
§ 9.05.05The "Religious Service" Exemption to Copyright Infringement
-
§ 9.05.06Electronic Media
-
§ 9.05.10Other Exceptions to Copyright Infringement
-
-
§ 9.06Government Investigations
-
§ 9.07Judicial Resolution of Church Disputes
-
§ 9.08Political Activities by Churches and Other Religious Organizations
-
§ 9.09Bankruptcy Law
10Church Legal Liability
-
§ 10.01Negligence as a Basis for Liability—In General
-
§ 10.02Vicarious Liability (Respondeat Superior)
-
§ 10.02.01The Requirement of Employee Status
-
§ 10.02.02Negligent Conduct
-
§ 10.02.03Course of Employment
-
§ 10.02.04Inapplicability to Nonprofit Organizations
-
-
§ 10.03Negligent Selection of Church Workers—In General
-
§ 10.04Negligent Selection of Church Workers—Sexual Misconduct Cases Involving Minor Victims
-
§ 10.05Negligent Selection of Church Workers—Sexual Misconduct Cases Involving Adult Victims
-
§ 10.05.01Court Decisions Recognizing Negligent Selection Claims
-
§ 10.05.02Court Decisions Rejecting Negligent Selection Claims
-
§ 10.05.03Risk Management
-
-
§ 10.06Negligent Selection of Church Workers—Other Cases
-
§ 10.07Negligent Retention of Church Workers—In General
-
§ 10.07.01Court Decisions Recognizing Negligent Retention Claims
-
§ 10.07.02Court Decisions Rejecting Negligent Retention Claims
-
§ 10.07.03Risk Management
-
-
§ 10.08Negligent Supervision of Church Workers—In General
-
§ 10.09Negligent Supervision of Church Workers—Sexual Misconduct Cases Involving Minor Victims
-
§ 10.09.01Court Decisions Recognizing Negligent Supervision Claims
-
§ 10.09.02Court Decisions Rejecting Negligent Supervision Claims
-
§ 10.09.03Risk Management
-
-
§ 10.10Negligent Supervision of Church Workers—Sexual Misconduct Cases Involving Adult Victims
-
§ 10.10.01Court Decisions Recognizing Negligent Supervision Claims
-
§ 10.10.02Court Decisions Rejecting Negligent Supervision Claims
-
§ 10.10.03Risk Management
-
-
§ 10.11Negligent Supervision of Church Workers—Other Cases
-
§ 10.11.01Risk Management
-
-
§ 10.12Counseling—In General
-
§ 10.12.01Risk Management
-
-
§ 10.13Breach of a Fiduciary Duty
-
§ 10.13.01Court Decisions Recognizing Fiduciary Duty Claims
-
§ 10.13.02Court Decisions Rejecting Fiduciary Duty Claims
-
§ 10.13.03Risk Management
-
-
§ 10.14Ratification
-
§ 10.15Defamation
-
§ 10.16Defenses to Liability
-
§ 10.16.01Contributory and Comparative Negligence
-
§ 10.16.02Assumption of Risk
-
§ 10.16.03Intervening Cause
-
§ 10.16.04Statutes of Limitations
-
§ 10.16.05Charitable Immunity
-
§ 10.16.06Release Forms
-
§ 10.16.07Insurance
-
§ 10.16.08Other Defenses
-
-
§ 10.17Damages—In General
-
§ 10.17.01Punitive Damages
-
§ 10.17.02Duplicate Verdicts
-
-
§ 10.18Denominational Liability—In General
-
§ 10.18.01Court Decisions Recognizing Vicarious Liability
-
§ 10.18.02Court Decisions Rejecting Vicarious Liability
-
§ 10.18.03Defenses to Liability
-
§ 10.18.04Risk Management
-
§ 10.18.05The Legal Effect of a Group Exemption Ruling
-
-
§ 10.19Risks Associated with Cell Phones
-
§ 10.20Risks Associated with the Use of 15-Passenger Vans
12The Present Meaning of the First Amendment Religion Clauses
-
§ 12.01The Establishment Clause
-
§ 12.01.01The Lemon Test
-
-
§ 12.02The Free Exercise Clause
-
§ 12.02.01The Smith Case
-
§ 12.02.02The Religious Freedom Restoration Act
-
§ 12.02.03The City of Boerne Case
-
§ 12.02.04Conclusions
-
13Significant First Amendment Issues
-
§ 13.01The Right to Witness
-
§ 13.02Prayer on Public Property other than Schools
-
§ 13.03Prayer During Public School Activities
-
§ 13.04Display of Religious Symbols on Public Property
-
§ 13.05Recurring Use of Public Property by Religious Congregations for Religious Services
-
§ 13.06Nonrecurring Use of Public Property by Adults for Religious Events and Activities
-
§ 13.07Use of Public School Property by Students for Religious Purposes
-
§ 13.08Sunday Closing Laws
-
§ 13.09The Right to Refuse Medical Treatment
-
§ 13.10Definition of "Religion" and "Religious"
This content is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. "From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations." Due to the nature of the U.S. legal system, laws and regulations constantly change. The editors encourage readers to carefully search the site for all content related to the topic of interest and consult qualified local counsel to verify the status of specific statutes, laws, regulations, and precedential court holdings.
-