Employment Eligibility Verification
Key Point. Employers are required by law to confirm the identity, and eligibility to work, of all new hires. This is done by having each new hire complete U.S. Citizenship and Immigration Services (USCIS) Form I-9. Churches are subject to this requirement.
Key Point. One federal court ruled that churches can be forced to comply with the immigration reporting requirements even if compliance would violate their religious convictions.[2] American Friends Service Committee v. Thornburgh, 718 F. Supp. 820 (C.D. Cal. 1989).
Every employer in the United States is required to confirm the identity of all new employees and verify that they are either American citizens or aliens legally authorized to work in this country. These rules, enacted by Congress in the Immigration Reform and Control Act of 1986 as a means of stemming the tide of illegal immigration, represent one of the most comprehensive reporting schemes ever adopted by the federal government.[3] 8 U.S.C. §1324a.Religious organizations are subject to these rules.
The Immigration Reform and Control Act made all U.S. employers responsible to verify the employment eligibility and identity of all employees hired to work in the United States after November 6, 1986. To implement the law, employers are required to complete Employment Eligibility Verification forms (Form I-9) for all employees, including U.S. citizens. Every U.S. employer must have a Form I-9 in its files for each new employee hired after November 7, 1986 who has been continuously employed by the same employer.
Form I-9 need not be completed for:
- persons providing domestic services in a private household that are sporadic, irregular, or intermittent;
- persons employed by a domestic service company (for example a maid service) or agency employing temporary domestic workers;
- persons providing services for the employer as an independent contractor (i.e. carry on independent business, contract to do a job according to their own means and methods, supply their own tools, offer their services to the public, work for several clients at the same time, and determine the hours during which the work will be done);
- persons providing services for the employer, under a contract, subcontract, or exchange entered into after November 6, 1986. In such cases, the contractor is the employer for I-9 purposes (for example, a temporary employment agency).
Unlike tax forms, I-9 forms are not filed with the U.S. government. The requirement is for employers to maintain I-9 records in their own files for three years after the date of hire or one year after the date the employees employment is terminated, whichever is later. This means that I-9 forms need to be retained for all current employees, as well as terminated employees whose records remain within the retention period.
Key Point. U.S. immigration law does not prohibit storage of a private employers I-9 records in employee personnel files.
Discrimination
The law protects certain individuals from unfair immigration related employment practices, including refusal to employ based on a future expiration date of a current employment authorization document. The U.S. government entity charged with oversight of the laws protecting against unfair immigration related employment practices is the Office of Special Counsel for Immigration Related Unfair Employment Practices, which is part of the Civil Rights Division of the U.S. Department of Justice.
Employee’s responsibilities
A new employee must complete Section 1 of a Form I-9 no later than close of business on his or her first day of work, or before their first day of hire if the employer has offered the individual a job and if he or she has accepted the offer.
Section 1 asks for several items of information from the employee, including name and address, Social Security number, date of birth, email address, and telephone number. It also requires the employee to attest that he or she is one of the following:
- a citizen of the United States
- a noncitizen of the United States
- a lawful permanent resident (include alien registration number or USCIS number)
- an alien authorized to work (include an alien registration number or USCIS number, Form I-94 admission number, or foreign passport number and country of issuance.
The employees signature makes him or her responsible for the accuracy of the information provided. The employer is responsible for ensuring that the employee completes Section 1 in full.
Employer’s responsibilities
The employer is responsible for ensuring completion of the entire form. No later than close of business on the employees third day of employment services, the employer must complete Section 2 of the Form I-9. The employer must review documentation presented by the employee and record document information of the form. Proper documentation establishes both that the employee is authorized to work in the U.S. and that the employee who presents the employment authorization document is the person to whom it was issued. The employer should supply to the employee the official list of acceptable documents for establishing identity and work eligibility.
Note that section 2 of Form I-9 has three "lists" labeled Lists A, B and C. An employer may accept any List A document, establishing both identity and work eligibility, or a combination of a List B document (establishing identity) and List C document (establishing work eligibility), that the employee chooses from the list to present (the documentation presented is not required to substantiate information provided in Section 1). The employer must examine the document(s) and accept them if they reasonably appear to be genuine and to relate to the employee who presents them.
Requesting more or different documentation than the minimum necessary to meet this requirement may constitute an unfair immigration related employment practice.
If the documentation presented by an employee does not reasonably appear to be genuine or relate to the employee who presents them, employers should refuse acceptance and ask for other documentation from the list of acceptable documents that meets the requirements. An employer should not continue to employ someone who cannot present documentation that meets the requirements.
Authenticating documents
Employers are not required to be document experts. If an employee presents a document that appears legitimate but is in fact not genuine, or is genuine but does not belong to the person who presented it, the employer will not be held responsible for accepting these documents. As long as the document reasonably appears to be genuine or to relate to the person presenting it, this is the standard the government uses in assessing an employer's liability for hiring an ineligible employee. Employers can request assistance from the nearest immigration field office if they are uncertain of a document's genuineness.
It occasionally happens that an employer learns that an employee whose documentation appeared to be in order for Form I9 purposes is not actually authorized to work. In such cases, the employer should question the employee and provide another opportunity for review of proper Form I-9 documentation. If the employee is unable under such circumstances to provide satisfactory documentation, employment should be discontinued (alien employees who question the employer's determination may be referred to an Immigration field office for assistance).
False documentation includes documents that are counterfeit or those that belong to someone other than the employee who presented them. It occasionally happens that an employee who initially presented false documentation to gain employment subsequently obtains proper work authorization and presents documentation of this work authorization. In such a case, U.S. immigration law does not require the employer to terminate the employee's services. However, an employer's personnel policies regarding provision of false information to the employer may apply. The employer should correct the relevant information on the Form I-9.
There are two separate and unrelated photocopy issues relating to the Form I-9. First, an employer can accept only the original documents (not necessarily the first document of its kind ever issued to the employee, but an actual document issued by the issuing authority), with the single exception of a certified photocopy of a birth certificate. Second, it is permissible (but not required) for an employer to attach photocopies of this documentation to each employee's Form I-9. Where this practice is undertaken by an employer, it must be consistently applied to every employee, without regard to citizenship or national origin.
Retention of I-9 forms
All of an employer's current employees (unless exempt) must have Forms I-9 on file. A retention date can only be determined at the time an employee is terminated. It is determined by calculating and comparing two dates. To calculate date A, the employer should add three years to the hire date. To calculate date B, the employer should add one year to the termination date. Whichever of the two dates is later in time is the date until which that employee's Form I-9 must remain in the employer's employment eligibility verification files.
Official inspection of I-9 records
Upon request, all Forms I-9 subject to the retention requirement must be made available in their original form or on microfilm or microfiche to an authorized official of the Department of Homeland Security (DHS) or other federal agency.
New Form I-9
U.S. Citizenship and Immigration Services (USCIS) published a revised version of Form I-9 in November 2016. By January 22, 2017, employers must use only the new version, dated November 14, 2016. Among the changes in the new version, Section 1 asks for "other last names used" rather than "other names used," and streamlines certification for certain foreign nationals.
Other changes include:
- The addition of prompts to ensure information is entered correctly.
- The ability to enter multiple preparers and translators.
- A dedicated area for including additional information rather than having to add it in the margins.
- A supplemental page for the preparer/translator.
- The instructions have been separated from the form, in line with other USCIS forms, and include specific instructions for completing each field.
- The revised Form I-9 is also easier to complete on a computer. Enhancements include drop down lists and calendars for filling in dates, on screen instructions for each field, easy access to the full instructions, and an option to clear the form and start over. When the employer prints the completed form, a quick response (QR) code is automatically generated, which can be read by most QR readers.
"E-Verify"
E-Verify is an Internet based system that allows employers to determine the eligibility of their employees to work in the United States. E-Verify is fast, free and easy to use, and is the best way employers can ensure a legal workforce. See the E-Verify website for details, www.uscis.gov/e-verify.
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"
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.
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