Exclusive Rights
Section 106 of the copyright law gives the following six "exclusive rights" to a copyright owner:
- reproducing the copyrighted work in copies or phonorecords;
- preparing derivative works based upon the copyrighted work;
- distributing copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
- in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, performing the copyrighted work publicly;
- in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, displacing the copyrighted work publicly; and
- in the case of sound recordings, performing the copyrighted work publicly by means of a digital audio transmission.
Key point. Section 106A of the Copyright Act grants additional rights to authors of "works of visual art." These works include paintings, sculptures, and photographic images produced for exhibition purposes. Such works have little relevance to most churches and are not addressed in this text.
These exclusive rights are sometimes referred to as the rights of:
- reproduction
- adaptation
- publication
- performance
- display
These rights comprise the "bundle" of rights that constitute or define copyright. As noted elsewhere in this book, each exclusive right may be subdivided indefinitely, and each subdivision of an exclusive right may be owned and enforced separately.
It is unlawful for anyone to violate any of the exclusive rights of a copyright owner. These rights, however, are not unlimited in scope. The approach of the Copyright Act is to set forth the copyright owner's exclusive rights in broad terms in section 106, and then to provide various limitations, qualifications, or exemptions in sections 107 through 122 of the Act. In some cases, these limitations are exemptions from infringement liability. One such limitation is the doctrine of "fair use." In other instances, the limitation takes the form of a "compulsory license" under which certain limited uses of copyrighted works are permitted upon payment of specified royalties and compliance with certain conditions. Many of the limitations on exclusive rights are discussed later in this chapter.
A. Reproduction
Section 106 of the Copyright Act gives the owner of a copyright in a work the exclusive right "to reproduce the copyrighted work in copies or phonorecords." This is perhaps the most important right that a copyright owner has, and it helps to explain the origin of the term "copyright"—i.e., the right to make copies. Read together with the relevant provisions of section 101, the right to reproduce a copyrighted work means the right to produce a material object in which the work is duplicated, transcribed, imitated, or simulated in a fixed form from which it can be "perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." A copyrighted work is infringed by reproducing it in whole or in any substantial part, and by duplicating it exactly or by imitation or simulation.
meaning of "reproduction"
The courts have helped to clarify, the meaning of the term "reproduction." Consider the following:
- Copying of a work into a different medium constitutes reproduction. To illustrate, copying a piece of sheet music onto a slide or transparency is a reproduction.
- Copying can be done with a machine or by hand. It is no defense to argue that a copy was made "freehand."[84] Universal Athletic Sales Co. v. Salkeld, 376 F. Supp. 514 (W.D. Pa. 1974).
- Copying need not be verbatim to constitute reproduction. All that is required is that the infringing work is substantially similar to the copyrighted work, and that the infringing work was the product of copying rather than independent effort.
- Copying constitutes a reproduction even if done for purely private purposes. It is the act of making the reproduction that violates the copyright owner's exclusive right, regardless of whether or not the infringer makes the copy for his or her own private use or distributes it publicly.[85] 2 Sony Corp. v. Universal City Studios, Inc, 104 S. Ct. 774 (1984); Walt Disney Productions v. Filtration Associates, 628 F. Supp. 871 (C.D. Cal. 1986).
- The making of a single copy violates the copyright owner's exclusive right of reproduction. There is no requirement that multiple copies be reproduced.[86] House Report on the Copyright Act of 1976, p. 61.
common church practices
It is the exclusive right of reproduction that poses the greatest risk of copyright infringement for most churches, since churches so commonly duplicate copyrighted materials. Consider just a few examples:
- making transparencies
- duplicating copyrighted music for use by a choir, soloist, accompanist, or instrumental group
- printing the words of a chorus or hymn on a bulletin insert
- printing copyrighted materials in a church newsletter
- duplicating copyrighted materials in a church's educational program (e.g., Sunday School or private school)
- recording of worship services on audio and video tape and the distribution of such tapes
- posting copyrighted pictures and text on a church's website
All of these acts, and many others, constitute potential infringements on a copyright owner's exclusive right of reproducing his or her copyrighted works. Whether infringement actually exists in a particular case will depend on the significance of the material copied both in terms of quantity and quality (see section 5.2), and the availability of one or more of the defenses to infringement discussed in Chapter 6. Most music publishers view the acts of copying described above to constitute copyright infringement.
Example. Pastor Mike is a minister of music. To save the church money, and to avoid copyright infringement, he transcribes by hand a copyrighted song and then makes copies for each member of the church choir. The fact that Pastor Mike made the copy by hand does not prevent the act from constituting copyright infringement.
Example. Pastor Mike makes a transparency containing only the lyrics of a song. He did not have authorization from the copyright owner. The making of the transparency infringes upon the copyright owner's exclusive right of reproduction. It does not matter that only the lyrics were copied (this is still a substantial reproduction of the copyrighted song), that a different "medium" was used (i.e., a transparency compared to a piece of sheet music), that the copy was made by hand, that only a single copy was made, or that Pastor Mike uses the transparency only in the course of worship services and does not distribute the work publicly.
B. Adaptation
derivative works
Section 106 gives the copyright owner the exclusive right "to prepare derivative works based upon the copyrighted work." Section 101 defines derivative works to include "a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted." Only the copyright owner has the right to make a derivative work based on a copyrighted work. The making of a derivative work based on a copyrighted work without authorization from the copyright owner is an act of infringement.
Example. Dave composed a song (lyrics and music) this year. He owns the copyright in the work. Anne hears the song a few years later, and, without authorization, composes an arrangement using the same lyrics but different music. She has infringed upon Dave's exclusive right to make derivative works based on the original copyrighted work.
Example. Dave writes a book this year. It is copyrighted in the name of the publisher that published the work. Ten years later, Dave decides to write a second edition of the same work. He may not do so without authorization front the publisher, since only the publisher (as copyright owner) has the right to make derivative works based on the original.
C. Distribution
The copyright law gives the copyright owner the exclusive right to distribute copies or phonorecords of a copyrighted work to the public. This provision gives a copyright owner the right to control the first public distribution of an authorized copy or phonorecord of his or her work, whether by sale, gift, loan, rental, or lease. Likewise, any unauthorized public distribution of copies or phonorecords that were unlawfully made would be an infringement.
As section 109 of the Copyright Act makes clear, however, the copyright owner's rights cease with respect to a particular copy or phonorecord once he or she has parted with ownership of it, meaning that a purchaser of an authorized copy of a work can later sell or in any other manner dispose of that particular copy.
D. Performance
A copyright owner has the exclusive right to publicly perform literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works. To "perform" a work, according to the Copyright Act, includes reading a literary work aloud (book, article, etc.), singing or playing music, dancing a choreographic work, and acting out a dramatic work or pantomime.
A performance is "public" if it occurs at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered. Performances in semipublic places such as schools, churches, and summer camps ordinarily are considered public performances.
broadcasts
What about a live performance that is transmitted to the public via radio or television? For example, let's assume that the morning worship services at a church are broadcast over a local radio station. What is the effect of such an arrangement? There are two considerations to note. First, if there are no copyrighted songs or other copyrighted materials performed during the service, there ordinarily will not be a problem in broadcasting the service. Second, even if copy-righted music is performed during the service, such a performance is exempt from copyright infringement so long as it occurs in the course of a religious service at a church or other place of religious assembly. However, this exemption (which is discussed fully in Chapter 6) does not extend to public broadcasting over radio or television. Such transmission of the performance of copyrighted materials constitutes a separate performance, since section 101 of the Copyright Act makes clear that a public performance includes not only the initial performance but also any further act by which that performance is transmitted or communicated to the public.[87] Schumann v Albuquerque Corp., 664 F. Supp. 473 (D.N.M. 1987).
In most cases, such public broadcasts will not constitute an infringement upon the copyright owner's exclusive right of performance if the radio or television station has an appropriate license with ASCAP, BMI, SESAC or some other performing rights society. It should be the broadcaster's responsibility to ensure that it can broadcast worship services containing live performances of copyrighted materials, though it would be prudent for churches that broadcast their services to question the broadcaster regarding the scope and coverage of its license agreements with the various performing rights societies.
E. Display
A copyright owner has the exclusive right to display publicly a copyrighted literary, musical, dramatic, or choreographic work, pantomime, or audiovisual work. Section 101 of the Copyright Act defines "display" as the showing of a copy of a work "either directly or by means of a film, slide, television image, or any other device or process." Note that this definition covers the display of a "copy" of a work. Since "copies" are defined as including the material object in which the work is first fixed, the right of public display applies to original works as well as to reproductions of them.
In addition to the direct showings of a copy of a work, a "display" would include the projection of an image on a screen or other surface by any method, the transmission of an image by electronic or other means, and the showing of an image on a cathode ray tube or similar apparatus connected with any sort of information storage and retrieval system (i.e., a computer monitor).
The exclusive right of the copyright owner extends only to public displays of the copyrighted work. As noted above, according to section 101, a performance or display is "public" if it occurs at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered. Performances in semipublic places such as schools, churches, and summer camps ordinarily will be public performances.
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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