By TR Robertson
“We face a true crisis in our Constitution as it relates to religious liberty. . . . I cannot think of another time when there have been greater challenges.”
Joshua Hawley delivered this warning at the 2016 Protecting Religious Freedom Conference sponsored by Central Christian College of the Bible, Moberly, Missouri, and Forum Christian Church, Columbia, Missouri. Hawley is now attorney general of Missouri, but at the time, he was a professor at the University of Missouri. He and his MU School of Law colleague Carl Esbeck are both experienced religious liberty litigators.
Hawley and Esbeck weren’t there to deliver political opinions, but to challenge the assembled church leaders to prepare for potential legal challenges that could impact not only their freedom of religious practice but their financial security.
They outlined several practical steps every church board should consider to protect themselves in the event of personal lawsuits and government regulations.
The information provided below is for informational purposes only; it is not legal advice. You should contact an attorney to obtain advice with respect to any particular issue or problem.
Stay informed. Avoid making decisions based on outdated information, social media hearsay, or politically slanted interpretations of current events. It’s vital for church leaders to educate themselves; seek legal and financial advice from a lawyer and from other reliable sources (see sidebar).
Stand for religious liberty. It’s important to promote and vote for the protection of religious liberty, including the rights of non-Christian religions.
“It helps us when our Christian organizations defend Jewish people, Jehovah’s Witnesses, and other non-Christian groups,” Esbeck said. “When we defend them, it legitimizes our efforts when we’re defending religious liberty for Christians. If religious liberty was only for Jews and Christians, the secular public and the government would have even less tolerance for protecting what we already have.”
Focus on your mission. “If we’re looking for salvation in politics or in a particular candidate, we’re looking in the wrong place,” Esbeck said.
It’s important to establish a history of being a missional, not political, organization. Focus on your core mission, “to draw people to Christ, which is the biggest issue, as opposed to all the political and legal issues, which are all secondary to Christ,” Esbeck said. Failing to stay focused establishes a trail of evidence that could be harmful if a congregation faces a legal challenge.
Establish a statement of faith. This is essential for parachurch organizations and it’s recommended for churches. It does not have to be a “creed,” but could be as simple as a statement identifying the Bible as the ultimate source for the church’s belief and practice.
“It’s vitally important if you find yourself in court to be able to point to a religious or biblical doctrine behind what you’ve done that does not scream to the court, ‘discrimination,’” Hawley said. “You will be in the strongest position legally if you can say this has nothing to do with anything else, it has to do with our long-standing and long-held doctrinal commitment to the Word of God, to the church’s teaching, [and] to our confession of faith. Here it is, it’s written down. . . . We ask all of our ministers to sign it; we ask all of our administrators to sign it.”
Update your bylaws. A congregation’s bylaws should be rooted in its statement of faith and its principles applied to specific topics.
The bylaws should establish “strong membership provisions . . . including mandatory Christian dispute resolution outside of the court process” and a clear statement about “where the spiritual authority to make decisions on different issues resides,” according to the Christian Legal Society.
“You do not want to . . . find yourself in the position where you have the threat of a legal challenge and it looks like what you’ve done is on the spur of the moment,” Hawley said. “Courts don’t like that.”
Establish policies. “You can have policies in addition to your bylaws, because sometimes policies can change from year to year, but bylaws are a little bit more permanent,” Esbeck said. This would include such things as personnel policies and financial policies. Policies protect the church against fraud and lawsuits. The Christian Legal Society provides resources that list some policies a church should consider putting on paper.
Prescreen volunteers. “There are no civil rights of nondiscrimination for volunteers, but we’re in a litigious atmosphere, so unfortunately you do have to do prescreening for your volunteers, and it’s just the right way to deal with people,” Esbeck said.
Many businesses provide prescreening, including Christian Background Checks in Blue Springs, Missouri. CBC’s Clay Johnson says the service is tailored to meet the needs of megachurches and small churches alike. “You pay a per-search fee when you actually run a search. No annual fee, no set-up fee, no contracts, no minimum orders.”
Be aware of your tax status. A church or a house of worship is automatically deemed to be a 501(c)(3) tax-exempt organization without applying and without notifying the Internal Revenue Service, Esbeck said. At some future time, however, that could change.
Consider incorporating. It’s important to discuss this with a lawyer because there might be special circumstances, but “I really recommend that you incorporate,” Esbeck said. “It protects you. It limits your liability. You also have a life in perpetuity, so that when the founders die, the church goes on.”
Exercise due diligence. Every church or religious organization is unique, so don’t just copy the bylaws of some other church or religious organization. The needs of a small church are different than a megachurch. The same may be true for rural vs. urban churches, and especially for a congregation vs. a noncongregational ministry or missions organization. Maintaining records as you work through the process of establishing an appropriate legal foundation for the congregation or organization can also be helpful when facing a lawsuit.
Make use of reliable resources. Many good resources relate to church legal issues (see sidebar). Free webinars and online documents are available from places like the Christian Legal Society and Alliance Defending Freedom. Magazines, books, and newsletters can deliver up-to-date information on trends, best practices, and legal changes to church leaders.
Retain a lawyer. Above all, don’t try to piece together your bylaws, policies, incorporation, and tax status through a single magazine article (like this one) or the combined “common sense” of a church board that is not trained in legal matters. Hire a lawyer. Then sit down and review the CLS webinar or other church-law resources with the lawyer present. Not all lawyers are experienced in the specifics of church law and religious liberty litigation.
TR Robertson is a freelance writer living in Columbia, Missouri.
Helpful information is available from these sources:
Alliance Defending Freedom, www.adflegal.org
Beckett Fund (a good source of news about religion and law), www.becketlaw.org
Christian Legal Society, www.clsnet.org
Christianity Today’s Church Law & Tax, www.churchlawandtax.com
Christian Background Checks, www.christianbackgroundchecks.com
Evangelical Council for Financial Accountability (ECFA has free resources about best practices for fraud prevention and record retention), www.ecfa.org