As we have reported, the battlefield regarding First Amendment religious rights is expanding beyond traditional church organizations to parachurch organizations. Classification of parachurch organizations is difficult in secular eyes because the mission of the parachurch organization may seem secular, i.e., homeless shelters, food pantries, student organizations, etc. Secular ears seem to hear most acutely in places where free speech was once thought to roam freely such as universities. As the opinion reported here quoted, “a religiously affiliated entity is one whose mission is marked by clear or obvious religious characteristics.” Generally,
In Intervarsity Christian Fellowship v Wayne State University, Order and Order Granting Plaintiff’s Motion for Partial Summary Judgment, etc., (ED Mich., SD, 2021), the federal district court in an 83 page opinion considered whether Wayne State violated the First Amendment by rejecting the registration of the Plaintiff as a campus organization. The reason given by Wayne State was that the Plaintiff violated the university “non-discrimination policy” by “requiring that its faith leaders profess to be faithful.” The Plaintiff carried out its mission by engaging student leaders. The student leaders were provided training and required to “undergo an apprenticeship” to become qualified to “provide religious teaching and spiritual guidance to other members.” The District Court held that the Plaintiff as a parachurch organization had the “deeply ingrained right of religious organizations to select their leaders and messengers.” The District Court also noted that the university ignored similar qualifications for leadership in secular, political and other religious organizations. The religious discrimination by Wayne State precluded the plaintiff’s free use of campus meeting rooms and other campus facilities.
The decision reported is interlocutory and partial. The court may make other decisions. The lesson for parachurch organizations interacting with secular forums is that freedom is not free and must be earned through some level of militancy. Wayne State stopped viewing a 75 year old parachurch organization as part of its diversity effort while including other secular, political and religious organizations even though all of them required their student leaders to be adherents to beliefs identified in the governance documents of the organization. Others will do likewise. If discussion does not lead to an accommodation or understanding, then litigation may be required.
History taught us about the folly of wars that lasted decades; The Hundred Years War is an example heard at least passing mention of in some long ago school room. In these reports we have included cases arising from disputes caused by the failure of church founders or long time senior pastors to have succession plans. The resulting battle for control of church assets is always unseemly and inconsistent with the departed leader’s vision. Worse, these types of disputes often involve surviving family members that believe they inherited an entitlement to assets but no corresponding duty to develop the skill sets needed to lead. The problem is worse at the denominational level.
In Trustees of the General Assembly, etc. v Patterson, Memorandum [Opinion] (ED Pa., 2021), the federal district court recited the “almost thirty-year dispute in state court that resulted from the lack of succession planning. The church consisted of 50 satellite churches in the United States, 6,000 members of which 3,000 member were resident in Philadelphia. The church founder was the “bishop” and held a lifetime appointment. The first successor likewise held a lifetime appointment. The “bishop” had unilateral authority over membership rolls. The first successor had seven sons and a daughter, some of whom became clergy or trustees. The battle over succession “created a schism in the church.” Two factions formed around competing family members. The majority faction “disfellowshipped” the minority faction. Each faction claimed they had elected the next “bishop.” Lawsuits followed that were decided in various courts and forums, including mandatory arbitration. The arbitration award was set aside by a state court and then later by that state court held to be a final adjudication. Based on that ruling, the minority faction sought to evict the majority faction from the main church building and the leader of the minority was faction was declared to be the “receiver” of all church assets. However, the leader of the majority faction was left in office as “bishop,” and would also ostensibly have control. Thus, the federal court held it was not possible to determine who had control of the church assets based on the arbitration award and enjoined the eviction. It took the federal court 84 pages and 61 footnotes to navigate the litigation history and reach a conclusion. The federal court left the factions where they were at the end of the arbitration.
The amazing thing to gain from this report and this court’s opinion was that the membership tolerated this and financed it through a generation and a half of members. Another amazing thing is that an arbitrator would enter a decision guaranteed to perpetuate the schism by dividing the authority between the factions. The last amazing thing is that the state judiciary did not make definitive rulings based on the governing documents in the first instance or based on the arbitration award in the second. The receivership should have been quickly administered and wound up with no delay accepted. There were either financial irregularities or there were not.
Churches that do not maintain valid membership rolls and maintain current bylaws risk disputes over control when factions in a church become intractable. Courts faced with such disputes will decide them using Neutral Principles of Law, such as corporate statutes, and ignore ecclesiastical concerns that are not incorporated into a governing document.
In Cohen v Berliner, 2021 NY Slip Op 30682 (U) (Kings County, NY, 2021), the membership roll was lost and no bylaws had ever been adopted. Thus, there was no procedure for determining who the voting members were. The faction apparently in the majority finally petitioned for a special meeting to elect governing board members. Under state law, it only took ten members to call a special meeting. The Court ordered an evidentiary hearing to see if among the 200 members allegedly signing a petition for special meeting there were ten actual members. If so, the Court would order, consistent with state statutes governing corporations, a special meeting to elect a governing board.
The basic principle set forth in the opening paragraph was confirmed by the reported case. Bylaws adopted by a church corporation should set forth the criteria for membership and the procedure for verification of the membership roll. Verification of the membership roll should be done every year and become a governing board tradition on or about the same date every year. The bylaws should also set forth the qualifications to hold every office and position, at least in general terms. Employment positions below the level of senior pastor or minister should be delegated to the governing board so that popularity contests do not become the norm for employment decisions. Whether to require submission of the employment or termination of the senior pastor or minister to a governing board is often a matter of church tradition and may for that reason, require a vote of the membership rather than just the board. In any event, the bylaws should specify the authority and process for hiring and terminating the senior pastor or minister consistent with the church tradition. Official copies of both the membership roll and the bylaws should be maintained not only at the church property but, in this day and age, in the cloud or otherwise off site. Amendments to membership rolls or bylaws should be done carefully and official copies maintained both on and off site.
When the church split spills into the street one issue is who has custody of the church building. Usually one faction is sufficiently predominate and in the majority that it retains control of the church building because it can pay the bills. The minority faction usually cannot. When the factions are sufficiently large, sufficiently financed, or otherwise equal, a court may have to decide who has custody of the church building.
In Yakob v Kidist Mariam Ethiopian Orthodox Tewahedo Church, Inc., Slip Op. (Ga. App. 2021), the pastor became a bishop. However, the church apparently did not want to support a part-time pastor. The pastor resided in the parsonage which was part of the church building. The trial court entered an injunction requiring that the faction not supporting the pastor as bishop could have the church building on Sunday morning and the faction supporting the pastor as bishop could have the church building on Sunday afternoon. The trial court later entered another injunction ordering some of the recalcitrants to attend a board meeting or that those in attendance constituted a quorum. The appellate court affirmed the building custody order but overruled the order for meeting attendance because it intruded on internal church governance.
Church building custody orders are an expensive, time consuming, and very public way of resolving factional disputes. Church building custody will usually go to the larger faction if a court can identify the larger faction because typically only the larger can pay the mortgage.