Unincorporated church associations are governed, in some states, by a “non-profit organization” statute. Such a statute may impose on the church association certain requirements to disclose financial records to members of the association. An unincorporated church association can also have a Constitution and Bylaws. The trap for the unwary is that such Constitution and bylaws, while not identical to those of an incorporated church, will not be effective as governing documents if they lack specificity similar to corporate cousins.
In the case of In Re Lee Edward Thomas, Slip Op. (Tex. Civ. App. 6th 2022), the Constitution and Bylaws of the unincorporated church association did not specify the procedure for termination of the pastor but did specify the procedure for hiring the pastor. The same documents also described duties of a finance committee but did not disclose the method or procedure for appointment of finance committee members. When the church split spilled into the street, each faction claimed it represented the congregation. At stake was control of the church property and several hundred thousand dollars. The bank holding the money threw up its hands and sought to interplead the money. The trial court held the issue of the employment, or unemployment, of the pastor was outside the jurisdiction of the court because of the Ecclesiastical Abstention Doctrine. Because the Constitution and Bylaws did not specify the method of selection of the finance committee members, their appointment was a matter of church governance, claims about which were barred by the Ecclesiastical Abstention Doctrine. The court could not determine whether the allegedly voting members were in fact members because the church had not maintained an official membership roll. However, embezzlement, conversion and breach of fiduciary duties claims were retained to the extent they could be decided by Neutral Principles of Law.
Unincorporated church associations have the same needs for governing documents and membership rolls as do incorporated churches. The governing documents can certainly be inspired by the religious beliefs of members but the practical, secular, and, yes, worldly aspects should be drafted by a lawyer consistent with state statutory requirements. Governing boards of unincorporated church associations should keep minutes just like incorporated churches and for the same reasons, such as documenting adoption of an annually updated membership roll and amendment of governing documents. Without such, the unincorporated church association will fall into disorder which will be laid bare in an internal dispute.