Most churches incorporate and then appoint a board of directors (or a similar board using names deemed biblical, e.g., “deacons,” “elders,”) responsible for conducting church business. Some church governing documents, which may or may not be called a “constitution” or “bylaws,” do not expressly assign to the congregation’s official membership any other power than an annual vote to elect directors to vacancies created by term expiration. The authority to hire or terminate a pastor is often not expressly stated as that of the board or the congregation.
In Vaughn v Faith Bible Church, Slip Op. (MY App, 2020), the church board terminated the pastor. The pastor sued claiming that church board had to defer hiring and termination decisions to congregational meetings. The trial court entered judgment against the pastor and the appellate court affirmed. The governing documents were silent as to who had authority in the church to hire or terminate a pastor. The state statute governing corporations did not provide an exhaustive list of powers delegated to the corporate boards, and did not expressly mention hiring or firing as a power. The courts held that the statutory list of powers placed in the corporate board was not exhaustive so the corporate board would have the power to hire or fire absent a specific delegation in the governing documents.
Because congregational meetings and votes are unwieldy, only small churches tend to rely on congregational meetings or votes to determine most issues, including employment issues. In small churches, every family committed to the church is usually represented on the board in any event. In larger churches, the church board is usually the body responsible for day-to-day operations, including hiring and firing. Church governing documents should spell out which body has the authority to hire or fire a pastor. Other employees should be under the employment authority of the governing board, or the board and pastor, or controversy will plague the lowest staff position turnover. However, if the documents are silent, a church board created by the governing documents will likely have the authority by default.
The Sars-2 COVID-19 pandemic of 2020 has slowed church litigation resolution such that even the number of posts for 2020 in these reports have compared to prior years been diminished. Nevertheless, there have been some startling court pronouncements. The most startling may have been the struggle to determine if during this pandemic church attendance should be treated better than, the same, or worse than secular activities. The secular activities might viewed as “essential” or merely matters of secular convenience. On the secular side of the equation, too, there has been a struggle to determine what was “essential” and what was merely a matter of convenience. In a capitalistic economy in a democracy, every secular business is “essential” to someone or it would not exist.
In Roman Catholic Diocese of Brooklyn v Cuomo [consolidated with Agudath Israel of America v Cuomo], Slip Op., 592 US ____ (November 25, 2020), New York limited religious worship service attendance to 10 in red zones and 25 in orange zones regardless of the size of the church building (seating of 400 to 1,000 was treated the same as seating for 100). Meanwhile, in the same zones, “essential” businesses like hardware stores, acupuncturists, and liquor stores remained exempt (Gorsuch, concurring*). However, churches though singled out, received preferential treatment compared to theatres and other similar venues (Sotomayor, dissenting). (The dissent also all but said greater restrictions on worship were warranted because of public speaking and singing which seemed to play to the transmission preferences of this particular disease.) The United States Supreme Court enjoined enforcement of the state’s regulation as to churches pending completion of judicial review at the trial court and court of appeals levels.
The courts of the United States were much more prone to accept even draconian governmental restrictions on public and private gatherings when the pandemic began because the characteristics of the disease were still unknown and because medical response systems were still being marshalled to handle larger if not unprecedented numbers of patients. However, seven months later, those uncertainties are far more manageable than before such that the courts are unlikely to permit unbridled and uneven regulation of worship gatherings. It should be noted that the church plaintiffs in these cases were able to prove that their gatherings remained virtually free of outbreaks of COVID and that their efforts to control disease transmission were consistent with scientifically advised methods. In any event, even if public health priorities might favor secular activities over religious activities, it will not going forward permit greater curtailment on First Amendment protected religious activities.
Churches and church schools often adopt employment morals clauses. Morals clauses rarely specify the immoral conduct prohibited because the owner or sponsor of the school is a church that has a generally known doctrinal or biblical stance regarding morality. Termination based on alleged violation of a morals clause, especially in mainstream churches and their satellites like church schools, may not always shield the school or the church from liability claims based on employment discrimination statutes.
In Crisitello v St. Theresa School, Slip Op. (NJ App. 2020) (unpublished), the appellate court reversed the summary judgment of the trial court for the second time. The trial court found that being a terminated unwed pregnant female was not actionable. The church school had a morals clause that required the teachers and staff to adhere to the doctrines and morals of the Roman Catholic Church. However, the employment handbook containing the morals clause did not in the clause expressly specify pre-marital sex as prohibited. The plaintiff alleged the school’s termination decision was based only on the knowledge of the pregnancy and the teacher’s unwed status and was discriminatory because there was no inquiry into the premarital sexual actions of other employees, especially males. The teacher was an art teacher and did not teach religious education, distinguishing the claim from those in Our Lady of Guadalupe Sch. v. Morrissey-Berru, 591 U. S. ___, (2020) and Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 591 U.S. ___, (2020). The Establishment Clause, the Ecclesiastical Abstention Doctrine, and the Ministerial Exception, were deemed inapplicable.
Of course, to suggest that the morals clause had to have greater specificity, such as a recital of the Ten Commandments or scripture citations, is itself an ecclesiastical determination. The appellate court seems to have reasoned it is possible a college-educated person might go to work in a Roman Catholic church school and not know the Roman Catholic church has not yet endorsed as acceptable pre-marital sex. While it may be that the teacher in the case reported did not have religious teaching duties, which might prevent application of the Ministerial Exception, it remains to be seen whether determining the scope of a morals clause might not entangle a court in ecclesiastical discussions.
Most denominations, their subdivisions and local churches, generally prove their existence and right to own property by incorporating. However, while this may be the best practice, it is not the only way. Indeed, prior to the era of incorporation, most churches were associations of members and most denominations were associations of churches. While most now have governing documents and corporate documents filed with a regulatory authority, for purposes of real estate ownership if nothing else, that was not always the case even during the latter stages of the Twentieth Century. One of the reasons the organizational structure of the “association” fell into disuse was because of the need to obtain clear title to own real estate and bank accounts.
In Embassy University v Institute in Basic Life Principles, Inc., 2020 IL App (2d) 191140-U (2020), the trial court dismissed the case because the defendant alleged the Plaintiffs could not prove they were an association, and, indeed, could not prove up their own existence in order to be a party to a lawsuit. The Plaintiffs were claiming they were part of an association of churches or parachurch organizations and that the defendant owed them a fiduciary duty in the disposition of denominational assets. Further, to prove the point, the defendants noted that the Plaintiff university’s name was a “DBA” and not the name of the underlying entity. The appellate court reversed so that through discovery, and if necessary trial, the Plaintiffs could prove they were an association with the defendant imposing on the defendant a fiduciary duty as to denominational assets.
The lesson of history has been that associations have a harder time proving their existence, their governance, who can speak for them, and who can own their property. The Plaintiffs in the reported case might have an easier time than some because their founder, William Gothard, Ph.D, is still living, well known, even though he had to depart from leadership for a time, and can testify as to the formation of most of the entities. The Plaintiffs should have incorporated. It is still the cheapest and tried and true method of becoming an entity that can own property and accounts.