Category: church property

Church Graveyards

Most younger churches and non-ecumenical churches do not have graveyards.  For those churches that do have them, generally no one ever contemplated that the church owner would no longer be in existence to care for them or that the church property would be sold.

In Church of the Holy Spirt of Maryland v Heinrich, Slip Op. (Mass. App. 2022), the church was formed in 1961 and in 1967 decided it needed its own graveyard restricted to cremated remains.  In 2015, the church dwindled in size such that the denomination decided to wind down its activities and sell the property.  The property was sold to a church that doctrinally did not permit cremation.  Therefore, the new owner wanted the graveyard moved elsewhere.  The contracts and organizational documents of the graveyard did not contemplate closure of the church or sale of the land.  Those documents did contemplate that the church could unilaterally alter the regulations governing the graveyard.  The trial court held that the revised regulations of the graveyard which allowed transplantation of the graveyard were enforceable.  The appellate court reversed the trial court holding that the contemplated change in regulations was not contemplated when the burial contracts were purchased.  The religious beliefs of the new owner did not override the burial plot purchase contracts because the purchaser bought the property with full knowledge of the presence of the graveyard.  The appellate court would not speculate about any religious beliefs the burial contract purchasers might have had.  The desire to be buried in hallowed church property might have driven the original purchase of burial plots, or not, but might no longer be fulfilled because the purchase contracts did not expressly bind the church to own the property in perpetuity or remain in existence.  Because the ruling of the appellate court left unanswered questions about what would happen to the graveyard in the absence of the church that founded it, the case was remanded.

While the legal tangle of church graveyards may seem remote to most readers, denominations faced with declining local church membership the problem may arise more often.  Churches buying older church properties need to investigate any church graveyard and carefully determine if a permanent trust fund exists to care for the graveyard.  Further, if inexorable inflation forces additional funds to be deposited in a trust to keep it solvent, or if its investments are merely badly managed, then the buyer needs to know upon whom the burden falls if the trust fails.  Churches with an eternal view cannot afford to short term in their financial thinking.


It seemed to the author that financial claims, called various things in various jurisdictions, such as embezzlement, conversion, theft, and breach of fiduciary duty, would not likely be shielded by the Ecclesiastical Abstention Doctrine.  Such claims can almost always be decided by Neutral Principles of Law.  A church, like any other recognized entity in American law, owns its own property and accounts.  People, regardless of their title or general authorization as an account signatory, must respect that the church property is owned by the church.  Use of that property, or cash, must be authorized by the governing body of the church and documented.  Sometimes, with the passage of years, bad practices creep in, but that is rarely the subject of a claim.

In the interlocutory appeal of In Re Munger Avenue Baptist Church, Davis, and Ward, Opinion (Tex. Civ. App. 5th, 2022), the claims against the pastor included “breach of fiduciary duty, conversion, fraud by nondisclosure, theft of property, conspiracy, and certain declaratory relief.”  The Defendants moved for dismissal of the case alleging the trial court had no jurisdiction under the Ecclesiastical Abstention Doctrine.  The trial court refused.  The appeal followed and the Texas appellate court denied the writ.  The appellate court made no ruling on whether any of the allegations were true.  But, the appellate court affirmed the trial court’s refusal to dismiss the case based on a lack of jurisdiction because of the Ecclesiastical Abstention Doctrine.  The appellate court’s opinion relied on procedural grounds and was not a finding of jurisdiction.

As a result, the author will continue to believe financial claims, called various things in various jurisdictions, such as embezzlement, conversion, theft, and breach of fiduciary duty, would not likely be shielded by the Ecclesiastical Abstention Doctrine.  Wrongdoers, embezzlers, and thieves should likewise believe that a church has a civil remedy.  Criminal prosecution is not the subject of this report.  Very often churches will not call the police, or if the church does call the police, they get a cool response.  In order to press for an investigation by law enforcement, the church (and most businesses) need to approach the police on an appointment basis, not just a phone call, and to that appointment take the report of a CPA, an affidavit of a church officer or complainant, and financial documents from which the defalcation is apparent.


City, county, state and federal taxing authorities still use the mail to notify of tax obligations.  While these notices are not always correct, and even some correct ones may be challenged, simply ignoring them does not make them go away.  Reciting mantra’s like, “they can’t tax a church,” or “I’ll just give them a call to fix it,” are often the first words spoken in a church legal or financial disaster.

In Wings as Eagles Deliverance Ministry v City of Detroit, Opinion and Order (USDC, ED Michigan 2022), the city imposed property taxes on property owned by the ministry.  The Plaintiff received from the City notices of taxes owed in several consecutive years.  Finally, the City sought and received a Judgment of Foreclosure and transferred ownership of the property to a subsequent owner.  (The federal trial court opinion does not explain the tax collection system in detail.  But, somehow, the property ownership was transferred without an auction for zero dollars, implying not even the taxes were collected, and leaving no Excess Proceeds for the prior owner to collect.  But, a more detailed study of the property tax collection system of Michigan is beyond the scope of this report.)  The federal court entered judgment for the City because the state level Judgment was final and precluded review by the federal trial court.  (Apparently, the Plaintiff took no action against the state level Judgment, such as an appeal to the Michigan court system.  However, that is not completely clear from the federal trial court’s opinion.)  Constitutional claims based on the Establishment Clause were unavailable because they were not asserted against the state level Judgment.

The Plaintiff in the reported case should have taken definitive action as to the first notice of tax delinquency and every notice thereafter.  The state level Judgment should have been appealed.  The best method of dealing with such matters, if a diplomatic visit to the taxing authority does not result in a written withdrawal of the notice in a timely way, is to pay the delinquent tax under protest and then sue to recover the money paid.


Most cities, counties, and states would not contest whether in any recognized and established denomination or church a parsonage owned by the local church inhabited by a Youth Minister would be a tax exempt residence.  Indeed, most would not do discovery over whether a Youth Minister was really a “minister” whether ordained or not.  Most would not have the courage to delve into whether religious doctrine permitted women to serve in ministry.  Most courts would not allow such inquiries and would treat them as barred by the Ecclesiastical Abstention Doctrine and the Ministerial Exception.  However, when courts snore, justice remains truly blind and ineffective.

In Trustee of the New Life in Christ Church v City of Fredericksburg, 595 US ___, Slip Op., Dissent of Denial of Certiorari (Gorsuch, Justice) (2022), the City of Fredericksburg conducted all the inquiries described in the introductory paragraph.  The City of Fredericksburg declared that no local church in the Presbyterian Church in America could have a Youth Minister that was not ordained, that no woman could be “ordained” in that denomination, and that only “ordained” ministers residing in parsonages could qualify the church owned parsonage for tax exemption.  The City took the position that “a church’s religious rules are “subject to verification” by government officials.”  The trial court did not reverse the City or otherwise refuse to enforce its edict.  On appeal to the Virginia Supreme Court, that court declined to review the judgment.  The church sought certiorari to the United States Supreme Court but that court refused to hear the case.  The dissent by Justice Gorsuch followed.

On the revenue side, cities, counties, and other levels of government are more like vampires than tax umpires.  Only very brave and dedicated elected officials can stop such nonsense.  The strange thing about the reported case was that as soon as the city government’s obvious effort to rule upon “church rules” became apparent, the local church should have sought, but did not, federal relief in a proceeding based upon §1983 or even the Religious Freedom Restoration Act.