Category: Parachurch Organizations

LOCAL CHURCH MEMBERSHIP ROLLS

As we have reported several times, after maintaining the governing documents themselves, maintaining valid membership lists at least annually is about survival.  The local church that does not do both courts expensive legal repairs or a raid on assets.  Membership rolls should annually be made a part of the minutes of the church governing board.  Membership rolls kept in digital formats should at least annually be hard copy printed, or saved to media separate from the computer on which it is routinely hosted, and either or both attached to the minutes of the governing board.

In Cohen v Berliner, Unpublished Opinion (NY Supp Kings County 2021), the trial court held that the two hundred signatures submitted by the petitioner were not the valid ten signatures needed to demand a congregational meeting or vote.  However, the court conducted evidentiary hearings in which thirteen witnesses were tendered for testimony.  The local church owned a church camp primarily used in the summer.  The local church also leased the church camp to a parachurch organization for a girl’s summer camp.  Other local churches in the same denomination contributed money to the parachurch organization that operated the girl’s summer camp and that entity in turn leased the camp from the local church.  At some point, a falling out resulted and the churches supporting the para-church organization sought control over the summer camp.  The local church refused to surrender control.  The churches supporting the para-church organization submitted a petition for a congregational meeting by the local church supported by two hundred signatures from members of those churches, but none of which were members of the local church that actually owned the camp.  The petitioner sued to obtain a court order for the congregational meeting but the court upon holding extensive evidentiary hearings determined none of the two hundred signatories were members of the local church that owned the camp, but rather were members of the other churches.  The court rejected the claim that membership in the denomination was the same as membership in the local church absent such language in the governing documents.  The lease payments made by the parachurch organization did not constitute financial support of the local church that owned the camp, even if the lease payments were substantial.

Because the local church did not appear to have an official membership roll, each witness tendered had a shot at qualifying.  The court in the case reported may have given the petitioner as many as thirteen tries.  An official membership roll would have reduced the number of tries to one; only signatories also on the official membership roll could have been considered as “qualified” to call a congregational meeting.  A joint denominational asset like a church camp should be placed in a corporate shell controlled by the member congregations or the denomination and not owned by one of the constituent churches of the denomination.  Otherwise, no one but the owner of the denominational asset will have any say over its management, operation, sale or use as collateral.

FRAUDULENT FUND-RAISING CLAIMS

Churches and parachurch organization often struggle with representations regarding the funding needs of the moment followed by spending which might not exactly match the representations after the crisis has passed.  Also, using funds for “ministry” might mean one thing to a member and something different to the leader of a church or parachurch organization in the best of times much less in a crisis.  The level of disclosure regarding the use of donated funds might lack clarity because the purchase of a box of paper clips, much less salaries and benefits, might be viewed as a cost of “ministry” by some but not others.

In Dux v Bugarin, Slip. Op. (Mich. App. 2021), the trial court dismissed the lawsuit by a group of parishioners disgruntled because the denomination determined that a forty-year-old allegation of sexual misconduct by the church pastor was “credible,” removed the pastor, and published the allegation.  The allegation of sexual misconduct was investigated by law enforcement at the request of the church.  The Plaintiffs claimed the publication of the sexual misconduct claim was a tort of outrage.  The court held the Ecclesiastical Abstention Doctrine precluded the court from reviewing the denomination’s methodology in investigating and evaluation of the claim.  The court likewise held that the publication that the denomination found the allegation “credible” was also an ecclesiastical matter because the weight to give to the allegation, as well as the evaluation of the conduct in question, was as ecclesiastical as the choice of method to communicate with members.  The allegation that representations by the denomination’s parachurch organization that it would not use donations to pay settlements in sexual misconduct cases were false could not be evaluated by the court.  Some funds, and not necessarily those donated by the Plaintiffs, were used to pay for treatment of the alleged victim and to pay for the investigation.  The court held that only the church and its parachurch arm could determine whether the expenditures were “ministry” or some other similar use of funds.

Fraudulent donation claims will be effective against embezzlers and thieves.  However, such claims will not likely be useful to redirect the flow of funds from one seemingly legitimate use to another.  Only incredibly precise representations of the contemplated use of donated funds will make an inquiry possible but even then there will always be some reasonable discretion to use the funds otherwise.

PARACHURCH OFFICERS AS LAIETY

The ongoing tension between federal civil rights employment statutes, the Ministerial Exception and the Ecclesiastical Abstention Doctrine has not ended even while greatly reduced due to recent United States Supreme Court decisions.  “The ministerial exception bars adjudicating employment disputes “involving those holding certain important positions with churches and other religious institutions.””  Our Lady of Guadalupe Sch. v Morrissey-Berru, 140 S. Ct. 2049, 2060 (2020); Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 US 171, 194-95 (2012).

In Trotter v United Lutheran Seminary, Memorandum Opinion (E. D. Penn. 2021), the federal trial court overruled motions for summary judgment (which is probably the last step before trial in the case).  The Plaintiffs alleged they were victims of retaliation and hostile work environment discrimination.  The Plaintiffs held positions titled:  Vice President for Advancement and Vice President for Student Vocation and Formation.  The trial court held that on the facts presented the Plaintiffs did not teach religion or otherwise carry out the duties of ministers.  One of the Plaintiffs was, indeed, an ordained minister.  The trial court held that ordination in isolation did not trigger the Ministerial Exception.

Parachurch officers may perform duties sufficiently secular, and not participate in duties that are sufficiently or inherently ministerial, that federal civil rights employment claims remain viable.  The record that can be presented to a court may determine the sufficiency of either.  Such a record must be carefully developed.  Development of such a record should begin earlier than at the time of a claim or lawsuit.

PARACHURCH ORGANIZATION INTERNAL MANAGEMENT PROTECTED BY THE FIRST AMENDMENT

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.