After the United States Supreme Court’s decision in Alamo Foundation v Secretary of Labor, 471 US 290 (1985) held that persons working for food, clothing and shelter were in fact employees because of their economic dependence entitled to the Minimum Wage, occasional confusion resulted about whether church volunteers were employees.  Because church volunteers were not economically dependent, i.e., could walk away and never return, they were not employees entitled to payment.

In Acosta v Cathedral Buffet, Inc., Slip Op. (6th Circuit 2018), the United States Court of Appeals for the 6th Circuit was confronted with a Department of Labor (“DOL”) conclusion that because the church volunteers were spiritually or socially coerced by the pastor to serve as volunteers in the church owned restaurant that they were in fact employees entitled to the Minimum Wage.  The DOL had to reach that conclusion because it could not realistically claim the church member volunteers were economically dependent for sustenance as had been the workers in the Alamo case. The 6th Circuit concluded that spiritual or social coercion, if it existed, was not envisioned by the Fair Labor Standards Act (“FLSA”).  As a result, church volunteers could not pursuant to the FLSA be employees.

The Concurring Opinion questioned whether the DOL had fully contemplated the implications of inquiring into spiritual or social coercion if such existed.  The Concurring Opinion noted such an inquiry would require an inquiry into the religious imperatives for the volunteers contrary to the Ecclesiastical Abstention Doctrine of the First Amendment.  Music worship leaders that must hold together church choirs and bands week after week forever can attest to the necessity of the spiritual guilt trip.  But, such persuasion, if it is coercive, is not recognized as a prerequisite to a conclusion a worker is an employee rather than a volunteer.  (However, the Concurring Opinion did not ask the same question of the federal trial court.)

The Daily Oklahoman, the general circulation newspaper in central Oklahoma, noted the 6th Circuit’s decision in an op-ed piece in the April 23, 2018 edition.  The Oklahoman concluded church volunteers could simply find another church.  Somehow that did not occur to the DOL or the federal trial court which was reversed by the 6th Circuit.


Church split lawsuits will sometimes be cases that lack sustainable claims.  Courts will rarely be able to consider ecclesiastical matters or minister employment cases on the merits.  The lack of a sustainable claim does not mean the case was automatically frivolous.  A frivolous claim typically lacks any basis in law or fact.  Usually, church split lawsuits have a basis in fact or law but not enough to sustain a successful claim.  This is not unique to church lawsuits; cases are often dismissed in all areas of law.

In Cho v Choi, et al., Slip Op. (NJ Supp. App. 2018), it took the appellate court only two pages in a per curiam decision to affirm the motion to dismiss granted by the trial court.  The Plaintiff brought four defamation cases against fellow members and a lawsuit against the pastor.  The defamation claimed was that in a public congregational meeting the defendants allegedly stated the Plaintiff was “try to take over the church” and would foreclose on the church if it defaulted on the loan Plaintiff made to the church.  The Court held these statements were either true, and therefore not defamatory, or simply not defamatory.  The Court held the claim alleging the pastor was not qualified could not be reached by the Court because the credentialing of the pastor was ecclesiastical.  The Court held that whether the pastor’s credentialing complied with the denominational handbook was an ecclesiastical matter.

Defamation cases are difficult to pursue and usually the alleged wrongdoer would be insufficiently solvent to make a case economical.  Ministerial employment cases are sufficiently problematic that if the qualifications for office of the hiring board members can be challenged that approach would have a greater chance for success.


When the author of this website began practicing, it was the habit to troop over to the courthouse every Friday to attend motion docket.  The primary motion heard on those days was the demurrer.  A demurrer was like a motion to dismiss but only raised the issue of sufficiency of the petition to state a cause of action.  Defendants often filed them to obtain further time to investigate and answer, which meant they were often autonomically overruled.  When they were actually heard, the court would read the petition or complaint and if the court thought enough facts were pled to state a cause of action overruled the demurrer.  Most were overruled but occasionally the court would act as a gatekeeper and require filing of an amended petition.  Demurrers were abolished soon thereafter as the state migrated to its clone of the Federal Rules of Civil Procedure.  Nevertheless, vestigial remnants of such doctrines persist.  The other rule still in effect in this state is that the order of the trial court will not contain reasons for the decision.  To enter an order that “sets forth reasons” is called a “speaking journal entry.”  An appellate court may disregard it.  If the parties want findings of fact and conclusions of law, they have to request them in advance of any ruling.  However, some appellate courts still have similar rules, for good reasons or out of habit.

In St. John Missionary Baptist Church v Flakes, Slip Op. (Tex. Civ. App. 2018), the congregational vote to terminate the pastor was not accepted by the church board members.  The pastor and the board continued to handle the assets of the church, including taking out a mortgage of almost a million dollars and preparing to sell other assets.  Some of the members filed suit to seek an injunction.  The trial court granted a motion to dismiss and plea to the jurisdiction (Texas has not adopted a clone of the Federal Rules of Civil Procedure).  The trial court’s order was a single sentence that referenced only one of the grounds put forward to support the motion.  The appeal was directed at the only grounds set forth in the single sentence order.  The appellate court, however, simply affirmed the trial court because there was no challenge to the other grounds for the motion to dismiss raised by the proponent of that motion even though it was also not mentioned by the trial court’s order.  That other ground was the Ecclesiastical Abstention Doctrine.  The appellate court ruled that without a challenge before it of an argument made by the movant in the trial court it was waived.  One paragraph containing a legal authority or two would have placed it before the appellate court.  The dissent was convinced that ordering additional briefing would not have been against the court’s rules.

Followers of Ecclesiastical Abstention Doctrine cases would immediately recognize that while a court because of the Ministerial Abstention Doctrine would not entertain an employment case, the exception might be if the employment case arose only from a violation of the church organizational documents in the process of hiring or termination.  This seems especially true when the procedural issue arises from a congregation-controlled church.  Of course, the other lesson is for counsel to brief all the arguments raised even if counsel believes some arguments deserve only cursory treatment.


In jurisdictions that decide church property issues under the Neutral Principles of Law Doctrine, the difficult question is for a court to determine which organizational documents are binding authority on the local church.  For example, denominational handbooks, like employee handbooks, might in some instances create a contractual commitment for member churches.

In Presbytery of St. Andrew v First Presbyterian Church PCUSA of Starkville, Miss., Slip Op., (Miss. 2018, en banc), the Mississippi Supreme Court collided with the issue and the majority did not view the denominational handbook as a governing authority sufficient to impose a trust on the property of the local church while the dissent did.  The majority relied on an “opt out” clause in the Constitution of the denomination which the dissent considered as adopted too late in time to avoid the binding effect of the denominational handbook.  In response to the “opt out” provision, the local church opted out and did not include property reversionary clauses in property deeds or the local church bylaws or constitution.

Denominations that desire to govern through a handbook (regardless of what it is called), should update it regularly and the local churches asked to ratify it.  Ratification once a decade would likely be sufficient.  Failure to ratify should be explicitly prohibited as a ground for disobedience.  Reversionary provisions should be in all organizational documents and the denominational handbook and required in all local church organizational documents and property deeds for denominations that intend to use.  Everywhere or nowhere.


Church splits in hierarchical churches almost uniformly end badly for the insurgents.  The only exceptions are when church governing documents, including incorporation documents, and land titles do not consistently tie the ownership to the denomination rather than the local group of congregations or the local congregation.  Because church property in hierarchical churches is typically amassed over many years and many generations of members, the local church members often cannot truthfully say they alone bought and built it.  The denomination must admit that offerings made by members, over multiple generations of members, bought and built the church property in question and that the denomination at best is a trustee for them.

In The Episcopal Church v Salazar, Slip Op. (Tex. Civ. App. 2018), the latest appellate decision in a church split that began in 2008 (or possibly earlier) built upon a prior Texas Supreme Court Decision in Episcopal Diocese of Fort Worth v Episcopal Church, 422 SW 3d 646 (Tex. 2013), cert den., 135 S. Ct. 435 (2014) and the trial court proceedings that followed the Supreme Court’s decision.  To reach this new decision, the latest intermediate appellate opinion only sued over 50,000 words in 177 pages and 114 footnotes.  Thus, in a blog post, the reader should expect only the most summary of coverage.  It should also be noted that in the Supreme Court case, the Texas Supreme Court adopted the neutral principles of law doctrine so that a civil court could determine ownership of property and other matters important to the State without infringing on ecclesiastical issues.  Given the new ground to plow, the length of the intermediate appellate decision about which this blog reports is at least understandable.  It contained both denominational and diocesan legal histories as well as documented the evolution of neutral principles doctrine.

The trial court on remand from the Supreme Court considered the evidence and determined by summary judgment that the right to control the non-profit corporation that was the shell of the diocese was and remained under the control of the denomination.  This church split, like many of this type, began with a theological dispute which resulted in an attempt by some member organizations or local churches to “disaffiliate.”  When “disaffiliation” failed because the organizational documents of the denomination and the local organizations and churches would not support it, the next effort was to attempt to have friendlies elected to the governing board of the non-profit corporation and to displace board members loyal to the denomination (if there were any serving).  But, in addition to organizations and churches that tried to “disaffiliate,” the trial court held that the insurgents elected to the board were disqualified from election from inception due to their own “disaffiliation” which ended their memberships under the governing documents.

The lesson for insurgents, and warning for denominations, is that if insurgents do not “disaffiliate” but remain members in good standing, and are elected to the board of the non-profit corporation that is the shell for a diocese or a local church, that board will have effective control of the assets.  “Loyalty oaths” have not worked, as history has taught, but restricting the power of the board to financially alienate itself from the denomination could blunt or contain the power of insurgents.  Indeed, the reason denominations have not used this technique, absent internal political necessities, was to preserve the borrowing power of the local organizations and churches to acquire church property.  The necessity of that practice may be sufficiently diminished in more mature denominations to allow greater financial oversight by the denomination.


Most of the preachers, pastors, ministers, and priests I have known cannot carry a tune in bucket.  Thus, in modern church services, the rise of professional music worship leaders has been inexorable.  Many music worship leaders have educational and performance credentials.  However, are they clergy?

In Clover Hill Reformed Church v Township of Hillsborough, Slip Op. (NJ Tax Court 2018), the issue was whether the parsonage in which the congregation’s music worship leader resided was tax exempt.  The statute allowed each church to have two exempt parsonages.  The Clover Hill church had two and one was the residence of the music minister.  But, the tax assessor denied the exemption holding the music minister was not an “officiating clergyman,” a statutory term.  The court reversed the tax assessor and held the music minister was “officiating” within the meaning of the statute.

There was an oddity or two in the opinion.  The music minister in question was not a member of the congregation or the denomination but was a member of another church group.  In the southwest United States, the music minister’s “home” church would likely have been non-instrumental, and might be, too, on the eastern seaboard, but the music minister was serving in a church that allowed instrumental music.  Indeed, the music minister was a pianist.  As a non-member, however, he could not substitute for the lead pastor, which led the tax assessor to conclude the music minister was not “officiating clergy.”

The other oddity was that the court never actually stated the tax assessor was making an ecclesiastical determination about what constituted “officiating” and “clergy,” and thus probably running afoul of the First Amendment.  But, that might have been the case.

The lesson for other churches is to make sure the written job description of ministers seeking residential tax exemption makes their ecclesiastical role clear.


Land use regulations, zoning laws, and permit requirements of every stripe usually constitute a maze that the uninitiated should not attempt alone.  Church leadership often begins construction or remodeling without fully considering these rules, or worse, believes they have.  Small churches are especially vulnerable because of their limited resources.

In Jesus Christ is the Answer Ministries, Inc. v Baltimore County, Slip Op. (USDC, D. Mary., 2017), the Plaintiff church started like so many in someone’s home.  As the church outgrew the home, a 1.2 acre residential lot and existing 2900 square foot home were purchased.  The church remodeled the existing home for use as a church building but apparently failed to consider land use regulations or obtain permits.  The neighbors complained and the County issued a cease and desist letter.  The court’s opinion should be consulted regarding the precise complications alleged by the County.  The church submitted at least two applications for permits and variances.  Hearings were held and the complainants were quoted by the federal court as testifying:  “[D]ancing and hollering like they are [sic] back at their home back in Africa somewhere.”  The applications were denied.  The Plaintiff sued alleging the denial was based on religious discrimination rendered unlawful by the Religious Land Use and Institutionalized Persons Act of 2000, 42 USC §2000cc.  The case was dismissed because the Plaintiffs did not plead that the County actions were intentional or subtle forms of discrimination.  The Plaintiffs also failed to plead that their applications complied at least minimally to the extent possible with land use regulations and was compatible with the neighborhood.

As noted, engaging a consultant to navigate land use regulations is imperative before purchase or construction.  Also, before engaging in litigation of this type, more so than most, laying a foundation for the case is imperative.  Discrimination is easy to claim but hard to prove.  Also, there was no limit on the number of applications that could be made.  Churches often make an application like this on their own without the benefit of qualified counsel.  While running to the federal court may have seemed like a good idea, getting on the agendas of the public boards that governed the county and stating the case may have paid greater dividends.