We have reported cases in which the church split led to a tug of war over a symbol that one faction tried to register and prevent other factions from using. Symbols, both generic and iconic, often were created long ago and their exact origins will never be known sufficiently to support defendable registration as a trademark. Symbols more recently created can become iconic, especially when they were not registered as trademarks or defended as such during the early years or decades of their existence. Symbols that become iconic or generic representations of a religious group may lose defendable registration as a trademark.
In Holy Spirit Association v World Peace and Unification Sanctuary, Inc., Memorandum (MD Penn. 2022), the federal trial court was faced with competing claims for a trademarked symbol. The church split arose at the denominational level between competing factions each claiming to be the legitimate heir of the deceased founder. The symbol in question may have been created by the founder in 1965 but one faction did not attempt to trademark it until 2009. The faction claiming the symbol was registered and defendable demanded that one of the other factions cease using the symbol. The faction using the symbol in alleged violation of the registration claimed the symbol was iconic and represented the underlying theological premise of everyone involved and not a particular faction. The federal court determined it could not determine whether the symbol was iconic without inquiring into the underlying theological premise the symbol was allegedly supposed to represent. The federal trial court held such an inquiry would violate the Ecclesiastical Abstention Doctrine and could not be decided by Neutral Principles of Law. Another religious inquiry, the court determined, would require determination of which faction was or represented the rightful heir of the founder and allegedly entitled to control the registered symbol.
The race to register the symbol as a trademark did determine a winner. Indeed, the half a century of use of the symbol by the founder of the denomination prior to registration argued that the symbol was or had become iconic long before the actual registration. The lesson is that trademarking registration should accompany the birth of the symbol or be commenced as soon thereafter as possible. Founders rarely anticipate their own passing and rarely plan for succession. Likewise, they rarely plan for competing factions among those claiming to be rightful heirs.
There is sometimes a thin line between ecclesiastical language in church bylaws and secular language intended to satisfy state law requirements. Enforcement of church bylaws is generally possible in a contract action in a secular court. However, religious language in bylaws may not be.
In Weare Bible Baptist Church v Fuller, Slip Op. (NH, 2019), the New Hampshire trial court tried to enforce the bylaws as written using its contempt powers. The founding pastor was permanently incapacitated by stroke. The wife of the founding pastor refused to give up the parsonage resulting in its loss of property tax exemption. The wife also led a faction, primarily of family members, that usurped the corporate seal and office of the Treasurer. Using the corporate seal, the wife’s faction attempted to terminate the successor pastor’s employment and notified the Secretary of State in a writing sealed with the corporate seal that only the wife’s faction retained control of the corporation. Resolution of the issues in the trial court required a three day evidentiary hearing that included testimony from an expert witness in denominational practice and polity. The appellate court reversed and remanded ordering the trial court to consider only deeds, trusts, and statutes. If the trial court could not resolve ownership and control issues with those documents, church governance documents would next be considered but only within the confines of Neutral Principles of Law.
The opinion is silent regarding whether the disabled pastor was provided for through disability insurance or other church purchased safety nets. The opinion is silent regarding whether the parsonage was fungible in some reasonable manner. The silence prevents a determination as to motivations: such as whether the wife was trying to retain control or was acting in desperation because of an involuntarily imposed vow of poverty. The lesson that can be gleaned however is that religious language in bylaws can be internally enforced by the church or not at all. To be enforced regarding corporate governance rather than church governance, the bylaws should give unto Ceasar.
The Ecclesiastical Abstention Doctrine of the First Amendment prohibits courts from hearing matters based on religious doctrine or polity. Many evangelical churches, most of which are congregational even though they may also be denominational, incorporate into church governance documents such as bylaws contract terms that are more or less quotations of Scripture. Internal church dispute resolution often is procedurally described in bylaws by quotation, more or less, of Matthew 18.
In Adkison v Williams, Slip Op. (Ohio App. 2019), the trial court held that claims to membership in the church by the Plaintiffs were outside judicial review by virtue of the Ecclesiastical Abstention Doctrine. The internal dispute resolution clause in the bylaws was more or less cloned from Matthew 18. The appellate court noted that the bylaws of the church were contractual and that a church did not have “unbridled” freedom to disregard them. But, the particular dispute involved the application of the dispute resolution clause inspired by Matthew 18 which the trial court and the appellate court were unwilling to interpret or enforce. The Plaintiffs alleged the church leadership terminated their membership and when a dispute arose, did not submit the dispute to the congregation for a final vote. The interpretation required was whether in Matthew 18 the requirement of congregational submission was or was not required or automatic, or whether that step may be left to the discretion of leadership. Both courts declined to make the interpretation.
Congregational churches should verify their written membership rolls at least annually and purge persons that no longer attend or participate. It is not necessary to give notice of this action nor to explain to anyone why it is being undertaken, but it is helpful to record the action in minutes of the governing board. Such membership rolls will, in a controversy, be useful to identify who can actually vote and who can be elected to church leadership. Routine membership roll purges should not be confused with disciplinary membership terminations. Disciplinary membership terminations should be documented in the minutes of the governing board, too. Especially regarding disciplinary membership terminations church security personnel should be notified of the action so that they may observe a trespasser until official law enforcement can arrive to address any problem.
Churches that do not have properly or completely drafted control documents like bylaws will in business matters, rather than religious matters, be bound by state corporations statutes. Usurpers usually fail to take this into account or do not know. To enforce a statute on church business governance, rather than on religious matters, can only be done judicially and is an expensive method of church governance.
In Lee v Paik, Slip Op. (Tex. Civ. App. 5th, 2019), the temporary part-time pastor hired in 2002 was by 2009 ready to lead a coup. A congregational election was held in 2009 in which the not so temporary pastor was declared president of the church corporation and removed two of three sitting church board members. At the election, one of the three board members was present. The bylaws did not specify how replacement board members would be chosen as candidates or elected. The trial court held in the silence of the bylaws about electing new board members that the state corporations statute would control. Under the state statute then in effect, new board members could only be nominated and elected by the existing board in the absence of a provision in the bylaws for some other method. Because the board did not elect the new board members or remove the prior board members the trial court held the 2009 election was not effective. Moreover, the temporary part-time pastor was never entered as a member of the church on the membership rolls, and there was no evidence he had ever been a member, and for that reason lacked standing in court to challenge the prior board’s action in terminating him or nullifying the election. The appellate court confirmed the trial court.
Church governance documents should be updated every couple of years, as needed, following the amendment process set forth in the document. At the least, the church government should formally consider it and if there is no need the church board should decline to make a change. Recording the decision in the board minutes is also imperative. Merely ignoring the document until a serious problem arises is a fast road to legal expenses or enabling a usurper.