Legal and Political Issues in the Church - Lesson 1
Defending Your Ministry
In this lesson, Kevin Theriot from Alliance Defending Freedom discusses the importance of protecting your ministry from legal threats. He emphasizes the significance of a detailed statement of faith, establishing religious employment criteria, and being aware of various anti-discrimination laws. By having a comprehensive understanding of these measures and taking advantage of protections in place, churches can safeguard their rights to act and teach according to their beliefs.
Defending Your Ministry
Defending Your Ministry
I. What You Need Protection From
A. Require abortion coverage for employees
B. Laws regarding same sex marriage
II. Church Autonomy Doctrine
III. Steps to Take to Protect Your Ministry
A. Have a written statement of faith that is broad and specific
1. Position on sexuality
2. Code of conduct
3. Life (i.e., abortion, physician assisted suicide, etc.)
4. Who is the final interpreter of scripture for that body?
B. Religious employment criteria
C. Facility use policy
D. Membership policy
E. Marriage policy
- Gain insights on how to protect your ministry by creating a detailed statement of faith, establishing religious employment criteria, and understanding anti-discrimination laws, ensuring your church's rights to act on and teach its beliefs.
- Explore the interplay between religion and politics, learning how Christian faith calls for seeking justice in the public sphere, challenging political silence in religious settings, and promoting positive societal change.
In the United States today, it is important to protect your church from legal liability in areas of ministry, facility use, and membership. Kevin Theriot gives you some direction in how to do this by how you set up your policies, by-laws, and membership agreements. Dr. Jeffrey Ventrella explains that the Constitution protects the church from the state, and he encourages the church to address both issues and individuals in the political process.
Dr. Kevin Theriot
Legal and Political Issues in the Church
Defending Your Ministry
[00:00:00] Thanks for having me today. I'm Kevin Theriot with the Alliance Defending Freedom. I am senior counsel there. I do a lot of litigation, have spent a lot of my years defending churches and pastors against attacks to their freedom. And today, I'd like to talk to you about protecting your ministry. Much of what I'm going to talk about today can be found in this resource protecting your ministry. It's available at Alliance Defending Freedom dot org. You just go to that website, click on church, and it'll be a place for you to sign up for it. You get it for free and it's a fantastic resource that really helps you not only protect your church but any religious ministry you have. So the first question obviously is what do you need protection from? I don't really feel threatened. Kevin seem to be able to do whatever we want. Thank God we live in a free country and don't seem to have any of the problems that people are having in other countries. Well, if you don't feel threatened, you're really not paying attention, I think And here's some some recent examples of threats to the church. Primary primarily is one that we've been dealing with at Alliance Spending Freedom in California, where California passed a statute that requires all organizations, including churches, no exception for churches to cover abortion in their health care benefits that they provide employees. No exceptions. And of course, many churches object to abortion, but California is completely ignoring that. There are some other examples that we're seeing in the headlines even today, as the day we're recording this, the Supreme Court is hearing arguments about same sex marriage. And you may ask, well, how does that affect the church? That seems to be something that's taking place outside of the church.
[00:01:39] Well, once again, if you think that you're really not paying attention, as a matter of fact, another case out of California, Perry versus Schwarzenegger, in that case, the federal judge there found that the beliefs of Southern Baptists than the beliefs of Roman Catholics regarding limiting sexual activity to the confines of marriage between one man and one woman are harmful to society. And of course, there are other government officials who say those harmful believes they agree with that assessment are things that we should be able to eliminate, as a matter of fact. Haim Feldblum, who is the commissioner of the EEOC, said this There can be a conflict between religious liberty and sexual liberty, but in almost all cases, the sexual liberty should win. In other words, sexual liberty trumps religious freedom, even of churches. And a presumed Democrat nominee, Hillary Clinton, was quoted just this past weekend as saying that far too many women are denied access to reproductive health care. She's talking about abortion and deep seeded cultural codes. Religious beliefs and structural biases have to be changed. So there's an attempt on the part of government officials, on the part of judges, on the part of society, to change the beliefs of religious individuals, to change the beliefs of churches when they conflict with the popular mores of today. And that's today. Those issues seem to be centered around things like sexuality and life. But in the future, those will 20 years, the issues will be different. The bottom line is can churches teach and act on the beliefs that they think God has inspired them to communicate to society and to live by? That's the question. And here's the good news. The good news is that there is such thing in this country as the church autonomy doctrine that says that government officials are not allowed to interfere in in ecclesiastical matters.
[00:03:43] Those ecclesiastical matters really are found in four areas church, government or polity doctrine, membership and employment decisions. But the church needs to take steps to make sure that they are taking advantage. The churches are taking advantage of this protection because it is very important that churches understand exactly what the law is and how to take advantage of that protection when they have it. So let's talk about several ways, since there were several steps that the churches can take to protect their ministry. The first is to have a statement of faith that's really foundational. Many churches already have that. But what we're encouraging churches to do is make sure that that statement of faith is as broad and as detailed as possible. The good news is, if the church has a statement of faith, courts generally don't question it. If a particular belief that's in question that's being challenged is in a statement of faith that has been adopted by the church and the church attempts to live by courts, really take that at face value and say, well, this is their beliefs and you get more protection that way. What we're encouraging churches to do is make sure that that statement of faith is broad and specific. Those seem to be a little bit of tension there. How can you be brought in specific at the same time? What we mean by that is address as many topics as you can and do them with specificity. For instance, the church really needs to address the issue of marriage, both heterosexual and homosexual, and needs to address the issue of gender identity, which is a up and coming topic right now. And this the general sexuality issue completely. What is the Bible teach about that and what does this church believe? The church needs to have a code of conduct that is either incorporated into the statement of faith or is a separate document that individuals are encouraged to sign.
[00:05:33] We'll talk about that here in a little bit. And the church should have a statement on life. What is the church believe about abortion? What does the church believe about physician assisted suicide? What does the church believe about artificial insemination, other types of things that are that were where babies are formed and placed inside the womb? What do we do with the products of those conception as they as the other side likes to say, are those lives or are they not? What does the church believe about that needs to be set forth? Because in today's society, laws are being enacted that will interfere with the church's convictions on those issues. And then finally, the church did say in the statement of faith or possibly in the church's bylaws, who is the final interpreter of scripture for that particular body? For some churches that are part of a denomination, it's the denomination that's the final interpreter of scripture. Others that are elder led, it's the elders. So but whatever it is, need to make sure that that's clearly set forth so that when an employee or a church member challenges the particular interpretation of Scripture, that we have something to go back and look to and say, no, they don't get to say, they interpret it differently and their interpretation is just as valid as yours. We have some final arbiter of that of that particular passage, and they are who we go to when looking to see who what we believe about a particular passage of scripture. So a statement of faith, very foundational. Once the church has that in place, can take the second step of having religious employment criteria, can have specifically job descriptions. Why do churches need those? Well, most of you all are aware that there are anti-discrimination laws.
[00:07:17] The federal anti-discrimination law that most people are aware of is Title seven. It prohibits discrimination based upon race, color, religion, sex, national origin or age, but it allows religious organizations to consider an applicant's religious beliefs in hiring of all positions. So whether the church is hiring for janitor or the church is hiring for a pastor, the church can require that individual to comply with and believe, like the church and within agree with the church's statement of faith. Now, incidentally, you should be aware that that doesn't allow the church to discriminate based upon any of the other provisions. Only religion. So doesn't allow the church to discriminate based upon age, for instance, or sex. But there is what's called a ministerial exception. If the position is considered a pastor, if that individual was charged with communicating the beliefs of the church, then the the law doesn't apply. There's a constitutional protection there. As a matter of fact, the Supreme Court recently in 2012, when the Hosanna TABOR versus EEOC case held that that is a broadly protected right that says that the government doesn't have any business telling a church who it should hire or who it should fire when it comes to ministers so they can hire or fire them for any reason or no reason, whether they don't like the size of their of their head or they don't like the the fact that they're too old or too young. And then the EEOC, the Hosanna Tabor case, what was at issue, there was a Christian teacher at a Christian school, a church had a small Christian school. The teacher had to go on disability leave because of narcolepsy. When she decided she wanted to come back, it was right in the middle of the semester.
[00:09:05] The church was concerned that would be disruptive. They weren't sure that she would be able to maintain control of her class. The narcolepsy episodes had passed and she threatened to sue the church. Well, that became a different issue because the church says we don't allow sue suits between believers and and that's an issue in and of itself. And they let her go. Well, she complained to the Equal Employment Opportunity Commission, the EEOC. There's a similar statute to Title seven that prohibits discrimination based upon disability. And they sued and the Supreme Court held that unanimously that the First Amendment, the free exercise clause and the establishment clause protect churches when they're making decisions based upon ministers and who to hire and who to fire. And key in that case was the fact that the. Plaintiff was described as a commissioned minister. Now, not all teachers were commissioned ministers, but she had responsibilities of leading kids in devotions about 45 minutes a day. Sometimes she would lead the weekly devotions of the particular of the particular school that she was involved in. And so they said and she in fact was a commissioned minister, and she held herself out to the public as a commissioned minister. And the court said that when when an individual does that and when a church describes them as a as a pastor, then they can fire for they can fire her or let her go for any reason or no reason. Well, that's a broad protection that the church needs to take advantage of now. Incidentally, there are other nondiscrimination laws, there are state laws and there are local laws. Sometimes those add other categories, such as sexual orientation or gender identity. And churches need to be aware of that. But no matter what the law is, most of them have exceptions for churches.
[00:10:59] And even if they don't, the Hosanna Tabor ministerial exception applies whether it's a federal law or a local law. So how do you take advantage of that as a church? And the best way to take advantage of that is to make sure that you have very specific job descriptions for individuals that are employed. If an individual is tasked with and charged with communicating the church's beliefs, that individual needs to be described as a minister or a pastor in some way, and that can take all that can that can cross all different job descriptions in all different occupations at the church. Certainly a pastor, but certainly a youth minister, certainly a music minister. But it can also include in this day and age the person who is in charge of communicating the church's beliefs on the Internet. The individual can include the church secretary if they're charged with communicating the beliefs. When somebody calls in and asks what's going on at the church, what exactly does the church believe about this particular issue? So obviously, if the church, if that individual doesn't have that responsibility, you shouldn't describe them as such. But if they do, you need to describe them as having ministerial duties. This was exemplified in a in a case called Gunn versus Mariner's Church in 2008. And that particular instance, a music minister informed his elders that he was a homosexual. And the because that conflicted with the particular beliefs of the church, they decided to let him go. The individual sued the church and said sued them for defamation and said that that violated his rights was an invasion of privacy. But the court held that the ministerial exception applied and the case was dismissed. Now, while it's important to make sure that individuals who have ministerial responsibilities are described that way in their job descriptions, it also important that they agreed to the statement of faith, have them sign that it can be in the form of an employee handbook, also a code of conduct.
[00:13:03] If that's included in the statement of faith, make sure that they've read and agreed to that. And then, of course, the church needs to apply that statement of faith and that code of conduct consistently. Churches get in trouble, for instance, when they a church school, for instance, let go a young lady for getting pregnant outside of wedlock, but allowed the young man who who she was in a relationship with to stay on. That's an inconsistent application and something that the courts will call the church on and may even say that you're liable because you've applied that inconsistently and you've applied it in a discriminatory way. Bottom line is need to make sure that the position describes how that individual furthers the mission of the church. Obviously include the responsibilities and duties and the skills required. So we talked about now religious employment criteria in job description. And we've talked about, first of all, statement of faith. Secondly, religious employment criteria. Let's move on to the next one, and that is a facility use policy. You can find an example of a facility use policy in the protecting your ministry booklet that we've talked about earlier. I'll give you the the website and how to get that again at the end. But on Appendix B, we have a great example of one that I highly recommend to you. Essentially the reason why a church needs a facility use policy is because of public accommodation laws. These are mainly local laws, sometimes state laws, sometimes local county or city laws that require any building that is open to the public not to discriminate on in any way. And usually that discrimination is in the form. Same thing is Title seven Race, religion, sex and of course locally that oftentimes includes sexual orientation and gender identity.
[00:14:57] For churches, lots of times they think, well, that's really not going to affect us anyway. But there is a church. A great example is a church in Ocean Grove, New Jersey. They had what was called a wedding pavilion that was out on the boardwalk. They allowed people to use that for weddings and a same sex couple asked to use it for a same sex commitment ceremony. And of course, this violated the teachings of the church. They said we can't allow that. And because of that, the city withdrew their property tax exemption for that particular piece of property. We had to intervene. The city was putting a lot of pressure on the church. We were able to get them tax exempt them in another area, tax exemption under another area of the code. But the bottom line is the city was putting pressure on them to let their facilities be used for something that the church disagreed with. Of course, this is happening more and more frequently overseas and Denmark in 2012. They recognize same sex marriage and at the same time said that religious organizations, religious entities had to open up their facilities to same sex marriage ceremonies, and they didn't necessarily have to conduct them themselves, but they had to find a minister who would. So they say that if Europe catches a cold, the folks in the United States get the flu. Things are coming this way. So you need to be aware of that. But the good news is there are things that you can do to protect yourself and your ministry from having to allow use that violates religious convictions of the church. And of course, that can be a number of things from many churches. Teach against drinking. Don't have to allow your facilities to be used for a party that includes includes drinking or dancing, that kind of thing.
[00:16:40] But you need to make sure that you have a policy in place that communicates very clearly why that is. So the first thing the policy should say is describe the religious nature of the building and how that building furthers the ministry of the church. There should be an agreement for anybody who uses the building to make sure that it is used consistent with the statement of faith and the code of conduct. And of course, the church should consider charging it, make any charge that it does make charging less than market rate so that it is easily demonstrated that this isn't a moneymaking opportunity. This is an extension of the ministry of the church. This isn't the church engaging in come in commerce. And once again, there's an example of that in Appendix B to protecting your ministry. So we've talked about statement of faith. We've talked about religious employment criteria, We've talked about a facility use policy. Now let's talk about a formal membership policy. I realize that many churches today don't have formal membership policies. As a matter of fact, a lot of churches don't even encourage membership anymore. Used to be that if a church had 300 members, they would have 150 folks, maybe on Sunday morning. Now it's just the opposite of that. If you have 300 folks attending on Sun Sunday morning, you might have 150 members. And there are a lot of large churches that really don't even emphasize membership at all. They emphasize attendees. But oftentimes with churches I used to attend a church like that. What they did is if you want to volunteer and become a part of leadership, then there are certain criteria that you have to meet, much like membership criteria. A great example of why this is important is the case.
[00:18:23] The Gwinn case, Gwinn versus Church of Christ out of Oklahoma in 1989. And that particular instance, an individual was a member. She, the elders of the church, learned that she became involved sexually with a single man. She was a single mother of three. So it was a relationship outside of the confines of marriage. They instituted church discipline pursuant to Matthew 18. The young lady wasn't very responsive, and they said that they in a letter, they said, listen, if you do not repent and you do not come out of this relationship that we believe is violative of the biblical standards and the teachings of the church, we're going to withdraw you from fellowship. Well, probably would have never become a case except for the individual this lady was having an affair with was the mayor of the town. So little bit politically connected. She lawyered up, got a attorney to send a letter to the church and warned them off and said, hey, if you do this, if you withdraw my membership and disclose it to the congregation, I will sue you. Well, the elders decided, look, she's a member of the congregation. We want to do our best to restore her to fellowship with the church. And one of the ways we believe we need to do that is through the Matthew 18 process. They went ahead and read aloud the letter and told the folks at the congregation, the scriptures, that they believe she was in violation of. As a matter of fact, they even notified several other churches in the area. Well, needless to say, she filed a lawsuit and the court found that the elders actions prior to the young lady withdrawing her membership, she withdrew her membership, said don't tell anybody.
[00:20:16] And but the court said that the elders actions prior to her withdrawing her membership were protected by the First Amendment, the free exercise clause, and the establishment clauses of the First Amendment to the to the United States Constitution. But after she withdrew her membership, then they weren't protected. And so she was able to get damages for violation of her rights for after she withdrew her membership. So what can we learn from this case? Well, first of all, you need to have a membership agreement. And in that agreement, if you have membership, you should have a membership agreement and you should have it spelled out very succinctly that what the statement of faith is, that that member agrees with the statement of faith, with a code of conduct is and that the that the member agrees to do their best to abide by that code of conduct set forth the the manner of church discipline that may be instituted if the code of conduct or the statement of faith is not followed. And make sure that you're very careful to describe the issues that are likely to arise in today's day and age. That may be something like this situation. Adultery, any kind of sex outside of the marriage between one man and one woman. Issues on abortion. Another thing that the church agreement should include is a mediation agreement that says that the member if if we get crossways the member is not going to go to court. Go to court, the member is going to. We're going to do mediation. That's the biblical way and that's the way we encourage people to resolve their differences. And those provisions are usually enforceable. Now, one thing that they didn't do in the Gwynne case that they should have done is they didn't have a procedure for rescinding membership.
[00:21:59] Some churches, as in that particular case, churches, don't allow an individual to just withdraw membership while church discipline is going on. And the reason why is the whole purpose of church discipline is to restore that individual to the body of Christ. That's their thinking. If we allow them to withdraw in the middle of discipline, then why we're doing discipline at all. And of course, not all churches believe that way. But if your church does, then you need to have a procedure set forth in the membership agreement for rescinding membership, make sure that it respects the individual's right to terminate their membership. But if they want to waive that. Right. While church discipline is going on that they're doing it in a knowing fashion. They sign off on it. They've they've read the statement saying there were waiving the right to withdraw membership while discipline is going on, and that if that waiver is voluntary and intentional, it should be upheld. So that's the membership requirement, very important when a church wants to make sure that it's policing its ranks and making sure that members are doing what the church teaches and in the church wants to be able to enforce discipline, not unlike Matthew 18. And but there's a specific way to do that. There is a membership agreement, an example of one in the protecting your ministry, in the protecting your ministry resource that we offer on our website. And I would encourage you to take a look at that. So we've talked about four different ways now, four different steps for churches to protect themselves. The Statement of Faith, the religious employment criteria, a facility use policy and a formal membership policy, and the church should take at least one more step. That's saying this is a.
[00:23:41] Exclusive exclusive list, but five primary ways that the church can protect itself right now. And the fifth one is having a marriage policy. And once again, we have an example of a marriage policy in our appendix to our resource. But this the need for this is exemplified by the Bryce versus the Episcopal Church in the Diocese of Colorado case, which is it was a federal court in Colorado in 2000. And that particular case, a female youth minister became involved in a sexual relationship with another local pastor who was female, and they decided to have a commitment ceremony. The church got wind of this. This was the youth minister, and they decided through a series of meetings where they heard her side of the story, heard the side of a story of the person she was involved in the relationship with, got the the young people to weigh in. They decided that look for going forward and based upon our interpretation of scripture, we're going to need to let you go. She decided to file a lawsuit and basically her lawsuit alleged that she was wrongfully fired because the Bible really doesn't say that her relationship with this other woman was was sinful and in violation of biblical standards. And the court landed on the fact that the Episcopal denomination had recently adopted a statement affirming marriage as between only a man and a woman. And the court deferred to the church's adoption of that position and therefore said that the young lady did not have a case. And of course, another aspect of the marriage policy is making sure that the church specifies when pastors can officiate a marriage and when pastors can be involved in a marriage. And that could run the gamut. But essentially, it needs to it needs to define biblical marriage and what that means for the church.
[00:25:42] So let me sum up by saying that there really are some threats to churches in the United States. And the good news is that churches can take steps to protect themselves against those threats. I've listed five here today. Be glad to talk with you further about more because they're always unique situations. But the five we talked about today are a statement of faith and including issues of sexuality and life in that statement of faith. Also a code of conduct in that statement of faith. The second one was religious employment criteria, making sure you have specific job descriptions, especially those that are describing those who have ministerial duties and defining ministerial duties very broadly to include all of those who are in charged with communicating the beliefs of the church, having a facility use policy that talks about restricting use of buildings of the church only for the ministry, and making sure that those buildings are described in a way that that demonstrates how they further the religious convictions in Ministry of the church having a membership policy that is very specific, or if you don't have members having a leadership policy that would apply to any volunteers who are in leadership positions at the church. And then lastly, having a policy describes the church's position on marriage. Many of you may be saying, well, this really seems to be sort of a cold hearted way of doing ministry. And and aren't we supposed to be characterized by love? And we certainly are. And I think we need to look to the words of our Lord who said that we ought to be wise as serpents and harmless as doves in Matthew 1016. And it's important to remember that in the context of that scripture, he was sending the 12 disciples out.
[00:27:28] He was sending them out to do ministry, and he was warning them that they may very well be dragged into court because of their beliefs and because of their actions. And that they needed to be wise as serpents and harmless as doves. And in my unprofessional view of interpretation of that scripture, that means that we need to think ahead and make sure that we are understanding what the rules require and with the rules and how to take advantage of rules that protect us. But we need to do so in love, and we need to do as as with all things. We need to do everything in a loving manner. And there is a way to do both. And we would we would like to assist you in any way we can in helping your church or your ministry do that. Once again, you can go to our Web site, Alliance Defending Freedom dot org. If you go down to the bottom of the page, there's a little link that you can click on. It says Church and a window will come up that will allow you to sign up for this resource protecting your ministry. And we will send that to you free of charge. Really appreciate you allowing me to address you today. And I hope and trust that it will be helpful to your ministry. God bless you.