PREPARING FOR THE LEGAL STORM

By: Michael P. Farris

First Bible Church needed a church secretary, so the board of elders authorized the pastor to run an ad in the local newspaper.
Suzy Lawerence applied for the job and appeared to be qualified. She was offered the job and was supposed to start the following
Monday. On Friday, however, the pastor received a call from a member of the congregation who heard that Suzy was hired. The
member knew her and told the pastor that Suzy had been living with her boyfriend for the last 10 months. The pastor called Suzy to confirm this information. Suzy confirmed the story, though she also made it plain that she thought her private life was her own
business.

The pastor consulted with the elders. The next day, he got a call from a well-known local lawyer, threatening to sue the church for
violation of the state law prohibiting discrimination on the basis of marital status.

The pastor and elders met to decide what to do about Suzy. Should they reserve their decision and refuse to hire her and face a
lawsuit?

Where would you draw the line?

There are a number of areas of church ministry that have become legal concerns for the first time. Churches are starting to become victims of increasingly hostile lawsuits that go far beyond the “I fell down and got hurt on the church steps” kind of suit.

New legal threats to churches go to the very heart of biblical ministry. Churches have been sued for discrimination in employment
against homosexuals. They also have been restricted in the use of their own facilities, not for health or safety reasons, but merely
because the building was deemed to have artistic or historical significance.

As both a church elder and lawyer specializing in religious liberty cases, I am alarmed at the growing insensitivity to the rights of churches. Lawyers and judges, like the rest of society, have become increasingly secular in their orientation. They tend to look upon churches as “just another business.”

Let’s look at a number of these new legal threats to church ministries to see what you and your church can do to meet these
threats.

LEGAL ATTACKS ON CHURCH EMPLOYMENT PRACTICES

In 1991, the legislature in Hawaii passed a state gay rights law. The law specifically exempts churches from the coverage of this
law, but only as pertaining to the hiring of ministerial staff. Other staff, such as secretaries, teachers, church organists and
janitors, are not exempted from the law.

In the 1970s, an orthodox Presbyterian church in San Francisco successfully defended a gay rights lawsuit brought by the former
church organist who was fired for practicing homosexuality. The judge ruled that it was a violation of the Free Exercise Clause of
the First Amendment to apply this law to a church. Because the Hawaii law is more specific and, more importantly, because of a
terrible decision by the United States Supreme Court, the outcome of this issue is now much more likely to be in favor of
homosexuals.

This Supreme Court decision also affects the rights of churches that hire only men as pastors. Most conservative Protestant
churches and the Roman Catholic Church follow this practice.

There are some things that a church can do to prepare for such a suit. But some issues cannot be avoided altogether, and the
Christian community is going to have to join together to change the law.

HOW TO PROTECT YOUR CHURCH

Every church should develop a written employment policy. Specify the qualifications for each position. It is a big mistake if you
fail to require spiritual qualifications for every position in your church. Ideally, you should limit all employees to church
members. Alternatively, you can limit employment to those who would be eligible for church membership, but who attend a church of a similar faith elsewhere. Churches need to have a written justification for requiring spiritual qualifications for every
position.

For example, all staff should be expected to join in staff prayer meetings. All staff should be expected to be able to assist in
primary spiritual counseling – at least to the extent that if a person expresses a desire to become a Christian, every staff member should be able to share the plan of salvation. Put such a requirement in their job description. If you have such requirements for all staff members, your church will be in a much better position to defend a potential employment discrimination suit. You are entitled to have spiritually qualified people if you expect them to share a part of the spiritual load.

Your employment policy should make it clear that any person may be immediately terminated if they begin a pattern of living that
evidences a rejection of the spiritual principles of the church. We expect integrity of the legal and medical community. A lawyer who acts in an unprofessional manner against the interests of his or her clients faces disbarment. In the same manner, churches must police their own. We should not permit immoral or unscrupulous individuals to remain on the staff of our churches.

COUNSELING MALPRACTICE

Attorney Shelby Sharpe from Fort Worth, Texas, attended a church malpractice seminar put on by the American Bar Association.
Lawyers bent on finding new ways to sue for large sums of money can use the material put out at this ABA seminar to target local
churches and denominations. Sharpe calls the seminar the coming “nuclear attack” against churches.

Grace Community Church, pastored by John Mac Arthur, was the target of the most highly publicized clergy malpractice case to
date. His church was sued when a young man, who was in an ongoing counseling relationship with the church, took his own life. The case took years to resolve and ended in the church’s favor. Attorney Sam Ericcson devoted years of his life to this defense,
and the costs were staggering – far beyond what most local churches would ever be able to sustain.

The malpractice crisis is largely fueled by greed, coupled with the false belief that someone else must be responsible for all
difficulties in life. If patients don’t get well, they sue their doctor. If doctors truly make a negligent mistake, they should bear the brunt of their failure. Far too often, such suits are contrivances to seek financial reward, when the doctor has performed reasonably.

This greed mentality is about to invade the church. Some lawyers will bring these cases out of financial motives alone. Others will
bring these cases out of pure hatred toward the church.

HOW TO PROTECT YOUR CHURCH

There are several things churches can do to protect themselves from such lawsuits. First, obtain liability insurance that
provides “clergy or counseling malpractice” coverage.

Second, develop a written form to be signed by every person coming to a church staff member for counseling. It should be clearly
stated that the church is not providing psychological or psychiatric counseling, rather that counseling is spiritual in nature. The statement should cite the verse that Christians should refrain from suing each other, and that all counseling is undertaken with the understanding that both sides agree to abide by that premise (see 1 Cor. 6:1-8).

Some larger churches have licensed professional counselors or even psychologists on staff. The counseling done by these professionals needs to be handled in accordance with the usual standards of the profession – especially if there is any kind of a fee charged for the counseling.

Finally, church staff members should keep good notes of every counseling session. Immediately after the session is over, a few
notes of the key points should be recorded. Strict confidentiality of these notes must be maintained.

It is a regrettable side effect of these types of suits that some churches may become reluctant to engage in the kind of counseling
that works best. Psychologists usually have the goal of teaching people to cope. Spiritual counseling usually has the goal of
helping people truly change and overcome problems. Churches need to continue to do what is right, but do what they can to protect themselves, as well.

RESTRICTIONS ON THE USE OF CHURCH PROPERTY

Zoning laws. When zoning laws were first introduced, they made a lot of sense. Coal-burning factories shouldn’t be located next to
schools or housing areas. Commercial areas should be separated from industrial factories and farms. But as cities and suburbs
develop, zoning laws are becoming more and more regulatory for purely financial rather than health and safety reasons.

One of the innocent victims of the second generation of zoning laws are churches. For instance, the Cornerstone Bible Church in
Hastings, Minnesota, found it virtually impossible to secure a permanent location. A new church, it quickly outgrew a home and
rental locations. Finally, they found an old theater in a downtown commercial zone, which the church wanted to purchase and renovate.The city zoning code kept the church out. Application was made to the city government, asking for an exception to the zoning code and this was denied. The church was forced to take the city to court. Initially the city won its case, but a federal appeals court recently sent the case back to the lower court for a new trial. (Incidentally, the church prevailed on free speech and
freedom of assembly grounds – not free exercise of religion.)

The real-life effect of zoning codes in most areas of the country is an artificial inflation of the cost of land that is properly zoned as a church. In many places, there is no land at all that churches have the right to occupy. In such circumstances, churches must apply for a special exception. Most zoning codes I have examined allow virtually every other kind of structure as a matter of right in at least one zone. The fact that churches must obtain zoning by special exception in every case adds tens of thousands of dollars in legal and engineering fees to every church structure.

In Fairfax County, Virginia, churches have found it nearly impossible to build an auditorium that seats more than 1,000
people. There are several churches that would become very large, and they own plenty of land – in one case over 40 acres. But the
county employs its zoning code fiercely and limits any church from getting too large.

Then the church finds out that there is a catch. A landmarked building cannot be altered without the consent of the government.
And landmark commissions are typically controlled by those committed to maintaining the status quo. Two churches recently
lost the fight to control their own buildings because of landmark laws. The First Covenant Church in Seattle took its case to the
U.S. Supreme Court, claiming that taking over control of the church building for purely artistic reasons violated the church’s right to religious freedom. They lost.

An Episcopal church in Manhattan lost a similar case in a federal appeals court. The building in question was a seven-story church office located next door to a historic church building. Both the church and the office building were designated as landmarks. The church wanted to tear down the old office building and build a new one, which would allow expansion of church programs and also provide millions of dollars in revenue through commercial office rentals. Purely artistic concerns overcame the church’s right to use its building in a way that would allow the expansion of church programs.

Taxation of churches. I see the day rapidly approaching when churches are going to become subject to taxation. The legal
groundwork has already been laid by the U.S. Supreme Court. We simply await the time for politicians desperate enough for money that they are willing to brave the outcries from churches.

In 1981, when I was a lobbyist in Washington State, a bill came before the legislature that was called a “technical corrections”
bill. It unanimously passed the House of Representatives without debate because it appeared to be nothing more than an attempt to fix a few discrepancies in the state tax laws.

A Christian attorney serving in the legislature started thumbing through the bill shortly after he’d joined all his colleagues in
approving it. He saw the word “church” buried deep in the legislation and called me to analyze the bill. After a thorough review, I was able to determine that deep in the “technical language” were hidden provisions that would cause over 80 percent of the churches in the state to lose their tax-exempt status.

As soon as that discovery was made, a full-scale alert was issued to hundreds of churches across the state. The outcry was so loud
and so vehement that the bill never even got a hearing in the state Senate and died without further action. A handful of bureaucrats came perilously close to beginning the process of taxing churches by a few hidden words in a long, complex piece of
legislation.

HOW TO PROTECT YOUR CHURCH

Zoning laws, landmark laws and laws that will tax churches are all the product of state and local government. The only good way to battle such laws is by preventive medicine. The only way the Washington tax-the-churches-law was defeated was by the combined efforts of two Christians, one serving in the legislature and one working as a lobbyist for Christian causes.

This is the same way you can provide the best legal atmosphere in your state and community. Encourage some of the people in your church to dedicate a portion of their time to serving in state and local government. Some churches I know wisely encourage some of their congregants to perform this kind of community service. These churches have the wisdom to relieve such people from other insignificant church responsibilities so they can properly balance a job and family as well. Godly individuals who are willing to serve in this capacity have the opportunity to do a lot of good – not just for their own church, but for all churches in their
community.

Looking back at the case involving First Bible Church, I find that the first mistake they made was to advertise a church position in
a newspaper. Anti-discrimination laws that may not otherwise be applicable can be triggered if a job is advertised in the paper.

Second, the church failed to establish spiritual standards for the job. A church secretary is a key player in the ministry of a
church and needs to have spiritual qualifications in a written job description.

Despite these errors, the church should stick to the right course of action and refuse to hire Suzy if she is living with a man outside of wedlock. I believe that one of a number of Christian legal organizations would welcome the opportunity to defend a church for free in such a scenario.

(The above material appeared in the March/April 1993 issue of Ministries Today.)

Christian Information Network