DOES INCORPORATION GIVE THE GOVERNMENT CONTROL OF YOUR CHURCH?
Q: Does Incorporation Give the Government Control of My Church?
Hypothetical Situation:
Pastor John of First Church is considering incorporating his 150-year-old church. However, some congregation members are concerned after reading online articles claiming that incorporation allows the government to control the church. So, does incorporation give the government control of First Church?
A: No, Incorporation Does Not Give the Government Control of First Church.
Understanding Incorporation:
Incorporation is the process through which a group of people form a corporation, a legal entity recognized as a person under the law. This allows the church to:
Enter into contracts and agreements more easily.
Provide for its governance and continuation.
Sue and be sued.
Hold property in its own name.
Additionally, incorporation provides protections for officers, directors, and church leaders against personal liability for their actions on behalf of the corporation.
Government Rights and Church Incorporation:
While the church applies for a certificate of incorporation from the state, this does not give the state any special rights or control over the church. Churches must adhere to federal, state, and local laws, whether incorporated or not. The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” However, the United States Supreme Court, in Employment Division v. Smith, ruled that churches are subject to neutral laws of general applicability.
This means that churches are subject to the same laws as any other entity or person as long as the law is neutral regarding religion and is applied to the public in general. For example:
A church cannot discriminate in hiring a staff secretary based on race or gender.
The church must pay stormwater drainage fees like other businesses.
The church must meet the same standards as other businesses to run a coffee shop on its property.
These neutral laws apply whether the church is incorporated or not.
Incorporation and Government Oversight:
Concerns about government interference in religious life are valid, but they have nothing to do with whether the church is incorporated. In fact, in Virginia, incorporation decreases government oversight of a local church. An unincorporated church in Virginia, referred to as an unincorporated association, has its property held by trustees approved by the local circuit court. These trustees must petition the court for approval to sell, encumber, or gift the property. Once the church is incorporated, such oversight and approval are no longer necessary. Thus, in Virginia, incorporation decreases the state's opportunity to control a local church.
Conclusion:
Incorporation does not give the government control of First Church. Instead, it provides legal and financial benefits while maintaining the church’s autonomy.
Additional Resources:
For information on how Reynolds Law Group, PLLC can assist your Church CLICK HERE.
