Incorporating, Operating, and Defending the Church
Churches need legal representation and counsel. We represent many churches and pastors in New York and in other states, and are sensitive to the needs of the various Christian communities. We also represent several multi-church bodies, which in some denominations are called dioceses, and in other denominations are called districts. For this reason we offer our legal services to Christian churches at preferred rates because of our own personal commitment to spreading the Gospel of our Lord Jesus Christ.
Most churches in New York are incorporated under the Religious Corporations Law. There are several dozen different types of religious corporations in New York, and the type to be used in a particular case depends on the form of the church’s authority structure and denominational considerations. A properly filed certificate of incorporation and a set of bylaws are the basic documents needed to incorporate a church in New York. Frequently for those documents to be valid there must be a vote of the church at a properly convened membership meeting with appropriate documentation generated.
If the incorporation is done properly and the church is run under certain legal guidelines, the church will not need to file any corporate income tax returns. Also contributions to the church are tax deductible under § 501(c)(3) of the Internal Revenue Code and also under New York State law, provided the church operates under the IRS rules for tax exempt organizations. We advise churches to make sure that they are operating properly so as to not jeopardize their tax exempt status.
Church buildings and property which are used for religious purposes are exempt from property and school taxes under state law, but this exemption is not automatic. It requires that an application for the exemption be filed showing not only church ownership, but also that the property is being used for exempt purposes. We handle applications for federal income tax exemptions, state sales tax exemptions, and local property and school tax exemptions for churches, and religious not-for-profit corporations.
Much of the representation of churches involves buying, selling, and mortgaging land for church buildings. There are specific statutes concerning church real estate holdings which the church lawyer must see are followed in selling church property. For example, New York law requires the approval of the local supreme court justice to sell or mortgage church real estate, and often the consent of the New York attorney general is required. We handle real estate matters generally, but are also familiar with the special requirements which churches have as they deal with their land and buildings.
In this age of lawsuits, churches, pastors, deacons, elders, and members of the church governing board are being sued as never before. There are things a church can do to minimize the risk of lawsuits. Some are easy, such as changes to the bylaws making certain people exempt from lawsuits under certain circumstances. Other actions to minimize legal liability are more complicated and require a legal check-up of the church activities and ways of doing things. We can advise to on how to comply with the requirements of New York’s Religious Corporations Law so as to maximize your chances of success if you are sued.
Regulation affects churches in many ways. Zoning laws affect church growth, but because of First Amendment constitutional rights, it is possible to prevail in the face of governmental opposition. Religious land use has a preferred place in our legal system. A federal statute guarantees that religious land uses are protected, but local zoning authorities sometimes need to be shown that the restrictions which they propose for church land use is in violation of the law. Evangelism efforts can be subject to restrictions, but good legal counsel can allow the church and its members to exercise their religious freedoms. When religious freedoms are challenged it is important to assert our rights, just as Paul the Apostle asserted his rights as a Roman citizen in order to preach to Gospel to the Roman world. Acts of the Apostles 25:10-11. When necessary, this means that litigation might be involved to protect the rights of religious people to exercise their right to worship and evangelize.
All churches have different rules which govern how they function. These rules vary greatly from one denomination to the next. We are familiar with many of the various ways that different kinds of churches govern themselves, and can advise the church in many denominations concerning issues of internal government and how the congregation relates to the rest of the church.
Some churches, such as the Episcopal Church, Eastern Orthodox Churches, and the Roman Catholic Church, have several layers of rules called canons which govern the relationships between the individual parish, the diocese, the national church, and the church around the world. Other denominations, such as Presbyterian Churches, have a Book of Order, which defines the relationships between the Session, the Presbytery, the Synod, and the General Assembly. Denominations such as the Methodists and Wesleyans have a Book of Discipline which deal with the interaction of the local church, the district, the general conference, and the international conference. Baptist Churches have bylaws for the local church which govern the relations with the various boards and councils across the broader church. The Christian and Missionary Alliance Church has a Manual containing constitutions and bylaws which delineate church authority and relationships. But by whatever names they are called we have handled many cases involving the applications of these various rules which allow a church to govern itself. We can advise you so as to avoid problems when controversy arises, and hopefully before it arises.
Sometimes there are disputes within a church. It is a scandal when members of a church sue one another, or sue their own church, but in this fallen world the church must be prepared for these things. Lawsuits are simply a fact of life in our society, and the church and its activities are not exempt from them. We can help you minimize the chance of such a lawsuit, and we can defend you if a lawsuit is filed.
We encourage the pastors and administrators of the churches we represent to call us if a legal issue arises. Many things can be handled with just a short phone call. Churches do best if they can head off a legal problem before it turns into a contentious dispute. If we can give good Biblical counsel and sound legal advise right up front, perhaps much grief can be avoided, and our Lord’s work be accomplished.
For more information on the importance of church bylaws, click here.