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Why does a church need a lawyer? Here are 20 reasons.

Well intentioned friends occasionally say something like:  “I’m glad you’re a lawyer for churches, but it’s too bad churches need lawyers.” I get it.  Many churches only engage lawyers in a crisis, so lawyers (and their fees) are associated with bad news. But lawyers do more than file lawsuits.  They can proactively help churches avoid legal issues.   Situations that could …

Forming a Missouri Nonprofit Corporation (Chapter 355).

Most nonprofits in Missouri today form as “Nonprofit Corporations” under Chapter 355. However, this is not the only kind of not-for-profit corporation recognized in Missouri; as we explain elsewhere, the “Benevolent Corporation” allowed in Chapter 352 might be a better fit. But if you are forming under Chapter 355, you will need to file Articles of Incorporation. The Secretary of …

Legal Issues for ‘House’ Churches.

Many Churches are expanding ministry in private homes. Some want to be a “house church.” Some want the community to spend more time together studying the Bible or holding “life groups” in their own homes. Like every church, these groups face legal issues. They need to incorporate to protect individual members from liability. They need to have clear procedures for …

ERLC/ADF publish resource for Churches on Sexual Orientation / Gender issues

We’ve had the pleasure of working with, and representing, both Alliance Defending Freedom and the Ethics and Religious Liberty Commission (ERLC) of the SBC. ADF and ERLC recently published a FREE resource, “Protecting Your Ministry – From Sexual Orientation/Gender Identity Lawsuits.” This important resource describes the preparation every church should be taking to be ready for the future. Lawsuits are …

Will your church’s insurance defend suits involving gay marriage or sexual orientation?

In the wake of the Supreme Court’s Obergefell decision, churches are worried about lawsuits. An increased risk of suit. This isn’t an irrational fear. I don’t think any Court will soon order ministers to perform a service that conflicts with the minister’s faith. But there is a shift in public opinion that makes it plausible in the future. The definition …

The NFL gave up its tax exemption. Should your church?

Yesterday, the National Football League announced that it would give up its tax exemption. NFL football is a profitable enterprise. Individual teams paid taxes, but the league office did not. It was a shared cost (or profit center) of the teams, not separate income to tax. The consensus is that such changes will cost the NFL $10 million each year. ...

Whitehead gives Missouri Bar Continuing Education seminar on non-profit law

Mr. Whitehead recently was a panelist on a two-hour, telephone-based CLE course offered by the Missouri Bar as part of its “How To Series.” Titled Representing and Advising Not-for-profit Corporations, was held on September 17, 2014; it will be replayed several times in the future. For more information, see the Missouri Bar’s website here.

Reed v. Town of Gilbert and false neutrality.

The Town of Gilbert, Arizona, does not like church signs on its streets. A few years ago, it passed a special limit on “Religious Assembly Temporary Directional Signs.” The Religious Assembly signs had to be smaller than “ideological” and “political” signs. And Religious Assembly signs could be displayed for less than a day, while political signs could be up indefinitely. …

Members may need to react to church embezzlement

Churches are not exempt from embezzlement or financial fraud. The “world’s largest megachurch” in Korea recently uncovered $12 million in fraud. The Center for the Study of Global Christianity estimates there will be $39 billion in church financial fraud during 2014. That is more than the $35 billion spent on foreign mission work! If embezzlement happens to your church, remember …

Orders in Missouri Baptist Foundation judgment (June 6, 2014)

Final Judgment Order on Plaintiff’s Application for attorney fees.

Judge orders Corporation to seat trustees, pay $5.5 mil to firm client.

A Circuit Judge has ordered the Missouri Baptist Foundation, which administers over $152 million in assets, to seat trustee/directors elected by the Missouri Baptist Convention (a client of this firm). The Court also awarded $5.5 million in fees and interest, due to the “special circumstances” surrounding the case. In 2001, the Foundation voted to sever ties with the Missouri Baptist …

Greece wrap-up.

The Supreme Court decided Town of Greece v. Galloway, 12-696 (scotusblog/slip. op.), today. Last year, we authored an “amicus” or “friend of the Court” brief concerning this case for the Ethics & Religious Liberty Commission of the Southern Baptist Convention. The ERLC is dedicated to engaging the culture with the gospel of Jesus Christ and speaking to issues in the …

Jonathan Whitehead reacts to Supreme Court’s Decision on Prayer at Government Meetings

For Immediate Release Contact: Jonathan Whitehead, 816.398.8305, jon@whiteheadlawllc.com Local Attorneys React to Supreme Court’s Decision on Prayer at Government Meetings LEE’S SUMMIT, Mo., May 5, 2014 Two local attorneys who filed a brief for the Southern Baptist Convention applauded the decision by the Supreme Court on Monday in the case of Town of Greece v. Galloway. The 5-4 decision written …

Should churches use Robert’s Rules?

There’s an old joke that some churches believe Robert’s Rules of Order is the third testament. But, I can tell you that the worst church fights happen when the rules seem unfair. When people lose a fair process, they are disappointed. But when people feel they’ve lost at an unfair process, they become angry. If the decision is important, it …

How to Write Church Bylaws

“Bylaws” can be confusing. The “bylaws” might be the controlling legal document for a church. Or it could be a second or third-level document. Our ‘model’ for governing documents is below; if you’d like efficient and affordable advice about drafting documents, please call us at 1.816.398.3805. First Layer – Articles The top layer of documents for an incorporated church in …

4 Points in Favor of the Ministerial Housing Allowance

I will blog a lot more about the decision in Freedom From Religion Foundation, Inc. v. Lew, (W.D. WI Nov. 22, 2013), which declared Section 107(2) of the Internal Revenue Code an unconstitutional establishment of religion. But here are four points lost in much of the coverage I am reading: Housing Allowance isn’t limited to ministers. Section 107(2) is a …

Gross income, deductions, and business expenses – the secular framework of the ministerial housing allowance.

Out of context, it might be jarring to see a tax break for “ministers of the gospel.” Certainly, it has irked the Freedom From Religion Foundation for years. But as we said in our earlier post, the ministerial “housing allowance” provision of 26 USC 107(2) isn’t really a deduction, or a special break for the religious. In fact, it’s unremarkable …

District Court Holds Ministerial Housing Allowance Tax Provision Unconstitutional

A district judge in the United States District Court for the Western District of Wisconsin held last week that the “ministerial housing allowance” provisions of the Internal Revenue Code (26 USC Sec. 107(2)) were an impermissible establishment of religion. (Order at Freedom From Religion Foundation here; coverage at ChristianityToday; Religion Clause Blog; SBC ERLC. I don’t think the ruling will …

What does history tell us about legislative prayer?

I had the privilege of attending the November 6 arguments in Town of Greece v. Galloway. It was a lively argument. But the key question, it seems, came just a few minutes into the presentation, when Justice Kennedy asked a question about the value of history. The case was about prayer before legislative meetings, which was affirmed in 1983’s Marsh …

Prune Your Church’s Governing Documents Carefully.

Are you thinking about making changes to your constitution or bylaws? These documents are frequently the most comprehensive written statement about how a church plans to work out the gospel in its local context. If you are drafting changes, I encourage you to sit down with a lawyer who understands the law, and your churches’ mission, and make them thoughtfully. …

Media coverage of ERLC amicus brief

Other media coverage of the amicus brief [friend-of-the-court brief] drafted by Jonathan R. Whitehead and Michael Whitehead for the Southern Baptist Convention’s Ethics & Religious Liberty Commission. Our ERLC amicus brief filed with the Supreme Court Friday, on religious liberty for public voluntary… http://t.co/YB9BJR9TU3 — Russell Moore (@drmoore) August 4, 2013 @DRMoore (twitter): Our ERLC amicus brief filed with the …

Baptist Press: Prayers at city meetings supported in ERLC brief

Baptist Press reports on the amicus brief drafted by Michael Whitehead and Jonathan Whitehead for the SBC’s Ethics and Religious Liberty Commission. WASHINGTON (BP) — The Southern Baptist Convention’s religious freedom entity has urged the Supreme Court to protect prayers before legislative meetings and thereby prevent judges from becoming theological referees….

Are you a new church or church plant? It’s time to talk to a lawyer.

Newborns benefit from a healthy start. That’s why pediatricians stress multiple infant checkups and well visits in those early years. Churches, too, benefit from frequent, early visits about legal issues. Research shows that a typical church plant requires *hundreds of thousands* of dollars of investment. You’re planning for that new church to make an impact that outlives its founders. A …

Was your Missouri church formed before 1969? It’s time to talk to a lawyer.

You should discuss your church bylaws with a lawyer if your church was formed before 1969. In 1969, Missouri’s Supreme Court abolished the common law doctrine of “charitable immunity.” Charitable immunity provided some extra protection to assets held by churches and other charities. Legislatures created various new protections, but they have specific requirements. If your documents were created before 1969, …

Does your church have trustees? It’s time to talk to a lawyer.

You should discuss your church bylaws with a lawyer if you have 1840s-style “trustees.” Some church constitutions name “trustees.” Few remember why they have them, other than to sign legal documents if the church tells them to do it. In most cases, they’re not necessary. Trustees were a clever way to solve a legal problem back in the ’40s — …

Is your corporation still alive? It’s time to talk to a lawyer.

You should discuss your church bylaws with a lawyer because: Your corporation is dead. Not so long ago, corporations typically had a fixed lifespan, like 50 or 75 years. Even today, many corporations have to file annual reports. In my practice, I’ve seen several churches that allowed their corporation to expire. When a corporation dissolves, it raises questions about actions …

Surprise! Your real bylaws are from the 1960s!

You should discuss your bylaws with a lawyer because: Surprise! Your real bylaws could be from the 1960s! Missouri nonprofit law has some unusual requirements about amending certain documents. If you didn’t meet those requirements, your new rules might not be the “real” rules that a court would apply. I’ve talked with churches that discovered their “real” bylaws were from …

Is a not-for-profit the same as a Benelovent Corporation in Missouri?

Q: Is a not-for-profit the same as a Benevolent Corporation in Missouri? A: No, they’re not always the same. Missouri law recognizes “Benevolent” corporations under Chapter 352 of Missouri’s Revised Statutes, and “Nonprofit” corporations under Chapter 355. The nomenclature becomes confusing, as the Benevolent and Nonprofit corporations are both types of “not-for-profit” corporations, and both can be recognized as tax …

ERLC Brief

You may download the brief directly from this link.

Court of Appeals upholds win for local congregation

The Missouri Court of Appeals, Western District, affirmed that Gashland Presbyterian Church, located in Kansas City, Missouri, did not create or consent to a trust over its property. Gashland had been sued by Heartland Presbytery, which claimed a trust on behalf of the Presbyterian Church (U.S.A.). According to the Court, “Gashland, a local Presbyterian congregation, terminated its affiliation with the …

What are the advantages to the various kinds of Missouri nonprofit?

Missouri has two kinds of “nonprofit” corporations. The older law, contained at Chapter 352, is the “benevolent corporation.” The newer law is the “Nonprofit Corporation Act” at Chapter 355. Is the newer law better? Not always. In some ways, Chapter 352 is more ideal for a group. There are fewer statutory restrictions. A Benevolent Corporation does not have to file …

What is a Missouri Benevolent Corporation?

Many people use the words “nonprofit,” “not for profit,” and “tax exempt” interchangeably. In Missouri, the legal usage is more exact. A Missouri benevolent corporation is a corporation formed under Chapter 352 of Missouri’s Revised Statutes. Benevolent Corporations are also referred to as “Pro Forma” corporations. Missouri has another kind of nonprofit corporation, addressed in Chapter 355. Chapter 355 is …

Only 3% of Missouri Benevolent Corporations have correctly updated charters.

A new analysis of Missouri Benevolent Corporations shows that, on average, these important charitable organizations last updated their charters more than 74 years ago. While over 11,000 benevolent corporations have been formed, only 2.8% have ever updated their original charter. Jonathan Whitehead, an attorney in Lee’s Summit, Missouri, conducted the analysis of publicly available information. “I noticed that my clients …

Constitutional changes for Missouri Charities

Are you the director or leader of a Missouri nonprofit that is thinking about changing its Constitution or bylaws? Make sure you know whether your church or charity is a Missouri Nonprofit Corporation, or a Missouri Benevolent Proforma Corporation! Missouri adopted its nonprofit corporation act in 1953, as Chapter 355 of Missouri’s statutes. Before then, the only way to form …

Church property disputes flare up

According to the Modesto Bee, the Episcopal Diocese of San Joaquin, California filed suit against a local congregation, seeking a declaration that the congregation’s property was actually controlled by the Diocese. This is just the latest in a series of property disputes between denominations and congregations. Episcopalian and Presbyterian congregations, in particular, have seen an increase in church property litigation.

Church dispute tests membership rules

Does your church have  expectations for memberships?   A church split in Alabama shows the importance of clear rules. At the New Mount Pleasant Baptist Church in Troy, Alabama, longtime deacons and the pastor disagreed about  finances.  The deacons of New Mount Pleasant apparently took the keys to the congregation and locked the pastor out.  According to the Troy Messenger, a …

Pastoral housing allowance under attack by Michael Newdow

Well-known atheist says government cannot grant deduction without religious entanglement.

2nd Circuit dismisses minister’s age discrimination suit

The Second Circuit dismissed an age discrimination suit by a minister against his denomination, congregation, and bishop — but only on the second go around. Hankins v.  NY Ann’l Conf. of the United Methodist Church, et al., 07-4556. The district court first dismissed under the constitutional “ministerial exception” to the ADEA; the Court of appeals reversed, holding that the Religious …

Are Missouri churches facing a new challenge?

An article in the Columbia Missourian says that a St. Joseph Circuit Judge has allowed a negligence claim against a church related to sexual abuse by a “lay pastor” against a child. The decision is complicated, because Missouri’s courts have been reluctant to hold churches liable for sexual abuse based on negligence, which does not necessarily require the church to …