Keeping churches out of the courtroom
by Mary Reichard
Posted 12/28/15, 12:05 pm
Churches are dealing with new legal challenges following the U.S. Supreme Court’s decision to legalize same-sex marriage nationwide. Pastors fear they’ll be sued for refusing to conduct wedding ceremonies, just as businesses already are facing fines for refusing to participate. Churches also face other legal challenges, including avoidable situations that lead to child abuse allegations. Attorney Richard Hammar, an expert on church law and taxation who serves as legal counsel for the Assemblies of God, talked with me about how churches can protect themselves from lawsuits in the coming year.
Let’s start with the issue that’s left many believers and churches worried—the redefinition of marriage by the Supreme Court in June. Are ministers going to be required to do same sex weddings? Well, I think there are a couple of issues for ministers. But it’s my opinion that ministers don’t need to be concerned about being required or compelled to perform any marriages contrary to their religious beliefs, and I base that on a number of considerations.
First, I think the First Amendment’s guarantee of religious freedom is the most robust when we’re talking about sacerdotal functions that ministers perform, such as marriage, baptism, communion, etc. This is the core of First Amendment protection. And to think that a government agency is going to be able to penalize a minister for refusing to perform a marriage in contravention of that person’s religious belief is just inconceivable.
Second, I think it’s interesting that on the eve of the Supreme Court’s recent decision there actually were 37 states that already recognized same sex marriage as legally valid. The interesting thing is that each one of these states had an explicit recognition in the statute or court decision recognizing same sex marriage that ministers were free to continue to perform or not perform marriage consistently with their religious beliefs. Unfortunately the Supreme Court in its ruling did not make a similar concession. I was hopeful that would be done, but it wasn’t.
You used the term “sacerdotal,” meaning related to the priesthood or ministry. But what about local laws, such as sexual orientation and gender identity anti-discrimination laws, called SOGI for short. Some say these are designed to force people into violating their consciences. Isn’t this an encroaching problem for churches? I think that is the greatest potential impact of the Supreme Court’s ruling, with respect to these public accommodation laws. There are thousands in this country at the city, municipal, county, and state level that prohibit all types of discrimination by places of public accommodation. This is where I think churches are vulnerable.
Churches that rent their facilities, even for marriages, to the broader community need to be careful here. Under most of these laws, churches are exempt because they’re not considered to be places of public accommodation—unless they’re renting their facility. To rent the facility, whether for other marriages, whether it’s the use of the property for any reason, then you really are crossing a line there. That’s where I think it’s possible—not inevitable, but possible—that the church under those circumstances would be viewed to be a place of public accommodation.
But this is a dynamic, evolving issue, and I see we’re taking snapshots rather than videos. What the law is today is going to be different tomorrow.
On another topic, you write that some ministries lost their tax-exempt status, something called inurement. Can you explain? That means none of the assets or resources of a tax-exempt organization such a church can benefit the private interests of what’s called an insider, which generally means a board member or relative of a board member. In these cases, ministries had done things like pay the pastor’s personal expenses or his monthly auto loan payments or let the pastor use a corporate credit card to purchase clothing, furniture, and personal items without any terms for repayment. They had no internal controls to ensure funds were used for exempt purposes. The pastors had free rein over the churches’ credit cards and could transfer funds to themselves with no documentation. They diverted thousands of dollars in payments to personal expenses, and on and on it goes.
In these three cases, those ministries lost their tax-exempt status. That has all kinds of ramifications, not the least of which is donors cannot deduct contributions they make to that ministry. So I think it’s very important for church leaders to take control over the finances of the church because they’re … the gatekeepers, the members of that board. Make sure that you understand and institute appropriate internal controls to protect and safeguard the church’s assets from this kind of behavior. One of the best ways to do that is to have an audit by an independent CPA firm. One of the most important components of an audit is a management letter in which the CPAs list the deficiencies in the internal controls, with recommendations on how to correct them. That’s worth the price of the audit.
Turning to another topic, you’ve written that child sexual abuse remains a top concern within churches. Where is the weak link in this area, as far as prevention? Well, I read every case decided by all courts in this country pertaining to religious organizations every year. It’s a massive amount of research. But I want to have that information because it’s powerful to read these cases, which average out to about 1,000 a month—12,000 a year. And I systematically categorize these cases, so I know the most common reasons churches are in court.
Now I can tell you that 19 of the last 20 years, the issue of child abuse was the No. 1 reason churches found themselves in court. In fact, it’s not even close. In 2014, the last year I’ve examined, it was 11.7 percent of all cases involving churches. No. 2 was personal injuries, at 7.2 percent. So as you can see—and this is true every year—there’s a substantial gulf between first and second place.
From a legal perspective, what can we do about this? Is there any good news we can derive from your research? There are very simple steps that a church can take to significantly reduce this risk. Every volunteer and paid staff member should fill out an application, go through an interview process, and submit references. And here I want to emphasize a very important point. I’m not talking about what most churches do—just receive references from unknown people often in different localities or different states. Those are worthless. The type of reference check I’m talking about is what I call an institutional reference, from an institution where this individual has worked in some capacity involving minors. For example, other churches, schools, coaching, teaching, mentoring. Where have you worked in any capacity having access to minors? Getting references from those institutions, two or three, that’s the gold standard. I think that’s the best thing that can be done to limit the risk to the church.
You’ve also looked into profiles of pedophiles that can be useful for churches. The FBI profile on pedophiles says their only adult friends tend to be other pedophiles. So having some unknown single male ask to work with children, after providing you with three references from people in different states that you don’t know, that is absolutely worthless. In fact, I think it’s worse than that. I think it’s absolutely dangerous.
Some people will not have worked with children before in any other capacity, and in those rare cases, I recommend you receive references from individuals from your congregation or other congregations with which you are familiar.
You’ve given us three steps to reduce the risk of child abuse in churches: application, personal interview, in depth, thorough reference checking. What else? What would be the next step? Now the fourth step in reducing risk is what I call the six-month rule. That we do not allow volunteers to work with minors in our church who have not been members for a minimum of six months. No. 5 is the two-adult rule—we never allow one minor to be alone with one adult.
Can you give us a specific situation where this rule would have helped? I’m familiar with a recent case where a youth pastor drove a girl in the youth group home. She was, I think, 15, and she claimed that he was sexually aggressive with her and assaulted her in the car before letting her out. He denied it, but it resulted in a criminal prosecution and a five-year prison sentence for that youth pastor, and $200,000 in legal fees. We don’t know if the charges were true. We don’t know if the charges were false.
They did find 2,000 text messages between the two over the previous month, which was corroborative evidence but not conclusive evidence. That case shows the importance, especially for youth pastors, of being very careful in their dealings with members of the opposite sex.
Warning bells should be going off. Anything else in the realm of risk reduction? Let me mention one other way that churches can reduce their risk, and that’s by doing criminal records checks. You can get these for $5 to $10 today, a national criminal database check, plus a national sex offender database check. Those are the two important components. And virtually every other youth-serving charity in your community is doing this, including the public schools. That’s the standard by which churches are going to be judged.
So the bottom line is, it’s the greatest risk churches face, but by following these six simple steps you can significantly reduce the liability to your church. In fact, as I read these cases, I’ve never seen a case where a church, where there is an incident of child molestation, if they’ve done these six things, I can't think of a case where a church was found liable.
Finally, can you comment from your perspective of years of experience in church law on what’s changed? What larger conclusion do you draw from these changes? Sometimes you hear people say church litigation is just exploding. That is not the case when you look at the facts. The number of cases involving religious organizations has remained constant for about the last 20 years. I think that’s good news. So we’re not living in an environment where church litigation is spiraling out of control. It’s not. It has leveled off at what you may say is a significant level.
I track the top 10 reasons churches are in court. And the good news is that by thorough, appropriate risk management, churches can significantly reduce their risk. As I often tell church leaders, you can’t eliminate risk, but you can manage it.
Listen to Mary Reichard’s complete interview with Richard Hammar on The World and Everything in It.