What Makes Churches Different?

Mark Goldfeder

“Church Law” is shorthand for the collaborative practice of the various types of law required to meet the legal needs of churches, pastors, and other religious organizations that arise both regularly and from time-to-time throughout their life as a legal entity. It can include everything from their pre-formation process all the way through any kind of expansions, mergers, or dissolutions. A church law practitioner represents the church by anticipating and preventing as many legal problems as possible before they arise, and dealing with the ones that simply could not be prevented.

Sometimes the practice of a church lawyer looks like the practice of any other general counsel attorney. That is because churches, like any other legal entity, enter into contracts, resolve employment disputes, and faithfully implement both their ecclesiastical policies and their secular bylaws. It is also true that while churches of all shapes and sizes tend to face the same types of problems and encounter the same kinds of challenges, as in any other field the larger a church grows, the larger the issues tend to become, and the more work they may require to stabilize. For example, with more people in the pews comes more staffing requirements, and with more staff comes more employment issues. The more facilities develop, the more ongoing risks and safety liabilities come into play, and the more activities and functions the church hosts and engages in, the more likely they are to come across issues ranging from safety and security to the mundane minutiae of intellectual property questions and concerns.

What ultimately separates churches from other nonprofits is the fact that unlike most nonprofits, the church is in reality an entity all of its own, that is both separate from and more than its legal form. A church as a religious organization actually has an existence that pre-dates and does not rely on its legal status to continue functioning; the church was a church before it was incorporated and was abound by extra-legal rules, and may still be a church that is bound by those rules even if the corporate form is dissolved. By way of contrast, most nonprofits only come into existence once their legal entity is officially established, and are born with only one set of governing rules, i.e., their bylaws. If the entity is dissolved, the nonprofit is entirely gone.

Part of what makes the entity formation of a church different is that because of the First Amendment and the protected status of religion, the church, along with its governing rules, exists on a protected legal plane even before it completes an application for official recognition. In that way, the entity formation process is designed only to give the church a body through which it may interact with the rest of the world, but in a very real sense the church already has a life and a soul of its own that the government did not give and cannot take back.

If your church or you as a pastor have legal questions and need to speak with a great church law attorney, please give us a call. We would love to hear from you.