How Church Polity Controls Church Disputes

Despite being supposedly places of peace and unity, churches and other religious bodies often experience division and conflict. Sometimes these ecclesiastical conflicts can escalate into litigation. Lawsuits commonly arise from various scenarios among the litigious faithful. Here are just a few examples:

• Members argue about who has voting rights in a congregation;
• Leaders dispute who has authority to make certain decisions for the church;
• Churches fight about joining or separating from a denomination;
• A terminated minister sues for breach of contract or wrongful termination;
• A former church member who was subjected to discipline for immoral conduct sues church leaders for defamation;

These are just examples of litigation that arise from within the church. This does not include the claims that can arise from outside the church. Internal church disputes can raise several crucial legal questions:

• What group of persons now controls the church and has decision-making power?
• Who owns the property? The congregation, the denomination, or someone else?
• Is this dispute something that a court of law can even resolve?

In this article, we will address the common sources of internal church disputes and discuss how churches, ministers, denominations, and other players can identify potential areas of controversy, prevent litigation, and help ensure favorable outcomes if litigation does arise. We begin by covering the concept of church polity. Because issues of church polity and governance often drive internal legal disputes in churches.

Prelates, Presbyteries, and Parishioners: Understanding Church Polity

Churches and denominations are not just spiritual bodies. They are also corporate entities whose existence is recognized by law. Virtually all religious bodies have some kind of organization, order, hierarchy, or governance. This is known as polity.

In Christianity, there are three distinct forms of polity among churches and denominations, as well as variations of these three. These are episcopal polity, presbyterian polity, and congregational polity. While these terms derive from the Christian tradition, they can also describe the polity of other religious traditions.

Top-Down: Episcopal Polity

The term “episcopal” comes from the Greek word “episkopos,” which has traditionally been translated as the word “bishop.” Episcopal polity has a diocesan hierarchy. The diocese, typically headed by a bishop or archbishop who oversees several congregations, is usually the record owner of the properties used by its parishes or churches. The diocese is also usually the employer of the priests, ministers, and other employees who work in and for its churches and ministries. The bishop or archbishop is typically the final authority in each diocese for making decisions that affect parishioners, employees, property, and transactions. This means that the diocese as a legal entity is often named as a party in lawsuits that arise from internal church disputes, even if the controversy involves a single church.

Examples of churches that have episcopal polity include Episcopalians, Anglicans, Orthodox, and Roman Catholics. Some Evangelical and Pentecostal denominations have a form of episcopal polity and may use alternative terms such as “district” and “superintendent” instead of “diocese” and “bishop.”

Grass Roots: Congregational Polity

Unlike the top-down hierarchy of episcopal polity, churches with congregational polity are independent and autonomous. There is no hierarchy beyond the local church. Each congregation governs its own affairs, owns its own property, employs its own ministers, and oversees its own transactions. While congregational churches may associate with other bodies of like-minded congregations or religious institutions such as seminaries or mission boards, each church makes decisions about its own affairs as a congregation. A good example of this is the Southern Baptist Convention.

In some churches with congregational polity, all the members of the congregation vote on church affairs. Other churches vest decision-making authority in a board of directors or elders. But the common principle is that the local church manages its own affairs, both ecclesiastical and legal, without interference or supervision from a higher organizational authority.

Checks and Balances: Presbyterian Polity

The term “presbyterian” also comes from a Greek word, “presbuteros” which means “elder,” traditionally a church leader who participates in a broader council of other church leaders. Presbyterian polity is mid-way between episcopal polity and congregational polity. Each congregation has leaders who govern the affairs of the local church, but who also participate in regional and/or national church bodies (sometimes called presbyteries, synods, assemblies, etc.) that oversee the member churches.

Churches with presbyterian polity can vary on several aspects of church governance. The denomination may own the church property directly, the local congregation may hold the property in trust for the denomination, or may own the property free and clear. The presbytery usually has some kind of appellate authority to review the doctrinal, ecclesiastical, and disciplinary issues that arise in local churches. It may or may not control local churches in matters such as selecting and ordaining ministers, buying or selling real estate, and other transactions.

Mixing It Up: Amalgamated Polity

Some churches and denominations mix elements of the three forms of polity described above, to make a unique system of church governance. Some congregations in the same denomination may differ in terms of the rights they have to own their own property, select their own ministers, or make other decisions. These variations might be based on whether a church is a daughter or plant congregation of a larger, more established church.

Why Does Church Polity Matter?

Church polity can have significant legal implications. It often determines whose name goes on a contract or a deed to property, who is the correct party to sue in a lawsuit, who is an employee and an employer, and who gets the final say on a given decision that affects legal rights or obligations. Church leaders should have a firm understanding of their church’s governance and polity to conduct their ministry in a way that avoids legal liability and church discipline.

The Importance of Church Governing Documents

What they Do

To see how they impact legal conflict, we must first understand what governing documents are and how they function. There are generally three main categories of governing documents: articles of incorporation, bylaws, and policies.

Every state requires nonprofit corporations (including churches) to have a corporate charter document. The name of this document can vary between states, but it is often the “articles of incorporation” (AOI). In most states, AOIs must include the name and address of the corporation, the corporation’s registered agent for service of process, a description of the corporation’s purposes, a statement of whether the corporation is controlled by members or directors, and a statement of how the corporation’s assets will be distributed upon dissolution. AOIs may sometimes include other provisions, depending on state law and the needs of the organization.

Bylaws govern a nonprofit organization. Among other things, bylaws provide how officers and directors are selected, what powers and responsibilities each officer/director has, and powers of decision-makers (i.e., unilateral action, board vote, membership vote, etc.).

Policies address an organization’s protocol or position for a particular issue. Often policies cover issues that might be subject to change or are discussed in great detail, and so are inappropriate for bylaws. An example might be a child protection policy or employee handbook. Policies are generally not legally binding in the same way that AOIs or bylaws are. For example, an employment decision will generally still be valid and binding if it doesn’t follow an employee handbook, but a board decision that did not follow the bylaws may be invalid.

The first two categories (articles of incorporation and bylaws) establish the governance and control of the church as a corporation. They establish which body of persons has authority to make which decisions (e.g., elders, deacons, trustees, members, etc.). Governing documents can establish the relationship between a local church and a denominational body and how much control a denomination can exercise over the local church. In terms we discussed in Part I, governing documents establish and outline the polity of a church.

Clarity is Charity

St. Peter once noted that St. Paul’s epistles were hard to understand and got distorted by the “ignorant and unstable.”¹ Unclear bylaws can likewise be exploited by disputing factions in a church context. Supporting anecdotes are innumerable:

• In a pastoral election, there is uncertainty about whether a sporadic attendee is a “member” entitled to vote;
• Disaffected members challenge the validity of a real estate purchase decision, claiming that the meeting did not have proper quorum; or
• A church decides to disaffiliate from a denomination and the denomination claims rights in the local church’s property.

The list goes on. In each of these situations, clear and precise governing documents can resolve problems. But vague or unspecific documents can be a source of escalated conflict, even litigation.

It is often said that good fences make good neighbors and good neighbors make good fences. The same is true of clarity and specificity in church governing documents. Bylaws may be vague because their drafters assume parishioners will either avoid conflict or work it out when it happens. But in reality, the loving thing to do is to have bylaws that anticipate areas of confusion and conflict and provide a clear framework for decision-making.

Bylaws of the Medes and Persians: Non-Amendable Provisions in Bylaws

“The grass withers and the flower fades, but these bylaws shall endure forever and shall not be amended.” You may have encountered bylaws or provisions of bylaws that say they are non-amendable. Often these restraints on amendment are designed to preserve a doctrinal statement or to anchor a church to affiliation with a denomination. These fetters of letters can also create much difficulty.

Suppose a church wants to clarify their bylaws but cannot do so because of a non-amend provision. What is a church to do? There may be approaches such as replacing (rather than amending) the bylaws, amending the AOIs to nullify the bylaws, or others. What options, if any, might be available for updating non-amendable bylaws depends on the specific laws in your state, the specific wording of your governing documents, and the specific circumstances. It is wise to consult with legal counsel on situations like this.

Church Property Litigation

A Repetitive Problem

Each time there is a rift in a major denomination, there is typically a wave of litigation hashing out competing claims to ownership of church property. Throughout the 20th century, successive waves of exits from the Presbyterian Church USA resulted in a handful breakaway denominations. From the 1980s into the early 2000s, a slew of dioceses and parishes separated from the Episcopal Church USA over doctrinal disagreements. In recent years, the United Methodist Church has split on theological issues, resulting in hundreds of congregations leaving that denomination.

Each of these splits was followed by a wave of court cases across several states as local congregations, and other church bodies fought for control over houses of worship and other church property. However, church property litigation does not always arise out of a denominational breakup, but also can come about from local disputes in small churches.

Polity vs. Paperwork: How Courts Decide Church Property Disputes

In some countries, civil courts can resolve church property disputes by deciding which group is more faithful to the doctrinal teachings the church was founded upon. However, this is not possible in the U.S. because the First Amendment of our Constitution forbids courts from favoring one religious group over another or from deciding issues of religious doctrine or practice.

American courts have developed different approaches to resolving church property disputes in a way that does not require judges to decide questions of religious teaching or practice. One approach that some states have adopted is called the “polity approach.” Under this approach, a court looks to whether the denominational structure of the relevant church is hierarchical. If it is, the court will defer to and enforce the decisions of the authorities of the denomination, e.g., bishop, presbytery, synod, assembly, etc.

Another approach adopted by several jurisdictions is known as the “neutral principles” approach. Under this approach, a court will look at all the relevant governing documents (deeds, bylaws, constitutions, etc.) and will apply neutral principles of law to determine whether the documents create a trust in favor of the denomination. If they do, the court will enforce the trust and award the property to the denomination. But if the elements of a trust are not present and there is no other valid property interest that can be enforced, the local congregation will keep the property.

Each of these approaches has its pros and cons. In general, states applying the polity approach tend to see more litigation outcomes in favor of denominations claiming rights in church property while states applying the neutral principles approach tend to favor the rights of local congregations. Under either approach, a church’s polity and its governing documents are key to resolving the dispute.

Proactive Prevention of Property Problems

Church property litigation can be messy and expensive. It often makes an already heated situation worse and results in greater disunity in a church or denomination. For these reasons, disputes about ownership of church property are best resolved out of court. This could be by Christian mediation, or even by following the Scriptural principle that it is better to be wronged than have unseemly fights between believers. Preventing problems is even better.

How can church property disputes be prevented? From the perspective of a local congregation seeking to preserve its property from takeover by a denomination, church leaders should consider the relevant law of their state and how courts in their state resolve church property disputes. In a polity approach state, a congregation may need to consider ways to avoid the denomination’s authority if a split is expected. In a neutral principles state, a church may need to consider whether the governing documents create a trust in favor of the denomination and how those documents might be amended.

From the perspective of a denominational body seeking to keep historic church buildings and valuable property in its fold, the issues are the same but with opposite concerns. In polity approach states, denominations want to ensure that their decisions and policies about church property are clear. In neutral principles jurisdictions, a denomination will want to add clear and enforceable language in deeds, bylaws, and other relevant documents that create trusts over the property in favor of the denomination.

By paying careful attention to the applicable law and the relevant documents, parties can understand their rights and protect their interests in the church property while also avoiding costly court battles.

Church Discipline Litigation

When church members act in ways that their church consider immoral, or go against its teaching, they may face church discipline, including dismissal or excommunication. Sometimes, these members take legal action against their former church, claiming defamation, invasion of privacy, and other causes of action.

As discussed earlier constitutional immunities may bar many lawsuits like these. However, these immunities do not always apply. Therefore, churches should take certain steps when disciplining members or employees and communicating with others about disciplinary decisions.

Check the Bylaws

As we have said, clear and effective governing documents are a way of preventing and resolving church disputes, including matters of discipline. Churches should ensure that disciplinary proceedings go “by the book” to avoid claims that leaders did not follow proper protocols or acted outside of their authority.

Also remember that churches are often legal corporations as well as spiritual bodies. And if a church is set up as a corporation with voting members, state law might give those members certain rights. Some states require that, without a provision in the bylaws governing membership, a corporation may not suspend or terminate someone’s membership without a sufficient vote of either the members or directors. This is another reason why it is important for churches to have good governing documents in place and to be aware of those documents and how they interact with state law.

Sign on the Dotted Line

Having a clear membership policy and a signed agreement can prevent litigation stemming from church discipline. These documents can establish members’ informed consent to the disciplinary standards and processes of the church, which reduces the risk of legal challenges.

Be Careful What You Share

Most lawsuits arising from church discipline involve claims for defamation and invasion of privacy. Defamation is a claim that a defendant published false information about the plaintiff that damaged the plaintiff’s reputation. Invasion of privacy claims say that a defendant publicized sensitive information about the plaintiff for which the plaintiff had a reasonable expectation of privacy.

A classic example could be a scenario where a church member is disciplined for sexual misconduct, and information about their sexual activities is made public to the church. To avoid these claims, churches should not disclose sensitive details about the member and only communicate facts that are absolutely true. Sharing intimate details or making speculative statements can increase the likelihood of lawsuits.

Communicate Only on a Need-to-Know Basis

Churches can defend against defamation and privacy claims by limiting communications to those with a legitimate interest. One defense that churches can claim is known as “qualified privilege” or QP. Although the elements of QP can vary from state to state, its essence is that certain persons or groups are allowed to communicate certain information to others who have an interest in knowing. QP as it is applied to church discipline may protect churches and leaders who share about a member only with other members of the church or church leaders.

Churches may want to communicate membership discipline decisions in limited ways, such as a members-only special meeting. In any event, churches should consult with legal counsel to advise on the criteria for QP in their state.

Don’t Chase Them on Their Way Out

Some claims related to church discipline that might otherwise have been barred could go forward if the disciplinary proceedings occurred after the member resigned from the church. For example, a court in Oklahoma upheld defamation and invasion of privacy claims against a church that communicated information about a former member’s sexual activities to other members after she had resigned her membership. While defenses would have applied if the communications were about a member of the church, the fact that she had already resigned her membership meant that these defenses did not apply. ¹This is an example of why churches should consider allowing members to leave quietly on their own rather than risking legal claims.

Off Limits Litigation

Now, we discuss constitutional principles that restrict courts from deciding certain church disputes. The First Amendment of the U.S. Constitution states that the government (including civil courts) may not establish religion or prohibit the free exercise of religion. Most state constitutions have similar provisions. A set of interrelated rules that restrains courts from deciding certain church-related disputes has grown from these principles.

The Church Autonomy Doctrine

The church autonomy doctrine (also known as the ecclesiastical abstention doctrine) flows from the First Amendment. This rule keeps civil courts from meddling in the internal affairs of churches. Courts and government bodies are not allowed to resolve religious or ecclesiastical questions. They cannot interfere in the internal governance of churches. This includes disputes that involve theological controversies, church discipline, ecclesiastical government/polity, or the moral standards expected of church members. The basic principle is that secular officials cannot decide religious disputes.

The church autonomy doctrine applies widely. It has controlled cases that include church property disputes, lawsuits arising from church discipline, and interpretation of church policies. Courts can only handle these types of cases if they can apply neutral principles of law and don’t intervene in internal church affairs. Church autonomy prevents many church-related claims from being litigated. It is a major constitutional protection.

The Ministerial Exception

A doctrine related to church autonomy, that applies specifically in the employment context, is known as the ministerial exception. This rule exempts churches and ministries from employment laws when it comes to hiring, firing, and managing their ministers. Usually, lawsuits filed by ministers related to their employment will be dismissed.

The scope of who is considered a minister has evolved. Before 2020, some courts used strict criteria, like requiring religious education and training and an official ministerial title. But in 2020, the U.S. Supreme Court expanded this definition. Its ruling focused on whether an employee performs religious functions. This means that the term “minister” is much broader than “clergy” and can include church employees who perform religious functions such as teaching, discipling, leading worship, and prayer.

The exact applications of the ministerial exception to claims are still being defined. It is certain that the ministerial exception bars claims against churches by ministers for discrimination and wrongful termination. But what about claims for breach of contract or defamation? What about wage-and-hour claims? Courts have gone different ways on these issues.

Why Do These Rules Matter to Churches?

These constitutional principles are important for churches as they determine what kinds of disputes can and cannot be resolved in court. Churches generally want to avoid litigation. To achieve this, churches should design policies and actions with a religious basis, which takes them outside the scope of judicial action.

With respect to the ministerial exception, ministries should clearly define and document employees who are ministers. They can do this through clear job descriptions and signed agreements that show that an employee performs religious functions.

However, sometimes churches want to be in court and want to enforce rights in court. For these issues, churches should work with legal counsel to ensure that the rights they want to be legally enforceable are not barred by church autonomy but can be decided by applying neutral principles of law.

Preventive Measures

Have Clear and Effective Governing Documents

As mentioned throughout this series, a church’s governing documents, such as the articles of incorporation and bylaws,  are vital for preventing and resolving disputes. These documents clarify who can vote, who is and is not a member, and who has decision-making authority. They can also define the relationship between a local church and a denominational body, including any rights to the church’s property. 

Churches should not wait for trouble to consult their governing documents. Rather, they should review and clarify their governing documents before disputes occur. They should anticipate conflicts that might occur and address them early.

Clarify Membership Rules

In Part IV, we spoke briefly about church membership agreements and how they might be used to prevent legal issues from church discipline. Church membership agreements outline what the church expect from members with respect to religious beliefs and moral conduct. They can also discuss what happens if there is an accusation of misconduct. They can detail how any disciplinary actions will be communicated to other members. Such agreements confirm that a member gave informed consent to these processes and communications. This can be a winning defense in a lawsuit for defamation or invasion of privacy.

Use Conciliation Agreements

An under-used tool in churches is the conciliation agreement. This agreement states that disputes that arise in a church will be resolved through faith-based conciliation instead of court. It requires people with grievances to go through a faith-based process to settle disputes rather than suing. This could include disagreements with the church, with other members, or different kinds of misconduct. 

Conciliation agreements can be legally binding and can be grounds for dismissing lawsuits that are covered by the agreement. Conciliation agreements can be part of a membership agreement or can stand alone. 

Conciliation agreements usually require all disputes in the church to be resolved through a mediation. A mediation involves a meeting of the parties to try and work out their differences and resolve the dispute, usually with a trained Christian mediator. Agreements can also require arbitration when a mediation fails. In arbitration, the conciliator will make a binding decision. Conciliation agreements help resolve church disputes in a religious context that aims for reconciliation, rather than costly and divisive litigation.

Consult with Knowledgeable Legal Counsel

In thinking through church governance and possible disputes, a good preventive measure is to consult with attorneys experienced in ministry law. This will help churches manage legal risks and prevent litigation. Waiting until a legal problem has already occurred is almost always more expensive and generally difficult than getting counsel ahead of time.

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¹ See Guinn v. Church of Christ, 775 P.2d 766 (Okla. 1989).

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Featured Image by Rebecca Sidebotham.