Part II: The Importance of Church Governing Documents

In Part I of this series, we discussed church polity and governance as a framework for understanding legal issues associated with church litigation. In this installment, we will discuss how the governing documents of a church are often critical to both creating and resolving legal disputes.

Governing Documents and 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.

Stay Tuned

In Part III, we will discuss litigation arising from schisms and church property disputes. In Part IV, we will address preventing liability for defamation and other claims resulting from church discipline. In Part V, we will discuss constitutional principles that restrict courts from being able to decide certain church disputes. And finally, in Part VI, we will discuss conciliation agreements and other practical steps that churches and leaders can take to prevent conflicts and keep church disputes from spilling over into courts.

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¹ 2 Peter 3:16

Featured Image by Rebecca Sidebotham.