Resolving Conflicts Before They Start: Court Enforcement of Church Bylaws
By William R. Thetford, Esq. and H. Robert Showers, Esq.
In some ways, a successful business, nonprofit, or church share many similarities. All involve governing structures outlining the chain of command and governing documents outlining the specifics as to how the business/church/nonprofit will be operated, etc. In other ways, they are far different, specifically with respect to the purposes of the nonprofits and churches compared to for-profits, even for-profits owned and run by Christians. One of the biggest differences, which we will address in this article, is the way that Courts will intervene to interpret central documents of a business or secular nonprofit versus a church or religious nonprofit.
When a business or secular organization experiences a conflict, the Courts are often called upon to intervene. The courts will interpret charters, operating agreements, organizational documents, contracts, and bylaws and issue an order as to how the organization ought to resolve its conflict, enabling the organization to move forward. Not so in disputes involving churches and religious nonprofits.
What is the Ecclesiastical Abstention Doctrine?
Churches have long held a special place in the judicial system in the United States. The First Amendment states that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” An important outworking of the First Amendment and religious freedom in the United States is the Ecclesiastical Abstention Doctrine, which holds that civil courts will not dictate to a church what it believes or should believe about theological matters. Courts will not (and should not!) resolve conflicts within a church about what actions constitute sin, employment disputes over doctrinal issues, or which side a church should fall on a theological question.
Some questions involving a church are purely legal, with no theological overtones. Some examples will be financial or procedural issues or issues of employment of non- ministerial staff. Courts are competent and able to decide cases involving religious groups, as long as the case can be decided solely using “neutral principles of law.”
Ecclesiastical abstention is a good thing and protects churches from unwarranted intervention. However, sometimes the line between neutral principles of law and ecclesiastical questions can be made murky by imperfect humans in relationship to one another. It is not uncommon for churchgoers to bring their disputes before the civil courts. When there is conflict within a church or a church split, one side sometimes asks the court to intervene, interpret church governing documents, and enforce its view against an opposing side. Courts are rightfully hesitant to intervene in such matters, but occasionally they do.
Two recent North Carolina cases help illustrate the situations in which a court will and will not intervene in a church conflict.
In Johnson v. Antioch United Holy Church, Inc. the North Carolina Court of Appeals noted that
The First Amendment of the United States Constitution prohibits a civil court from becoming entangled in ecclesiastical matters. However, not every dispute involving church property implicates ecclesiastical matters. Thus, while circumscribing a court’s authority to resolve internal church disputes, the First Amendment does not provide religious organizations absolute immunity from civil liability.
Johnson v. Antioch United Holy Church, Inc., 214 N.C. App. 507, 510-11 (2011).
Thus, courts may resolve church-related disputes under “neutral principles of law” and the central question becomes: “whether resolution of the legal claim requires the court to interpret or weigh church doctrine.” Id.
More recently, the North Carolina courts were called upon to decide a conflict regarding a pastor’s authority, management of Church finances, amendment of the church bylaws, removal of church leadership, and other issues. In that case, the North Carolina Court of Appeals ruled that the civil courts had the authority to settle some of the questions, but not others.
First, the court noted that it was appropriate to interpret and rule on the church’s bylaws. The Court held “when the Church creates written bylaws that govern the use of church property, and other matters unrelated to church doctrine and religious practice, courts can review whether the Church and its members followed the procedural rules created in those bylaws.” Davis v. New Zion Baptist Church, 811 S.E.2d 725, 728 (N.C. Ct. App. 2018).
Accordingly, the Court of Appeals ruled the trial court was correct in voiding amendments to the church bylaws since the church did not follow the process laid out in the bylaws to amend them.
However, the Court of Appeals noted that a trial court was incorrect when it issued a mandatory injunction that “[a]n election to fill vacancies in the office of deacon and trustee shall be held at the next regular business meeting of the church” and “no later than ninety (90) days from the filing of this Order.” Id. Such an order was taking an improper “supervisory role over Church governance.” Id. Accordingly, that order of the trial court was reversed.
Finally, the Court of Appeals also held that the courts “could play no part in determining whether deacons and trustees properly were removed from their posts” when the bylaws did not set a process for doing so and no neutral principles of law would fill the gap. Id.
Implications for Church Disputes
These cases illustrate several important implications for churches.
- The best time to resolve a conflict is before it starts.
While it is impossible to prevent disagreements and differing opinions, you can set your church up for success by wisely considering beforehand what will happen when the church disagrees about important issues. Setting up good mechanisms in your church bylaws may avoid the need to suffer through litigation. In states that allow it, incorporating your church could also prove invaluable in resolving disputes and reducing the damage to church members if there is litigation.
- The way you write your bylaws is central to how a court will involve itself in your church.
Writing your bylaws in a clear manner and without involving theological issues, will likely allow your document to be treated by the court like any other document. This is can be either good or bad depending on the situation, so it is important to realize what you are doing. This means that you will be able to go to a judge to enforce these bylaws against a group that brings a suit against you. The converse is also true, that also means another group will be able to enforce them against you.
For matters that are indeed theological, which you do not want a civil court stepping in to decide for you (for instance, your statement of faith or whether you have a sincerely held religious belief about marriage), you should put in theological terms and make it unmistakable.
- Big disputes are not reserved for big churches.
The Johnson case cited above involved a church of only 40 members! There is no guarantee that a small church will be immune from conflict. We encourage churches, large and small, to consider how they will resolve conflict before it starts. If there is no process laid out ahead of time, it will be a mess to try to decide the conflict and the procedure for deciding the conflict at the same time. If you have fair rules for deciding conflict, you at least create the ability for both sides to resolve a legitimate conflict fairly.
Christian Dispute Resolution Clauses in Church Bylaws, Member Covenant or Employment Contracts
Christian Dispute Resolution is an important tool to consider in your church bylaws, employment documents or members covenant. Many churches have successfully used these to handle conflict.
“Christian Conciliation” represents the formal means of resolving disputes between Christians and its church without going to secular courts. Thus, Christian Conciliation encompasses informal and formal mediation and arbitration, as well as the use of church discipline, if appropriate.
One of our previous articles concentrated on formal Christian mediation and arbitration because these forms are most analogous to secular courts and will be upheld by the secular judiciary. The use of Christian Conciliation stems from Biblical mandates in Matthew 18: 15 – 18 where Jesus of Nazareth says, “If your brother sins against you, go and show him his fault, just between the two of you. If he listens to you, you have won your brother over. But if he will not listen, take one or two others along, so that ‘every matter may be established by the testimony of two or three witnesses.’ If he refuses to listen to them, tell it to the church; and if he refuses to listen even to the church, treat him as you would a pagan or tax collector.” (NIV) Then in 1 Corinthians 6:1 –8, Paul chastises the Corinthians for taking their disputes to the courts of law, saying, “If any of you has a dispute with another, dare he take it before the ungodly for judgment instead of before the saints? Do you not know that the saints will judge the world? And if you are to judge the world, are you not competent to judge trivial cases? Do you not know that we will judge angels? How much more the things of this life! Therefore, if you have disputes about such matters, appoint as judges even men of little account in the church! I say this to shame you. Is it possible that there is nobody among you wise enough to judge a dispute between believers? But instead, one brother goes to law against another – and this in front of unbelievers! The very fact that you have lawsuits among you means that you have been completely defeated already. Why not rather be wronged? Why not rather be cheated? Instead, you yourselves cheat and do wrong, and you do this to your brothers.” (NIV)
These passages give believers a wealth of insight in determining how God wishes them to resolve their conflicts. These passages shows us the Biblical process: (1) try to resolve the dispute simply by discussion between the parties (Matt. 18:15); (2) if this does not work, take others along in a mediation (Matt. 18:16) and; (3) if this does not work, appoint a judge from among the faithful in arbitration (1 Cor. 6:4); and/or the church discipline final step (Matt. 18:17). Christian Conciliation is thus a multi-step process for resolving disputes between believers.
If written correctly and agreed to in writing by the members and/or employees, these Christian Dispute Resolution provisions have been enforced regularly by both federal and state courts across the nation. Church and non-profit leaders can recognize above some principles to be followed in crafting governing documents and contracts which provide for disputes between Christian in a realm of Christian Conciliation. Some of these principles apply in general, and some principles specifically to employment contracts and church member covenants and by-laws as indicated below.
First, Christian Conciliation clauses may be used to settle a wide variety of conflicts, ranging from disputes over church leadership to building contracts, from employment agreements to business contracts. Second, always carefully and clearly explain the Christian Conciliation clause in a contract or governing documents including a member covenant. Make sure that the parties understand that any signing of the agreement may remove the right of seeking redress in a court. You may want to require that the Christian Conciliation clause be specially initialed to indicate that the parties fully understood what they were signing. Remember that courts will enforce these clauses, but the parties must have known that they were waiving their right to a civil court trial, otherwise the courts will not enforce these clauses. Informed consent is the key to having Christian Conciliation clauses upheld.
Third, consult with an attorney familiar with these types of agreements when drafting and using Christian Conciliation clauses. The legal requirements of arbitration agreements may vary from state to state, and often the requirements may be arbitrary and unpredictable. Obviously, Christian Dispute clauses will have a specific language to be enforceable. Consulting with an experienced lawyer will help to ensure that your contracts will be enforced in a court, and not thrown out because of a technicality.
Fourth, consider using one of the sample clauses in our longer Christian Conciliation article available for purchase. These clauses have been developed to help ensure that these clauses will be enforceable. If you use one of these, do not change the wording without the advice of a professional attorney, as changes in wording may render these clauses unenforceable. Also, if you use one of these clauses, note that they refer to the Rules of Procedure for Christian Conciliation (https://www.instituteforchristianconciliation.com/). If you use one of these clauses, or if you want these Rules to guide the mediation/arbitration process, then make sure that the other party to the contract has seen, read, and understood these Rules of Procedure. Also make sure that these Rules are readily available so that the parties to the contract may review the Rules at any time. Keep several copies on hand, and you may want to post the Rules at work or on your website for easy access. Fifth, when choosing arbitrators, make sure that you choose these arbitrators wisely. Take care that you know and trust the arbitrators, for courts may void arbitration holdings if any showing of partiality, fraud, or other misconduct on the part of the arbitrators is made. If you have trouble selecting arbitrators, either seek the aid of a professional attorney skilled in Christian arbitration, or contact Peacemaker Ministries at https://peacemaker.training/conflict-reconciliation/.
Finally, please take note that Christian Conciliation may not be able to cover all types of disputes. For example, Christian Conciliation may not be binding in criminal issues or child custody cases, because in those cases the court may intervene in the best interests of the child or state.
Sadly, we have seen churches torn apart by litigation and disputes regarding incorporation and bylaws questions that could have been avoided. If you need help incorporating your church or creating or amending church bylaws, look to legal counsel experienced in assisting churches. An investment now could dramatically pay off later. Please see related articles at our website www.simmsshowerslaw.com.
Disclaimer: This memorandum is provided for general information purposes only and is not a substitute for legal advice particular to your situation. No recipients of this memo should act or refrain from acting solely on the basis of this memorandum without seeking professional legal counsel. Simms Showers LLP expressly disclaims all liability relating to actions taken or not taken based solely on the content of this memorandum. Please contact Robert Showers at firstname.lastname@example.org or Will Thetford at email@example.com for legal advice that will meet your specific needs.
 Relatedly, under the Ministerial Exception, the civil government is barred from determining who a religious group’s ministers are or punishing a church or other religious group for hiring or firing its ministers. This means that churches are generally free from employment claims, especially discrimination complaints, from its ministers. For more information on the Ministerial Exception feel free to give us a call or stay tuned for our forthcoming newsletter article on the subject in July 2019.
 Christian Mediation and Arbitration: How to Keep Your Church or Non-Profit Out of Court