West Virginia’s Complicated Relationship with Church Incorporation
West Virginia’s current Constitution prohibits the State from allowing any church under its authority to incorporate, making it the last state not to allow church incorporation.
Article VI, Section 47 of the West Virginia Constitution explicitly states: “No charter of incorporation shall be granted to any church or religious denomination.”  Surprisingly to some, this provision was anything but a recent development.
In fact, West Virginia’s prohibition against church incorporation is a vestige of Virginia’s former constitutional prohibition, which the 2002 Falwell v. Miller decision finally eradicated.  By the end of 2006, Virginia’s legislative and constitutional changes had fully instituted church incorporation.
West Virginia is now the only state in the Union that prohibits church incorporation—but change is finally coming.
The effects of Virginia’s legal changes were not confined to the borders of Virginia; rather, Virginia’s legal revolution catalyzed sudden statutory changes in West Virginia.
Until 2003, West Virginia Code § 31E-3-301 stated the following:
(a) Corporations may be organized under this chapter for any lawful purpose, including any one or more of the following purposes: Charitable, benevolent, eleemosynary, educational, civic, patriotic, political, social, fraternal, literary, cultural, athletic, scientific, agricultural, horticultural, animal husbandry, and professional commercial, industrial or trade association.
(b) No charters or certificates of incorporation may be granted or issued to any church or religious denomination. 
The original § 31E-3-301 was a “safety net” undergirding the West Virginia Constitution’s prohibition of church incorporation. With both of these provisions in place, a church was entirely precluded from incorporating.
However, the West Virginia legislature swiftly amended § 31E-3-301 soon after Virginia’s Falwell decision.
The statute’s amended text reads as follows:
Corporations may be organized under this chapter for any lawful purpose, including any one or more of the following purposes: Charitable, benevolent, eleemosynary, educational, civic, patriotic, political, religious, social, fraternal, literary, cultural, athletic, scientific, agricultural, horticultural, animal husbandry, and professional commercial, industrial or trade association  (emphasis added).
The West Virginia legislature not only struck out the portion of the statute prohibiting incorporation, but also specifically inserted the word “religious” into the list of purposes for which an organization could incorporate. It was apparent from the amended statute that the West Virginia legislature had finally conformed to the national status quo.
However, this legislative shift entirely flouted the still-unaltered State Constitution. The statute’s new language was a subtle—but illegal—attempt to subvert the Constitution’s explicit prohibition of church incorporation.
The West Virginia Secretary of State apparently has sided with the legislature in ignoring the West Virginia Constitution.
Any West Virginia organization that wishes to incorporate must be authorized by the Secretary’s Office—and hundreds of churches since the Falwell decision have done so, despite the constitutional prohibition. 
From conversations with officials in the Secretary of State’s Business and Licensing Division, it is clear that West Virginia officials are—at best—oblivious to the State Constitution’s prohibition on church incorporation. Regardless, hundreds of West Virginia churches are now illegally incorporated, and if their status were ever challenged in court, they would likely lose.
However, a new constitutional development may yet resolve the disarray that is church incorporation in West Virginia. In April 2021, the West Virginia House and Senate adopted Senate Joint Resolution 4 (hereafter “the Amendment”), which would alter West Virginia Constitution Article VI, Section 47 to read as follows:
§ 47. Incorporation of religious denominations prohibited permitted.
No charter of incorporation shall be granted to any church or religious denomination. Provisions may be made by general laws for securing the title to church property, and for the sale and transfer thereof, so that it shall be held, used, or transferred for the purposes of such church or religious denomination. Provisions may also be made by general laws for the incorporation of churches or religious denominations. 
The Amendment—pending voter approval in November 2022—would resolve the bizarre conflict between the prohibition of Section 47 and the permissiveness of West Virginia Code § 31E-3-301. After the Constitutional amendment, churches in West Virginia will finally be able to incorporate with no legal qualms.
Almost without exception, churches will find it in their best interest to incorporate.
Incorporation’s many benefits include:
(1) Drastically limiting personal liability for pastors, trustees, and members;
(2) allowing churches to hold and transact in real property under their own names without the need for state-selected boards of trustees;
(3) facilitating churches’ banking transactions;
(4) allowing churches to select their own Boards of Directors; and
(5) lessening church-government entanglement.
For these reasons and more, any West Virginia church that has not yet incorporated should do so the moment after the 2022 Amendment strikes the prohibitive language from the West Virginia Constitution.
However, incorporation can be a complex process—and even more so when a state’s law has fundamentally transformed overnight. Churches seeking corporate status must carefully draft and review their Articles of Incorporation, Constitutions, and Bylaws.
Furthermore, churches must ensure that they retain a competent registered agent to handle future legal proceedings that the church might encounter. However, most pastors, trustees, church members, and even general attorneys will find themselves understandably incapable of navigating such matters effectively. Thus, only an attorney who is well-versed in church and non-profit law is a viable solution for a church that is seeking to wisely incorporate.
Many tax-exempt and liability risk management changes have occurred in the last 20 years. Every church must amend its Constitution and Bylaws to reflect governance changes, to conform to current church practice, and to reflect best practices and risk management. New church corporations should also include Christian dispute clauses, church discipline clauses, and various governance and tax-exempt provisions in their Constitutions and Bylaws. 
Legal expertise is also necessary to determine how the church’s lands and buildings will transfer to the new church corporation—or, in some cases, to a related property holding company.
Prudence may also require that all previously incorporated West Virginia churches update their status in light of the pending legal changes.
Simply put, any West Virginia church that incorporated before 2022 did so illegally, regardless of the Secretary of State’s protests. While churches need not fear penalties or other retaliation for their illicit incorporation, they would be wise to contact knowledgeable church and non-profit attorneys to help ensure a safe and final incorporation process after the 2022 Amendment is ratified.
This “re-incorporation” process would include substantial updates to church Constitutions and Bylaws, to ensure that churches are adequately protected for the future.
West Virginia churches have been unable to constitutionally incorporate since the State’s inception, but that may soon change for the better.
When the West Virginia Constitution is amended in November 2022 to reflect the will of the people, the State will finally fall in line with the Nation by explicitly allowing church incorporation. However, this legal shift will reveal a novel and daunting landscape for West Virginia churches to navigate, whether they are old or young, incorporated or unincorporated.
These churches and their leaders must combine Scriptural wisdom with common sense to determine the ideal course for their congregations—and church incorporation guided by a competent attorney is a meaningful step toward that end. Simms Showers employs a number of licensed West Virginia attorneys who are ready and able to help churches with incorporating or updating their governing documents, having successfully incorporated over 1,000 churches in the mid-Atlantic.
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- Va. Const. art. VI, § 47.
- Falwell v. Miller, 203 F. Supp. 2d 624 (W.D. Va. 2002).
- Va. Code § 31E-3-301 (amended 2003).
- Id.; H.D. 3108, 2003 Leg., Reg. Sess. (W. Va. 2003).
- The largest open database of companies in the world, opencorporates.com, https://opencorporates.com/companies/us_wv?q=church&utf8=%E2%9C%93, (filter “Jurisdiction” to “West Virginia,” then search for “church”).
- S.J. Res. 4, 2021 Leg., 85th Sess. (W. Va. 2021).
- See “The Power of Well-Drafted Church Bylaws” (contact Simms Showers LLP at (703) 771-4671 for more information).