Thursday, November 02, 2006
Church incorporation is on the ballot
Even if the law stays in the state constitution, it is still unconstitutional and unenforceable.
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From The Roanoke Times
More than 150 years after Virginia lawmakers barred churches from incorporating, voters will decide Tuesday whether to delete the prohibition from the state's constitution.
Businesses and nonreligious nonprofit organizations have long been able to incorporate, but churches' ability to do so is explicitly limited in the constitution, which states that the General Assembly cannot grant a corporate charter "to any church or religious denomination."
The prohibition was challenged in 2001 in a lawsuit by the Rev. Jerry Falwell and the trustees of his Thomas Road Baptist Church in Lynchburg, who wanted to be able to incorporate.
The church contended that the ban violated the U.S. Constitution. The American Civil Liberties Union of Virginia supported the lawsuit.
A U.S. District Court judge agreed in 2002 that the ban violated the First Amendment's guarantee of free exercise of religion. Virginia did not challenge Falwell's argument and complied with the judge's order to grant Thomas Road Baptist a corporate charter.
The benefits of incorporating include protecting individual church members and leaders from personal liability if a church is sued, said Mathew Staver, the newly named dean of Liberty University's School of Law and one of the attorneys representing Falwell.
Incorporated churches also can own property, enter contracts, file lawsuits and take out loans in their corporate name. "A church would want to incorporate for the same reason as any other organization," Staver said.
Ken Schrad, a spokesman for the Virginia State Corporation Commission, said that since the 2002 ruling, the state has incorporated any church that files for such status. About 300 churches have been incorporated in Virginia, he said.
If a majority of voters say no on ballot question 2, the ban on church incorporation would stay in the constitution but remain legally unenforceable, Staver said.
Carl Tobias, a constitutional scholar at the University of Richmond law school, said the ban was added in the 1851 revision of the state constitution. "It was not in the first constitution that Virginia adopted," he said.
Tobias said the ban reflected lawmakers' distaste for the idea that religion or churches would act like a business.
He said the prohibition also was meant to deprive government of a way of imposing restrictions on churches through its power to grant or withhold corporate status.
