The Pastor and the Law

THIS article is intended to present a brief discussion of the development of Anglo-American common and statutory law and to trace that development along those avenues of concern to the clergy in their professional responsibilities. It is particularly intended to explain a bit of the rationale of the law so that it might better be understood by persons not especially trained in it, and also to point out certain areas of danger for the pastor.

-a practicing attorney in Pasadena, California at the time this article was written


The beginnings of our law are found in the courts of common law of England after the conquest of the country by William the Conqueror in 1066. Those courts recognized the need of the distilled wisdom of their predecessors in resolving the entanglements resulting from human interrelationship, both commercial and personal. Commercial exchanges gave rise to a body of civil law. Personal relationships produced the need for what we call criminal and/or tort law.

We refer to the "body" of the law as the result of following the doctrine or principle that the decisions of the court should stand as precedents for future guidance. The problems presented to the courts for judgment are so varied and complex as to render any other method of determination hopelessly inadequate. Without the application of. that principle, known in the profession as "stare decisis," the decisions would soon become as confusing as the problems they were intended to resolve.

The church has always had a significant influence in government, including the development of the law, particularly the civil law. In England during the feudal system there were two branches of the court system, law and equity. The civil law courts were presided over by common law judges who were guided entirely by the doctrine of stare decisis. Their judgments were inflexible in civil matters. When a civil plaintiff or defendant had a plea or defense that did not fit neatly into one of the judge-made pigeonholes, he was without a remedy in the law court. His plea would be made to the king, who assigned the matter to his chancellor, who was, invariably, a clergyman. The activity of the chancellor be came known as the court of equity. A plea or defense that could not be recognized by the law court might be heard in equity, and if the equitable issue was raised in the law court after litigation commenced, the proceedings were stayed while the litigants repaired to the court of equity for decision oh that issue. The chancellor had superior jurisdiction and could render judgment of the entire matter or decide the equitable issue and return the case to the law court, as he chose to do.

Our law developed in a professedly Christian society and bears the imprint of Christian moral principles. The influence of the clergy in applying those principles to resolve interpersonal problems is clearly reflected in the manner in which judges temper their decrees according to the "equities" of a case.

Modern American Procedure

The distinction between law and equity has long since disappeared insofar as separate forums are used. In our American system there has been almost a complete merger of "law" and "equity." The only vestige of distinction is the right to a jury trial in "law" cases, which was never a right in "equity."

The concern of the pastor with the law, as need may appear in his pastoral relationship with the members of his congregation, is predominantly in the civil area. Unfortunately, criminal questions do arise at times, but apart from the pastor's emphasis on following the Christlike way of life, little can be done to prevent such occurrences.

We live in a period when society pleads for "law and order." But society looks in vain for "law and order" to legally constituted authority when the moral fabric of that society has degenerated to a mere form. When the personal integrity of large numbers of people composing the social body has disappeared, the law enforcement agencies, including the courts, are impotent to fill the gap. The remedy lies in an individual return to those concepts that produced a relatively stable social order.

Rationale of the Law

We are all familiar with the doctrine of the criminal law that, under our system of justice, the accused is presumed to be innocent until proved to be guilty beyond a reasonable doubt. We are not all so familiar with the parallel doctrine in the civil law that everyone is presumed to have acted in the utmost good faith. Before a challenged act or omission can be successfully questioned it must be shown that good faith was not present or that the conduct fell below acceptable standards for persons in the same or similar circumstances. And the burden of proof is on the person calling the conduct in question.

These presumptions are reasonable. In fact, they form the only basis from which society can proceed in an orderly fashion to resolve disputes between persons or, in the criminal area, between the people and the accused. Any other concept would endanger persons innocent of any wrong-doing. We would do well to bear these concepts in mind in our day-to-day personal activities, and we should emphasize them in our counsel to others.

Particular Areas of Concern

There are certain fields of law that are of special concern to the pastor because of his profession. He is called upon for counsel in matters of contract, creditor and debtor, family law, finance, and, perhaps, to a lesser degree in the law of torts. More often than not the matter comes to his attention only after possibility of prevention has disappeared and cure is the only remedy. It may be that the only remedy is through the court system, beyond the capability of the pastor. It is not my purpose here to do more than briefly touch upon those areas of law mentioned, and then only in the form of pointing out the pitfalls to be avoided.

Contracts. The pastor's interest in the law of contracts will be largely restricted to trans actions between his church as an entity and third persons. It may be in the purchase of a site for a church or school. It may be in relation to the purchase or sale of supplies or material or in the employment of individuals to serve the church or school in some capacity for compensation. Care should be taken that the church does not become obligated inadvertently.

The traditional elements of a contract are "offer," "acceptance," and "consideration," and no enforceable rights appear until all three are present. The courts of equity, how ever, have developed substitutes for the traditional elements, particularly that of "consideration." One of the parties, unintentionally, may find himself bound to a contract merely because the other relied, to his detriment, on representations made.

In this area a clear record, in writing, of everything that passed in the negotiating process is a vital necessity. A good rule is to mean exactly what you say and say exactly what you mean, in writing. A clear, complete, and exact record of the minutes of the meetings of your church or school board is of great importance. A church clerk or school board secretary who is fluent and precise in the use of language and who does not shrink from giving a recital, not alone of the final action taken at a meeting but of the discussion that preceded it, is an invaluable asset.

Debtor-Creditor. In the area of debtor-creditor relationships the pastor has concern both as leader of his church flock in matters of their corporate interest and as a counselor of his members, individually and collectively. The body of law dealing with debtor-creditor problems is a segment of the larger body of contract law. An agreement under which one becomes indebted to another is an enforce able contract if all the elements of a contract are present.

A common mistake in this area is for one to conclude that, in the case of a written contract, an oral agreement between the parties has been reached that modifies the terms of the writing. A defense on that ground often fails because of the presumption that the writing is an expression of the entire agreement. The evidence of an oral agreement might be inadmissible. This point is important for both the creditor and the debtor. As in all important agreements under which benefits are expected or obligations are incurred, a full expression in writing is essential.

It should not be overlooked that oral agreements create enforceable rights and obligations. They create vexing disputes for the obvious reason that the testimony is invariably in conflict and the truth is hidden somewhere beneath it.

From the creditors' position caution should be exercised that rights are not lost through inattention. In California the statute of limitations on an oral contract is one year; that on a written contract is four years. If no payment is made (of either interest or principal) and no other act is performed that would re new the obligation or extend the period an action to recover is barred. The debt, how ever, is not extinguished by the statute, but only the right to enforce it. The moral obligation remains, but in most cases it is of little comfort to the creditor.

The debtor should be impressed that, if he is not already aware of it, the good name of the church is at stake if the relationship is between a member and a nonmember and harmony between believers is disturbed when it is between members. The counsel of Scripture to ow.e no man anything is worthy of great respect.

Domestic Relations. The breakup of a church member's home is a tragedy and a problem of great difficulty for the pastor. The widespread collapse of moral standards is both a cause and a reflection of domestic conditions. In this field the law is unable, generally, to bring any relief except to dissolve the marital relationship and separate the disputants. Indeed, the law, through the legislature, has confessed its impotence by making dissolution a matter of little moment. The courts, despite the valiant efforts of some high-minded individuals, have generally limited their interest to settlement of disputes over property and custody of children. Preservation of the home is given but little more than lip service. The church, which gave rise to the courts of equity in the interest of moral as opposed to strictly legal values, has now become the sole barrier separating society from total disintegration of the marriage institution. And the church, unfortunately, has largely abdicated its responsibility in the face of formidable odds mostly resulting from its own neglect.

A pastor can be given no help from the legal profession in his effort to prevent dis solution. The profession can only point out the dangers that should be noticed and cautions that should be observed.

Tort Law. There is a large body of law entitled the law of torts. A tort is a civil wrong as compared to a crime in the field of criminal law. A tort is an unprivileged act or omission that results in damage to another. The remedy is an award of money for dam ages suffered. An award of damages, in the law of torts, can be either or both compensation for actual loss (compensatory) and punishment for intentional wrongdoing (punitive).

Torts of which the pastor must be particularly aware are those of invasion of privacy and character defamation. The work of the pastor necessarily involves him in the sensitive area of personal matters that are usually kept secret from all others not directly concerned. The confidence thus bestowed must be respected and the information carefully guarded. The consequences of failure to do so could be disastrous both to the employing organization and to the pastor individually.

Persons of experience have learned to respect the axiom that there are at least two sides to every question. A disclosure of sensitive information can be actionable, even though the party making it was convinced of its truth, and even though disclosure was not the primary object.

Circumstances arise when the pastor must communicate to a church or school board in formation that would otherwise be privileged. The standards of the church, at times, make it necessary to censure, disfellowship, or dismiss from employment persons whose conduct may be in violation of those standards. The standards of the church are often regarded as puritanical. They are not generally accepted. Juries may be unwilling to find in favor of the church or its representative when action is brought alleging defamation, even though no intention to defame is present.

As a precaution against litigation on this ground great care should be taken that in formation of a sensitive, personal nature be narrowly restricted to those only whose decision is essential, who have a right to know, and who can be depended upon that no further communication will be made.

Pastor-Parishioner Privilege. The term "privileged communication" is one of special meaning in the law of evidence. Public policy requires unhampered communication be tween persons in need of counseling or treatment and the professional who is regarded as qualified for the particular purpose. It would defeat that purpose if the information disclosed or the knowledge acquired in that process could be forced from the professional. Therefore, the relationship between the individual and the professional is said to be one of "privilege," and what would otherwise be admissible in evidence is excluded in respect of the privilege.

The pastor-parishioner relationship is one of those "privileged communications." The privilege, however, is that of the parishioner, not of the pastor. The pastor can assert the privilege only if disclosure would injure the parishioner. He cannot claim it for protection in an action against himself or in collateral matters unrelated to the interest of the parishioner. Death of the parishioner does not, necessarily, extinguish the privilege.

Stewardship by Will. Seventh-day Adventists hold, as a fundamental principle of faith, that the Christian is only a steward of his Master's goods, he is not the owner of them. The word steward is practically unknown in legal terminology. A word somewhat parallel in meaning expresses the idea in legal thought. That word is trustee and is defined by Webster as "one to whom property or funds have been legally entrusted to be administered for the benefit of another." The courts have said, "Every person is deemed to be a trustee to whom the business and interests of others are confided, and to whom the management of their affairs is entrusted."

A trustee is charged with the duty of returning to the trustor the rents, issues, and prof its of the trust. He is also charged with the duty of administration of the trust in such a way as to produce the greatest return (with reasonable regard for safety) to the trustor.

The trustor, in this concept, is the God of all. We are His trustees. The relationship between trustor and trustee is termed a fiduciary relationship and the trustee is also called a fiduciary.

Courts have said of fiduciaries that "the law requires the utmost good faith between them [trustor and trustee] in all their dealings because of the opportunity to take an unfair advantage by reason of the confidence reposed."

Seventh-day Adventists hold that these principles apply to all Christians in relation to all they possess time, talents, and material things, including money and other forms of property. We are charged with the wise dis position of means both during this life and as to what we must leave behind. It must all be devoted to the trustor's (God's) benefit. It must not be allowed to escape into the enemy's cause to be used for his purposes by his servants.

This high concept of duty is not generally shared by non-Seventh-day Adventist Christians and is abhorrent to non-Christians. To fulfill our fiduciary obligations we must risk the disfavor of those who do not share our convictions. This becomes an especially sensitive problem for Seventh-day Adventist parents in families where the children, or some of them, are not members of the church and may even be waiting to inherit benefits from the parents. What is the duty of the pastor in that situation and what precautions should be taken?

The pastor's duty includes that of instruction as to the members' "trusteeship." This instruction can be given from the pulpit. In addition he is often sought out for personal counseling regarding this problem. This writer does not propose to instruct as to what the counsel should be, but only to suggest cautions to be observed so as to avoid frustration of the members' purpose (assuming that purpose might offend the "natural objects" of the trustees' bounty) by a successful challenge that there was overreaching by the church or that undue influence was exerted. Courts are sympathetic to the claims of the "natural objects," especially if they are children or grandchildren. The courts reflect the general conviction that benefits flowing from an estate to charity, particularly to a church, should be minimal. This attitude, of course, conflicts with the Seventh-day Adventist conception of duty. Unfortunately, the issue will, in case of challenge, be resolved in a courtroom and probably by a person or persons who do not share Seventh-day Adventist concepts.

Great care should be taken to avoid the development of a plan of disposition (usually a will) under circumstances where it can be presumed that undue influence was exercised. The plan should be developed by the testator in counsel with himself alone or, even better, with the aid of wholly disinterested persons. And it should be reduced to writing under circumstances that eliminate a contention that the plan is not that of the testator.

An effective preventative measure is to be gin early. It is an error to leave will-making to the period of old age. If it is intended to return, at death, the means God has entrusted to one, that intention should have as long as possible a period of expression. Such a program will not only reduce the chances of a successful challenge after death but may condition the prospective contestants to an acceptance of the disposition.

Direct involvement by the pastor should be carefully avoided.


Except for the different attitudes toward strictly religious concepts peculiar to the Seventh-day Adventist faith, our system of justice resolves disputes along the lines of common sense. Indeed, the law is an attempt to give expression to common sense solutions to those disputes. The uninitiated seem to regard the ways of the law as mysterious and subject to maneuvering by clever manipulators. While it cannot be denied that instances of that kind have occurred, yet the law will serve man's needs if we will let it. No better rule than the golden one has been developed, not only to prevent disputes from arising but to resolve them afterward.

Ministry reserves the right to approve, disapprove, and delete comments at our discretion and will not be able to respond to inquiries about these comments. Please ensure that your words are respectful, courteous, and relevant.

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-a practicing attorney in Pasadena, California at the time this article was written

November 1973

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