Ministry and the American Legal System

A useful volume on various legal questions affecting the clergy.

Mitchell A. Tyner, associate general counsel, General Conference of Seventhday Adventists.

As a pastor, are you obligated to reveal a confession of criminal conduct told you in confidence by a parishioner? Can the local zoning commission prevent your congregation from building a new sanctuary on the property given to it specifically for that purpose? Should you allow your custodian, who wishes to do so, to receive pay for only some of the hours he or she puts in maintaining the church building?

The local school board allows all other groups to rent the school auditorium, but when you want to use it for evangelistic meetings, they refuse. Can they legally do that? One of your members has a conflict between work schedule and Sabbath observance. Can that person be fired for refusing to work on Sabbath? You didn't check the background of the new schoolteacher, and you are now hearing disturbing reports of a sexual nature. Should you be concerned about the church's liability and your own for negligent hiring and supervision?

Richard Courser, a New Hampshire attorney specializing in civil litigation, has written a volume that will help you answer most of the foregoing questions. The author being a member of the Christian Legal Society and obviously a practicing Christian, Ministry readers will find his convictions and positions compatible. For example, Courser is evidently familiar with the idea that separation of church and state places us beyond regulation: "Lack of knowledge or naivete is sometimes compounded by the theologies of separation from the world or religious convictions that claim to transcend, but may in fact conflict with, civic obligations. Ministry effectiveness is impaired by unnecessary conflict with civil authorities and by the failure to order church business to minimize liability exposure and maximize use of the church's financial and organizational resources." Sound familiar?

Courser's work has three sections. Part 1 contains a thoroughgoing discussion of the interaction of the U.S. Constitution and religion. Part 2 focuses on the law as applied to religious entities: ecclesiastical organization, legal privileges and responsibilities of clergy, church liability for torts and contracts, the church as regulated employer, the church as property owner, and other regulatory matters such as copyright.

Part 3 addresses risk-management issues: how a church can and should conduct itself within the rules set out in part 2 and in doing so minimize its exposure to liability. Chapters in part 3 address the organization and governance of religious entities; the hiring, supervision, and firing of employees; the church as wage payer; compensation and taxes; purchasing, maintaining, and altering real property; accounting for funds; supervision of children; the pastoral counseling relation ship; litigation; and liability insurance.

Four caveats are in order. First, it must always be remembered that the law is a moving target. It changes daily. Second, this book is not a substitute for qualified legal counsel. As Courser rightly advises: "Always get qualified legal advice when dealing with specific problems." Third, this book deals with American law. It has only limited applicability anywhere else. Fourth, the book does not answer all the questions. This is not a criticism of the author; merely a reminder of the vastness of the subject matter. This volume is the best I've seen in its balance and completeness


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Mitchell A. Tyner, associate general counsel, General Conference of Seventhday Adventists.

September 1997

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