The question here is whether you can satisfy the rule against judicial oversight of ecclesiology and permit the states to serve their legitimate interest in overseeing those that obtain corporation status. Religious entities need and/or want to be able to operate with the benefits of a corporation, including property ownership by an entity that surpasses the lives of any particular individuals and limited liability. Incorporation is voluntary, so why isn't there an argument that if they choose incorporation and its benefits, they have to agree to certain state oversight? While it is relatively easy to point to potential constituitonal difficulties in the laws as written, there are difficult issues getting the balance correct.
Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 -----Original Message----- From: Marc Stern <mst...@ajcongress.org> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Sent: Wed, 11 Mar 2009 2:23 pm Subject: RE: NY Religious Corporations Law Doug is right about the origins of NY's church incorporation law. There was a formal effort to change the whole structure about 20 years ago, but it got hung up mostly, as I recall, by the problem of making the transition from old law on which there were substantial reliance interests to a new format. Marc =0 D From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Wednesday, March 11, 2009 3:19 PM To: religionlaw@lists.ucla.edu Subject: NY Religious Corporations Law Perhaps these separate provisions were originally negotiated with leaders of each faith group, attempting to provide what each group wanted. Even so, there is a high likelihood they got it wrong, or that orther institutions within the same faith group wanted, or now want, something different. To the extent that these laws are imposing governance stuctures on religious organizations contrary to each organizations religious self-understanding, they are unconstitutional. Even if they got it right, and one of these statutory sections is exactly what a religious organization wants, there remains the problem that the religious organization cannot amend its governance rules without going back to the legislature, which is surely also unconstitutional. I take this to be the point of James Madison's Veto Message in 1811, vetoing a bill to incorporate the Episcopal Church in Alexandria (then part of DC). The message is often cited for the proposition that Madison thought incorporation of churches is unconsistitutional, but that is not what he said. He said: "The bill enacts into, and establishes by law, sundry rules and poceedings relative purely to the organization and polity of the church incorporated . . . so that no change could be made therein by the particular society, or by the gneral church of which it is a member, and whose authority it recognises. This particular church, therefore, would so far be a religious establishment by law; a legal force and sanction being given to certain articles in its constitution and administration." He also objected that the bill gave the church authority to provide for the poor, which he said was superfluous if it referred to pious charity, and making the church a legal agent for performnig a public duty if it were anything more. Quoting "Friedman, Howard M." <hfri...@utnet.utoledo.edu>: > To the extent that the entire NY Religious Corporations Law is > mandatory, as opposed to merely default provisions that apply in the > absence of contrary rules in the organization's charter or bylaws, I > think there are serious constitutional issues with very many of the > internal governance provisions. > > > > ************************************* > Howard M. Friedman > Disting. Univ. Professor Emeritus > University of Toledo College of Law > Toledo, OH 43606-3390 > Phone: (419) 530-2911, FAX (419) 530-4732 > E-mail: howard.fried...@utoledo.edu > ************************************* > > ________________________________ > > From: religionlaw-boun...@lists.ucla.edu > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of SAMUEL M. > KRIEGER > Sent: Wednesday, March 11, 2009 1:11 PM 0A> To: Law & Religion issues for Law Academics > Subject: Re: Connecticut bill > > > > Just for the sake of perspective on the proposed Connecticut > legislation, I would welcome any comments on Section 200 of the > New York Religious Corporations Law (codified in Article 10 > applicable to "Other Denominations" - including Jewish Congregations > ) compared to sub- sections (e) and (h) of the proposed Connecticut > legislation. > > > > ------ > > > > "§ 200. Control of trustees by corporate meetings; salaries of > ministers. > > > > A corporate meeting of an incorporated church, whose > trustees are elective as such, may give directions, not inconsistent > with law, as to the manner in which any of the temporal affairs of the > church shall be administered by the trustees thereof; and such > directions shall be followed by the trustees. The trustees of an > incorporated church to which this article is applicable, shall have no > power to settle or remove or fix the salary of the minister, or without > the consent of a corporate meeting, to incur debts beyond what is > necessary for the care of the property of the corporation; or to fix or > charge the time, nature or order of the public or social worship of such > church, except when such trustees are also the spiritual officers of > such church." (emphasis supplied) > -------------------- > > > > The provison has been in NY law in some form since 1813 and was > last amended in 1909 .. > > > > > > SAMUEL M. KRIEGER,ESQ. > Krieger & Prager LLP > 39 Broadway > New York, NY 10006 > > Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713 _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
