Having statutes with apparently mandatory organizational provisions directed at religious organizations is problematic for the reasons Doug and the other signatories of the Connecticut letter mention. There are subtler but none the less troubling issues if a state says that a religious organization can, if it wishes to incorporate, use the generic nonprofit corporation law, without providing ample "opt-out" provisions for those aspects of the normal corporate structure that conflict with the religion's tenets. By and large, this isn't an issue when the statute allows the charter or bylaws to override statutory defaults, since an individual church can implement any changes in organization later mandated by the church's denomination without resort to any public body. Where such opt-out is lacking, though, there might be a problem of unconstitutional conditions, since the benefits of limited liability and perpetual existence have long since ceased to be discretionary with the state just by virtue of its issuing a corporate charter. When Madison vetoed the Arlington church's charter, that wasn't the case--corporations had to be chartered by special act of the legislature.
It seems to me that income tax exemption, whether federal or state, is a different issue entirely. Exemptions, at least at the federal level (many states simply rubber-stamp the federal exemption), are not entirely ministerial for the general run of nonprofit organizations (and there's no requirement that the organization be incorporated). It seems that the only mandatory provisions noted on Form 1023 regarding organizational structure require a statement of exempt purpose and a commitment to using the organization's assets solely for exempt purposes on dissolution. I'm not aware of cases where these requirements have been challenged by anyone on religious grounds. I'm also not sure whether the organization would have to satisfy the same "non-inurement" tests that, say, an educational or civic organization would; if so, these might provide grounds for religious objection. On Thu, Mar 12, 2009 at 10:56 AM, Friedman, Howard M. < hfri...@utnet.utoledo.edu> wrote: > Probably the earliest development of the corporate form in Roman law and > English law was the "corporation sole" that permitted property to pass from > one bishop to the next when the bishop died. This avoided the inheritance > problems that would be present if title were held in the personal name of > the bishop. Some of the same issues would likely arise if religious > entities today tried to operate in non-corporate form. Beyond this, do we > really want clergy holding property, often purchased with funds from their > congregants, in their own names with the potential for abuse that this could > pose? Also, to the extent that religious corporation statutes impose greater > restrictions on incorporated churches than are imposed on other > incorporated non-profits and charities, isn't there an equal protection > problem? > > Howard Friedman > > ------------------------------ > *From:* religionlaw-boun...@lists.ucla.edu on behalf of hamilto...@aol.com > *Sent:* Wed 3/11/2009 3:57 PM > *To:* religionlaw@lists.ucla.edu > *Subject:* Re: NY Religious Corporations Law > > 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 > > > _______________________________________________ > 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. > -- Vance R. Koven Boston, MA USA vrko...@world.std.com
_______________________________________________ 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.
