Are Your Church’s Governing Documents Ready for a Post-DOMA World?

One of the more interesting discoveries I made when researching Baptist polity a few years ago was the lost practice of “recognition councils.” Most Baptists are familiar with ordination councils, in which a local church calls together a group of elders and messengers from like-minded area churches to examine an aspiring minister’s fitness for ministry, and thereafter to advise the church either to pursue ordination, to delay ordination until the examinee is more fit for the ministry, or to deny ordination entirely. Recognition councils occur when a new assembly calls together a group of elders from like-minded area churches to examine its governing documents, and thereafter to advise the assembly to pursue chartering, to delay chartering until its documents are in order, or even to abandon entirely its plan for a new church.

Typically, recognition councils examined a prospective church’s constitution and by-laws, doctrinal statement, and covenant. But there are a great many other documents that may also be subjected to examination: mission statements, philosophies of ministry, employee job descriptions, teacher policies, nursery policies, facilities-usage policies, etc. What I’d like to suggest in this post is that the lost practice of recognition councils be formally revived, or, at the very least, that churches informally pool their collective minds to assist one another in creating ecclesiastical documents that are orthodox, orthoprax, and in our litigious society, as litigation-proof as is possible.

Whether the recent flurry of legal activity relative to homosexual marriage reflects a temporary agitation or presages a wave of serious new concerns, it offers a good occasion to remind churches to have careful and clearly written policies regarding the commercial use of church facilities and personnel for weddings, funerals, and other civil functions. Specifically, churches should:

• Determine the relationship of the church’s mission to their facilities-usage policy. The safest posture for a church/minister is to disengage entirely from marriage as a strictly civil institution (this sounds startling because Christianity has for many centuries viewed marriage as both a civil and an ecclesiastical function, but this has by no means always been the case). Few churches will countenance this tight of a position, so the next safest posture is to limit the use of the church’s officers and facilities to church members who are in good standing. Some churches argue, however, that a facilities-usage policy should accommodate in its scope the greater mission of the church (1) to minister broadly to the church’s denominational or Christian family and/or (2) to express goodwill to the unbelieving community. As a consequence, churches often become quasi-commercial dispensers of marriage and other civil services. By adding this secular/commercial element to the church’s mission, the church becomes exponentially more susceptible to litigation. A church might view this as an acceptable or even a necessary risk, but it is a risk, and churches that take the risk should be especially vigilant in creating documents that minimize the risk of litigation.

• Document publicly the details of your church’s discrimination policy for weddings and other civil services. That’s right: your discrimination policy. You might not call it a discrimination policy, but that’s what it is, and the legal community sees it as such. If you restrict building usage and marriage services to members, document this explicitly. If you restrict building usage and marriage services to Christians, document this explicitly. If you restrict building usage and marriage services to heterosexual couples, document this explicitly. If you restrict building usage and marriage services to couples who will use traditional music, abide by dress restrictions, and won’t dance or drink at the reception, document this explicitly. Susie has been planning this wedding since she was six years old, and if the wedding is ruined by an unwritten policy unearthed three days before the wedding, it just might trigger a lawsuit. Of course, publicly documenting your discrimination policy may not be enough. It is possible that your discrimination policy itself could be found unlawful even if you think of every detail. But documentation will always help.
• Implement your facilities-usage policy consistently. If your policy restricts building usage for weddings to church-members, don’t make an exception for Deacon Joe’s favorite niece who is like a daughter to him but is part of house church that doesn’t have a building. If your policy excludes non-Baptists, don’t make an exception for the worship leader’s daughter who grew up Baptist, but later became a member of a non-denominational community church and hasn’t been to church at all for 18 months. And so forth. If your church has a carefully-crafted policy but enforces it arbitrarily, the legal community will not be sympathetic when the lawsuit comes.

Finally, get some help. Whether your church calls for a recognition council of seasoned pastors who have gone through the rigors of this process or whether you hire a church-law attorney, make sure that you’ve done things right. While I would like to think that the events of last week are a proverbial tempest in a teapot, it is at least possible that your church is more vulnerable today than it was previously. Don’t neglect to address this concern if your church is at risk.