A few, though not many, have asked about the proposed amendment
to the Constitution of West Virginia related to the
incorporation of churches and denominations that will be before
the voters of West Virginia on 8 November 2022. Here's a redline
version of the proposed amendment to Art. 6, §47:
Text of Section 47:
Incorporation of religious denominations
No charter of incorporation shall be granted to any church or religious denomination.Provisions may be made by general laws for securing the title to church property, and for the sale and transfer thereof, so that it shall be held, used, or transferred for the purposes of such church, or religious denomination. Provisions may also be made by general laws for the incorporation of churches or religious denominations.
For further information on the ballot and the process that has
brought this proposal to the voters of West Virginia, visit ballotpedia.org.
West Virginia is the last state in the union to constitutionally forbid the incorporation of churches. The West Virginian provision was "inherited" from Virginia, a carryover from secession. Though not identical, the provisions were similar with respect to the incorporation question, the Commonwealth of Virginia's provision reading (prior to amendment in 2006),
Art. IV, §14(20). Remitting the forfeiture of the charter of any private corporation, except upon the condition that such corporation shall thereafter hold its charter subject to the provisions of this Constitution and the laws passed in pursuance thereof. The General Assembly shall not grant a charter of incorporation to any church or religious denomination, but may secure the title to church property to an extent to be limited by law.
So, what happened to Virginia's provision? Falwell v. Miller
(2002). After an initial scuffle related to limits on the amount
of acreage a church could own (q.v., Falwell v. City of
Lynchburg (2002)), the leadership of Thomas Road
Baptist, Lynchburg, VA, pursued court action on the question of
incorporation. The introduction of U.S. District Judge Norman K.
Moon's opinion explains,
Plaintiffs Rev. Jerry Falwell and the Trustees of Thomas Road Baptist Church ("Thomas Road" or "the Church") have filed this civil rights and declaratory judgment action against Clinton Miller, in his official capacity as Chairman of the State Corporation Commission ("SCC") of the Commonwealth of Virginia. The Plaintiffs allege that because the SCC refuses to grant a corporate charter to the Church and its Trustees, Chairman Miller and the SCC have deprived them of their civil rights under the First and Fourteenth Amendments to the Constitution of the United States.(Falwell v. Miller (2002))
Judge Moon, who also ruled on Falwell v. City of Lynchburg,
of the United States District Court for the Western District of
Virginia, ruled, in part, in Falwell v. Miller,
The portion of § 14(20) of Article IV of the Constitution of Virginia which reads, "The General Assembly shall not grant a charter of incorporation to any church or religious denomination . . .," violates Plaintiffs' First Amendment rights to the free exercise of their religion made applicable to the States by the Fourteenth Amendment,...."(op. cit.)
Now, some of you know that churches have, in fact, been incorporating in the State of West Virginia for several years. I emailed West Virginia’s Secretary of State more than two years ago, inquiring as to the reason why incorporation was being permitted in contravention to the Constitution of West Virginia. I never received a reply. I can, however, speculate. I suspect the Secretary of State, noting the ruling in Falwell v. Miller, judged it prudent to avoid any possible challenge in court by simply ignoring the constitutional prohibition. The ruling of the United States District Court of the Western District of the Virginia has persuasive authority but not binding authority in courts with jurisdiction over West Virginia. Still, it is reasonable to suspect that the United States District Courts with jurisdiction over West Virginia would rule the same way. Of course, I could be completely wrong about this. I tried to get the facts, but, in the absence of a response from the office that knows the facts, I can only guess.
With all this in mind, it is understandable that the government of West Virginia seeks amendment of the constitution by striking a provision that is not being followed because it would likely be struck down should it be challenged in court.
Some argue that incorporation offers definite benefits to churches and denominations, but it should be noted that the West Virginia Code covers many matters related to churches and denominations as it does for other unincorporated entities.* Balancing these purported benefits with what already exists is a matter a church must judge for itself, preferably in consultation with legal counsel.
If the amendment passes, geography matters.
I need to check with our one congregation in Virginia to ascertain its incorporation status. I am embarrassed to admit that this has only now occurred to me.
For our congregations in West Virginia, whether you are required
to incorporate depends not upon the Constitution of West Virginia
but upon your congregational constitution. N.B., the
proposed amendment to the state constitution permits (it does not
require) incorporation. Your congregational constitution, however,
may require it and most likely does because The Model
Constitution for Congregations of the Evangelical Lutheran
Church in America (hereafter, “The Model Constitution”)
includes this provision,
C1.11. This congregation shall be incorporated under the laws of the State of _______________.
C1.11 has been around since the start of the ELCA. Though
non-required, most congregations adopted it as is (probably
without much thought). As long as the Secretary of State enforced
the prohibition on incorporation, The Model Constitution's
provision, even if included in unmodified form in the local West
Virginian congregation's constitution, was null and void. If the
state constitutional provision is amended, a West Virginian
congregation with an unmodified C1.11 will have to begin the
incorporation process, not because the state mandates it but
because the congregation constitution mandates it.
If your congregation's constitution does not require incorporation—I know of only one congregation in this category—your congregation has options. Consulting with appropriate legal counsel is probably a good idea.
Well, nothing as far as the synod's own incorporation is
concerned. We're already incorporated in the Commonwealth of
Pennsylvania—yep, there is a story behind that. That does not
mean, however, that the amendment has no impact upon the synod.
Even its mere proposal has already meant time spent on this
article—fortunately, most of the background research was done more
than two years ago in the course of helping a congregation with a
revision of its constitution. If adopted, it will certainly mean
some synodical resources going to help congregations navigate a
None, really. This is not a matter of theology. It is a matter of
"civil law," as Melanchthon uses the term, and matters of civil
law are matters of prudence in relationship to the Natural Law.
Since an undue burden on West Virginian congregations (and the
synod) is not readily discernible whether the proposition passes
or fails, I can make no particular recommendation. Furthermore,
even if the Constitution of West Virginia is amended by
passage of this proposition, each West Virginian congregation will
have the right vis-à-vis the state to take up the matter as it
sees fit, as the state will not require incorporation. Vis-à-vis
the congregation's on constitution, however, is a different
matter, but a congregation can amend its own constitution, if
necessary, to increase flexibility in this matter. Consequently, I
am content to let each congregation judge for itself what the
economies and diseconomies related to incorporation might be in
their respective cases.
Ac videte quae sit stultitia. Si quis theologus velit medicinam exercere nonne hunc omnes irriderent, quae artem quam non didicisset profiteretur. Ita iure irridentur conscionatores, qui volunt civitatis gubernare, cum nunquam in Republica versari sint. — Melanchthon†