Should Incorporation of Churches/Denominations Be Permitted in WV?
Reponsum ad propositum dubium
(6 October 2022; addendum added 12 November 2022)

Dubium: Whether we should support amendment of the Constitution of West Virginia to permit the incorporation of churches.
Responsum: This is a matter of civil prudence.

Amending the WV Constitution?

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 prohibited permitted.
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


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, that

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.

What does this mean for the congregations of the WV-WMD Synod?

If the amendment passes, geography matters.

Maryland Congregations

For our Maryland congregations, nothing. Maryland already permits the incorporation of churches, and all the congregations in Maryland that have asked about this are incorporated. There might be some that are not, but I am not aware of any.

Virginia Congregation

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.

West Virginia Congregations

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.

What does this mean for the WV-WMD Synod?

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 new reality.

Synodical Advice for West Virginian Congregations and voters?

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


On 8 November 2022, West Virginian voters defeated Amendment 3, "Incorporation of Churches or Religious Denominations Amendment," 209,787-251,797. Though Art. 6, §47, of the Constitution of West Virginia forbids the incorporation of churches, the State of West Virginia has, in fact, been incorporating churches for an unknown period of time—a query sent to the Secretary of State in 2020 on these matters never received a response. If the state is going to incoporate churches, despite the constitution prohibiting it, and a congregation wants to incorporate, it is clearly free to do so from a civil perspective. I do not think it likely that Art. 6, §47, will be overturned. In Falwell v. Miller, Falwell attempted to incorporate in Virginia but was denied. If a church attempts to incorporate in West Virginia, past practice suggests that it will not be denied (assuming its papers are in order). Consequently, it is hard to imagine someone having standing to bring suit.

This does leave the tricky question related to provision C1.11 of The Model Constitution for Congregations of the Evangelical Lutheran Church in America. If a West Virginian congregation has this provision in its constitution, does it have to incorporate? Under the most commonly used parliamentary authority, Robert's Rules of Order Newly Revised, the laws of the state trump subordinate documents like organizational constitutions. A congregation prefering to follow Art. 6, §47,even if the state does not follow it, is well within its rights not to incorporate. On the other hand, a congregation wanting to incorporate could reasonably argue that the state has essentially nullified the law by refusing to follow it.

Again, this is a matter civil prudence. What your congregation does is up to your congregation in this matter. Weigh the economies and diseconomies of the various courses of action and take the course of action which is most advantageous. The one thing that defeat of the amendment ensures is that the synod will leave congregations unmolested with respect to incorporation for the foreseeable future.

*Cf., West Virginia Code, Chap. 35, Art. 1.
Philip Melanchthon, Commentarii in Primum, Secundum, Tertium & Quintum Ethicorum Philippi Melanchthonis. Eiusdem in Aristotelis aliquot librios Politicos Commentaria (Straßburg: Johann Albrecht, 1535), fol.[o6v]f. Translated as "And you see the folly. Would not everybody ridicule a theologian who wanted to practice medicine, as he would practice an art he did not know. Likewise the preachers are rightly ridiculed who want to govern states even though they have no expertise in statecraft," by Mads Langballe Jensen in A Humanist in Reformation Politics: Philipp Melanchthon on Political Philosophy and Natural Law (Leiden: Brill, 2020), pp. 62-63.

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