By Ronald E. Keener

Asking questions often can be a first means to resolving church conflicts, say two authors of a new book, Redeeming Church Conflicts: Turning Crisis into Compassion and Care (Baker Books, 2012). “We begin by helping leaders and members learn what it means to ask not just the right questions but the ‘best’ questions so that the path followed to redeem and resolve conflicts avoids the pitfalls generated by the pursuit of non-essential controversies,” say authors Tara Klena Barthel and David V. Edling.

“Too often people involved in church conflicts fail to recognize that until everyone is on the page concerning what issues are at stake efforts to bring about resolution are wasted,” they say in respond to questions on the book from Church Executive. “The best way to get everyone on the same page is through a careful crafting of the best questions that capture the heart of the real conflicts and not just collateral matters. With some instruction the church member can certainly do this and become a peacemaker contributing to the unity of their church.”

Barthel is a former attorney and director of the Institute for Christian Conciliation, a division of Peacemaker Ministries. She lives in Billings, MT and is a mediator, arbitrator and conflict church intervention team member. Edling was a director of Peacemaker Ministries, and living in Colorado Springs, CO, and is in private practice of Christian conciliation through his church’s reconciliation ministry (see sidebar).

What is it about churches that seem to engender conflict?

First, many people have a misunderstanding about the nature of the church. The church of Jesus Christ is not just another volunteer organization that can be joined or left like people join or leave their local gym. The word translated “church” in the New Testament is a compound word literally meaning “the called out” and “the gathered assembly.”

If more people recognized that the church is to be a place for God’s called people gathered together by him for his purposes they would likely be more careful both about joining and leaving.

Second, many people in the church don’t recognize that the church is composed of a wide range of differing levels of spiritual maturity, including those who may not even be actual believers regenerated by grace through faith.

Third, because we live in a very “loud” majority secular culture many people bring into the church concepts of governance and tolerance from their secular experiences that they believe are also appropriate in the church.

And, fourth, religious beliefs for many people go to the core of their personal identity and whenever those treasured beliefs and practices (even if inconsistent with the Scriptures) come under attack they respond with deep emotion and anger. All of these factors make churches places ripe for conflict.

You write that “leaders must lead” but when does that begin to look autocratic and nonproductive?

Whenever church leadership becomes anything but shepherd-leadership the authority granted by Christ to lead in the church is lost. True shepherd-leaders champion humility and all of the other spiritual character traits that qualify a person for a position of church leadership.

God’s Word condemns the “hired-hand” as a church leader as well as any who would prey on God’s eternal children. True leaders lead through the compelling nature of God’s Word being applied in a manner that people following intuitively know that it is Christ’s faithful under-shepherd promoting God’s agenda for the church and never his own.

Further, faithful church leaders know their leadership will not be productive whenever it strays from God’s model of gentle shepherding because it will not be based in his revealed truth. God’s under-shepherds are called to be examples of holiness so that those they lead will grow in their own holiness. Such models of holiness are never, of course, autocratic.

You write that “Christ enlists us as his co-laborers in the process of peacemaking.” But you say we are “saturated with worldly ideas of what personal relationships are to be,” that “church members don’t read or understand their Bibles,” and “many of us make our church conflicts worse.” How so?

Christians become meaningful co-laborers with Christ when they study God’s Word and follow the principles, precepts and rules that govern life in the faith. Because we have been so crafted into the pattern of this world in our thinking and acting we need first and foremost the correction of Scripture to transform our thinking by the renewing of our minds so that we may be useful and effective co-laborers with Christ as we redeem conflicts for God’s glory and our spiritual growth.

The evidence of such usefulness and effectiveness becomes apparent when our goals and desires align with the goals and desires of Christ for His people. People who inhabit the church who fail first to understand God’s process for the redemption and reconciliation of conflicts only contribute to deepening and extending conflicts that destroy the witness we are to have to one another and to the watching world.

Many church members do read and understand their Bibles; however, unless consistent application of those truths is practiced such knowledge becomes ineffective and unproductive.

How does governance structure help or hinder a church in the midst of a conflict?

A church’s polity (governance practices) will often set the boundaries within which efforts to respond to conflicts in a biblically faithful manner can be undertaken. Clear expectations for governance are an important aspect of doing everything decently and in good order. The opposite is also true. When there is confusion over governance practices there will usually be little order and lack of progress in the quest to redeem and resolve conflicts.

Of course, polity structures must be consistent with God’s Word so that both church leaders and members have confidence that more than merely man’s wisdom is being followed. Frequently, a church’s rules of order become seen as merely human wisdom used to manipulate and control. That will undermine the efforts being taken to redeem conflicts and bring about the kinds of change needed to satisfy the legitimate concerns of those who rightly desire a more Christ-centered church environment.

You note that churches, despite having a system of church governance in the bylaws, over time deviate substantially from its own documents. So does the conflicted church then turn to its practices in real life?

The point we are making is that when conflicts come to the church there will frequently be those who will use official written policy as a weapon against those who have been following an unwritten practice that has taken on the apparent force and effect of policy.

In such cases the written policy will be upheld by the courts of both the church and the state, so, no, actual practices as governing policy usually fail. While some in the church may argue that unwritten practices should triumph, the usual pattern is that people will feel that they have been misled by leaders and wrong expectations have been established. This dynamic usually brings about mistrust of leaders and is another important reason why leaders and members alike know their written bylaws and other governing documents and follow them with consistency.

How does a pastor deal with factions in his conflicted church and get beyond that?

Factions in the church reflect a level of spiritual immaturity that should be seen and used by the pastor as an opportunity to teach and model God’s call for unity among his eternal children. Pastors should, in our opinion, never ignore the fact that factions may exist in the church and then tackle the issue head-on. That is what the apostle Paul did.

Failure to face the issue with the force of Scripture will only feed the notion that factions in the church are acceptable. The appropriate use of redemptive, corrective church discipline may be required to hold accountable those who perpetuate the idea that factions can continue. Unless God’s own methods for curtailing factions are employed the church will never be free of divisions that will undermine the mission of the church. Dealing with factions can be a pastor’s golden opportunity to help people grow in their maturity if addressed biblically with confidence in God’s Word.

The last five pages of the book deal with “the illusion of a conflict-free church,” that churches alternate from keeping the peace to denying obvious problems. What are early warning signals for conflict and heading it off at the pass?

One early warning sign is when factions begin to appear and people associated with those factions begin advocating favored outcomes over God’s priority for meaningful relationships. Whenever evidence emerges that relationships are being placed in a secondary position behind favored agendas then the need for biblical peacemaking efforts are in order.

Also, when people stop having a passion to honestly pray for one another — prayer that is other-centered and not self-centered, then the danger signs should go up. In the church, if people aren’t honestly praying for one another there is a need for a serious discussion related to what is at the center of any conflicts that may be emerging.

Usually, “heading it off at the pass” means getting back to the basics of the Gospel and all of its implications. God expects us to have a bigger heart and passion for His priorities than our own and that means renewing our commitment to His call for “making every effort to maintain the unity of the Spirit through the bonds of peace” that unite us in His church.

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Congregations have reconciliation ministries

Village Seven Presbyterian Church (PCA), a congregation in Colorado Springs, CO, of about 2,000 members, has a ministry called Peacemakers of Village Seven. As a church-based reconciliation ministry, it provides conflict coaching, mediation and arbitration services to members of the church as a benefit of their church membership. There is no charge for this service.

The church has a team of peacemakers staffed by church members who have been trained by Peacemaker Ministries, Billings, MT www.peacemaker.net and they stay busy assisting church members in resolving marital disputes, family conflicts, business and employment issues, and church conflicts involving members and church leaders.

Peacemaker Ministries encourages churches to develop Peacemaking Teams and provides helpful support services. They also have group discount rates for team training and team attendance at the annual Peacemakers Conference (this year in Denver, Sept. 13-16).

David Edling notes, “As a conservative Presbyterian church our members take their faith seriously and desire to live consistently with the commitments they have made. We are not an especially contentious or conflicted congregation, just one where members know that the peacemaking responses to conflict are to be pursued over the escape and attack responses that so many others seem to follow. Having a ministry of the church available to quickly assist and equip members to respond to conflicts biblically has been a great benefit and spiritual blessing as marriages have been reconciled and relationships healed.”

Tara Barthel is a member of Rocky Mountain Community Church (PCA), Billings, MT, and a participant in the congregation’s peacemaking team. On their website, they explain: “We have adopted the Peacemaker’s Pledge as a practical guideline for how Christians should resolve their differences, and we are committed to assisting our members in living out these principles in the midst of life’s conflicts.”

By David Middlebrook and Robert W. Rucker

The federal Genetic Information Nondiscrimination Act  (GINA) which took effect on March 21, 2009, is intended to protect the privacy of Americans. It relates to genetic information and to prevent “genetic discrimination” in health insurance and employment situations.

For years there have been growing fears that with advanced testing capabilities, insurance companies would not grant insurance to and employers would not hire people who had greater possibilities of developing disabling diseases based upon their genetic makeup or family history.

For instance, with genetic testing it is now possible to predict, or at least assess the probability, if an employee is likely to contract diabetes, heart disease, cancer or Alzheimer’s disease. In passing the new law, Congress said it was worried that these advances in genetic testing give rise to the potential misuse of the genetic information.

Misuse of information

It described a time in the early 20th Century when some states passed sterilization laws to prevent certain persons with genetic diseases from reproducing, that such laws deprived many people of their constitutional freedoms and were ultimately repealed. Congress also cited the more recent example of the Lawrence-Berkeley Lab case from 1998 where employees were given pre-employment blood and urine tests to determine, among other things, their probability for having sickle cell anemia.

Based upon these historical examples, the need to protect genetic information was found to be a matter of public interest. More importantly, Congress was concerned that if people were worried that having genetic testing might lead to being denied employment or insurance, they might be less likely to take advantage of the significant advances in testing and treatment. Having people afraid to get tested for genetic diseases and thus miss out on treatment opportunities are not in our best national interests.

The law says that it is an unlawful employment practice for an employer to request, require, or purchase genetic information from any employee, job applicant, or from a family member. “Genetic information” is obtained by genetic testing that includes an analysis of human DNA, RNA, chromosomes, proteins, or metabolites that detect genotypes, mutations, or chromosomal changes.

Routine testing that obtains such things as complete blood counts, cholesterol tests and liver-function tests are not considered to constitute genetic testing. Also, analysis of genetic information directly related to a disease that has already manifested itself may not be covered by the law.

Family members also protected

Under GINA, it is unlawful for an employer to discriminate in the hiring, firing, or terms, conditions, or privileges of employment based upon the genetic information of an employee, applicant, or one of their family members (“family member” means dependents and up to and including 4th degree relatives). However, GINA does not apply to employers with fewer than 15 employees.

There are also certain exceptions that may apply. The ones that are probably of most interest to a church employer include inadvertent requests or disclosures, requests related to leave sought under the Family Medical Leave Act (FMLA), and information obtained in public documents commercially and publicly available including newspapers, magazines, periodicals and books. But even in these exceptions, while it may have been lawful to obtain the information, it still cannot be used to discriminate.

Employers are now required to treat genetic information as part of confidential medical records and are supposed to keep such medical information under separate forms and files from other personnel records. Employers may disclose this information if asked by employee in writing, to certain health researchers under certain regulations, in response to a court order, to governmental agencies investigating GINA compliance, in association with certifying employee compliance with the FMLA or similar state laws, or to public health officials if the information concerns a contagious disease and notification is provided.

Violations of the law can be enforced by various governmental agencies and individuals who claim to be victims of genetic discrimination can also bring private lawsuits. Many churches may not have a lot of dealings with the genetic information of their employees and job applicants. The most likely way they would encounter it would be through health insurance documentation and related to disability and leave claims.

Maintain confidentiality

However, regardless of how the information is obtained, the church employer is responsible to maintain its confidentiality and not make use of it in a discriminatory way.

Churches should update employee manuals and personnel forms to make sure that it is clear that the church does not discriminate on the basis of genetic information and make sure there is a clear understanding of how employees or applicants can report suspicions of genetic discrimination.

Leaders should create procedures where if the church receives genetic information it is segregated from other more routine employee or applicant paperwork and kept in a secure location. It’s also important that there is a clear policy and understanding as to when such information can be released (such as pursuant to court order).

It’s necessary to make sure that the church is not asking for information that could be viewed as genetic information on job applications or in any other format. Leaders should not ask for genetic information when accessing leave requests and have some kind of standard request to medical professionals not to include genetic information when documenting medical conditions.

Church leaders also need to make sure that any employer-provided health or wellness plans comply with GINA.

Whether the church deals with these issues rarely or a lot, it still makes sense to be aware of the issue and have some policies and procedures in place.

David Middlebrook is a partner and Robert W. Rucker is an attorney of Anthony and Middlebrook, The Church Law Group, Grapevine, TX. www.churchlawgroup.com

Does the new hate crimes act affect how pastors preach

It may be premature to worry about the meaning of the law, but its impact on unprotected speech could be profound.

By Ronald P. Ponzoli Jr.

An amended “Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act” was enacted (section 249 of the Federal Code) in October 2009. The act expanded the scope of what crimes are punishable as “hate crimes.” Included as a punishable offense in the new law is the willful causing or attempting “to cause bodily injury to any person, because of the actual or perceived — sexual orientation [or] gender identity … of any person.”

There has been much debate regarding the impact of this act on religious organizations’ ability to express ideas about sexual and gender orientation, and whether the law will result in prosecution of individuals for religious beliefs. As examined below, the law contains safeguards against its use as a means to chill free speech and the free exercise of religion.

Additionally, judicial precedent should protect religious organizations from any effort to expand the law into a tool to prosecute constitutionally protected speech. However, because limited forms of speech are not protected by the First Amendment, unprotected speech could be subject to judicial scrutiny under the new hate crimes act.

‘Rule of Construction’

When the amended hate crimes act was enacted, the act included congressional notes titled “Rule of Construction” to help interpret the law.  Several sections of the Rule of Construction provide that the hate crimes act is not intended to impact First Amendment rights.

By way of example, the Rule of Construction provides that the act shall not be “construed or applied in a manner that infringes any rights under the first amendment,” shall not be “construed to allow prosecution based solely upon an individual’s expression of racial, religious, political, or other beliefs or solely upon an individual’s membership in a group advocating or espousing such beliefs,” and shall not be “construed to prohibit any constitutionally protected speech, expressive conduct or activities … including the exercise of religion protected by the first amendment.”

As these excerpts from the Rule of Construction evidence, courts should prohibit any attempt to utilize the amended hate crimes act as a means to prosecute individuals for protected religious beliefs. However, the Rule of Construction recognizes that the “Constitution … does not protect speech, conduct or activities consisting of planning for, conspiring to commit, or committing an act of violence.”

This comment can be interpreted as acknowledging that unprotected speech may be evidence of a violation of the act, making the point that it is important for religious organizations to understand what speech is not protected by the First Amendment.

What’s protected?

Courts upholding the constitutionality of other hate crime laws have recognized the right to freely dislike classes of persons protected by hate crime laws. It is the act of violence that has been found to be punishable. This protection extends to “expressive conduct as well as actual speech.”

In those instances where the government “prohibits conduct precisely because of its communicative attributes,” the U.S. Supreme Court has held those regulations unconstitutional. Therefore, there is strong precedent protecting religious organizations’ right to express beliefs concerning classes of individuals protected by the new hate crimes act.

Forms of speech and expression that do not enjoy constitutional protection, and which can be regulated by the government, include: (1) abusive words which, when directed to an ordinary citizen do more than simply offend the addressee, but rather are inherently likely to provoke the addressee to respond with a violent reaction, often termed “fighting words;” (2) speech which is directed to incite or produce lawless action and which  creates a clear and present danger of riot or other immediate threat to public safety, and (3) “true threats” defined as serious expressions of unlawful violence against an individual or group of individuals. Each of these forms of speech and expression must be avoided, as the Constitution will not protect the speaker from prosecution for resulting injuries.

It is too early to gauge how the new hate crimes act will be implemented. However, given the debate concerning the law’s constitutional implications, we can assume that the law will be challenged in the courts.

Therefore, religious organizations concerned about the impact of the hate crimes act should take comfort in congressional assertions that First Amendment rights are not to be diminished by the law. Additionally, the fact that the text of the new law does not punish the free expression of ideas should further ease those concerned that the law is a step towards prosecuting people for their religious beliefs.

Of course, recognition of the boundaries of protected speech and expression is important so as to avoid abusing the right to freely express ideas, and possibly exposing speech to judicial scrutiny under the new hate crimes act.

Attorney Ron Ponzoli is a shareholder with the law firm of Richman and Greer, PA, West Palm Beach, FL. His litigation practice includes constitutional law and first amendment issues. www.richmangreer.com

By Ronald E. Keener

Churches are as engaged in the issue of immigration in this country as are other groups, many doing quiet, steady work and providing dialog and attempting resolution that goes well beyond the public clamor that adds little to a real solution.

Adding to that understanding is a new book that brings a reasoned and thoughtful background to the issue. Welcoming the Stranger: Justice, Compassion & Truth in the Immigration Debate (IVP, 2009) is written by Matthew Soerens and Jenny Hwang.

Soerens is a Board of Immigration Appeals-accredited immigration and citizenship counselor at World Relief DuPage in Wheaton, IL. Hwang is director of advocacy and policy of the Refuge and Immigration Program of World Relief, Baltimore, MD.

Says Hwang: “Immigrants — both those who entered legally and those who entered illegally — are a rapidly growing segment of the church in the U.S. and many predict are going to be at the forefront of the evangelical movement in the U.S. in the next 20 years.

“The undocumented population, in particular, tends to be very hard working, about 95 percent of undocumented adult males are employed, but earning relatively low incomes in jobs that employers say they cannot find anyone else to do.” [www.WelcomingTheStranger.com] Church Executive posed some questions to Jenny Hwang:

What couple issues have prevented the U.S. from dealing with the immigration issue to this point?

The largest issue is just misunderstanding. Very few people have had to interact with U.S. immigration laws, so most people do not understand how antiquated and often unjust the current system is. There are a lot of myths and misconceptions, some of which are passed on by the Internet, radio and television, that have entered into our national consciousness that are just incorrect and often, from a Christian perspective, slanderous. Immigration is fundamentally tied to the economy and labor needs, and while most studies and research have shown that immigration is favorable to the economy, improving immigration policy is a political battle, in which our leaders in Congress have yet to pass a comprehensive immigration reform bill.

So what’s standing in the way of reform?  How can liberals and conservatives come together on this issue?

The divide on the immigration debate isn’t between conservatives and liberals, per se. In fact, it creates some strange alliances between, for example, left-leaning human rights organizations and right-leaning business interests in favor of comprehensive reform.  Also most left-leaning groups don’t want open borders and instead favor stronger border security while many right-leaning groups acknowledge that deporting all undocumented immigrants is not a feasible way to tackle the immigration challenge.

What has blocked political progress on this issue is that the majority (about 65 to 70 percent, according to polls) of Americans who do favor a comprehensive solution that would require undocumented immigrations to legalize their status, are not very vocal about their preference. Thus the small minority of individuals who are opposed to any legislation that would allow legal status to undocumented workers call and write to their legislators consistently, shifting the debate to reflect their perspective.

Many churches are realizing that immigration is affecting them directly because in some churches, almost all of their congregations are undocumented immigrants, while in others, pastors themselves are undocumented immigrants. Thus, many churches are starting to get involved in the debate because it’s an issue that’s affecting them directly.

Can you typify the immigrant (legal and illegal) population in the U.S.?

Immigrants are as diverse as the native-born population, working in every career, living in every state, and with a whole range of cultures and beliefs. Most immigrants in the U.S. are in legal status, either already naturalized as U.S. citizens or with green cards, while another 11 to 12 million are undocumented, meaning they entered unlawfully or overstayed a valid visa (which comprise about 45 percent of the undocumented population).

Mexicans make up a bit more than half of the undocumented population, but there are a great many undocumented Asians (about 1.5 million), Europeans, Canadians, Africans, and Hispanics from countries other than Mexico, so this is certainly not just a Mexican issue. There are also about three million U.S. citizen children living with families where one parent is an undocumented immigrant.

What stereotypes do Americas have of “immigration reform” and coming to a “solution”?

A lot of Americans are wary of passing an “amnesty” that would “reward illegal behavior.” They don’t see that as an adequate solution. Current reform initiatives, however, are not amnesty (which means forgetting an offense, from the same etymological root as amnesia), but would require those who are undocumented to come forward and register with the government, pay a substantial fine for having entered or overstayed unlawfully, prove that they have been working and paying taxes, pass a criminal background check, and earn temporary legal status behind those who are stuck in backlogs to enter the U.S. legally.

To quote Richard Land of the Southern Baptist Convention, to call such a process “amnesty” is to “do violence to the English language.” Immigration reform has also often included a guest worker program. By creating legal avenues through which immigrants can come to the U.S. legally in the future, we decrease pressure off the border and prevent another undocumented immigrant population from growing in the U.S.

What can congregations do to help the situation?

There are lots of ways that congregations can help. The first is to get to know the immigrants in their community — through direct ministry, perhaps by opening up their building to an immigrant congregation without their own space, and by inviting immigrant brothers and sisters to share their stories in Sunday school classes or other venues.

We’ve found, both personally and in the work of World Relief across the U.S., that as individuals and congregations get to know their immigrant neighbors, many misconceptions they had about immigrants dissolve. In fact, we see many individuals and churches transformed by their relationship with immigrants. Oftentimes, as churches begin to befriend immigrants, they begin to understand the problems with the current immigration laws and find ways to advocate for just policies as well.

Can you summarize what solution to the issue you might suggest at this juncture in the debate?

We think that it is important to reform immigration in a comprehensive, holistic fashion, rather than taking a piecemeal approach. That means (1) reducing the backlogs in the current system, so family members of U.S. citizens do not have to wait up to 22 years to be lawfully reconciled with their relatives, as they are in some cases currently; (2) creating a new mechanism for legal entry into country for individuals who want to accept jobs, including jobs not requiring a great deal of education or skill, with an option either to work temporarily in the U.S. if they prefer or to eventually become U.S. citizens; (3) a mechanism for those currently in the U.S. and out of status to apply for the same program, with the additional requirement of paying a fine for having entered or overstayed unlawfully and meeting other requirements; and, (4) smart border security policies that secure the borders of our country while treating detained immigrants humanely.

The best way to secure our borders is to re-direct the traffic from the “back fence” of our country to the front door: to create legal mechanisms by which those who want to work in the U.S., who do not mean us any harm and have nothing to hide from a criminal background check, could enter lawfully. That’s what is missing in current law. Our border patrol agents are overburdened, which distracts them for pursuing the few individuals who really do pose a threat to our country.

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SOURCES FOR INFORMATION

For good, non-partisan data —

The Pew Hispanic Center (www.pewhispanic.org) and the Migration Policy Institute (www.migrationpolicy.org) are good sources.

From a Christian perspective, Christians for Comprehensive Immigration Reform (www.sojo.net/immigration) and the Justice for Immigrants campaign of the Catholic Church (www.justiceforimmigrants.org) are good resources.

Churches tend to recognize different expressions of faith in their religious worship services. Some traditions call for quiet reflection and meditative prayer, while others encourage demonstrative shouting, dancing, singing and other physical forms of worship. As a matter of basic legal philosophy, the court system does not involve itself in these matters based upon the concept known as judicial abstention.

Courts do not want to become involved in disputes that may require interpreting religious belief, custom or practice. This is because our country has a long tradition of freely allowing all manner of religious expression. Each person is allowed to decide for his or her self what form of religious worship best meets their needs. Nevertheless, sometimes churches have been sued for injuries incurred during or even as a part of their worship services.

Recently, a Michigan appeals court partially upheld an award against a church for an injury occurring during services. In Dadd v. Mount Hope Church, a member of the church was injured when she answered the pastor’s altar call — an open invitation to the congregants to come to the altar of the church to be prayed over. Sometimes, congregants who answer the altar call are “slain in the spirit,” that is, become physically weak due to being filled with the Holy Spirit, and may fall to the ground. This process was well known to the church, which assigned ushers to attempt to help persons who were falling to land without injury. As a matter of fact, the church’s pastor told the congregation that “others are against it because they’re afraid of getting hurt. That’s why we train our ushers to catch people if this happens.”

‘Slain in the spirit’

This particular member testified that she had previously been “slain in the spirit” more than 100 times at this church, sometimes falling all the way to the ground and sometimes not, apparently without any prior injury. On the day in question, the member went up for an altar call along with various other congregants.

Other witnesses testified that “people were falling all over” and that they were being caught by ushers. But when this member was slain in the spirit, there was no usher to catch her and she fell to the floor. She claimed to have hit her head and to have suffered an injury. The church disputed that the member had been injured and circulated certain claims to other members that she was “trouble” and was essentially exaggerating her injuries in order to commit insurance fraud.

The member sued the church and the senior pastor for negligence related to her fall as well as for libel and slander and related claims based upon their comments about her to the other members. A jury awarded her $40,000 for the injury from the fall and more than $275,000 for the libel, slander and other costs.

In the Dadd case, the Appeals Court said that it generally agreed with the church that it had no legal duty to protect from injury all congregants who participate in church services. However, the court believed that the church had voluntarily assumed a duty to protect this member from injury because (1) the senior pastor told everyone that they would not fall, that the church ushers would catch them, and (2) based upon the uncontested testimony that this member had been specifically solicited to come forward and participate in the altar call by the ushers and was directed to go to a specific location.

‘Unpublished’ opinion

The court said that a person in this member’s place “could reasonably conclude that the usher who positioned her for this altar call would also guard her through the process.” The court went on to say that its ruling in this case was based upon “the very narrow and unique circumstances” of the case. It is also worth noting that the court issued this opinion as what is known as an “unpublished” opinion, which means that it is not to be relied upon as precedent by others having a similar type of case.

The court upheld the $40,000 injury award, but reversed the rest of the award and sent the case back to the trial court for further consideration of the libel and slander claims.

In April 2007, the Texas Supreme Court dealt with a similar injury claim, but came to an opposite conclusion. In Pleasant Glade Assembly of God v. Schubert, the member was a 17-year-old girl who was at the church on a Friday night helping the youth members prepare for a church garage sale scheduled the next day. During the evening, one of the other youth members announced that he had seen a demon near the sanctuary. The youth pastor in charge, after hearing the youth’s story, agreed that demons were present on church property.

Collapsing at the service

The group spent the remainder of the evening and into the early next morning anointing everything in the church with Holy oil to cast out the demons. The youth member spent the rest of the weekend in various activities at the church and finally collapsed at the church’s Sunday evening worship service. Several church members took her into a church classroom where they “laid hands” on her and prayed. The youth member responded by clinching her fists, gritting her teeth, foaming at the mouth, making guttural noises, crying, yelling, kicking, sweating and hallucinating.

Again, at the next Wednesday evening service, the member collapsed and had hands lain upon her, this time resulting in her suffering carpet burns, a scrape on the neck, and bruises. Over the next several months, the member suffered from various psychological episodes that she attributed to the church experience and was seen by several psychologists and psychiatrists. She was diagnosed as suffering from post-traumatic stress syndrome and was ultimately classified as being disabled by the Social Security Administration.

The member and her parents eventually sued the church, the senior pastor, the youth minister, and other church members for various forms of negligence and assault. After a trial and appeal, the Texas Supreme Court threw the case out based upon it basically being a religious controversy; namely, that the “laying of hands” to rid a person of the influence from demons was a part of the sincere religious beliefs of the church which the court could not review or question as a matter of constitutional religious freedom.

In the McGowan v. Victory and Power Ministries case, decided in an appeals court in Louisiana in 2000, a member sued the church based upon an injury she incurred while “dancing in the spirit of praise with the Holy Ghost.” During a church service, the member began to dance as part of her response to the worship music and fell injuring her wrist.

Ushers saw her starting to fall and attempted to reach her but did not arrive in time. That case was dismissed in favor of the church. The court ruled that the church did not have a general duty to protect its volunteers or members and even if it did, there was no evidence that the church ushers acted negligently. The court observed that the church ushers “did what they could” and there was no testimony that they should have known the member was going to fall or that they could have gotten to her any faster.

Reasonable and prudent

The Louisiana court observed that if a church undertakes to perform a duty that it otherwise has no duty to perform, it must do so in a reasonable and prudent manner. That seems to be the key theme in all of these types of cases. The church is not required to be perfect, but to use its best efforts.

The church needs to make sure it has reasonable control of the worship environment and not allow so many people to come forward that its ushers cannot manage the situation. We have also seen altar calls conducted on hard cement floors or close to the edge of a stage or raised platform, where the potential for an injury claim is greatly increased.

Church leaders should also be careful to not make any statement that would be viewed as a warranty or guarantee of safety. The “laying of hands” needs to be either conducted by staff or closely supervised by staff. Churches that have physical activities incorporated into their religious practices should continue to do so, but still look for ways to minimize the risk for injury.

David Middlebrook is a partner and Robert W. Rucker is an attorney with Anthony and Middlebrook P.C., The Church Law Group, Grapevine, TX. [www.churchlawgroup.com]

Under what circumstances should you attempt to stop a pastor, who is a former employee of your church, from preaching or operating his own church? Should you even try to stop another pastor from spreading the Gospel? That question is a growing concern that many church leaders are wrestling with these days.

The dilemma is that there are two competing concepts in play. On the one hand, there is the religious or spiritual consideration. Most church leaders feel a duty based upon their understanding of the religious teachings of their faith to evangelize. And most church leaders also believe that every available person and resource should be used. Rather than there being too many pastors, most church leaders believe there are not enough to meet the needs of our world.

On the other hand, the modern church organization is also essentially a small business. It usually provides services in the form of religious worship and instruction as well as products such as books or audio/visual materials. It has a full-time staff of employees who spend the typical work week planning for ways to make their church more effective in delivering its message and content.

Learning through trial and error

It may have staff as well as hired contractors who help the church develop new marketing and branding strategies, new musical and worship concepts, new technological advances, new donor development programs, and countless other innovations. Most importantly, the church will learn through trial and error what works in its community and what does not. Based upon the substantial hard work and unique knowledge of the church, is it fair to allow a former employee to leave your church with the benefit of that knowledge and set up a “competing” church across the street?

Many pastors believe it is not fair to allow that kind of competition. They have adopted the secular business practice of asking new employees to enter into a “covenant not to compete” or non-compete agreement.

Church leaders are familiar with the word “covenant” from scriptural writings and understand it to mean a promise to act or perform in a certain manner and perhaps having more personal meaning than an “agreement” or “contract.” It usually means that both parties make mutual assurances to each other.

A covenant not to compete is an agreement where the church employer agrees to hire a new employee, provides the employee with training, and allows him to obtain valuable experience in exchange for the employee agreeing that upon his departure, whether voluntary or by firing, he will not engage in any activities that would be viewed as competition. In most jurisdictions, such agreements need to be in writing and signed by both parties.

Extra benefit issue

Many courts will not enforce covenants not to compete unless there is an additional payment or benefit to the employee. Some employers have tried to argue that they are providing the employee with the right to earn a living and that the extra benefit is training or education. But many courts have said that this is not an extra benefit because the employer is expected to do that anyway or because the so-called training was not of any kind of special or proprietary nature.

Many states have struggled with the public policy behind enforcing a covenant not to compete. Our country was founded upon the concept of allowing free enterprise, so non-compete provisions are viewed as a restraint on trade that may not be consistent with our notions of freedom. However, many business leaders have argued that covenants not to compete are necessary to protect their interests, or more specifically to protect their property rights. Because of the tension between free enterprise versus protecting property rights, there are some states where covenants not to compete have been enforced for a time and then not enforced for a time, depending upon the mood of that state’s courts and legislatures.

Most states will enforce covenants not to compete if they are (a) reasonable as to limitations on location, (b) reasonable as to time, and (c) are shown to be necessary to protect unique business interests. A court will not enforce a covenant that says that a former employee pastor cannot conduct church within the United States. It might enforce one that says the pastor cannot hold church within a 25-mile radius of his former church. A court will not enforce a covenant that says that the pastor cannot conduct church for the next 15 years. It might enforce one that places a one or two-year limitation.

Even if the covenant not to compete is reasonable in limitations on location and time, the court may still not enforce it if it is not shown to be really necessary. In other words, the employer church would probably need to show that it had some kind of unique information or knowledge or process that the former pastor employee is using at the new church. Some states will not enforce a covenant not to compete if they believe the employee is engaged in an occupation that is known as a “common calling” or “ordinary occupation.”

Lesser training required

A common calling employee is engaged in activities that do not require extensive, highly sophisticated training in a complex field. Barbers, auto mechanics, office staff and salesmen have been found to be in such common calling occupations.

As one example of how these matters can be dealt with in court, a nonprofit corporation that provided wedding services in Tennessee sued its former employee, a pastor, for violating a covenant not to compete. The agreement required the pastor to agree that for a period of five years after termination of his employment, he would not accept employment with another church or entity providing the same wedding service in competition with the ministry in the same county or town.

The court refused to enforce the agreement because there were no “special facts” such as a threat to trade secrets, repeated contact with the employer’s customers or exclusive client list that needed protection. That court ruled that an employee “owns” his general knowledge and skills even if those skills were acquired by expensive training from the former employer. Put another way, the former employee was not using any information or practice that was unique to the former employer.

Churches that wish to protect their unique creative ideas or intellectual property, or that are worried about former employees establishing a competing church or ministry in their same general neighborhood, may wish to enter into non-competition agreements. As mentioned they need to be in writing and signed by the employee and the church, they need to have a reasonable limitation in location (such as within a 25 or 50-mile radius of the church, depending upon where the church is located), reasonable limitation in time (to last no longer than one or two years), and to describe why the agreement is needed (that is, describe in general terms the unique knowledge, capabilities, goodwill of the church that needs to be protected).

David Middlebrook is a partner, and Robert W. Rucker is an attorney, with Anthony and Middlebrook P.C., Irving, TX, which specializes in the practice of nonprofit law. [www.churchlawgroup.com]