Religious freedom is a major foundational right of every person in the United States. It is inherently a complex issue which has spawned heated court cases over the years. While almost all agree that religious freedom must be safeguarded, there is much debate as to what exactly constitutes religious freedom. We will address additional aspects of religious freedom through our blogs and newsletters.
The First Amendment of the U.S. Constitution firmly upholds the freedom to practice religion or no religion at all. It is the law that individuals, in public or private, are free to worship, practice and observe religious practice without government influence or intervention. The U.S. Constitution, however, does not provide any specific guidelines to implement freedom of religion. It also provides no guidelines on how religious institutions are to manage and govern their corporal assets. In short, the U.S. Constitution sets forth no guidance on how religious entities are to interface with civil entities. New York State, though, has created a law known as the Religious Corporations Law (RCL), which answers many of the questions not answered by the U.S. Constitution.
In general, an ordinary business will form as a corporation in order to become a separate legal entity under its state’s law. Essentially, this will allow the corporation to act legally as a person in that it will pay taxes and can also sue and be sued. This protects a business in litigation, in that the plaintiff can only recover against the assets of the business and is unable to access the owner’s personal assets. Churches and other houses of worship are likewise protected in the same fashion by being permitted to incorporate.
New York law permits a house of worship as well as their governing bodies (i.e. a diocese, eparchy, cone, synagogue, mosque, etc.) to incorporate. A religious corporation is a non-profit organization associated with a particular religion which is legally incorporated. Though written in the 19thcentury, the Religious Corporations Law is progressive in that it expressly attempts to protect all religious freedom. The Religious Corporations Law expressly requires these entities to be subject to the “discipline, rules, and usages of the corporation and of its ecclesiastical governing body, to which the corporation is subject.” Thus, the religious laws of each religion are inherently integrated into the governance of the religious entity incorporated under civil law. For example, as required by Section 5-a of the RCL, all investments of a Roman Catholic parish are subject to the approval of the diocesan bishop.
The RCL has specific sections for almost every religion. Each of these sections incorporates the governance norms of each religion into the governance of the church. Naturally, the RCL could not have sections for all religions or future religions unknown in America at the time. Therefore, it has provisions for incorporating and governance for all religions not specifically identified in the law.
Because religious corporations are recognized by state law, there are rules that states are allowed to set for these organizations to follow. One example of this is that sales of their real property are subject to either approval of the court or the attorney general. The religious entity must establish that the sale was for fair market value with certain exemptions to other related organizations and that the transaction will benefit the religious corporation at the time the sale closes.
For Roman Catholic churches, the sale must also have the approval of the bishop. The sale cannot proceed without his approval, even if the church’s trustees approve the sale. As to Protestant Episcopal churches, Ruthenian Catholic Churches of the Greek Right, and African Methodist Episcopal Zion churches, for example, their bishops’ consent is also mandatory for a sale to be approved by the courts or the attorney general. However, as to a Presbyterian church, the law requires the approval of the presbytery before a sale can be completed. These are just some examples of how the RCL attempts to have each religious incorporated entity comply with the norms of its particular religion.
There are many provisions that come under New York State’s Religious Corporations Law, and the paperwork to become an incorporated organization can be challenging. The Brooklyn and Long Island attorneys at Wingate, Kearney, & Cullen, LLP are experienced in drafting the incorporation papers for religious organizations and can help guide one through the legal process of becoming a corporation and obtaining one’s tax exemption.