Pastor, Church & Law

Key point 6-02.02. Churches are subject to the provisions of their governing documents, which generally include a charter and a constitution or bylaws (in some cases both). A charter is the state-approved articles of incorporation of an incorporated church. Most rules of internal church administration are contained in a constitution or bylaws. Specific and temporary matters often are addressed in resolutions. If a conflict develops among these documents, the order of priority generally is as follows—charter, constitution, bylaws, and resolutions.

It is important for church leaders to be familiar with the terms charter, constitution, bylaws, and resolution. The United States Supreme Court has observed that “all who unite themselves to [a church] do so with an implied consent to its government, and are bound to submit to it.” 76 Watson v. Jones, 80 U.S. 679 (1871). A church’s “government” generally is defined in its charter, constitution, bylaws, resolutions, and practice. In addition, numerous courts have observed that the articles of incorporation and bylaws of a church constitute a “contract” between the congregation and its members. 77 See, e.g., Lozanoski v. Sarafin, 485 N.E.2d 669 (Ind. App. 1985).

1. CHARTERS AND ARTICLES OF INCORPORATION

The application for incorporation that is filed with the secretary of state generally is called the articles of incorporation or articles of agreement. This document, when approved and certified by the appropriate government official, is commonly referred to as the corporate charter. 78 FLETCHER CYC. CORP. § 164, n.21 (perm. ed. 2008). It is often said that the corporate charter includes by implication every pertinent provision of state law. 79 Id.

Church charters typically set forth the name, address, period of duration, and purposes of the corporation; the doctrinal tenets of the church; and the names and addresses of incorporators and directors.

The income tax regulations require that the assets of a church pass to another tax-exempt organization upon its dissolution. 80 Treas. Reg. § 1.501(c)(3)-1(b)(4). The IRS has stated that the following paragraph will satisfy this requirement if contained in a church corporation’s articles of incorporation:

Upon the dissolution of the corporation, assets shall be distributed for one or more exempt purposes within the meaning of section 501(c)(3) of the Internal Revenue Code, or the corresponding section of any future federal tax code, or shall be distributed to the federal government, or to a state or local government, for a public purpose. Any such assets not so disposed of shall be disposed of by a Court of Competent Jurisdiction of the county in which the principal office of the corporation is then located, exclusively for such purposes or to such organization or organizations, as said Court shall determine, which are organized and operated exclusively for such purposes. 81 IRS Publication 557. An abbreviated version of this language, which also is acceptable to the IRS, appears in Rev. Proc. 82-2, 1982-1 C.B. 367.

It would be very unusual for a church to use this language without modification. Most churches prefer to specify the religious organization to which their assets will be distributed in the event of dissolution rather than leaving this determination to a judge’s discretion. There is no assurance, under the suggested IRS language, that a dissolved church’s assets would even go to another religious organization. For example, a judge could transfer a dissolved church’s assets to a city or state government, or to a non-religious charitable organization, under the IRS language. Of course, churches wishing to designate a religious organization in their dissolution clauses should condition the distribution upon that organization’s existence and tax-exempt status at the time of the distribution.

The Internal Revenue Manual and IRS Publication 557 both require that an appropriate dissolution clause appear in a church’s articles of incorporation. However, the IRS has conceded that no dissolution clause is required if state law requires that the assets of a dissolved church corporation (or other charitable corporation) be distributed to another tax-exempt organization. 82 The instructions to IRS Form 1023 (Application for Recognition of Exemption) state that “if you are a corporation formed in the following states, then you do not need a specific provision in your articles of incorporation providing for the distribution of assets upon dissolution: Arkansas, California, Louisiana, Massachusetts, Minnesota, Missouri, Ohio, Oklahoma.” The IRS has stated that this special provision does not apply to unincorporated churches, since no state “provides certainty by statute or case law, for the distribution of assets upon the dissolution of an unincorporated nonprofit association. Therefore, any unincorporated nonprofit association needs an adequate dissolution provision in its organizing document. …” 83 INTERNAL REVENUE MANUAL § 322.3(13).

The IRS also suggests that the following two paragraphs be placed in a church corporation’s articles of incorporation:

Said corporation is organized exclusively for charitable, religious, educational, and scientific purposes, including, for such purposes, the making of distributions to organizations that qualify as exempt organizations under section 501(c)(3) of the Internal Revenue Code, or the corresponding section of any future federal tax code.

No part of the net earnings of the corporation shall inure to the benefit of, or be distributable to its members, trustees, officers, or other private persons, except that the corporation shall be authorized and empowered to pay reasonable compensation for services rendered and to make payments and distributions in furtherance of the purposes set forth in Article Third hereof. No substantial part of the activities of the corporation shall be the carrying on of propaganda, or otherwise attempting to influence legislation, and the corporation shall not participate in, or intervene in (including the publishing or distribution of statements) any political campaign on behalf of or in opposition to any candidate for public office. Notwithstanding any other provision of these articles, the corporation shall not carry on any other activities not permitted to be carried on (a) by a corporation exempt from federal income tax under section 501(c)(3) of the Internal Revenue Code, or the corresponding section of any future federal tax code, or (b) by a corporation, contributions to which are deductible under section 170(c)(2) of the Internal Revenue Code, or the corresponding section of any future federal tax code. 84 IRS Publication 557. The IRS states in Publication 557 that “if reference to federal law in articles of incorporation imposes a limitation that is invalid in your state, you may wish to substitute the following for the last sentence of the preceding paragraph: ‘Notwithstanding any other provision of these articles, this corporation shall not, except to an insubstantial degree, engage in any activities or exercise any powers that are not in furtherance of the purposes of this corporation.'”

Inclusion of the preceding paragraphs in a church’s articles of incorporation helps to insure the continued recognition of its tax-exempt status. 85 See R. HAMMAR, CHURCH AND CLERGY TAX GUIDE chapter 11 (published annually by the publisher of this text).

Key point. Some churches define their exempt purposes to include charity and education in addition to religion, believing that this will accommodate a greater diversity of ministries. However, note that such an expansion of corporate purposes may also jeopardize various exemptions that are available to “religious” organizations. Church leaders should discuss this important issue with an attorney.

The state law under which a church is incorporated will specify the procedure to be followed in amending the corporate charter. Generally, a charter amendment must be filed with and approved by the state official who approved the charter.

Case studies

• A Florida court ruled that state nonprofit corporation law governed the removal of board members in a church that did not address the issue in its governing documents.86 Bendross v. Readon, 89 So.3d 258 (Fla. App. 2012).
• The Washington Supreme Court ruled that a church’s board of elders was powerless to amend the church’s articles of incorporation without the pastor’s approval. The church’s articles of incorporation specified that neither the articles nor the bylaws could be amended without the pastor’s approval. After allegations of sexual misconduct on the part of the pastor surfaced, the board of elders decided to conduct hearings into the matter. At the conclusion of these hearings, the board adopted a resolution placing the pastor on “special status.” This meant that he could resume his duties as pastor of the church, but he would not be permitted to be alone with any females. This decision was announced to the church congregation in a special meeting. The pastor refused to accept this special status or to honor the board’s decision. Instead, he announced to the congregation that he was not under the authority of the elders and that he would resume his role of pastor without restriction. The board convened a meeting with the pastor in an attempt to reach a compromise. When it was clear that no agreement was possible, the board members voted to amend the articles by removing the provision requiring the pastor to approve all amendments to the articles. They also voted to remove the pastor from office because of his breach of his “fiduciary duties” to the corporation. The pastor immediately filed a lawsuit asking a civil court to determine whether or not the elders had the authority to amend the articles without his approval. The state supreme court ruled in favor of the pastor. It reasoned that the articles clearly specified that they could not be amended without the pastor’s approval, and that as a result the elders’ attempt to amend the articles without the pastor’s approval was null and void. The court observed: “Neither of the parties has called to our attention any case holding that any corporation law in the country, profit or nonprofit, prohibits a provision in the articles of incorporation requiring the concurrence of a special individual to amend the articles.” The court agreed that the church’s articles “might well, in retrospect, be viewed by some as an improvident provision,” but it concluded that “it is not the function of this court … to protect those who freely chose to enter into this kind of relationship.”87 Barnett v. Hicks, 792 P.2d 150 (Wash. 1990).

2. CONSTITUTIONS AND BYLAWS

Most churches, whether incorporated or unincorporated, have a governing document that addresses several issues of governance and administration. While the name for this document varies from church to church, it often is called bylaws, and it is this name that will be used in this chapter as a matter of convenience.

There are several legal issues that are associated with church bylaws, including the following:

a. What are bylaws?

What are church bylaws? The Model Nonprofit Corporations Act (3rd ed. 2008), which has been adopted by several states, defines bylaws as “the code or codes of rules (other than the articles of incorporation) adopted for the regulation and governance of the internal affairs of the nonprofit corporation, regardless of the name or names used to refer to those rules.”

One court defined bylaws as follows:

The bylaws of a corporation are the rules of law for its government. The term “bylaw” may be further defined according to its function, which is to prescribe the rights and duties of the members with reference to the internal government of the corporation, the management of its affairs, and the rights and duties existing among the members. Bylaws are self-imposed rules, resulting from an agreement or contract between the corporation and its members to conduct the corporate business in a particular way. Until repealed, bylaws are the continuing rule for the government of the corporation and its officers. Schraft v. Leis, 686 P.2d 865 (Kan. 1984) .

Because bylaws contain rules for internal governance and administration, they are indispensable for both incorporated and unincorporated churches.

b. Know your current version

In many churches, the bylaws were adopted long ago, and have been amended numerous times over the years. As a result, there may be various “editions” in circulation. Often, these editions are undated, and this can make it difficult if not impossible to identify the current one. This can create confusion. What steps can church leaders take to identify the current version of the church bylaws? Here are two common procedures that can be very effective in identifying the current edition of a church’s bylaws:

• Identify copies of the church bylaws with a numeric designation. To illustrate, a church identifies its current bylaws as “version 1.0.” During the church’s membership meeting in 2010, two amendments are made to the bylaws. Following the meeting, the revised bylaws are printed, and designated as “version 1.1.”
• Identify copies of the church bylaws by date. For example, designate the current bylaws “Current as of [date].”

In either case, be sure that all printed copies of the bylaws bear the appropriate designation, and dispose of undesignated versions.

The United States Supreme Court has observed that “all who unite themselves to [a church] do so with an implied consent to its government, and are bound to submit to it.” 88 Watson v. Jones, 80 U.S. 679 (1871). A church’s “government” generally is defined in its charter, constitution, bylaws, resolutions, and practice.

c. Constitution and bylaws?

Some churches have both a constitution and bylaws. This was a common practice a century ago, and it persists to this day. But there is little justification for a church to have both a constitution and bylaws unless the constitution is made superior to the bylaws either by express provision or by a more restrictive amendment procedure.

To illustrate, some churches have (1) a constitution that can only be amended by providing members with advance notice of the proposed amendment prior to a membership meeting, and by a two-thirds vote of the membership at the meeting; and (2) bylaws that can be amended at a membership meeting, without prior notice to the members, and by a simple majority vote. The church places provisions of greatest importance in the constitution, such as church doctrine and the purchase or sale of church assets, since these can be changed only through a more deliberative process involving advance notice and a super-majority vote. Routine provisions are assigned to the bylaws.

Churches that have both a constitution and bylaws typically address many of the same issues in both documents. Over time, this often leads to conflicts, since amendments in one document may not be made to similar provisions in the other.

Identifying a single body of rules as the “constitution and bylaws” without any attempt to distinguish between the two is a common but inappropriate practice.

d. What matters should be addressed in a church’s bylaws?

The Model Nonprofit Corporations Act (3rd ed. 2008) , which has been adopted by several states, states that “the bylaws of a nonprofit corporation may contain any provision for managing the activities and regulating the affairs of the corporation that is not with law or the articles of incorporation.” The following subjects generally pertain to “managing the activities and regulating the affairs of” a church, and are commonly included in a church’s bylaws:

• Qualifications, selection, and expulsion of members.
• Time and place of annual business meetings.
• The calling of special business meetings.
• Notice for annual and special meetings.
• Quorums at meetings of the membership and church board.
• Voting rights and requirements.
• Selection, tenure, and removal of officers and directors.
• Filing of vacancies on the church board.
• Responsibilities of directors and officers.
• The procedure for amending bylaws.
• The procedure and voting requirements for purchases and conveyances of church property.
• The designation of standing committees (such as audit committee, an investment committee, and an insurance committee).

The drafting of church bylaws is a complex task that should not be attempted without the assistance of an attorney. Knowing what to include, and exclude, from your bylaws are important tasks that require legal knowledge and experience.

e. Frequently omitted provisions

There are a number of potentially helpful provisions that are often omitted from church bylaws. These include the following:

• Choice of parliamentary law to govern membership meetings. Many church leaders assume that Robert’s Rules of Order Newly Revised governs church business meetings. But this is not the case. There are dozens of competing models of parliamentary procedure, and a church should formally select the model that will be applied. If your church intends to use Robert’s Rules of Order Newly Revised , then your bylaws should say so.
• If your church bylaws contain a provision addressing the discipline of members who violate your standards of membership, they should clarify that members who have been charged with conduct in violation of the standards of membership waive their right to resign from membership in the church. Without such a provision, members can preempt a church’s disciplinary procedure by simply informing their pastor that they are resigning as members (see “The Guinn Case” sidebar).

The Guinn Case

In 1989, the Oklahoma Supreme Court issued a ruling that remains the definitive analysis on the discipline of church members. Guinn v. Church of Christ, 775 P.2d 766 (Okla. 1989) . The court reached the following conclusions:

• The discipline of church members (i.e., persons who have not withdrawn from membership) is a constitutionally protected right of churches.
• Discipline of persons who have effectively withdrawn their church membership is not a constitutionally protected activity, and churches that engage in such conduct can be sued under existing theories of tort law.
• The constitutional right of a church member to withdraw from church membership is protected by the First Amendment guaranty of religious freedom unless a member has waived that right. A church wishing to restrict the right of disciplined members to withdraw must obtain a voluntary and knowing waiver by present and prospective members of their constitutional right to withdraw. How can this be done? One approach would be for a church to adopt a provision in its bylaws preventing members from withdrawing if they are currently being disciplined by the church. Obviously, the disciplinary procedure must be carefully specified in the church bylaws so there is no doubt whether the disciplinary process has been initiated with respect to a member. Most courts have held that members are “on notice” of all of the provisions in the church bylaws, and consent to be bound by them when they become members. As a result, the act of becoming a member of a church with such a provision in its bylaws may well constitute an effective waiver of a member’s right to withdraw (if the disciplinary process has begun).
• A clause specifying how contracts and other legal documents are to be approved.
• Who has the authority to sign church checks? It is a basic tenet of internal control that two persons sign checks, and a church’s bylaws should specify which two officers have this authority.
• “Bonding” of officers and employees who handle church funds.
• An annual audit by independent certified public accountants. There are compelling reasons why a church should consider having an annual audit. Most importantly, an audit promotes an environment of accountability in which opportunities for embezzlement (and therefore the risk of embezzlement) are reduced. And, the CPAs who conduct the audit will provide the church leadership with a “management letter” that points out weaknesses and inefficiencies in the church’s accounting and financial procedures. This information can be invaluable to church leaders. Smaller churches that cannot afford a full audit may want to consider two other options: (1) Hire a CPA to conduct a review, which is a simpler and less expensive procedure. If the review detects irregularities, a full audit may be considered worth the price. (2) Create an internal audit committee if there are accountants or business leaders within the church who have the ability to review accounting procedures and practices and look for weaknesses. These people often are very familiar with sound internal control policies, and will quickly correct weaknesses in the church’s financial operations.
• An indemnification clause providing for the indemnification of officers and directors who are sued as a result of actions or decisions made in the course of performing their duties on behalf of the church.
• Specification of the church’s fiscal year.
• “Staggered voting” of directors (a portion of the board is elected each year to ensure year-to-year continuity of leadership).
• The bylaws should specify if the church board can act without conducting a formal meeting. To illustrate, section 8.21 of the Model Nonprofit Corporation Bylaws, which has been adopted by several states, specifies that “except to the extent that the articles of incorporation or bylaws require that action by the board of directors be taken at a meeting, action required or permitted to be taken by the board of directors may be taken without a meeting if each director signs a consent in the form of a record describing the action to be taken and delivers it to the nonprofit corporation. … A consent signed under this section has the effect of action taken at a meeting of the board of directors and may be described as such in any document.”
• The bylaws should authorize the church board to conduct meetings by telephone, or allow the “attendance” of an otherwise absent director through telephone connection, if desired.
• The bylaws should specify if absentee voting is permitted at membership meetings. Absentee voting is not ordinarily permitted unless expressly authorized by an organization’s bylaws. Robert’s Rules of Order Newly Revised, specifies: “It is a fundamental principle of parliamentary law that the right to vote is limited to the members of an organization who are actually present at the time the vote is taken in a legal meeting. Exceptions to this rule must be expressly stated in the bylaws. … An organization should never adopt a bylaw permitting a question to be decided by a voting procedure in which the votes of persons who attend a meeting are counted together with ballots mailed in by absentees, since in practice such a procedure is likely to be unfair.”
• The bylaws should specify if proxy voting is permitted at membership meetings.
• Who is authorized to have custody of the minutes of church membership and board meetings?
• Who is authorized to have custody of the church’s financial records? These documents are church records, and ordinarily should not be entrusted to the treasurer’s personal possession.
• Most state nonprofit corporation laws give members a right to inspect specified corporate records at a proper time and for a proper purpose. Usually, these laws provide that this authority to inspect corporate records exists unless limited or abolished by the corporate bylaws. To illustrate, the Revised Model Non-profit Corporation Act, which has been enacted by several states, gives members a right to inspect the minutes of board meetings if the member’s demand is made in good faith and for a proper purpose; the member describes with “reasonable particularity” the purpose and the records the member desires to inspect; and the records are directly connected with this purpose. The Act specifies that a church’s articles of incorporation or bylaws “may limit or abolish the right of a member under this section to inspect and copy any corporate record.”
• Clarify the meaning of all voting requirements specified in the bylaws. For example, a church’s bylaws may call for a “two-thirds vote” for certain actions. This can have various meanings, including a vote that is precisely two-thirds of the membership; at least two-thirds of the total voting membership, regardless of how many come to a business meeting; or, at least two-thirds of the members present at a duly called meeting at which a quorum is present. This kind of ambiguity has caused countless internal church disputes.
• Suspension of removal of board members who miss a specified number of board meetings. Board members owe various “fiduciary duties” to their church, and one of these is the duty to exercise “due care” in the performance of their responsibilities. Board members who miss most board meetings eventually will be in violation of this duty, and some churches have chosen to address this issue in their bylaws with a provision calling for the suspension or removal of such persons. The fiduciary duty of due care goes to the very heart of the status of a board member.
• In 2008 the IRS ruled that a nonprofit corporation did not qualify as a tax-exempt church, in part because its governing document did not have a conflict of interest policy. The IRS noted that to qualify for exemption, an organization must be operated for public rather than private purposes, and “the organization has the burden of demonstrating this by showing that it is not operated for the benefit of private individuals, such as its creator and his family.” The IRS concluded: “You have not adopted bylaws or provided specific information about the governance of your organization, nor have you adopted a conflict of interest policy. … The structure of your organization indicates that it can be used to benefit private individuals, such as [the founder] and his family, and you lack safeguards that would help to prevent such use.” IRS Letter Ruling 200830028 . This ruling is significant because of the importance the IRS assigned to a conflict of interest policy despite the fact that neither the tax code nor regulations specifically require that a church have such a policy. The IRS concluded that the lack of a conflict of interest policy tends to show that a family-governed entity is operated for private rather than public interests and is therefore ineligible for exemption. While this concern will not directly apply to most churches, it is a point worth considering with the attorney who drafts or reviews your church’s bylaws.
• It is common for church board members to resign their position when they relocate or become incapacitated. However, church bylaws usually do not address when and how such resignations will occur. This is an important and frequently overlooked issue, since board members generally remain liable for the actions of the board until their resignation is effective. If the timing of a resignation is ambiguous, then this can create lingering exposure to liability. To avoid this, a church’s bylaws should clarify precisely how and when a board member’s resignation will be effective.

f. Distinguished from articles of incorporation

The application for incorporation that is filed with the secretary of state generally is called the articles of incorporation or articles of agreement. This document, when approved and certified by the appropriate government official, is commonly referred to as the corporate charter.

Church charters typically set forth the following information:

• corporate name
• corporate address
• period of duration
• purposes of the corporation
• names and addresses of incorporators and directors

In addition, the income tax regulations require that the assets of a church pass to another tax-exempt organization upon its dissolution. The IRS has stated that the following paragraph will satisfy this requirement if contained in a church corporation’s articles of incorporation:

Upon the dissolution of the corporation, assets shall be distributed for one or more exempt purposes within the meaning of section 501(c)(3) of the Internal Revenue Code, or the corresponding section of any future federal tax code, or shall be distributed to the federal government, or to a state or local government, for a public purpose. Any such assets not so disposed of shall be disposed of by a Court of Competent Jurisdiction of the county in which the principal office of the corporation is then located, exclusively for such purposes or to such organization or organizations, as said Court shall determine, which are organized and operated exclusively for such purposes.

Most churches prefer to specify the religious organization to which their assets will be distributed in the event of dissolution rather than leaving this determination to a judge’s discretion. There is no assurance, under the suggested IRS language, that a dissolved church’s assets would even go to another religious organization. For example, a judge could transfer a dissolved church’s assets to a city or state government, or to a non-religious charitable organization, under the IRS language. Of course, churches wishing to designate a religious organization in their dissolution clauses should condition the distribution upon that organization’s existence and tax-exempt status at the time of the distribution.

The IRS Internal Revenue Manual and IRS Publication 557 both require that an appropriate dissolution clause appear in a church’s articles of incorporation. However, the IRS has conceded that no dissolution clause is required if state law requires that the assets of a dissolved church corporation (or other charitable corporation) be distributed to another tax-exempt organization. The instructions to IRS Form 1023 (Application for Recognition of Exemption) state that “if you are a corporation formed in the following states, then you do not need a specific provision in your articles of incorporation providing for the distribution of assets upon dissolution: Arkansas, California, Louisiana, Massachusetts, Minnesota, Missouri, Ohio, Oklahoma.”

The IRS also suggests that the following two paragraphs be placed in a church corporation’s articles of incorporation:

Said corporation is organized exclusively for charitable, religious, educational, and scientific purposes, including, for such purposes, the making of distributions to organizations that qualify as exempt organizations under section 501(c)(3) of the Internal Revenue Code, or the corresponding section of any future federal tax code.

No part of the net earnings of the corporation shall inure to the benefit of, or be distributable to its members, trustees, officers, or other private persons, except that the corporation shall be authorized and empowered to pay reasonable compensation for services rendered and to make payments and distributions in furtherance of the purposes set forth in Article Third hereof. No substantial part of the activities of the corporation shall be the carrying on of propaganda, or otherwise attempting to influence legislation, and the corporation shall not participate in, or intervene in (including the publishing or distribution of statements) any political campaign on behalf of or in opposition to any candidate for public office. Notwithstanding any other provision of these articles, the corporation shall not carry on any other activities not permitted to be carried on (a) by a corporation exempt from federal income tax under section 501(c)(3) of the Internal Revenue Code, or the corresponding section of any future federal tax code, or (b) by a corporation, contributions to which are deductible under section 170(c)(2) of the Internal Revenue Code, or the corresponding section of any future federal tax code.

(If reference to federal law in articles of incorporation imposes a limitation that is invalid in your state, you may wish to substitute the following for the last sentence of the preceding paragraph: “Notwithstanding any other provision of these articles, this corporation shall not, except to an insubstantial degree, engage in any activities or exercise any powers that are not in furtherance of the purposes of this corporation.”)

Key point. Some churches define their exempt purposes to include charity and education in addition to religion, believing that this will accommodate a greater diversity of ministries. However, note that such an expansion of corporate purposes may also jeopardize various exemptions that are available to “religious” organizations. Church leaders should discuss this important issue with an attorney.

g. Ambiguous terminology

Church bylaws often contain ambiguous language, and this can result in both confusion and internal disputes. It is essential for church bylaws to be reviewed periodically by the board, or a special committee, to identify ambiguities and propose modifications. Will the civil courts interfere in a church dispute over the meaning of ambiguous bylaw provisions? Generally, the civil courts have been willing to do so if no interpretation of doctrine is required.

h. Reconciling conflicting provisions

Occasionally, conflicts develop among provisions in a corporation’s charter, constitution, bylaws, and resolutions. The general rule is that provisions in a corporate charter take precedence over conflicting provisions in a corporation’s constitution, bylaws, or resolutions. If the constitution is separate and distinct from the bylaws and is of superior force and effect either by expressly saying so or by reason of a more difficult amendment procedure, then provisions in a corporation’s constitution take precedence over conflicting provisions in the bylaws. To illustrate, where a church constitution specified that a pastor was to be elected by a majority vote of the church membership and the bylaws called for a two thirds vote, the constitution was held to control. 89 Pelzer v. Lewis, 269 A.2d 902 (Pa. 1970). Resolutions are inferior to, and may not contradict, provisions in a corporation’s charter, constitution, and bylaws.

Incorporated churches are free to adopt bylaws addressing issues of internal administration, and these bylaws generally take precedence over conflicting provisions in state nonprofit corporation law. In other words, state nonprofit corporation law may be viewed in most cases as a “gap filler”–filling gaps in a church’s bylaws. For example, if an incorporated church’s bylaws do not address how vacancies on the board are to be filled, or do not define a quorum, the nonprofit corporation law will “fill the gaps.”

i. Amendment procedures

Most bylaws provide for their own amendment, and it is important for church leaders to be familiar with this procedure to ensure that amendments are handled correctly. Consider the following points:

• Some church bylaws permit amendments to occur at any membership meeting, without advance notice to members.
• Some church bylaws require that members be notified a specified number of days in advance of a membership meeting at which a bylaw amendment will be considered. If advance notice is required, then a failure to comply with this requirement will jeopardize the legal validity of any amendments that occur, no matter how many members support the amendments.
• In some cases, church leaders decide not to wait until the next annual business meeting to present a proposed bylaw amendment to the congregation, and a special business meeting is called. However, note that state nonprofit corporation law generally requires that the notice provided to members of the date, time, and place of a special business meeting also state the purpose for which the meeting is being called. If the notice to members fails to specify that an amendment to the bylaws will be considered, including the text of the proposed amendment that will be presented during the meeting, then the legal validity of such an amendment will be jeopardized.
• Some church bylaws require a supermajority (i.e., greater than a simple majority) to amend certain provisions. For example, an amendment to church doctrine, or to the requirements for the sale or acquisition of church property, often require a two-thirds or even a three-fourths vote. Church leaders must be familiar with the voting requirement that will apply to any proposed bylaw amendment.

j. Is it time to rewrite our bylaws?

Do church bylaws ever need to be rewritten? That depends on several factors, including the following:

• How old are the bylaws? The older they are, the more likely they are in need of a legal review, and possibly revisions or a new and updated document.
• Who drafted the bylaws? If the bylaws were drafted by one or more attorneys with experience in corporate governance, ideally involving churches or other nonprofit organization, there is less need to rewrite the bylaws. On the other hand, many churches have bylaws that were drafted by a committee of laypersons with little if any specialized knowledge in corporate governance. In such a case, there may be a greater need for revisions or a new document.
• Some church bylaws are mandated by the denomination with which they are affiliated, and the church has little if any authority to make any changes. Church leaders should be familiar with any such limitations.

k. Do we need to file our bylaws with the state?

Unincorporated churches generally are not required to file bylaws with the state. But there may be exceptions, depending on state law. For example, an unincorporated church may need to submit a copy of its bylaws to a state agency to demonstrate entitlement to a property or sales tax exemption or a preferential zoning classification.

In many states, incorporated churches are not required to file their bylaws with the state corporations commission as part of the incorporation process. Check with your state’s corporations commission to be sure. As is the case with unincorporated churches, an incorporated church may need to submit a copy of its bylaws to a state agency for various reasons, such as to demonstrate entitlement to a property or sales tax exemption or a preferential zoning classification.

l. The application of denominational governing documents.

In many denominations, affiliated churches are limited in their ability to compose or revise their bylaws. In some cases, the church’s bylaws are entirely prescribed by the denomination’s governing document. In others, the church is free to compose its own bylaws, but must include terms mandated by the denomination’s governing document. As one court noted, “For religious nonprofit corporations, bylaws may partly be prescribed by, and may be an important tie to, a related superior or affiliated religious organization.” New v. Kroeger, 84 Cal.Rptr.3d 464 (Cal. App. 2008) .