In 2022, religious communities in the United States are everywhere constitutionally free to incorporate to become nonprofit corporations, except in West Virginia, which rejected this possibility in a referendum concurrent with the federal elections of November 8. .
According to American law, a corporation is a legal entity distinct from its founders and members, a protective statute for the members and leaders of churches vis-a-vis the financial or penal risks related to possible unintentional faults of the persons in charge.
“Thanks to Divine Providence, we enjoy the blessings of civil, political and religious freedom,” says the preamble to the West Virginia Constitution which deduces from this a necessary promotion of freedom and security. However, the declaration of principle does not prevent that, according to article 47 of the said code, “no charter of incorporation will be granted to a church or to a religious denomination”.
To remedy this, the State Senate and House of Delegates had passed a resolution to submit to the voters a proposed constitutional amendment. Passage of the bill would have authorized the state legislature to pass laws to incorporate churches and religious denominations, but citizens rejected it by 54,55% of the votes. Even though a Federal Court had already declared such a ban unconstitutional and West Virginia is the seventh most religious state in the United States with 69% of practice and importance given to faith.
Incorporation, an advantageous system for religious communities
The possibility for religious communities to be incorporated by law exists in all other states. It appeared in the XNUMXth century before becoming widespread. The incorporation of a congregation as a non-profit corporation guarantees him benefits such as special postage rates, the ability to obtain grants, title to property as a church, and the same legal rights and responsibilities as an individual.
This form of organization generally means that liability for negligence no longer rests with the members, directors and unpaid officers of the church, but that the corporation can be sued as a separate and distinct legal entity from his members. The latter are, however, not protected if they intentionally commit faults. Members of other communities generally do not enjoy such immunity and are responsible for the negligence of others, for example debts.
In reality, the rejection of the proposed amendment by the voters does not change the current situation of the churches. In 2002, in the case Fallwell v. Miller, a federal district court had ruled that the neighboring Commonwealth of Virginia violated the rights of the Thomas Road Baptist Church led by the Reverend Jerry Falwell by denying it the ability to incorporate. The Virginia Constitution had been amended accordingly, and the West Virginia legislator desired the same amendment for his state.
Although the West Virginia Constitution has not been altered, laws have been made since 2002 to incorporate communities that desire it. Illegal under the state constitution, they are legal under the 2002 ruling. A complex and risky situation for churches that have opted for this status if the case law were to change.
American Civil Liberties Union deplores an archaism which "discriminates against religious institutions by denying them the same opportunities as similar but secular institutions".