Attorney Richard Hammar is one of the nation’s foremost experts in legal and tax issues facing churches and clergy. With Christian Ministry Resources executive director James Cobble he edits Church Law and Tax Report, which summarizes legal developments affecting churches nationwide. They recently launched a subscription-based website (www.ChurchLawAndTax.com) that provides online seminars, newsletters, and an online legal and tax library. Timothy C. Morgan, CT‘s deputy managing editor, recently interviewed Hammar at the Christian Stewardship Association convention in Chicago.
It seems that more than ever churches are suing or being sued in court. Why?
Taking a dispute to court is now part of the American culture. Most church disputes involve insiders, usually because somebody’s injured. There are preventive steps that churches can take to stay out of court. For example, a church’s bylaws may compel, at least in a specified context, that disputes be mediated or arbitrated. The year 1992 was the peak year for civil litigation in America generally (suits not involving churches). It has declined almost 13 percent since then. But our research indicates that the number of churches that have been sued is up significantly over the last five years or so.
Fifty churches in Chicago are suing the city over highly restrictive zoning. Are local zoning boards and other government leaders around the country biased against new church construction?
Zoning commissioners have a lot of discretion. When you have a lot of discretion, your decisions can be affected by your own personal biases. So if you’re a member of one particular religious group and you see some other religious group wanting to build a church, especially when you’ve got neighbors complaining, it is not difficult to see how you are going to vote against it.
What should churches do to minimize biased decision-making at City Hall?
Justice is available, but it’s expensive. Many churches cannot afford it. Many times there are special permit procedures. You’ve got to go through a hearing and neighbors get their chance to complain. But at the end of the day, there’s got to be a compelling reason to deny that type of new construction permit. If a church is well represented, the chances are good that it’s going to prevail.
What is the biggest worry that you hear about from pastors and lay leaders?
Their biggest concern legally is some type of lawsuit that seeks astronomical damages. The greatest concern in general is sexual misconduct. The focus is on incidents of child molestation.
Are church leaders confused about who is legally required to report an incident of child abuse?
It’s very important for church leaders to be familiar with the ever-changing state of child-abuse reporting laws and to understand four things: What is reportable child abuse in my state? Who are mandatory reporters of child abuse? Where do I report? Does clergy privilege excuse a minister from reporting? Just in the last year, many states have modified their statutes in light of the problems the Catholic Church has faced.
Are church leaders putting into place abuse-prevention measures, such as volunteer screening?
Our research indicates that 70 percent of churches are doing absolutely nothing to screen volunteer youth workers. But having said that, what single principle should guide church leaders? I like to refer to Ronald Reagan’s philosophy of arms negotiating with the Soviets: Trust but verify. Church leaders tend to view the church differently than other institutions in society. It’s an institution predicated on trust. It’s a sanctuary. It bothers people to have to go through metal detectors or have their fingerprints taken in a church setting.
How much screening is necessary?
No amount of screening is enough when you get a lawsuit delivered to your door. But the courts in this country have ruled that what is needed is very minimal. We’re talking about an application process that includes reference checks. Starting this year, the Boy Scouts are doing criminal-records checks on all new volunteer workers.
Do you recommend that churches do criminal-records checks?
In my church, we perform criminal-records checks on paid employees and male volunteers who work with minors. More churches are performing these checks, which are being used more often by nonreligious charities. At some point, a court may say they are necessary in screening youth workers.
Are we at the point where it’s too risky to operate a church?
Every church has an imaginary risk meter in the lobby. On one side it says low. On the other side it says high. You get to place the needle on your church’s risk meter by the answer to this question: Are we going to do criminal-records checks? No, not for anybody. Well, that needle is moving a little bit toward the high setting. That’s not to say you’re going to have an incident of child molestation. But the issue is: Are you liable? To be liable, you’ve got to be negligent, and that means you did not exercise reasonable care. Effective screening does not have to be burdensome.
Are preventive steps such as lots of classroom windows and a two-adult rule effective?
When a church is sued because of child molestation, it’s because it was negligent in selecting that worker or negligent in supervising him. That’s where I think a two-adult rule and having appropriate lines of sight can reduce risk. The two-adult rule does not mean you always have two adults whenever there are children. When I say two-adult rule, I use the Boy Scout definition, which means no single child can be in the custody of one adult. There must be two adults if there’s a child. If there are multiple children, one adult can be present. That doesn’t violate the two-adult rule.
Do churches adequately train new leaders about their legal responsibilities?
Lay leaders in churches are typically not trained about liability. That increases the overall risk to the church. It all falls on the shoulder of the senior pastor, who may or may not be able to teach leaders about liability and risk. We see the training of lay leaders, starting with board members, as a critical need in the church. Legal risks can not only impair the ministry of the church, but can also literally destroy the ministry of the church.
Isn’t liability insurance supposed to provide coverage?
Liability insurance is not risk management. To me, that is a very shortsighted solution to the issue of risk. Liability insurance has exclusions. Liability insurance has coverage limits. Liability insurance has conditions. Some significant risks are not adequately covered under some insurance policies.
How should churches go about assessing and managing risk?
A risk-management audit is one option. We publish 12 risk-management checklists covering specific areas: buildings, playgrounds, nurseries, trips, travel, transportation, snow, and extreme weather. It’s like a preflight checklist. You can immediately see the areas in your church where you are exposed.
Is there a growing problem of employment disputes in churches?
The number one reason that churches have been sued since 1999 is employment liability. There are wrongful dismissal claims. Very few churches have any insurance to cover those claims. One of the best things churches can do is to use severance agreements. You work out a carefully crafted severance agreement, where the employee agrees to terminate his or her employment in exchange for a commitment from the church to pay so many weeks of compensation. Then the employee releases the church from any liability for a stated claim. I’m talking about lay employees here. Clergy are a different category. The courts have universally ruled in this country that if the First Amendment means anything, it means that courts will not determine who is going to preach from the pulpit of a church. As one court said, “When you become a minister, you forfeit your civil rights.”
What kinds of problems are churches having with the Internet, e-mail, and computer technology?
A Wisconsin church accessed a youth pastor’s computer at the suggestion of a police officer. They found pornographic material on the computer. The court ruled they violated federal electronic privacy law [even though] it was a church-owned computer. Churches have contacted me because they find pornography on a church computer. They ask, “What can we do with this information?” You have to be very careful because of electronic privacy laws. The best course of action would be for a church to adopt a policy that informs staff that their computers and their telephone calls can be accessed by other staff without their knowledge or consent. Under these electronic privacy laws, consent is a defense. If there’s written consent, that’s going to get the church off the hook. There are many legitimate reasons why a church should obtain that consent.
Why did you launch ChurchLaw Today.com?
We have all this material and we just saw a need to recast it in a different format. Our basic objective was to make this material accessible to a broader audience, not just to clergy but to the lay leadership within churches—treasurers, board members. These are people who have largely been overlooked when it comes to this kind of material. With the website, our desire is to penetrate the church at multiple levels. The website is going to give board members a direct channel to information targeted just for them weekly.
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Related Elsewhere
ChurchLawAndTax.com provides online seminars, newsletters, and an online legal and tax library to subscribers.
In 2000, Richard Hammar wrote for Christianity Today sister publication Leadership Journal about protecting your church in an age of litigation.
For more stories on church legal issues, see our sister publications Leadership Journal, Your Church, and CT‘s Church Life and Politics and Law archives.
Recent CT stories on church law include:
Safe, Not Sorry | Churches do not have to wait for safer 15-passenger vans. (Jan. 7, 2003)
When Pastors Plagiarize | The church suffers from the illusion that the sermon is the creative, prophetic effort of the lonely individual. (Dec. 26, 2002)
House: No Church Politicking | The Houses of Worship Political Speech Protection Act fails 239-178. (Dec. 18, 2002)
Churches vs. Homeowners | Legal experts assess last week’s appeals court decision that houses of worship may be “incompatible with a place of quiet seclusion.” (Oct. 23, 2002)
Costco Denied | Judge rules that government can’t take church land and give it to a business. (Sept. 19, 2002)
Breakaway Church Can Keep Property | Court ruling could initiate examination of denomination and church bylaws. (Sept. 17, 2002)
City Seizes Church Land to Build a Costco | California megachurch kicked off land by city seeking store’s tax revenue. (May 30, 2002)
How the Clergy Sexual Abuse Scandal Affects Evangelical Churches | Sin and secrecy aren’t limited to Roman Catholics, say pastors and scholars. (March 20, 2002)
