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William D. Bontrager, J.D.

1710 C.R. 121, Hesperus, CO. 81326




I want to begin with some broad observations.

For most of history, relationship between religion and state have been of two general types: the Emperor is God, or the Chief versus the Witch Doctor. God intended the theocratic family life of Israel to stand in sharp contrast to these models.

After Constantine, we saw two others: the Church as Agent of the State, and the State as Agent of the Church. These developed many people unwilling to tolerate either and who came to the U.S. There they wrote: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

I want to look at 7 situations:

where we see what it means to possibly establish religion

where we see what religious actions might be prohibited

where the church uses the resources of the State

where the church adopts practices of the non-Christian world or looks like

it is doing the things of the non-Christian world

where the church looks like the non-Christian world to outsiders

where the church attempts to speak to the State

where a case in court is filed against the church for good behavior or wrong


So, what are some things which courts say establish religion and cannot be done by the state for the church?

The State may grant tax-exemption to the church. This does not establish a religion if all confessions enjoy the same right.

On the other hand, we have a case where a State law said the State would provide sign language teachers for all deaf students. A deaf child attended a church operated school. Part of the educational curriculum included instruction in the beliefs of the group. The State did not have to supply the sign language teacher because it would be establishing the religion of this group into the child.

In an effort to balance the competing issues of establish and freedom of exercise, the Court asks three general questions: (1) is the act to be regulated a secular act or a religious act; (2) is the purpose of the law secular or religious; (3) would enforcement of the law make for excessive governmental entanglement with religion.

Years ago our Supreme Court ruled that Mormons could believe and teach whatever they wanted, but could not have more then one wife. Marriage was seen as a secular act, the purpose of limiting the number of wives was seen as secular, and no entanglement was involved.

In contrast the Supreme Court held unconstitutional a city law prohibiting ritualistic animal sacrifice. Animal sacrifice is always associated with religious activity, the law was enacted in response to a specific religious group and so looked religious in purpose, and the Court felt the law entangled government into the religious.

Now, what happens when the church takes resources from the state?

A Catholic University, receiving government funds, allowed students to form groups on matters of common interest -- such as chess, etc. It gave the groups facilities for meetings, use of school equipment, and direct financial assistance. The State made an anti-discrimination law. A group of homosexual students asked the university for recognition and benefits. The university said no on the basis that the Bible forbids homosexuality. The students filed a case in court and won. The court said that since the university gave rights to some groups it must give similar rights to all. But if the university had not received government money, they would not have had to recognize the group.

In another case, a religious organization used government money to hire a staff person. They then discovered this person was a self-professed witch. The group did not believe one could be a Christian and a witch. When they discharged her, she filed a case in Court for damages. The organization defended on the theory that her beliefs were contrary to their beliefs and their religious freedom entitled them to have a worker who shared their beliefs. The court said that normally the organization could hire or discharge people for failure to match the religious beliefs of the organization. But in this case, because government money was used to employ the person, they could not discharge the person.

The lesson of these two cases is very clear: take the money of the state and you risk loss of freedom to act as God requires.

Now, what about cases where the church adopts the practices of the secular world or is doing the work of the secular world?

A church operated a school and charged tuition. The issue was if the teachers were entitled to receive at least the minimum wage set by the federal government -- would Federal Labor Laws be applied. The church claimed a religious freedom exception, but the Court refused because the church was acting like a school not a church.

But, in another case, and using the previously mentioned balancing test, a Court said that a church day care center for children would need to be licensed and could not use physical discipline against a child as those were public safety matters common to all. But the center could not be required to adopt State required programming nor did employees of the center have to meet qualifications fixed by the State, for such would unduly entangle the state in the religious.

Third, a group of churches published information against a proposed law to legalize the sale of alcohol in their community. State law required political material to identify the sponsor of the material. The churches did not identify themselves, and were prosecuted. The churches claimed religious freedom but the Court said the churches were involved in political activity and not religious activity even though religious beliefs prompted the political activity.

Fourth, a religious group operated a health sanatarium using natural hygiene for medical treatment. The State prosecuted them for unauthorized practice of medicine. The court said that the acts of the group appeared medical and sufficiently dangerous as to require compliance with the state licensing laws.

In yet another case, church leaders invited members who were struggling with sinful patterns in life to come to the leaders for counseling. The people were promised confidentiality, and the counseling sessions were private. A lady came for counseling on drug abuse. In the process she acknowledged living in homosexual relationship. She was ordered to end that relationship or face disclosure of her sin to the congregation. She did not and the congregation was told of her sin. She brought a case in court for damage saying normal professional and secular rules of counseling were violated. The case is still in court, so far as I know. I expect her to win and receive damages. I invite you to consider the implications of granting confidentiality compared to the need to faithfully apply the procedures Jesus taught us in chapter 18 of the Gospel of Matthew.

Two cases highlight the issue of what happens when a church appears no different than the world.

Church leaders began to confront a member who was involved in adultery. As they continued their confrontation of her, they told her that if she did not repent they would tell the entire congregation. She then wrote a letter to the church withdrawing her membership, and ordering the church to leave her alone. The leaders did tell the congregation she was involved in adultery, and sent a letter of that fact to four other churches of their confession in the local area. The lady filed a case in court for damages for invasion of privacy and received a $300,000 judgment. The church appealed. The higher court ordered a new trial on technical legal issues following which the church settled. The Court addressed the issue of her letter ending membership, saying the Church looked like any other social club which a person could join and leave as they wished. Thus when she wrote her letter the church could no longer pursue her even if that was the religious belief of the church unless the church had made it clear to her when she became a member that she could not withdraw membership and that she would be subject to discipline for sinful behavior. The church had not been teaching its members such things and had thus lost its rights of religious freedom.

In the other case, a judge ordered refund of $120,000.00 given to a church. The money was given by a husband and wife who had a business. The business failed and they filed for bankruptcy. In bankruptcy law, assets transferred within one year of filing for bankruptcy, if transferred without fair value, and if transferred at a time when the person was in fact bankrupt, may be recovered for the benefit of all creditors. The court made a judgment that there was no proof that the couple received anything of value for the monies given to the church. The church spent $300,000 in legal fees defending the case which was eventually reversed.

I want to analyze the case by what I believe the Bible says on the role of the Church and the response of the church to this litigation, for we need to ask ourselves a serious question: "Why would a court see no value in a church as that church relates to its members?"

The business failed because it was poorly run (an issue of sin) or because of factors outside the control of the couple, or both. But at some point in time, this couple knew they were in a conflict with their creditors. At that moment I Corinthians 6:1-4 says "come to the church for counsel". The church would then help determine if sin was involved and assist in confession and acts of repentance. The church could help restore Godly order to the business in the hopes this would allow for continuation of the business and payment of creditors in full.

Or the counsel of the church may be to close the business. At that point, the church would work with the couple on a plan to present to the creditors for full payment. The church act like the Bankruptcy Court: (a) prepare a list of creditors and amounts owed; (b) a list of assets and values; (c) a list of income (d) a statement of how the failure occurred; (e) a proposal for payment over time; and, (f) name an overseer to see that this is done. The church may even consider collecting money from other members and paying the debt so as to avoid a Christian being an offense to the world.

By taking either of these approaches, the church would have avoided any entanglement with the law. But now the church has spent more of the tithes intrusted to it by its members for doing the Lord's work than the amount of debt owed by the business!

All right, what can happen when the church tries to speak to the world?

Two Catholic organizations were involved in public protest against abortion and government policy towards abortion. They got money from people to support their actions. The contributors were able to take a charitable deduction on their income tax as the groups were tax-exempt charities. But the tax law says that if a tax-exempt group uses more than 5% of income to support political activity they will lose their tax-exempt status. If tax-exemption is lost, their income would be subject to tax, and contributors could no longer claim a tax deduction (meaning contributions may diminish). Because the case in court was brought by a private citizen trying to force the government to act under the 5% rule, the case was dismissed. But the issue remains active. Sooner or later the government, always in need of more money, will bring its own case and, I expect, win. Are we prepared to lose benefit of tax-exemption? Would the loss force us to close operations? Would we cease speaking in fear of losing the exemption? Those are the questions we must ask ourselves before relying on the tax-exemption in the first instance.

There is a final point I want to address. Sometimes we will be brought to court having done no wrong. How should we behave in such a case? And sometimes we will be brought to court because a wrong has been done. How should we behave is those cases?

A young man committed suicide. His parents brought a case in court against the church where he received counseling claiming the church was derelict in their technique. The parents wanted money damages believing the church caused the death of their son. The church defended on the basis that to explore its technique would be to explore religious practice, something prohibited under the 1st Amendment. After 9 years in court, the church won on that theory.

But I am troubled. What might be the questions of the heart of the parents when they heard their son killed himself? Would they ask, "Where did we fail as parents? Will we see our son in heaven?" [Catholic dogma used to teach that suicide doomed a person to hell.]

What answer is there to such questions other than a faith in a God Who is so great that we may trust Him with the questions and answers -- a God Who sent His Son to the cross, and as the Son to give His life for all. How is a person to meet such a God if the people of that God appear to value property more than the aching hearts which ask the questions? I Corinthians 6:7-8 says there is a defeat in litigation. Did the church's defensiveness possibly defraud the soul of the parents? Should the church have suffered the wrong and given all its property to the parents that they might see love and faith in action?

Or was the church defeated by the tremendous amount of money spent in defending the case, the hours of labor put into the case or the emotional stress upon all involved?

Please do not misunderstand me -- I believe we may defend in court. But our ways must not be the ways of the world and we must hold our treasures so loosely that we can hear God if He tells us to give away the property, suffer a loss, be defrauded. We ought not use law or Constitution as our first line of defense -- our first line must be right behavior before God. This means we say what we did, why we did it, and only then suggest law allows us this freedom. If we defend saying the law allows us our act, we will avoid saying what we did and what we believe. I Peter 3:15 tells us to not be ashamed, and to always make a defense of our hope. In the third chapter of Daniel, Shadrach, Meshack, and Abednego showed us how to act in the face of the law.

Also on this issue of how we respond to court cases against the church, we have seen a number of cases for money damages against the church for priests or pastors sexually offending members of the church. The church can usually defend itself on the theory that the pastor or priest is an independent person and not subject to everyday control by the hierarchy. The person harmed wins a judgment for damages against the pastor or priest, who normally has no money, but does not win against the church which does have money and property.

My question is: would not God ask the church to bear the burdens of the person injured by the acts of the servant? What do we say to the world when we fight so hard for our property that we leave injured people bleeding along the side of the road?

Well, allow me a few closing remarks.

(1) I am concerned that the church in the U.S. is so rights and property focused that the courts have decided it is proper to apply most concepts of civil liability to acts of the church.

(2) I am concerned that the church looks and acts so much as a business that the law is responding to it as a business.

(3) I am concerned that the church shows itself unwilling to practice its own rules of sacrificial love and internal conflict resolution, so courts have been required to act in the interest of justice.

(4) I am concerned we have lost sight of two fundamentals:

First, my rights come from God, not from man, man's laws, man's legal processes, or man's governmental systems. But with my rights from God come responsibilities to God which are binding upon me personally and organizationally.

Second, if I look to man or the things of man for my rights, sooner or later three things will happen: (1) I will stop doing my responsibilities towards God in fear of loss of my rights; (2) man will fail me and I will become filled with bitterness and anger; (3) I will try to take man's power and use it to limit the God-given rights of someone else to protect my sense of my rights and/or to protect my property.

I fear the church in the US today is looking too much to the government as its source of rights. Four possibilities exist from such a focus: (1) the church being seduced and losing sight of God as source of its rights; (2) the church becoming divided by legal/political issues; (3) the church losing its witness to the world; and (4) the church transferring its responsibilities before God to others.

For example, in the U.S. we have turned over the handling of our conflicts to the legal system of man.

In the process of all of this, we no longer transform society but become transformed by society into its image.

I have made these final remarks to try to remind us that God is and will be God. It is a call to place our trust in Him, not man or man's laws and systems. It is a call to re-think what we call ministry, to spend more time in ministry, and less time in legal and political maneuvering.

Jesus had no authority or power from man. He ministered despite opposition from secular and religious laws and systems. And both the secular and religious killed Him. But His seeds bore fruit, and His Church exists today because He did not allow man to control Him. He did not allow the things of man to divert Him from His ministry.

This must be possible for a Christian today, in any nation.

I also want to say that I believe we in the West need to discuss with the Church of the East your approach to issues of church and state, use of legal system, etc. In the West, we seem too quick to "go to the law", and we seem too willing to make full use of secular legal defenses when we are "summoned to the law". Maybe the church in the East can help us re-consider.

Next in this series is How Then Do We Respond?.