Navigating Church Legal Issues
A Conversation with Kristen K. Waggoner
Kristen K. Waggoner is the new legal counsel for the Assemblies of God. She follows Richard R. Hammar, who retired in March after filling the role for 43 years.
Waggoner also serves as general counsel for Alliance Defending Freedom, the world’s largest Christian legal organization, a firm she joined in 2013.
In the following Q&A, Waggoner answers some of the most common legal questions from churches.
What steps should churches take to prevent sexual abuse of a minor, and how should they respond to an allegation?
Incidents of sexual abuse of a minor are a tragic reality and one of the most alarming legal issues churches encounter today. It is imperative that churches protect their most vulnerable by following best practices and implementing clear policies for those who work with children and youth.
At a minimum, those policies should include a criminal background and sex offender check for all employees and volunteers working with minors. In addition, churches should ensure that at least two unrelated adults are supervising each room or vehicle if travel is involved.
An employee or volunteer should never be alone with a minor. Churches should consider requiring all volunteers who work with minors to be at least five years older than those they supervise. In addition, a church should take any allegation seriously and adopt a clear procedure for when and how to investigate a complaint and report an allegation to authorities. Churches should err on the side of reporting in most instances.
A policy means little without proper implementation. Train your staff and volunteers in this area. This includes training about mandatory child abuse reporting laws. Churches are encouraged to have a staff member who remains up to date on best practices in these areas.
A policy means little without proper implementation.
Lastly, churches should do their best to ensure that any registered sex offenders who attend the church have signed a conditional attendance agreement. These agreements permit attendance, but also recognize that extra measures of accountability are in place.
The Assemblies of God has a sample conditional attendance agreement for sex offenders online, as well as articles related to “Screening Children’s Ministry Volunteers” and “Conducting Criminal Records Checks on Volunteer Workers.”
Can churches require that all employees and volunteers affirm their religious beliefs?
The coreligionist principle reflected in the First Amendment and Title VII of the Civil Rights Act of 1964 has long protected a church’s right to hire only people who affirm its religious beliefs. But this longstanding tradition has been challenged recently.
In Washington state, for example, Seattle’s Union Gospel Mission has faithfully served the city’s homeless by providing food, shelter, addiction recovery, job placement and legal services since the Great Depression. The ministry’s religious convictions and evangelical mission are the foundation for everything it does, including its hiring practices.
As a result, the Mission hires only those who share its beliefs. But the Washington Supreme Court recently ruled that state law can punish religious nonprofits for not hiring employees who do not share their religious beliefs. This case is on appeal to the U.S. Supreme Court. Prior decisions by the Supreme Court and recent challenges suggest a church should articulate its religious beliefs (including how its employees and volunteers help it fulfill its mission) in writing as a point of reference should the church face a lawsuit.
Should a church open its facilities for use to other persons or groups during the week?
A church should feel free to open its facilities to the community for outreach, provided it has proper policies in place.
First, a church must have a facility use policy. This policy should make clear that the property is not generally open to the public, but that it is made available on a case-by-case basis to serve the community. Most importantly, the agreement should clarify that the church does not permit any activities or uses that are inconsistent with its statement of faith. This statement reserves the right of the church to take action should the group or one of its members behave contrary to the church’s policies tied to its religious beliefs.
Second, to avoid some public-accommodation laws — which can threaten a church operating according to its religious beliefs, especially in areas of marriage and sexuality — a church should limit use of its premises to ministry purposes. In other words, making money should not be the goal. A church should always charge below market rates to outside groups.
Third, it’s always a good idea to notify the church’s insurance provider of the types of groups and activities it is permitting. That way, the pastor knows what the church’s policy covers ahead of time. And when practical, the pastor should always require the outside group to name the owner/host church as an additional insured entity.
What are the most common property disputes for churches?
A church property dispute can arise from various internal or external factors.
Given our current cultural landscape, more and more churches are facing hostility from federal, state and local governments. To illustrate, some local zoning boards have implemented discriminatory zoning laws to limit, and in some cases prohibit, churches from locating in their cities. Fortunately, Congress enacted the Religious Land Use and Institutionalized Persons Act, and many states have enacted laws to curb this hostility.
Churches, especially older churches, also tend to run into legal disputes over title defects. So it is important that a church reviews the property deed to ensure it reflects the church’s legal name. Most churches don’t learn about these problems until they try to use a deed as collateral for financing or decide to sell, at which time the problems may present significant roadblocks.
Finally, a church will sometimes split into two or more congregations. In such cases, disputes often arise over who has the right to the property. Local churches should ensure their governing documents, deeds, and relevant property documents are consistent with the Constitution and Bylaws of the General Council and applicable district council and properly followed on these issues.
Given rising security threats over the past decade, what steps should churches take to protect their congregation and employees?
Churches should create and implement clear security plans that cover potential threats, including, but not limited to, protests, armed gunmen, sex offenders on church premises, and parishioners who carry concealed firearms or other weapons.
Churches should create security teams tasked with protecting congregants during church services or other church-related events. Regular training should be provided to members of the security team to help ensure they know what laws apply in their particular state and how to respond to potential security threats and emergency situations safely.
If a church has insurance coverage, does it need to worry about legal issues?
Yes. Church leaders often think having an insurance policy insulates them from all risks. But insurance policies come in all shapes and sizes, so it is important to know exactly what incidents a policy will cover. All policies contain coverage exclusions. For example, most general liability policies exclude sexual abuse claims and instances of gross negligence.
Additionally, insurance policies typically contain a duty to notify. This means that a church must notify the insurer of current or potential legal claims. Failure to do so could be grounds for the insurer to reject coverage.
All polices should be retained forever.
The information in this article should not be construed as legal advice. For specific questions or to obtain legal advice, consider becoming a member of Alliance Defending Freedom’s Church Alliance. For more information, visit ADFChurchAlliance.org or contact Alliance Defending Freedom at 1-800-835-5233.
This article appears in the spring 2022 issue of Influence magazine.