By Ed Thompson

I encourage you – actually, I urge you – to vote YES on Amendment 3 in the West Virginia General Election on Tuesday, November 8. A YES vote would change the language in the state constitution that prohibits churches from incorporating. While in some ways that sounds simple, the reality is far more complicated because the Secretary of State has actually been allowing churches to file for incorporation for almost 20 years now even though it’s still prohibited according to the letter of the law. In this case, however, the Secretary of State knows what he’s doing.

There are at least three good reasons to vote yes on Amendment 3.

1) The section of the West Virginia Constitution that prohibits churches from incorporating is illegal. If the State of West Virginia was ever taken to court over this provision, it would lose. The issue has already been decided in federal court. When West Virginia became a state during the Civil War, we simply copied this provision in Virginia’s constitution. In 2002, a federal judge ruled that this section in Virginia’s constitution was illegal. The case against Virginia was brought by Jerry Falwell and had the support of the ACLU. I suspect that Jerry Falwell and I agree about very few things. I suspect that the ACLU has even fewer things in common with Jerry Falwell. But we all agree about this.

I also suspect that the State of West Virginia recognizes that this provision in the state constitution is illegal, which is why the Secretary of State’s office has been allowing churches to incorporate since that ruling. They know that they would lose the case if anyone ever took them to court over this. We need to bring the state’s constitution into compliance with federal law. We’ve been dragging our feet for 20 years. It’s time.

2) The Book of Order, Part II of the constitution of the Presbyterian Church, requires churches to incorporate where permitted by state law. The first sentence of G-4.0101 spells this out, “Where permitted by civil law, each congregation shall cause a corporation to be formed and maintained.” I suppose you could make the argument that it’s not really going to be permitted by civil law in the state of West Virginia until after the election if Amendment 3 passes. My pushback is that the Secretary of State has been allowing churches to file for incorporation for almost 20 years. In my eyes, that seems to qualify as being permitted by civil law. And as we all know – or should know – in the Book of Order the use of the word “shall” means that it is mandatory. Churches are required to incorporate where it is permitted. There is no way around this. Just do it.

3) Probably the most important reason to incorporate and to vote to change the language in the state’s constitution is that it provides legal protection for pastors, officers, and members. Without incorporation, if someone files a lawsuit against the church, the pastor, officers, and members could be held personally responsible. With incorporation, the corporation would be the responsible party if the church loses the case. This is an oversimplification, and individuals could be named in a lawsuit even if the church is incorporated. Nevertheless, incorporation provides an important additional level of legal protection.

If Amendment 3 passes, the state would not require churches to incorporate. It’s still up to each session, each congregation to decide whether they will incorporate or not. (Remember, though, congregations would be required to incorporate under our church’s constitution.) This will not impact your tax status. This has nothing to do with your property rights. It is simply a way for the state to recognize the legal existence of each congregation.

We have templates available on the presbytery’s website. You can simply fill in the blanks if you choose to use them. If one of your members is a lawyer or you have a lawyer that you have used before, you can certainly consult with them. It’s your choice. If you have questions, you should contact Maureen Wright, our stated clerk. She has a far better understanding of what’s involved and has done far more work on this than I have.

I sometimes tell people who ask about my job that “I am the Presbyterian equivalent of a bishop.” I often add, “Except that I have no power other than the power of suggestion.” In this election, however, I am offering more than just a suggestion: Vote YES on Amendment 3.