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Hi, I'm Jerry Sparks, president of Ag Financial Insurance, and we have with us Rich Hammer, legal counsel for the general counsel, the Assemblies of God. Welcome to a special edition of Risk Management Live. Today, we're going to be looking at a number of legal issues that affect church plant ministers.
So, Rich, why don't you tell us what are the main reasons that churches end up in court?
Well, Jerry, as you know, I read every case decided in this country pertaining to religious organizations—all 50 states, all federal courts. I've done this for about 20 years, and it's about a thousand a month, about 12,000 in a year. But what I discovered about 20 years ago was it gave me the ability to systematically categorize these various risks. So I suddenly found myself in possession of data indicating the number one, number two reason that churches were in court. And perennially, over the last 20 years, you'll see the same, the same basis of liability over and over again. At the top, for the last 20 years, has been child molestation—the sexual molestation of a minor in a church, typically by a volunteer worker, sometimes by a youth pastor, etc. That's always the number one risk. And then there's—you'll always see personal injuries; you'll see property disputes; and you'll see insurance disputes. That's a usually a coverage dispute with an insurance company. So those are the, those are the top risks you need to be concerned about. So those are the top risks that are affecting churches.
So actually, we're going to talk a little bit more about those under the insurance and risk management sections. But let's talk a little bit about clergy-penitent privilege. What happens with that? The general rule in this country is that courts should have all of the evidence so they can make informed decisions. And so it's rare for a judge to say, "We're not going to allow certain evidence that's relevant to the jury." But there are certain exceptions to that rule of, "Let all the evidence in," and those—some of those are called privileges. You've heard of the husband-wife privilege or the doctor-patient privilege. Well, it turns out that all 50 states recognize something called the clergy-penitent privilege, and it's very important, I think, for ministers to be familiar with, and what it essentially means is that confidential communications made by somebody to a minister in the course of confidential or spiritual counseling—speaking to the minister as a spiritual advisor—those are considered to be privileged in all 50 states, and you cannot be required to divulge those in a court of law.
What are the requirements of this privilege? Well, number one, it has to be a communication, and that doesn't necessarily mean an oral discussion; it can mean a letter, give me a phone call; it probably can mean an email exchange as well. That's number one. And the communication must be confidential. And in some states—about a third of the states—define as no third person present during the communication. About two-thirds of the states define confidentiality as meaning no third or fourth persons are present other than those whose presence is in furtherance of the purpose of the communication. So you need to be careful about that. In some states, the fact that a third person is present in the room may negate the privilege. You need to, you need to check that in your jurisdiction. Number three, it must be made to a minister—not a minister's spouse, not a deacon, not a church secretary, in some cases not even a non-credentialed youth pastor. Some, some courts have differed on that, but you've got to be very careful if somebody is not a recognized minister with ministerial credentials. And number four, the—the communication that's confidential, made to a minister, must be made in the course of spiritual counseling, and that's very important. And the courts differ on their understanding of that. Keep in mind you're typically looking at a secular judge who has never been in a church, or maybe for decades, and doesn't understand that a privileged communication can occur in very unlikely circumstances, such as in a mall, at a Walmart, and at a sporting event. You know, you can find yourself talking to somebody, and that conversation kind of merges into a request for spiritual counsel. So I recommend that if you're in that situation where you're talking to somebody and you really feel like this conversation may be privileged, is to ask the person, maybe at the end of that conversation, "Were you speaking to me in my role as a spiritual advisor?" And so that if this comes up in the future and your—and the question of privilege is before the court, you can say, "I know why that person spoke to me because I asked them." So I think that's very important. But those are the four basic requirements for the clergy-penitent privilege to apply.
Talk a little bit about then the duty of confidentiality that a pastor would have with this.
Well, there's, there's a lot of confusion, Jerry, over whether the duty of confidentiality and the clergy-penitent privilege—remember confidentiality is the second requirement for the, for the privilege to exist—so there's some confusion over, "Well, don't ministers all just have a generic duty to maintain confidences shared with them?" That's an entirely different concept from the clergy-penitent privilege. And I would say in the history of our country, there have been about eight courts that have addressed that issue. About half of them have found ministers liable for disclosing confidential information shared with them in a private counseling session. Four states have said, "No, we're not going to go that far unless the legislature of our state recognizes that theory of liability." But the bottom line is, ministers—whether there's a legal duty or not—there's certainly an ethical duty. You should not be disclosing confidences shared with you. You know, let me, let me put it this way: There's certain things you can do to limit or impede your ministry, but there's certain things you can do that will destroy your ministry: sexual misconduct, financial improprieties, and disclosing confidential information shared with you in confidence. So whether there's an actual legal duty in your state or not—irrelevant—you have an ethical duty not to share confidences that have been shared with you by somebody in the course of the spiritual counseling session.
Let's talk a little bit about marriage ceremonies. So if a pastor travels to another state, can he perform a marriage ceremony?
Very common. You know, you live in State A; you know, you have a former classmate or friend or relative maybe in State B that wants you to travel to State A to perform the marriage ceremony. You just can't assume you have the authority to do that. Number one, are you a credentialed minister? You have to be. Number two, in the state where you're going to perform the marriage, are you a recognized minister that's legally qualified to solemnize a marriage? The law differs on that, Jerry, from jurisdiction to jurisdiction. I would say that in most states, ministers who are out-of-state, non-resident, can come in and perform a legal marriage, subject to certain conditions. You must, in some states, apply for that status. You must prove with some, like a ministerial card, that you're an ordained minister. So there, there are various ways around this, but the key point is this: Well ahead of time—I mean, months before the, the date of the marriage—you want to contact the—typically it's the county recorder's office for the county where the marriage will be performed—and just say, "I'm an out-of-state minister. I've been asked to come in-state to perform this marriage. What, what requirements, what conditions apply?" And have them—many times these recorder's offices have a checklist that they will provide, free of charge, to a non-resident minister that tells you exactly what you must do. The last thing in the world you want to do is to have an invalid marriage because you didn't comply with whatever conditions pertain to non-resident ministers. So the bottom line is, in most states, yes, they will allow non-resident ministers to come in and perform a marriage, but usually it is surrounded by certain conditions that you need to be aware of well ahead of time so you can meet those and make sure that that marriage is going to be legally intact.
The Supreme Court just recently ruled on same-sex marriages, and there's a lot of impact that it affects on our churches. But one of the questions we get, and as a new church planner, they're going to want to know, "Do I have to perform these types of marriages?"
Well, that's right. The Supreme Court ruled that same-sex couples have a constitutional right under the Federal Constitution, which means it's—this is true in all 50 states—a constitutional right to be married. It's a fundamental right, and the Supreme Court so ruled. So what is the, what are the consequences of that for ministers? Well, let me just start by saying, number one, ministers—and there's really three issues—number one, ministers are not going to be penalized if they refuse to perform a marriage. It's not going to happen. I mean, look, for the last 200 and some years of this nation's history, ministers have refused to perform a variety of marriages that are, that are legal under state law for theological reasons: "I don't think this couple is spiritually mature," "I don't want to marry a couple that's unequally yoked," and on and on and on. Are they, have they, they've never been sued, much less found liable. So, and this would fall under that condition. No court is going to tell the ministers, "Stick their hand in his back and say, 'We're going to force you into this church; you're gonna have to marry this couple.'" It's not going to happen. But there are a couple of issues that are troubling, and I think one of them is, "What about our church? Are we going to be required to perform marriages?" Maybe the pastor won't do it; maybe they'll bring in somebody from, from the community to perform, maybe a justice of the peace, maybe a pastor of another church that, that accepts gay marriage. And that's a real issue. And the conclusion is—and this is, this is an issue that's not been resolved—no court has addressed this issue yet. I suspect that will change in the future, but, but I think it's safe to say that churches that do not rent their sanctuary out to the general public to raise money—you're not, you're in the most protected status. And the idea that a court is going to order you to perform a marriage, I find that to be highly unlikely. Whereas the second category would be churches that actively go out into the community to solicit business—people renting the sanctuary for their own marriages—and you say, "Well, we'll allow anyone to get married except homosexual couples." I just think you're in a fragile, vulnerable legal position there. But the, you know, we'll wait and see what the courts say. But if you want to be in the safest position now, I think it would be—you exclude others from renting your facility who are non-members. And so what—if a gay couple contacts you, pastor, and says, "We want to get married in your church"—for you to be able to say, "Well, we have a policy in our church that we only allow the sanctuary to be used for weddings by members," case closed. That's understandable; that's acceptable. But if you say, "Well, we allow every religious group or non-religious group to use our sanctuary for marriage except gays," that, that is a volatile position that I think is going to be subject to challenge.
Let's look at child reporting for child abuse reporting. Are clergy mandatory reporters, and what is the liability for failing to report?
Forty-one states, clergy are mandatory reporters of child abuse. Nine states, they're permissive reporters, meaning you are urged to report, but you're not going to be legally liable if you don't report. So, but in 41 states, you are a mandatory child abuse reporter. Now, in 32 of those states, you are excused from reporting child abuse that you learned of in the course of a privileged communication. You remember the clergy-penitent privilege that we talked about. So if somebody comes into you and confesses, "I've been molesting my stepdaughter who's five years old," that's—and assuming that meets the definition of a, of a privileged communication in your jurisdiction, which is a very complex legal question in many situations that you don't want to just flippantly make that, "Well, I think it was privileged." That's a legal conclusion that I think it's often desirable to have an attorney weigh in and confirm that. But if it's in fact a privileged communication, that's an exemption from the duty to report in about 32 jurisdictions. The bottom line, Jerry, and these, these laws vary from time to time, you want to be sure you know your state law when it comes to child abuse reporting of ministers and whether there's a privilege that applies.
Let's just talk about what if a sex offender is attending your church. How should it be handled?
Well, as you can imagine, a registered sex offender attending your church—remember what I said, the number one risk you face in this country for the last 20 years is the sexual abuse of a child—and you're going to introduce one of these people into the congregation. I did a massive survey on this question, the largest one ever conducted through my publisher, Christianity Today. It's been a few years ago, but I'm sure the data remains about the same, and, and we asked churches—a huge cross-section, all denominations—what, what is your policy as a church if you learn that you have a registered sex offender attending? It was really interesting, Jerry. I thought a largest percentage would say, "Man, total exclusion; we're not letting that person in." But that's, that was not what happened. There, only three percent that said, "Our policy is total exclusion." Eighty percent said, "We allow them to attend subject to conditions," and that would be a conditional attendance agreement. "You can attend our church subject to these various conditions," the most important of which is that you are going to be under the surveillance of a—we'll call it a chaperone. The person doesn't have to sit with the perpetrator, but just at a distance, just always be aware of where this person is—including in the parking lot, including restrooms, including the, you know, empty or vacant areas of the building, etc. You don't let this guy just wander around. And if you do those things, the chance of a child being molested is almost non-existent. Other conditions would be, you don't allow the person to transport children to or from church or attend children's activities. And I think that you can surround that person's attendance with conditions that, that mitigate the risk. And what we discovered is 80 percent of churches fall into that category. Now, there are a few situations where I think total exclusion is the only acceptable response, and one of those would be if the victims—one or more victims of this perpetrator—continue to be in the church, in your church. That doesn't always happen, but if it does, to allow those victims to be revictimized every week by allowing this guy to attend, I think you, I think you need to step up and exclude that person totally under those circumstances.
Well, Rich, this has been really informational for church planners, and this is some of the top legal issues that are affecting you as a church planner. I know that there may be other legal issues out there, but we tried to cover some of the top legal issues that affect you. We appreciate you watching this video, and if you have any other further questions in regards to legal issues, please just let us know. I'm Gerry Sparks, and this is Rich Hammer, and we thank you for watching.