Re: NY Religious Corporations Law
Will - While not wishing to prolong this, thread, that exactly is my point - Section 200 of the RCL has an exception for decisions in the province of a spiritual officer while there is no such carve out under the NPCL. Arguably, a board of directors ( or a court) of a congregation incorporated under the NPCL may therefor override decisions of the spiritual officer. SAMUEL M. KRIEGER,ESQ. Krieger Prager LLP 39 Broadway, Suite 920 New York, NY 10006 . - Original Message - From: Will Linden wlin...@panix.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thursday, March 12, 2009 10:42 PM Subject: Re: NY Religious Corporations Law In a message dated 03/11/09 15:55:44 Central Daylight Time, smkrie...@verizon.net writes: Marc and Marci - If a congregation registers under the Not for Profit Corporation law , does that thereby allow ecclesiastical decisions to be subject to approval by lay governance or review by the courts? Are we elevating form over substance?? Can the lay board of directors direct that the Rabbi of an Orthodox Jewish congregation allow a female cantor to officiate or that he hold Sabbath sevices on Sunday ?? I would submit not - Davis v Scher , 97 N.W.2d 137, 356 Mich. 291 (1959). What happens if on the other hand the Rabbi wamts to introduce these practices over board or membership opposition.? see,. Katz v Singerman 241 La. 103, 127 So.2d 515. (1960). And in any case, the rabbi is a spiritual officer. Will Linden wlin...@panix.com http://www.ecben.net/ Magic Code: MAS/GD S++ W++ N+ PWM++ Ds/r+ A- a++ C+ G- QO++ 666 Y ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: NY Religious Corporations Law
Does any of this relate to the marriage legislation references to spiritual leaders and deputy spiritual leaders which were challenged in COG vs Dinkins? At 11:29 AM 3/13/09 -0400, you wrote: Will - While not wishing to prolong this, thread, that exactly is my point - Section 200 of the RCL has an exception for decisions in the province of a spiritual officer while there is no such carve out under the NPCL. Arguably, a board of directors ( or a court) of a congregation incorporated under the NPCL may therefor override decisions of the spiritual officer. SAMUEL M. KRIEGER,ESQ. Krieger Prager LLP 39 Broadway, Suite 920 New York, NY 10006 . - Original Message - From: Will Linden wlin...@panix.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thursday, March 12, 2009 10:42 PM Subject: Re: NY Religious Corporations Law In a message dated 03/11/09 15:55:44 Central Daylight Time, smkrie...@verizon.net writes: Marc and Marci - If a congregation registers under the Not for Profit Corporation law , does that thereby allow ecclesiastical decisions to be subject to approval by lay governance or review by the courts? Are we elevating form over substance?? Can the lay board of directors direct that the Rabbi of an Orthodox Jewish congregation allow a female cantor to officiate or that he hold Sabbath sevices on Sunday ?? I would submit not - Davis v Scher , 97 N.W.2d 137, 356 Mich. 291 (1959). What happens if on the other hand the Rabbi wamts to introduce these practices over board or membership opposition.? see,. Katz v Singerman 241 La. 103, 127 So.2d 515. (1960). And in any case, the rabbi is a spiritual officer. Will Linden wlin...@panix.com http://www.ecben.net/ Magic Code: MAS/GD S++ W++ N+ PWM++ Ds/r+ A- a++ C+ G- QO++ 666 Y ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. http://www.retaggr.com/SignatureProfile/wlinden ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: NY Religious Corporations Law
Why would being an unincorporated association have any effect on tax status of a church? In a message dated 03/11/09 15:55:44 Central Daylight Time, smkrie...@verizon.net writes: Marc and Marci - If a congregation registers under the Not for Profit Corporation law , does that thereby allow ecclesiastical decisions to be subject to approval by lay governance or review by the courts? Are we elevating form over substance?? Can the lay board of directors direct that the Rabbi of an Orthodox Jewish congregation allow a female cantor to officiate or that he hold Sabbath sevices on Sunday ?? I would submit not -Davis v Scher , 97 N.W.2d 137, 356 Mich. 291 (1959). What happens if on the other hand the Rabbi wamts to introduce these practices over board or membership opposition.? see,. Katz v Singerman 241 La. 103, 127 So.2d 515. (1960). Two additional notes- 1.Many of the cases in this area have courts straining to find a property interest and thereby granting jurisdiction to a secular court .. See PARK SLOPE JEWISH CENTER, ,v.CONGREGATION B'NAI JACOB, 90 NY2d 517, 686 N.E.2d 1330 (1997) . (fascinating procedural history) 2. Retaining unincorporated status may result in making the benefits of IRC Section 501 (c) (3) unavailable to the congregation. SAMUEL M. KRIEGER,ESQ. Krieger Prager LLP 39 Broadway, Suite 920 New York, NY 10006 Tel: (212) 363-2900 Fax: (212) 363-2999 - Original Message - From: Douglas Laycock To: Law Religion issues for Law Academics Sent: Wednesday, March 11, 2009 3:19 PM Subject: NY Religious Corporations Law So that's the escape route. Makes sense that there had to be one. Quoting Marc Stern mst...@ajcongress.org: In New York, a religious institution is generally permitted to register under the secular not for profit corporation law. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M. Sent: Wednesday, March 11, 2009 2:54 PM To: Law Religion issues for Law Academics Subject: RE: Connecticut bill To the extent that the entire NY Religious Corporations Law is mandatory, as opposed to merely default provisions that apply in the absence of contrary rules in the organization's charter or bylaws, I think there are serious constitutional issues with very many of the internal governance provisions. * Howard M. Friedman Disting. Univ. Professor Emeritus University of Toledo College of Law Toledo, OH 43606-3390 Phone: (419) 530-2911, FAX (419) 530-4732 E-mail: howard.fried...@utoledo.edu * From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of SAMUEL M. KRIEGER Sent: Wednesday, March 11, 2009 1:11 PM To: Law Religion issues for Law Academics Subject: Re: Connecticut bill Just for the sake of perspective on the proposed Connecticut legislation, I would welcome any comments on Section 200 of the New York Religious Corporations Law (codified in Article 10 applicable to Other Denominations - including Jewish Congregations ) compared to sub- sections (e) and (h) of the proposed Connecticut legislation. -- § 200. Control of trustees by corporate meetings; salaries of ministers. A corporate meeting of an incorporated church, whose trustees are elective as such, may give directions, not inconsistent with law, as to the manner in which any of the temporal affairs of the church shall be administered by the trustees thereof; and such directions shall be followed by the trustees. The trustees of an incorporated church to which this article is applicable, shall have no power to settle or remove or fix the salary of the minister, or without the consent of a corporate meeting, to incur debts beyond what is necessary for the care of the property of the corporation; or to fix or charge the time, nature or order of the public or social worship of such church, except when such trustees are also the spiritual officers of such church. (emphasis supplied) The provison has been in NY law in some form since 1813 and was last amended in 1909 . SAMUEL M. KRIEGER,ESQ. Krieger Prager LLP 39 Broadway New York, NY 10006 Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and
RE: NY Religious Corporations Law
Probably the earliest development of the corporate form in Roman law and English law was the corporation sole that permitted property to pass from one bishop to the next when the bishop died. This avoided the inheritance problems that would be present if title were held in the personal name of the bishop. Some of the same issues would likely arise if religious entities today tried to operate in non-corporate form. Beyond this, do we really want clergy holding property, often purchased with funds from their congregants, in their own names with the potential for abuse that this could pose? Also, to the extent that religious corporation statutes impose greater restrictions on incorporated churches than are imposed on other incorporated non-profits and charities, isn't there an equal protection problem? Howard Friedman From: religionlaw-boun...@lists.ucla.edu on behalf of hamilto...@aol.com Sent: Wed 3/11/2009 3:57 PM To: religionlaw@lists.ucla.edu Subject: Re: NY Religious Corporations Law The question here is whether you can satisfy the rule against judicial oversight of ecclesiology and permit the states to serve their legitimate interest in overseeing those that obtain corporation status. Religious entities need and/or want to be able to operate with the benefits of a corporation, including property ownership by an entity that surpasses the lives of any particular individuals and limited liability. Incorporation is voluntary, so why isn't there an argument that if they choose incorporation and its benefits, they have to agree to certain state oversight? While it is relatively easy to point to potential constituitonal difficulties in the laws as written, there are difficult issues getting the balance correct. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: NY Religious Corporations Law
I recognize that by black letter law, a church is exempt. However for a church to secure an actual letter of recognition of exemption from the IRS , I have always believed there was a requirement to submit a Certificate of Incorporation (and By Laws), Trust agreement , Constitution or similar document- Additionally, the document must contain certain required clause, - no private innurment, disposition of assets upon dissolution. These documents are not necessarily utilized by Unincorporated Associations . In the absence of an IRS recognition letter, the burden in an audit is on the taxpayer to prove the entity is exempt See Generally IRS Publication 557. SAMUEL M. KRIEGER,ESQ. Krieger Prager LLP 39 Broadway, Suite 920 New York, NY 10006 - Original Message - From: Lawyer2974 To: Law Religion issues for Law Academics Sent: Thursday, March 12, 2009 10:22 AM Subject: Re: NY Religious Corporations Law Why would being an unincorporated association have any effect on tax status of a church? In a message dated 03/11/09 15:55:44 Central Daylight Time, smkrie...@verizon.net writes: Marc and Marci - If a congregation registers under the Not for Profit Corporation law , does that thereby allow ecclesiastical decisions to be subject to approval by lay governance or review by the courts? Are we elevating form over substance?? Can the lay board of directors direct that the Rabbi of an Orthodox Jewish congregation allow a female cantor to officiate or that he hold Sabbath sevices on Sunday ?? I would submit not -Davis v Scher , 97 N.W.2d 137, 356 Mich. 291 (1959). What happens if on the other hand the Rabbi wamts to introduce these practices over board or membership opposition.? see,. Katz v Singerman 241 La. 103, 127 So.2d 515. (1960). Two additional notes- 1.Many of the cases in this area have courts straining to find a property interest and thereby granting jurisdiction to a secular court ... See PARK SLOPE JEWISH CENTER, ,v.CONGREGATION B'NAI JACOB, 90 NY2d 517, 686 N.E.2d 1330 (1997) . (fascinating procedural history) 2. Retaining unincorporated status may result in making the benefits of IRC Section 501 (c) (3) unavailable to the congregation. SAMUEL M. KRIEGER,ESQ. Krieger Prager LLP 39 Broadway, Suite 920 New York, NY 10006 Tel: (212) 363-2900 Fax: (212) 363-2999 - Original Message - From: Douglas Laycock To: Law Religion issues for Law Academics Sent: Wednesday, March 11, 2009 3:19 PM Subject: NY Religious Corporations Law So that's the escape route. Makes sense that there had to be one. Quoting Marc Stern mst...@ajcongress.org: In New York, a religious institution is generally permitted to register under the secular not for profit corporation law. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M. Sent: Wednesday, March 11, 2009 2:54 PM To: Law Religion issues for Law Academics Subject: RE: Connecticut bill To the extent that the entire NY Religious Corporations Law is mandatory, as opposed to merely default provisions that apply in the absence of contrary rules in the organization's charter or bylaws, I think there are serious constitutional issues with very many of the internal governance provisions. * Howard M. Friedman Disting. Univ. Professor Emeritus University of Toledo College of Law Toledo, OH 43606-3390 Phone: (419) 530-2911, FAX (419) 530-4732 E-mail: howard.fried...@utoledo.edu * From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of SAMUEL M. KRIEGER Sent: Wednesday, March 11, 2009 1:11 PM To: Law Religion issues for Law Academics Subject: Re: Connecticut bill Just for the sake of perspective on the proposed Connecticut legislation, I would welcome any comments on Section 200 of the New York Religious Corporations Law (codified in Article 10 applicable to Other Denominations - including Jewish Congregations ) compared to sub- sections (e) and (h) of the proposed Connecticut legislation. -- § 200. Control of trustees by corporate meetings; salaries of ministers. A corporate meeting of an incorporated church, whose trustees are elective as such, may give directions, not inconsistent
Re: NY Religious Corporations Law
Having statutes with apparently mandatory organizational provisions directed at religious organizations is problematic for the reasons Doug and the other signatories of the Connecticut letter mention. There are subtler but none the less troubling issues if a state says that a religious organization can, if it wishes to incorporate, use the generic nonprofit corporation law, without providing ample opt-out provisions for those aspects of the normal corporate structure that conflict with the religion's tenets. By and large, this isn't an issue when the statute allows the charter or bylaws to override statutory defaults, since an individual church can implement any changes in organization later mandated by the church's denomination without resort to any public body. Where such opt-out is lacking, though, there might be a problem of unconstitutional conditions, since the benefits of limited liability and perpetual existence have long since ceased to be discretionary with the state just by virtue of its issuing a corporate charter. When Madison vetoed the Arlington church's charter, that wasn't the case--corporations had to be chartered by special act of the legislature. It seems to me that income tax exemption, whether federal or state, is a different issue entirely. Exemptions, at least at the federal level (many states simply rubber-stamp the federal exemption), are not entirely ministerial for the general run of nonprofit organizations (and there's no requirement that the organization be incorporated). It seems that the only mandatory provisions noted on Form 1023 regarding organizational structure require a statement of exempt purpose and a commitment to using the organization's assets solely for exempt purposes on dissolution. I'm not aware of cases where these requirements have been challenged by anyone on religious grounds. I'm also not sure whether the organization would have to satisfy the same non-inurement tests that, say, an educational or civic organization would; if so, these might provide grounds for religious objection. On Thu, Mar 12, 2009 at 10:56 AM, Friedman, Howard M. hfri...@utnet.utoledo.edu wrote: Probably the earliest development of the corporate form in Roman law and English law was the corporation sole that permitted property to pass from one bishop to the next when the bishop died. This avoided the inheritance problems that would be present if title were held in the personal name of the bishop. Some of the same issues would likely arise if religious entities today tried to operate in non-corporate form. Beyond this, do we really want clergy holding property, often purchased with funds from their congregants, in their own names with the potential for abuse that this could pose? Also, to the extent that religious corporation statutes impose greater restrictions on incorporated churches than are imposed on other incorporated non-profits and charities, isn't there an equal protection problem? Howard Friedman -- *From:* religionlaw-boun...@lists.ucla.edu on behalf of hamilto...@aol.com *Sent:* Wed 3/11/2009 3:57 PM *To:* religionlaw@lists.ucla.edu *Subject:* Re: NY Religious Corporations Law The question here is whether you can satisfy the rule against judicial oversight of ecclesiology and permit the states to serve their legitimate interest in overseeing those that obtain corporation status. Religious entities need and/or want to be able to operate with the benefits of a corporation, including property ownership by an entity that surpasses the lives of any particular individuals and limited liability. Incorporation is voluntary, so why isn't there an argument that if they choose incorporation and its benefits, they have to agree to certain state oversight? While it is relatively easy to point to potential constituitonal difficulties in the laws as written, there are difficult issues getting the balance correct. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can
Re: NY Religious Corporations Law
Generally the not for profit corporation leaves so much room to create a corporate form amenable to one's needs that this should not be a problem Marc stern - Original Message - From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu Mar 12 11:55:39 2009 Subject: Re: NY Religious Corporations Law Having statutes with apparently mandatory organizational provisions directed at religious organizations is problematic for the reasons Doug and the other signatories of the Connecticut letter mention. There are subtler but none the less troubling issues if a state says that a religious organization can, if it wishes to incorporate, use the generic nonprofit corporation law, without providing ample opt-out provisions for those aspects of the normal corporate structure that conflict with the religion's tenets. By and large, this isn't an issue when the statute allows the charter or bylaws to override statutory defaults, since an individual church can implement any changes in organization later mandated by the church's denomination without resort to any public body. Where such opt-out is lacking, though, there might be a problem of unconstitutional conditions, since the benefits of limited liability and perpetual existence have long since ceased to be discretionary with the state just by virtue of its issuing a corporate charter. When Madison vetoed the Arlington church's charter, that wasn't the case--corporations had to be chartered by special act of the legislature. It seems to me that income tax exemption, whether federal or state, is a different issue entirely. Exemptions, at least at the federal level (many states simply rubber-stamp the federal exemption), are not entirely ministerial for the general run of nonprofit organizations (and there's no requirement that the organization be incorporated). It seems that the only mandatory provisions noted on Form 1023 regarding organizational structure require a statement of exempt purpose and a commitment to using the organization's assets solely for exempt purposes on dissolution. I'm not aware of cases where these requirements have been challenged by anyone on religious grounds. I'm also not sure whether the organization would have to satisfy the same non-inurement tests that, say, an educational or civic organization would; if so, these might provide grounds for religious objection. On Thu, Mar 12, 2009 at 10:56 AM, Friedman, Howard M. hfri...@utnet.utoledo.edu wrote: Probably the earliest development of the corporate form in Roman law and English law was the corporation sole that permitted property to pass from one bishop to the next when the bishop died. This avoided the inheritance problems that would be present if title were held in the personal name of the bishop. Some of the same issues would likely arise if religious entities today tried to operate in non-corporate form. Beyond this, do we really want clergy holding property, often purchased with funds from their congregants, in their own names with the potential for abuse that this could pose? Also, to the extent that religious corporation statutes impose greater restrictions on incorporated churches than are imposed on other incorporated non-profits and charities, isn't there an equal protection problem? Howard Friedman From: religionlaw-boun...@lists.ucla.edu on behalf of hamilto...@aol.com Sent: Wed 3/11/2009 3:57 PM To: religionlaw@lists.ucla.edu Subject: Re: NY Religious Corporations Law The question here is whether you can satisfy the rule against judicial oversight of ecclesiology and permit the states to serve their legitimate interest in overseeing those that obtain corporation status. Religious entities need and/or want to be able to operate with the benefits of a corporation, including property ownership by an entity that surpasses the lives of any particular individuals and limited liability. Incorporation is voluntary, so why isn't there an argument that if they choose incorporation and its benefits, they have to agree to certain state oversight? While it is relatively easy to point to potential constituitonal difficulties in the laws as written, there are difficult issues getting the balance correct. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu
Re: NY Religious Corporations Law
I would like to ask a point of information on the law profs letter to Conn legis. I am wondering if it was formally or informally commissioned by the bishops. Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Marc Stern mst...@ajcongress.org Date: Thu, 12 Mar 2009 12:21:28 To: religionlaw@lists.ucla.edu Subject: Re: NY Religious Corporations Law ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: NY Religious Corporations Law
The more interesting question is why anyone would have proposed such a patently unconstitutional law. For an apparently well sourced explanation debunking the claim, already made, that the proposed legislation was either retribution for the Church's stand on Prop 8, or part of a larger culture war, see http://secularright.org/wordpress/?p=1724 Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) masin...@nova.edu954.262.3835 (fax) Visiting Professor of Law (2008-2009)305.284.3626 (voice) University of Miami Law School mmasin...@law.miami.edu 1311 Miller Drive Coral Gables, FL 33146 Quoting hamilto...@aol.com: I would like to ask a point of information on the law profs letter to Conn legis. I am wondering if it was formally or informally commissioned by the bishops. Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Marc Stern mst...@ajcongress.org Date: Thu, 12 Mar 2009 12:21:28 To: religionlaw@lists.ucla.edu Subject: Re: NY Religious Corporations Law ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: NY Religious Corporations Law
In a message dated 03/11/09 15:55:44 Central Daylight Time, smkrie...@verizon.net writes: Marc and Marci - If a congregation registers under the Not for Profit Corporation law , does that thereby allow ecclesiastical decisions to be subject to approval by lay governance or review by the courts? Are we elevating form over substance?? Can the lay board of directors direct that the Rabbi of an Orthodox Jewish congregation allow a female cantor to officiate or that he hold Sabbath sevices on Sunday ?? I would submit not - Davis v Scher , 97 N.W.2d 137, 356 Mich. 291 (1959). What happens if on the other hand the Rabbi wamts to introduce these practices over board or membership opposition.? see,. Katz v Singerman 241 La. 103, 127 So.2d 515. (1960). And in any case, the rabbi is a spiritual officer. Will Linden wlin...@panix.com http://www.ecben.net/ Magic Code: MAS/GD S++ W++ N+ PWM++ Ds/r+ A- a++ C+ G- QO++ 666 Y ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: NY Religious Corporations Law
Doug is right about the origins of NY's church incorporation law. There was a formal effort to change the whole structure about 20 years ago, but it got hung up mostly, as I recall, by the problem of making the transition from old law on which there were substantial reliance interests to a new format. Marc From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Wednesday, March 11, 2009 3:19 PM To: religionlaw@lists.ucla.edu Subject: NY Religious Corporations Law Perhaps these separate provisions were originally negotiated with leaders of each faith group, attempting to provide what each group wanted. Even so, there is a high likelihood they got it wrong, or that orther institutions within the same faith group wanted, or now want, something different. To the extent that these laws are imposing governance stuctures on religious organizations contrary to each organizations religious self-understanding, they are unconstitutional. Even if they got it right, and one of these statutory sections is exactly what a religious organization wants, there remains the problem that the religious organization cannot amend its governance rules without going back to the legislature, which is surely also unconstitutional. I take this to be the point of James Madison's Veto Message in 1811, vetoing a bill to incorporate the Episcopal Church in Alexandria (then part of DC). The message is often cited for the proposition that Madison thought incorporation of churches is unconsistitutional, but that is not what he said. He said: The bill enacts into, and establishes by law, sundry rules and poceedings relative purely to the organization and polity of the church incorporated . . . so that no change could be made therein by the particular society, or by the gneral church of which it is a member, and whose authority it recognises. This particular church, therefore, would so far be a religious establishment by law; a legal force and sanction being given to certain articles in its constitution and administration. He also objected that the bill gave the church authority to provide for the poor, which he said was superfluous if it referred to pious charity, and making the church a legal agent for performnig a public duty if it were anything more. Quoting Friedman, Howard M. hfri...@utnet.utoledo.edu: To the extent that the entire NY Religious Corporations Law is mandatory, as opposed to merely default provisions that apply in the absence of contrary rules in the organization's charter or bylaws, I think there are serious constitutional issues with very many of the internal governance provisions. * Howard M. Friedman Disting. Univ. Professor Emeritus University of Toledo College of Law Toledo, OH 43606-3390 Phone: (419) 530-2911, FAX (419) 530-4732 E-mail: howard.fried...@utoledo.edu * From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of SAMUEL M. KRIEGER Sent: Wednesday, March 11, 2009 1:11 PM To: Law Religion issues for Law Academics Subject: Re: Connecticut bill Just for the sake of perspective on the proposed Connecticut legislation, I would welcome any comments on Section 200 of the New York Religious Corporations Law (codified in Article 10 applicable to Other Denominations - including Jewish Congregations ) compared to sub- sections (e) and (h) of the proposed Connecticut legislation. -- § 200. Control of trustees by corporate meetings; salaries of ministers. A corporate meeting of an incorporated church, whose trustees are elective as such, may give directions, not inconsistent with law, as to the manner in which any of the temporal affairs of the church shall be administered by the trustees thereof; and such directions shall be followed by the trustees. The trustees of an incorporated church to which this article is applicable, shall have no power to settle or remove or fix the salary of the minister, or without the consent of a corporate meeting, to incur debts beyond what is necessary for the care of the property of the corporation; or to fix or charge the time, nature or order of the public or social worship of such church, except when such trustees are also the spiritual officers of such church. (emphasis supplied) The provison has been in NY law in some form since 1813 and was last amended in 1909 . SAMUEL M. KRIEGER,ESQ. Krieger Prager LLP 39 Broadway New York, NY 10006 Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713
Re: NY Religious Corporations Law
The question here is whether you can satisfy the rule against judicial oversight of ecclesiology and permit the states to serve their legitimate interest in overseeing those that obtain corporation status. Religious entities need and/or want to be able to operate with the benefits of a corporation, including property ownership by an entity that surpasses the lives of any particular individuals and limited liability. Incorporation is voluntary, so why isn't there an argument that if they choose incorporation and its benefits, they have to agree to certain state oversight? While it is relatively easy to point to potential constituitonal difficulties in the laws as written, there are difficult issues getting the balance correct. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 -Original Message- From: Marc Stern mst...@ajcongress.org To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Wed, 11 Mar 2009 2:23 pm Subject: RE: NY Religious Corporations Law Doug is right about the origins of NY's church incorporation law. There was a formal effort to change the whole structure about 20 years ago, but it got hung up mostly, as I recall, by the problem of making the transition from old law on which there were substantial reliance interests to a new format. Marc =0 D From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Wednesday, March 11, 2009 3:19 PM To: religionlaw@lists.ucla.edu Subject: NY Religious Corporations Law Perhaps these separate provisions were originally negotiated with leaders of each faith group, attempting to provide what each group wanted. Even so, there is a high likelihood they got it wrong, or that orther institutions within the same faith group wanted, or now want, something different. To the extent that these laws are imposing governance stuctures on religious organizations contrary to each organizations religious self-understanding, they are unconstitutional. Even if they got it right, and one of these statutory sections is exactly what a religious organization wants, there remains the problem that the religious organization cannot amend its governance rules without going back to the legislature, which is surely also unconstitutional. I take this to be the point of James Madison's Veto Message in 1811, vetoing a bill to incorporate the Episcopal Church in Alexandria (then part of DC). The message is often cited for the proposition that Madison thought incorporation of churches is unconsistitutional, but that is not what he said. He said: The bill enacts into, and establishes by law, sundry rules and poceedings relative purely to the organization and polity of the church incorporated . . . so that no change could be made therein by the particular society, or by the gneral church of which it is a member, and whose authority it recognises. This particular church, therefore, would so far be a religious establishment by law; a legal force and sanction being given to certain articles in its constitution and administration. He also objected that the bill gave the church authority to provide for the poor, which he said was superfluous if it referred to pious charity, and making the church a legal agent for performnig a public duty if it were anything more. Quoting Friedman, Howard M. hfri...@utnet.utoledo.edu: To the extent that the entire NY Religious Corporations Law is mandatory, as opposed to merely default provisions that apply in the absence of contrary rules in the organization's charter or bylaws, I think there are serious constitutional issues with very many of the internal governance provisions. * Howard M. Friedman Disting. Univ. Professor Emeritus University of Toledo College of Law Toledo, OH 43606-3390 Phone: (419) 530-2911, FAX (419) 530-4732 E-mail: howard.fried...@utoledo.edu * From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of SAMUEL M. KRIEGER Sent: Wednesday, March 11, 2009 1:11 PM 0A To: Law Religion issues for Law Academics Subject: Re: Connecticut bill Just for the sake of perspective on the proposed Connecticut legislation, I would welcome any comments on Section 200 of the New York Religious Corporations Law (codified in Article 10 applicable to Other Denominations - including Jewish Congregations ) compared to sub- sections (e) and (h) of the proposed Connecticut legislation. -- § 200. Control of trustees by corporate meetings; salaries of ministers. A corporate meeting of an incorporated church, whose trustees are elective as such, may give directions, not inconsistent
Re: NY Religious Corporations Law
Marc and Marci - If a congregation registers under the Not for Profit Corporation law , does that thereby allow ecclesiastical decisions to be subject to approval by lay governance or review by the courts? Are we elevating form over substance?? Can the lay board of directors direct that the Rabbi of an Orthodox Jewish congregation allow a female cantor to officiate or that he hold Sabbath sevices on Sunday ?? I would submit not -Davis v Scher , 97 N.W.2d 137, 356 Mich. 291 (1959). What happens if on the other hand the Rabbi wamts to introduce these practices over board or membership opposition.? see,. Katz v Singerman 241 La. 103, 127 So.2d 515. (1960). Two additional notes- 1.Many of the cases in this area have courts straining to find a property interest and thereby granting jurisdiction to a secular court . See PARK SLOPE JEWISH CENTER, ,v.CONGREGATION B'NAI JACOB, 90 NY2d 517, 686 N.E.2d 1330 (1997) . (fascinating procedural history) 2. Retaining unincorporated status may result in making the benefits of IRC Section 501 (c) (3) unavailable to the congregation. SAMUEL M. KRIEGER,ESQ. Krieger Prager LLP 39 Broadway, Suite 920 New York, NY 10006 Tel: (212) 363-2900 Fax: (212) 363-2999 - Original Message - From: Douglas Laycock To: Law Religion issues for Law Academics Sent: Wednesday, March 11, 2009 3:19 PM Subject: NY Religious Corporations Law So that's the escape route. Makes sense that there had to be one. Quoting Marc Stern mst...@ajcongress.org: In New York, a religious institution is generally permitted to register under the secular not for profit corporation law. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M. Sent: Wednesday, March 11, 2009 2:54 PM To: Law Religion issues for Law Academics Subject: RE: Connecticut bill To the extent that the entire NY Religious Corporations Law is mandatory, as opposed to merely default provisions that apply in the absence of contrary rules in the organization's charter or bylaws, I think there are serious constitutional issues with very many of the internal governance provisions. * Howard M. Friedman Disting. Univ. Professor Emeritus University of Toledo College of Law Toledo, OH 43606-3390 Phone: (419) 530-2911, FAX (419) 530-4732 E-mail: howard.fried...@utoledo.edu * From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of SAMUEL M. KRIEGER Sent: Wednesday, March 11, 2009 1:11 PM To: Law Religion issues for Law Academics Subject: Re: Connecticut bill Just for the sake of perspective on the proposed Connecticut legislation, I would welcome any comments on Section 200 of the New York Religious Corporations Law (codified in Article 10 applicable to Other Denominations - including Jewish Congregations ) compared to sub- sections (e) and (h) of the proposed Connecticut legislation. -- § 200. Control of trustees by corporate meetings; salaries of ministers. A corporate meeting of an incorporated church, whose trustees are elective as such, may give directions, not inconsistent with law, as to the manner in which any of the temporal affairs of the church shall be administered by the trustees thereof; and such directions shall be followed by the trustees. The trustees of an incorporated church to which this article is applicable, shall have no power to settle or remove or fix the salary of the minister, or without the consent of a corporate meeting, to incur debts beyond what is necessary for the care of the property of the corporation; or to fix or charge the time, nature or order of the public or social worship of such church, except when such trustees are also the spiritual officers of such church. (emphasis supplied) The provison has been in NY law in some form since 1813 and was last amended in 1909 . SAMUEL M. KRIEGER,ESQ. Krieger Prager LLP 39 Broadway New York, NY 10006 Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713 -- ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please
