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15 Dec 2011

A Tale of Two Pastors, Part Five-Avoiding the Legal Pitfall Known as Terms of Consent

Raul Rivera

Every pastor wants to have the dream church-an atmosphere where love, acceptance and conviction dwell in abundance.  Pastors Smith and Jones were no exception.  Pastor Jones fostered that atmosphere by allowing extra time during praise and worship for the Spirit of the Lord to move on the hearts of the people, while Pastor Smith made sure that the church always focused on community through fellowship and small groups.  Two pastors-each with a vision to reach their community with the gospel of hope-found themselves on a journey filled with pitfalls and how each would deal with those pitfalls was quite different.

A member of Pastor Jones' church

It took him quite by surprise.  Ms. Julia (as she was known) was very involved in Kids' Church.  For the last several years her faithfulness to the ministry had left an indelible impression on the children and their parents.  Everyone in the church was astonished at how carefully Ms. Julia planned each lesson and masterfully delivered it to the children week after week.  She was the type of member about which a pastor dreams, which is why it came as such a surprise when Pastor Jones learned that outside of the church she had been having an affair with a married man.  Out of deep concern for her, and knowing that she had never married, he and his wife met with her to giver her love, comfort and counsel.  After three hours, she agreed that what she was doing was a violation of God's Word and declared she would end the relationship.

A member of Pastor Smith's church

When Pastor Smith received a letter from Kyle that expressed serious disagreement with last Sunday's message, he knew he had to deal with it right away.  Kyle disagreed with the church's position on miracles.  Pastor Smith taught that God was active today in performing miracles in the lives of believers.  However, Kyle disagreed to the point that he also began to send mass emails to the congregation disputing Pastor Smith's teaching.  It was a serious matter and one that needed immediate attention.

What did Ms. Julia do?

 After several more months of continued dialogue with Ms. Julia, all seemed well until Pastor Jones discovered that she had continued the live-in arrangement incognito.  This presented a strain on the church because they had never had to deal with such personal yet congregational matters.  On one hand, Pastor Jones and his wife understood her deep loneliness.  Ms. Julia was over 40 and had never married.  While on the other hand, Scripture was clear.  Pastor Jones, his wife, and two other couples that were elders at the church reasoned with her that to follow God's Word always yields a better result and that it requires faith to walk out His plan.  Ms. Julia, while knowing it was true, did not want to repent. Instead, she ignored their pleas and continued in her arrangement.  Her attendance at church dropped considerably.

What did Kyle do?

Much to Pastor Smith's dismay, Kyle gathered a group of about 30 members in his home to hold a Bible study on miracles.  Kyle used the opportunity to bring a teaching contrary to that of the church, resulting in great confusion.  The next day, Pastor Smith and two elders met with Kyle and made it clear that it was OK to disagree with the church's position on miracles, but that Scripture forbade the sowing of division.  Later that evening the church had its fellowship dinner.  The atmosphere was heavy.  Nearly everyone knew there was a pink elephant in the fellowship hall and tried to ignore it.  As the evening went on, the conversations were quiet and the tension grew.  It was all Pastor Smith could do to try and deal with it internally.  He prayed and asked the Lord to give him wisdom.  When it came time to close the evening, as was customary with the church, Pastor Smith shared a word of encouragement with the church and was about to ask Brent to close in prayer, when Kyle interrupted and said he wanted to share something with the congregation.  It appeared that he was going to announce his sin of sowing division.  But to the contrary, he proposed that a "congregational vote be tak-". . . Pastor Smith cut him off . . .

What did Pastor Jones do concerning Ms. Julia?

What had always been a wonderful relationship filled with several years of undisturbed fellowship now reached a zenith of tension and heartbreak.  Though Pastor Jones and his wife loved Ms. Julia, they knew that the greatest act of love and mercy they could show her was to remain true to Scripture as their church understood it, and practice Matthew Chapter 18:6-19 in an attempt to stave off the judgment mentioned in verse 6.  On Friday, two days before her case was to be brought before the church, a certified letter from Ms. Julia arrived at the church.  Because Pastor Jones had already left for the day, no one opened it. Her situation was brought before the church and as was the custom of Pastor Jones' church, she was not barred from attending church services, but she was considered as an unsaved person in need of salvation.

What did Pastor Smith do concerning Kyle?

 Needless to say, it was a predictable ending to an uncomfortable evening.  When Pastor Smith prevented Kyle from delivering a speech that would cause more division, Kyle was furious.  After everyone left, a heated discussion took place in the church's boardroom between Kyle and the entire board of directors of the church.  Kyle did most of the talking and finger pointing, while the board of the church under Pastor Smith's direction attempted to reason with him.  Being that their third effort to restore him to fellowship was appearing fruitless, Pastor Smith ended the evening by making a declaration that, according to Matthew 18, Kyle's actions would be brought before the church and that he would be dismissed from their fellowship.  Kyle stated his disapproval and told the board and the pastor that he wished to officially end his membership at the church, effective immediately.  Pastor Smith accepted his resignation and stated that it would become official when they would announce it to the church.  It was their church's tradition that a dismissal from their fellowship meant an end to membership at the church and a letter sent to the bishop detailing a person's infractions and sins.

The aftermath of church discipline

In today's world of ministry, practicing a church's deeply held convictions can have legal consequences.  Every week churches have internal struggles with a church member or an employee.  What is the church allowed to do when a member or employee falls into unrepentant sin, causes strife, or brings division?  While the Scriptures give us a clear guide on how to handle disciplinary issues with members of the Body of Christ, are there any potential legal pitfalls that a church should look out for and possibly avoid?  Thankfully, there is a proper way to handle church disciplinary issues while also avoiding litigation.  It all falls within the concept called "terms of consent." 

Julia sues her church

Julia sued her church claiming intentional infliction of emotional distress and invasion of privacy when they publicly announced private facts about her life.  The church claimed that the U.S. Constitution protected the church when it disciplined Ms. Julia.  Her willing submission to the church's doctrine collectively shielded the church's religiously motivated discipline from the scrutiny of a secular court.  Though the court agreed with the nature of the church's argument, Julia had submitted evidence that the court relied upon when it ruled against the church and its elders.  Remember the certified letter that Ms. Julia sent to the church two days before she was publicly disciplined?  Well, in that letter she withdrew her membership from the church and that stated that she no longer wished to associate with or submit herself to the church's discipline. She also stated that she did not give the church permission to publicize any of her private matters.  It was the court's opinion that since the church had no written policy on church discipline and because Ms. Julia had not signed any "terms of consent," her letter was sufficient to end the church's religious jurisdiction.  The court concluded that when in the absence of a written policy/doctrine of church discipline and/or written consent of a parishioner, the court could hear the case and rule on neutral principles of law.  The jury ruled in Ms Julia's favor and awarded her actual and punitive damages of $390,000.00.

Kyle sues his church

Kyle sued his church claiming that from the day they brought the matter before the congregation he had suffered defamation of character, being shunned by all the churches in his denomination, and that it brought injury to his occupation.  He claimed that the church's ecclesiastical jurisdiction ended when he made known to the board of directors and pastor of the church that we wished to terminate his membership.  Kyle was a traveling evangelist and his sole occupation was preaching and teaching at the churches within the denomination.  He claimed that all of the churches that he was scheduled to preach at have recalled their invitations citing the disciplinary actions taken against him by his former home church.  Pastor Smith's church argued that the church's actions did not constitute tortuous conduct, but rather implementation of its valid ecclesiastical procedures of church discipline and that the Free Exercise Clause of the First Amendment afforded a shield from interference by secular courts.  The church also argued that Kyle had consented to the church's disciplinary actions when he signed his application to officially become a member.

Because the church had a written policy in its bylaws for church discipline and because Kyle agreed to the terms of consent when became a member, the court agreed with the church and dismissed the case.  It ruled that because the court could not hear the case without having to delve into matters of church doctrine and discipline, Kyle's complaint was outside of its jurisdiction.  Why did his church prevail when Pastor Jones' church suffered great loss?  It was all in his documentation and terms of consent.

Why two different results?

The cases of Pastor Smith and Pastor Jones paint a clear picture of the importance of properly documenting polices and procedures for church membership and discipline.  Pastor Jones could have avoided such a terrible ruling if his church had taken time to properly make the terms of the church's membership clear. Below is a table highlighting the distinctions between how each church handled membership and church discipline.

Pastor Smith

Pastor Jones

Application form for membership is filled out and signed.

Assumed membership.

The application form required prospective member to sign and agree with church's bylaws, which indicated that their actions whether in the church or out of the church were of mutual interest to the other members regardless of their status as a member.

Void of such requirement.

Had clear procedures for disciplinary action based on Scripture and terms of consent.

Though based on Scripture, disciplinary action and terms of consent were never put in writing.


More and more we are seeing churches go one of two ways when it comes to church discipline.  They either avoid it because of fear they might get sued or they blindly pursue it and feel God will protect them if they simply follow the outline set forth in Scripture.  While the latter is commendable, there additional wisdom to be applied.  By simply taking time to get informed, a church can implement procedures for discipline based on their convictions without fear of getting sued.  The key is getting informed.  Join as at one of our conferences to get informed on how to properly structure a membership/covenant partner program at your church that protects the interest of the church while also being life giving to the congregation.

*The story of Pastor Jones and Pastor Smith is a series based on true life events of pastors all across America.  This series originated in the mind of our founder, Raul Rivera.  His experience with over 14,000 pastors and leaders, and review of many court cases, has allowed him the opportunity to write these short stories.  Pastor Smith and Pastor Jones are generic names.  They are not the actual names of the real pastors and leaders who have gone through these events. 

Please feel free to comment. We always appreciate good dialogue. However, we do moderate each comment to ensure that it is on topic and not derogatory to other participants. We ask that you keep your comments brief and pertinent to the topic so that others may benefit.

Raul Rivera

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About the Author

Church Planter. Speaker. Author. CEO. Raul Rivera has had ample experience in the church planting world. His current venture, StartCHURCH, has helped 1000's of churches to start right. Raul has compiled an array of manuals and software tools that help churches stay compliant with the IRS. He also hosts over 35 national conferences per year, training pastors on how to launch their churches. Raul is married to his wife Genel, and they and their five children live in Atlanta, GA.