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Suing James Madison
By Raul Rivera
West Virginia Doesn't Let Churches Incorporate
The title "Suing James Madison" is undoubtedly provocative. Still, it serves as a figurative gateway into a deeper discussion on the separation of church and state and the evolution of incorporation laws in the United States. James Madison, revered as the "Father of the Constitution," was a fierce advocate for religious freedom and keeping the state out of the Church’s business. Yet, modern challenges to these principles, particularly in the context of West Virginia's church incorporation prohibition, compel us to revisit Madison's legacy and consider its implications for today.
The Genesis in Virginia:
Virginia's history with church incorporation has deep roots. Historically, incorporation in Virginia, as with many other U.S. states, was a process managed directly by the legislature. Whether business or religious, entities petitioned the state legislature for a charter. These petitions were then accepted or denied, often through unique legislative acts. This old-fashioned way of issuing church charters led to corruption and was also used to establish a state church, the very outcome James Madison ardently sought to prevent. He authored and promulgated the Statute of Virginia for Religious Freedom in 1779 and set the groundwork for the state's stance on religious freedom. Following his lead, the Commonwealth of Virginia, through its General Assembly in 1787, expressly proscribed the issuance of corporate charters to religious institutions. This prohibition was further solidified in the Virginia Constitution.
Moreover, the fashioned system had its drawbacks. As the number of petitions grew, the process became cumbersome and open to potential political manipulation and favoritism. To rectify this and ensure an impartial system, many states transitioned to a model where a designated state agency would handle incorporations, ensuring efficiency and standardization.
In Virginia, this shift from legislative to administrative control over incorporations was a direct response to changes in the legal landscape. The State Corporation Commission (SCC) was established to oversee the process. However, churches remained an exception: they couldn't incorporate due to the state's constitutional provision. This prohibition persisted even under new state incorporation laws designed to ensure that entities remained private and free from undue state interference.
That was until the renowned Jerry Falwell took the matter to court. In Falwell v. Miller, 203 F. Supp. 2d 624 (W.D. Va. 2002), what can figuratively be termed “Suing James Madison,” Falwell challenged Virginia's prohibition. The federal judge granted summary judgment in favor of the plaintiffs, marking a pivotal moment. This landmark ruling marked the end of Virginia's 215-year prohibition on church incorporation, redefining the state's interpretation of religious freedom in the modern era.
West Virginia's Inheritance:
When West Virginia separated from Virginia during the Civil War in 1863, it adopted a significant portion of Virginia's legal and constitutional frameworks. The framers of West Virginia's Constitution were heavily influenced by the Virginia Constitution of 1851. Thus, West Virginia's prohibition on church incorporations can be viewed as a direct inheritance from Virginia.
Following the Falwell v. Miller decision, the West Virginia legislature took steps to rectify the church incorporation prohibition within its statutory framework, allowing churches to incorporate. However, the prohibition in the state constitution remained, and amending it would require a two-thirds majority vote by the House of Delegates and the Senate and a simple majority vote in a general election, a considerably more arduous process.
Nevertheless, riding the wave of the new statutory provisions and perhaps with the Falwell case in mind, the West Virginia Secretary of State authorized church incorporations. This approach led to numerous church incorporations between 2002 and 2022.
However, in November 2022, an opportunity arose to align the state constitution with the amended statute. An amendment to remove the prohibition of church incorporation in the Constitution was presented to voters. Surprisingly, the amendment was rejected, with 55% voting against it. This outcome may be attributed to the electorate's lack of clarity and understanding, possibly due to its proponents' inadequate education on the issue.
Following this unexpected turn of events, the Secretary of State, seemingly adhering to the strict letter of the constitution, ceased incorporating churches. This brings us to the present day, where, despite previous momentum, churches in West Virginia find themselves unable to incorporate.
Is There a Solution?
The issue of church incorporation in West Virginia is deeply rooted in historical decisions, modern legal challenges, and the electorate's recent choices. Yet, as with many constitutional matters, pathways to resolution do exist, though they may require a combination of legal acumen, political will, and public education.
Constitutional Amendment Revival: Given the failure of the 2022 amendment, proponents of church incorporation could introduce it again in a future election. To increase its chances of success, a comprehensive public awareness campaign detailing the benefits and reasons for the change would be crucial. This is likely expensive and may take a long time.
Judicial Interpretation: Yes, I know that I mentioned "Suing James Madison" was figurative, but here is where it gets literal in a sense. If a church in West Virginia were to challenge the constitutionality of the prohibition, it could lead to a legal determination. Using the Falwell v. Miller case as precedent, the prohibition would likely be deemed unconstitutional.
Based on the legal landscape, there's a strong belief that a federal judge would rule the state's prohibition on church incorporation as a violation of the First Amendment of the federal Constitution. A legal challenge on this front is feasible and may also be economically prudent.
While there would be associated costs, the lawsuit wouldn't be prohibitively expensive. The facts of the case are straightforward, and it's unlikely the state would mount a vigorous defense, as the state, too, may be seeking a resolution. The legal process would primarily encompass drafting and filing a complaint, awaiting the state's response, and then moving for summary judgment to address the core legal issues. It essentially boils down to a question of law, not a contestation of facts.
Conclusion
The historical trajectory of church incorporation in West Virginia and Virginia, rooted in the context of its time, was shaped significantly by the nuances of how "incorporation" was understood and executed. In those days, corporations were brought to life through legislative acts. Given that the Virginia Constitution was ratified before the addition of the First Amendment to the U.S. Constitution, incorporating a church through such legislative acts would indeed conflict with the establishment clause of the First Amendment. But times have changed. The older, legislatively driven methods of incorporation have given way to contemporary laws that frame corporations as private entities, created and managed through administrative resolutions by the people. In this modern context, to bar churches from the right to incorporate stands in contrast with the First and Fourteenth Amendments. Such a prohibition would obstruct the free exercise of religion and deny churches an equal footing under the law.
As we delve into the historical trajectory of church incorporation in West Virginia and Virginia, rooted in its contextual nuances, we invite you to reach out for any questions or insights you may seek. Feel free to connect with us at
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