Notice that the above featured image, taken from IRS publications given below, says, “churches that meet the requirements of § 501(c)(3) are automatically considered tax exempt and are not required to apply for and obtain recognition of tax-exempt status from the IRS.” This is the correct position.
According to 508(c)(1)(A) a church can claim status without filing for 501(c)(3) status. 508(c)(1)(A) is a subsection of §508. Special rules with respect to section501(c)(3) organizations; this alone makes clear that a 508(c)(1)(A) church is a 501(c)(3) church. As such, it is subject to the requirements (the rules and regulations) that come with 501(c)(3). This conclusion is further explained in this article.
Furthermore, according to principles in the Word of God, church tax exempt status is spiritual fornication since she has submitted herself to man’s law, become a temporal legal – as opposed to spiritual eternal only – entity, and chosen to submit to an authority other than the Lord Jesus Christ as to many church matters.
A church can choose to remain under Christ only as a eternal spiritual organism as opposed to a temporal earthy organization. In America, the First Amendment and corresponding state constitutional provisions protect this choice from persecution. The essay below, and other essays, articles, and books on this website explain these matters more comprehensively.
Ignorance, and especially willful ignorance, is no excuse for dishonoring our Lord.
Click the above to go to online version of God Betrayed.
In the book God Betrayed/Separation of Church and State: The Biblical Principles and the American Application (“God Betrayed”) as well as in other books and writings, I originally taught that a New Testament church could depend upon Internal Revenue Code (“IRC”) § 508(c)(1)(A) for her non-taxable status (See Endnote 1for links to the two free versions of God Betrayed or for ordering information should you desire a softback copy as well as information on other books and resources by Jerald Finney.). I was wrong. After years of study, I have learned that a New Testament church cannot depend upon 508(c)(1)(A) for her non-taxable status because, in so doing, the church gives up her New Testament and First Amendment status; the church becomes tax exempt as opposed to non-taxable. However, I am more certain than ever of the correctness of my original biblically based conclusions that a church grieves the Lord when they intentionally, knowingly, recklessly, or negligently attain church corporate and/or 501(c)(3)/508(c)(1)(A) status or legal entity status (See Endnote 1) of any kind. I ask those who have followed my teachings to forgive me for misleading them concerning church 508 status. This brief article explains church 508 status and its effect.
A New Testament Church is also a First Amendment Church. This is because the First Amendment is a law which corresponds with biblical principles to include freedom of religion and conscience (separation of church and state), freedom of speech, freedom of press, and freedom of association. The First Amendment is a part of the second highest law of the land, the United States Constitution.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Notice especially that the First Amendment says, “… no law ….”
Are not those words very clear? No law means “no law.” What is IRC § 508(c)(1)(A)? It, like IRC 501(c)(3), is a law made by Congress and signed by the President. IRC § 508(c)(1)(A) and IRC 501(c)(3) are, when applied to churches, laws “respecting an establishment of religion and preventing the free exercise thereof.”
Why would a church take themselves from First Amendment status and protection to either IRC § 508(c)(1)(A) or IRC § 501(c)(3)? One reason is lack of knowledge, wisdom, and understanding. When a church claims either 508(c)(1)(A) or 501(c)(3) status, she has rejected her First Amendment non-taxable status and freely accepted the offer of the federal government to enter into an agreement (contract) for tax exempt status as provided by a law.
Let me repeat: First Amendment churches under God are non-taxable. 501(c)(3) and 508(c)(1)(A) religious organizations are tax exempt. IRC § 508 (the codification of Public Law 91-172 ratified in 1969) provides in relevant part:
A portion of Internal Revenue Code § 508. Click the above to go to § 508.
“§ 508. Special rules with respect to section 501(c)(3) organizations. “(a) New organizations must notify secretary that they are applying for recognition of section 501(c)(3) status. … “(c) Exceptions. “(1) Mandatory exceptions. Subsections (a) and (b) shall not apply to— “(A) churches, their integrated auxiliaries, and conventions or associations of churches” (26 U.S.C. § 508). [Emphasis mine.]
§ 508(c)(1)(A) says churches are excepted from applying for IRC § 501(c)(3) tax exempt status (See Endnote 2for links to articles which fully explain church IRC § 501(c)(3)) status). 508 churches are an exception to the civil government requirement that certain organizations file for 501(c)(3) tax exempt status.
A church should rely on the First Amendment to the United States Constitution, not on508(c)(1)(A) status for three reasons. First, the First Amendment is a statement of the biblical principle of separation of church and state (See, for a short explanation with links to more in depth studies, Is Separation of Church and State Found in the Constitution?). When a church relies on the First Amendment, they are relying on a biblical principle. Should the biblical principle be abused or ignored by the civil government, so be it—a church should then rely and act only on the biblical principle. Endnote 3.
A law of man which enacts some biblical principles.
Second, to rely on 508(c)(1)(A) contradicts the First Amendment. To repeat, the First Amendment religion clause states:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
IRS Publication 1828. Click the above to go directly to IRS Pub. 1828.
Obviously, 508(C)(1)(A) is a law made by Congress which regards an establishment of religion; 508(C)(1)(A) also prevents the free exercise of religion because a church which claims 508(C)(1)(A) status thereby submits themselves to some control by the federal government in that the church becomes subject to the rules that come with IRC 501(c)(3) status. 508(C)(1)(A) does not state that the First Amendment forbids Congress from making any law in violation of the First Amendment; and that, therefore, a church is non-taxable. 508(C)(1)(A) is a law made by Congress which states that Congress, by law, is declaring an exemption for churches. Thus, by a clear reading of the First Amendment, 508(C)(1)(A) is clearly unconstitutional. Most churches and pastors could care less about this technicality.
From IRS Publication 1828
The correct position which is held by the Internal Revenue Service (“IRS”) is that a church has submitted herself to IRC § 501(c)(3) regulation and ignored her First Amendment status by relying on 508(C)(1) (a law passed by Congress) instead of the First Amendment. The IRS makes this position clear. Page 3 of IRS Publication 1828 states that “churches that meet the requirements of § 501(c)(3) are automatically considered tax exempt and are not required to apply for and obtain recognition of tax-exempt status from the IRS” [Bold red emphasis mine]. The IRS repeats this on page 24 of IRS Publication 557, “Tax –Exempt Status for Your Organization.” Under Organizations Not Required To File Form 1023 churches are listed. The following sentence is included: “These organizations are exempt automatically if they meet the requirements of section 501(c)(3).” [Bold red emphasis added.]
IRS Publication 557, p. 24. Click the image to go directly to the publication.
One should also understand that the New Testament (First Amendment) church will not be involved with the IRS for several reasons: the church claims no 501(c)(3) or 508(c)(1)(A) status; is not a legal entity such as a corporation aggregate or sole, an unincorporated association, or a charitable trust; is not a business; has no income; has no employees or staff; has no constitution or by-laws; and, no matter what the particular civil government does, honors the biblical principle of separation of church and state which is reflected in the First Amendment in America.
The New Testament (First Amendment) church who loves the Lord will be prepared for the eventuality that the Internal Revenue Service, some other Federal agency, the President (recent presidential actions and orders as well as the actions of many prior presidents demonstrate what a tyrannical president can and will do), and/or the Supreme Court of the United States may someday misinterpret and apply the First Amendment; and a New Testament church, who loves the Lord and is committed to pleasing Him, will remain submitted to the higher authority. God Betrayed (see above for free links to the book) explains all this and also shows how churches are operating in America without becoming legal entities such as incorporated 501(c)(3) religious organizations thereby retaining their First Amendment and biblical status. For specifics on how to organize a church under the Bible principle of separation of church and state, one can also go to: The CUCM Bible Trust.
Third, a New Testament church (a church organized according to the principles of the New Testament), among other things, receives no income, is not a 501(c)(3) or 508 religious organization, has no constitution or by-laws, has no employees or staff, and runs no businesses (daycare controlled or licensed by the state, “Christian” schools, “Bible” colleges, seminaries, cafes, etc.). Church members of a New Testament Church give their tithes and offerings to God, not to a religious organization, for use in ways consistent with New Testament teaching. All monies given to God are disbursed in accordance to the guidelines of the New Testament, and no money is left over. Let us use our common sense, if not our biblical sense: Even a business which makes no profit pays no taxes. A church which has no income cannot be taxed. A church which does have net income should be taxed since (1) she is operating as a business and not as a New Testament church; and (2) (if she is a legal entity such as a non-profit corporation (includes corporation sole – see Critique of “Church Freedom and the Corporation Sole” Website), or unincorporated association she is set up as a non-profit religious organization and therefore violates not only biblical principles for the organization of a church but also her non-profit agreements with the state of incorporation by making a profit.
Uncle Sam Wants God’s Churches
If a church does not apply for 501(c)(3) tax exempt status or claim 508(c)(1)(A) tax exempt status, and if she is organized as a New Testament church, according to the First Amendment which agrees with the biblical principle of separation of church and state, the non-taxable status of that church must be honored. A church claims 508(c)(1)(A) status by giving IRS acknowledgements for tithes, offerings, and gifts. No matter what the civil government claims, a church who has no income cannot be taxed; she gives her tithes, offerings, and gifts to God, not to a government created religious organization. Said another way, the church (the members) give to God, not to the church, inc. or the church (an unincorporated association).
Always keep in mind matters which I cover in detail in other writings and teachings: a church who incorporates (non-profit corporation or corporation sole), or becomes a charitable trust, unincorporated association or some other type legal entity has voluntarily given up her exclusive First Amendment status in favor of partial and substantial Fourteenth Amendment status since she has become a legal entity.
There are other ways a church may violate biblical principles concerning the doctrine of the church thereby becoming some type church other than a New Testament church. Understanding these matters requires a believer to grow in knowledge, understanding, and wisdom through dedicated Bible study.
If a church successfully applies for 501(c)(3) status or claims 508(c)(1)(A) exempt status, the government is granted some jurisdiction over the church since the civil government now, by law, declares and grants an exemption.
Please, God’s dear churches, do not lose your New Testament status by becoming a legal entity of any kind. Please learn to love the Lord as he loves you and gave Himself for you;
“That he might sanctify and cleanse it with the washing of water by the word. That he might present it to himself a glorious church, not having spot or wrinkle, or any such thing; but that it should be holy and without blemish” (Ephesians 5.25-27).
Please, dear believer, learn to think Biblically (spiritually), not practically from the human perspective (fleshly). Please become more Christian than American, more heavenly than earthly. God made clear that Christ in heaven is to be the only authority (power or head) “over all things to” His churches. Put another way, a church, the body whose feet walk and work on earth, is to be connected to only one head, Christ in heaven. A church with two heads (authorities or powers) is a monstrosity.
“And what is the exceeding greatness of his power to us-ward who believe, according to the working of his mighty power, Which he wrought in Christ, when he raised him from the dead, and set him at his own right hand in the heavenly places, Far above all principality, and power, and might, and dominion, and every name that is named, not only in this world, but also in that which is to come: And hath put all things under his feet, and gave him to be the head over all things to the church, Which is his body, the fulness of him that filleth all in all” (Ep. 1.19-23).
“Now therefore ye are no more strangers and foreigners, but fellowcitizens with the saints, and of the household of God; And are built upon the foundation of the apostles and prophets, Jesus Christ himself being the chief corner stone; In whom all the building fitly framed together groweth unto an holy temple in the Lord: In whom ye also are builded together for an habitation of God through the Spirit” (Ep. 2.19-23).
“And he is the head of the body, the church: who is the beginning, the firstborn from the dead; that in all things he might have the preeminence” (Col. 1.18).
From the above verses, and many more that could be quoted, one sees that God desires his churches to be spiritual entities or bodies (See also, e.g., Ep. 4 and the whole book of Ep., Col., and 1 Co. 12 for more on churches as spiritual bodies) connected to their only God ordained Head, the Lord Jesus Christ in heaven, while walking as spiritual entities only here on the earth. Churches are to be “builded together for an habitation of God through the Spirit,” not built together as a corporate 501(c)(3) or 508 organization according to man’s earthly, legal laws.
Please repent and turn from the deceits of the god of this world to the precepts of God. Please prepare for the day when believers and churches will have to choose either to lay it all down for God and for eternal reward or to lay it all up for Satan for a perceived earthly security. That day has not yet arrived for believers and churches in America, but that day appears to be fast approaching.
Endnotes
1. For the definition of and more information on “legal entity” see the index of God Betrayed/Separation of Church and State:The Biblical Principles and the American Applicationwhich is available free in PDF, in online form (no index), or which may be ordered by clicking Order information for books by Jerald Finney.
All books, except An Abridged History of the First Amendment, by Jerald Finney are available free in both PDF and online form. One may go to Order information for books by Jerald Finney should he desire to order any of the books which are in print.
Click here to go to the article “Is Separation of Church and State Found in the Constitution?”
A biblical and historical Baptist principle is that God desires separation of church and state, not separation of God and church or separation of God and state. Study Jerald Finney’s writings and/or audio teachings to discover the truth about and how to apply the principle. Finney’s teachings prove that the revisionist view of Separation of Church and State accepted without examination by most American “Christians” is false and has done great damage to the cause of Christ and to America.
This brief article will look at the human trait of “confirmation bias,” the main cause for the evil in America and in the churches in America. First, the article explains the term; then it touches on its significance in the courtroom, in the news media, and in churches. Finally, the article speaks of those believers who overcome their “confirmation bias” tendencies to one degree or another.
Anyone who is politically, economically, socially, and/or spiritually active and alert in American society will learn that many interpret all facts to confirm to what they already believe. I began to learn about this tendency in high school when I saw the mainstream media selectively quoting Republican candidate Barry Goldwater in their attempt to assure his defeat. My education on this matter continued, and by the time I entered law school in 1990, I understood the bias and employed that knowledge in jury trials, including my first jury trial. Psychologists call this prejudice “confirmation bias,” a term to which I was recently introduced at a Robert R. Swafford seminar. Mr. Swafford, an attorney and jury selection expert, founded “Strike for Cause Jury Consultants,” and he teaches other lawyers how to get rid of those on the jury panel in a given case who will see only the punches made by the opposing side which support the juror’s preconceived prejudices. A trial lawyer wants jurors who will only see his punches. Any truly good lawyer knows that he does not want a “fair and impartial jury;” indeed, a fair and impartial jury is something which is unattainable because of, among other things, confirmation bias.
When a juror has a confirmation bias contrary to that which a lawyer desires, the lawyer must realize that he is not going to change that bias by education or persuasion, especially in the short amount of time he has to deal with a panel of many potential jurors. He must be able to spot undesirable jurors and eliminate them for cause in a very short frame. Why? Because giving such persons more facts does no good. Giving them more facts does not change their mind, but gets them more entrenched since it challenges their world view. So trying to disrupt someone’s world view is not going to help. What one believes to be “truth” is one’s reality, so one acts exactly as he thinks the world is.
So how does the lawyer get rid of undesirable jurors? First, he must identify the hot-button issues (issues that create an emotional response). Many jurors do not make up their mind rationally. They make up their mind based upon emotion, then go back and nonsensically justify their verdict. Second, ask questions which elicit biased responses into the record so that a challenge for cause (a challenge presented to the judge which unquestionably shows a bias of a juror which will cause the juror to decide the case on something other than the facts as applied to the law). That way, in case of a negative verdict, if other procedural requirements are met which support a challenge for cause, a judge’s error in admitting the unqualified juror can be presented on appeal as a basis for a new trial.
Confirmation bias occurs not only in the courtroom. Every news reporter has confirmation bias to one degree or another. The bias of liberal media is so obvious to this writer that he simply has not consumed news from some sources for many years; for example, MSNBC, CNN, ABC, NBC, CBS, FOX, The Austin American Statesman and most other newspapers, Time Magazine, Newsweek Magazine, etc. He no longer wastes his time listening to some “conservative” sources: Sean Hannity, Laura Ingraham, Glen Beck and some others. He had enough information to know not to listen to Bill O’Reilly, Howard Stern (of course!), and others, and he has never listened to them. Certainly, one can get some facts (along with a lot of inaccuracies) from those sources, but the facts are selected, slanted, denied, and lied about, all with the goal of supporting the bias of the source.
Sadly, the author has discovered that confirmation bias is also rampant among most pastors and other members of churches with whom he has dealt. Usually, the pastor is able, because of his position, to transfer his bias to the church members; but influential church members (most significantly those with money) sometimes coerce the pastor to accept their bias. That this occurs in churches is tragic because, of all places in the world, the head of the church, Jesus Christ, makes clear in His word that truth is of utmost importance for believers. Only the knowledge of the truth will make us free (John 8.32; all Bible verses referred to are from the King James Bible). God’s word is truth (John 17.17, Colossians 1.5, 1 Thessalonians 2.13). God desires that the believer be guided by the knowledge, understanding, and wisdom gained from the truths found in his Word (2 Peter 1.1-14; Hosea 4; for more on this go to the following link: After Salvation Page of “Separation of Church and State Law” blog).
Truth teaches that churches grieves the Lord when they become any type of legal entity and when they get Internal Revenue Code Section 501(c)(3) or Section 508(c)(1)(A) “tax exempt” status. The writings of this author prove that a principle in the Bible is separation of church and state and that church legal entity status (incorporation, unincorporated association status, charitable trust status, Internal Revenue Code Section 501(c)(3) status, etc.) violate that principle and grieve the Lord. However, many born again elders-to include pastors-and other believers and “Christian” lawyers are guided by another “truth,” a truth advanced by their adversary, which is kinder (they believe) to their earthly security and well-being. As a result, even when such a church member will address the issue of incorporation and 501(c)(3) status for a church, he employs all the anti-biblical, anti-truthful, and anti-factual techniques and arguments he can muster up in order to justify his preconceived position.
A good example of confirmation bias by a Baptist education leader, the Executive Vice-President of Landmark Baptist College, is given in the article “Spurious rationale for church corporate-501c3 status: One’s convictions.” That article analyzes the simplistic and totally false reasoning of Dr. Charles Brown, the president of a Baptist College, someone from whom one would expect at least a semblance of scholarship on the issue. “Dr.” Brown’s shallow philosophy exemplifies that of many Baptists who justify a tradition of their religion as they speak according to their confirmation bias.
But thankfully, there is always a remnant. Elijah learned this. Elijah complained, “I have been very jealous for the LORD God of hosts: for the children of Israel have forsaken thy covenant, thrown down thine altars, and slain thy prophets with the sword; and I, even I only, am left; and they seek my life, to take it away” (1 Kings 19:10). God replied, “Yet I have left me seven thousand in Israel, all the knees which have not bowed unto Baal, and every mouth which hath not kissed him” (1 Kings 19:18; for more on the remnant go to “Topical Index” and scroll down to “Remnant.”).
During the captivities of Israel, the remnant appears in Jews like Ezekiel, Daniel, Shadrach, Meshach, and Abednego, Esther, and Mordecai. At the end of the 70 years of Babylonian captivity it was the remnant which returned under Ezra and Nehemiah. At the first advent of our Lord, John the Baptist, Simeon, and Anna who “spake of him to all them that looked for redemption in Jerusalem” (Luke 2.38) were among the remnant. During the church-age the remnant is composed of believing Jews and Gentiles. Many of these have, do, and will undergo martyrdom. Many of the Psalms express, prophetically, the joys and sorrows of the tribulation remnant.
God always calls men who will be true to him and who will preach the truth. Haggai, Zechariah, and Malachi were prophets to the restored remnant in Israel after the exile. Likewise, many men of God have taken up the cause of preaching the truth in the church age; those include the apostles, many of the early church members and preachers, and martyrs and true believers since the beginning of the New Testament churches (See The Trail of Blood of the Martyrs of Jesus andThe Trail of Blood Continues). The greatest example, of a truthful man is the God-Man, the Lord Jesus Christ who stood against the ultimate examples of religious confirmation bias. Even He could not convince them of truth; they were blinded by their bias.
The remnant will stand for and suffer for truth. “And it shall come to pass, that in all the land, saith the LORD, two parts therein shall be cut off and die; but the third shall be left therein. And I will bring the third part through the fire, and will refine them as silver is refined, and will try them as gold is tried: they shall call on my name, and I will hear them: I will say, It is my people: and they shall say, The LORD is my God” (Zechariah 12.8-9). The Lord of the remnant is God, not the state, not the federal government, not their wallets or bank accounts, not their businesses, not any other person or thing.
You see, the remnant has no confirmation bias. The remnant responds to and acts on truth. When truth is revealed to them through, first and foremost, Holy Spirit led Bible study – word by word study beginning in Genesis and progressing through Revelation having cast aside their theological presuppositions and simply believing what is said, in immediate and overall Bible context; second, commentaries and other written teachings; and third, sermons and verbal other Bible teaching. When a true believer who is standing on the truths of the Word of God becomes discouraged when scorned and even persecuted by the religious crowd, he has the promises of God to comfort and console him. “But as it is written, Eye hath not seen, nor ear heard, neither have entered into the heart of man, the things which God hath prepared for them that love him” (1 Corinthians 2:9. 1 Thessalonians 2.13 and the whole of 1 Corinthians 2 is included in the Endnote.)
Endnote:
Thessalonians 2:13: “For this cause also thank we God without ceasing, because, when ye received the word of God which ye heard of us, ye received it not as the word of men, but as it is in truth, the word of God, which effectually worketh also in you that believe”.
1 Corinthians 2: “And I, brethren, when I came to you, came not with excellency of speech or of wisdom, declaring unto you the testimony of God. For I determined not to know any thing among you, save Jesus Christ, and him crucified. And I was with you in weakness, and in fear, and in much trembling. And my speech and my preaching was not with enticing words of man’s wisdom, but in demonstration of the Spirit and of power: That your faith should not stand in the wisdom of men, but in the power of God. Howbeit we speak wisdom among them that are perfect: yet not the wisdom of this world, nor of the princes of this world, that come to nought: But we speak the wisdom of God in a mystery, even the hidden wisdom, which God ordained before the world unto our glory: Which none of the princes of this world knew: for had they known it, they would not have crucified the Lord of glory. But as it is written, Eye hath not seen, nor ear heard, neither have entered into the heart of man, the things which God hath prepared for them that love him. But God hath revealed them unto us by his Spirit: for the Spirit searcheth all things, yea, the deep things of God. For what man knoweth the things of a man, save the spirit of man which is in him? even so the things of God knoweth no man, but the Spirit of God. Now we have received, not the spirit of the world, but the spirit which is of God; that we might know the things that are freely given to us of God. Which things also we speak, not in the words which man’s wisdom teacheth, but which the Holy Ghost teacheth; comparing spiritual things with spiritual. But the natural man receiveth not the things of the Spirit of God: for they are foolishness unto him: neither can he know them, because they are spiritually discerned. But he that is spiritual judgeth all things, yet he himself is judged of no man. For who hath known the mind of the Lord, that he may instruct him? But we have the mind of Christ.”
The Bible teaches, for the present time, the local autonomous spiritual body (church), not the universal visible or invisible church. There will be a universal visible church after the marriage supper of the Lamb; then there will be no more local autonomous churches. For Bible teaching on this, see The Biblical Doctrine of the Church. Great sermons by Pastor Jason Cooley on the local church are:
Pastor Cooley has preached many sermons on the doctrine of the church. Links to those sermons are at Sermons by Pastor Jason Cooley at “3. Sermons dealing with the doctrine of the church.” Pastor Cooley will be preaching more on this doctrine and those sermons will be added to the page.
The notes in the C.I. Scofield Study Bible comment on a multitude of matters. Some churches use the Scofield Bible exclusively to the extent that the pastor, when preaching, will reference the page numbers he wishes the other church members to turn to. Scofield’s notes are not inspired by God. His commentaries are not the word of God. The word of God itself is totally true; and one must be careful to compare everything a Bible teacher says to the word of God. Some of Scofield’s teachings are true; some are false. He gave a lot of good and accurate insights to the Bible. However, his study Bible is flawed; and many of his margin notes, headnotes, and footnotes are inaccurate. Some of the fallacies that he taught (along with other deceived “Bible believers”) have had serious negative effects in the spiritual warfare that the Bible tells the believer, as a soldier of the Lord, to fight.
This brief article will address one of the serious fallacies promoted by the Scofield Study Notes, give some examples of both his incorrect (Headnote to Ephesians) and correct (Headnote to Titus and Note 1 to Acts 15.13, page 1169) teachings, and conclude with his complete line of verses linked by his margin notes on what he calls the “true church.”
Scofield’s headnotes to each book of the Bible, footnotes, and margin notes reference many subjects. The margin notes are listed in alphabetical order in the middle of each two column page; and, according to Scofield, lead the reader from the first clear mention of a great truth to the last. The subject is the first word(s) in the margin note. Following that is the verse (or verses) where the subject is at that particular place. The next verse(s) is/are the next reference in the chain, and the references in parenthesis are the first and last.
The author, when beginning his studies of the biblical doctrine of the church, followed, among other things, Scofield’s footnotes and margin notes which dealt with the doctrine of the church to include his so-called “true church” doctrine. After years of intense Bible study, the author concluded that the “true church” or universal church doctrine is totally unsound, according to the word of God. It seems that some Bible students simply did not understand what God was saying when He referred to “the church” or “my church” in the His Word; so they invented a doctrine that makes absolutely no sense when considered in light of Bible teaching. Of course, when a religious organization such as the Catholic church decides that that institution is the authority, it can propose that it is the universal church. Other churches have also incorporated the idea of a true or universal church (visible or invisible) into their theology. Now, the idea of the “universal church” has been picked up by many who are not in a local, autonomous New Testament church. Many of these heretics as to the doctrine of the church have their own “ministries” operating outside the authority of a local spiritual assembly. Some of them are right about many matters, but they are all wrong about many other matters. When one gets his doctrine of the church wrong, other doctrines which are intertwined with the doctrine of the church must be perverted.
Many Bible believers teach a universal church doctrine. Many are acting outside local church authority over the internet and on radio and television; there they operate outside God’s church, teaching and leading the unwary who usually contribute to their “ministry.” Some also correctly organize into local churches with no earthly authority over them (except the federal government if they choose to violate the Bible principle and the First Amendment to the United States Constitution by becoming a legal entity such as an incorporated and/or Internal Revenue Code Section 501(c)(3) religious organization).
The spiritual and temporal implications are enormous. For example, in soul-winning, lost people are told by some, “We are not concerned about which church you attend. We just want to explain to you what the Bible teaches about how to be saved. We want you to know that you will go to heaven when you die.” They follow that with their sales pitch to try to lead the person to saying a prayer. In the author’s experience, almost all the people who say the prayer never show any change in lifestyle. If they go to a “church” such as the Roman Catholic religious organization or cult, they stay there. Whether or not they become a member of a church, many die and go to hell because their so-called “fire insurance” was worthless. Other universal church adherents get the doctrine of salvation right even though their “after salvation” theology is wrong, according to the Bible.
Click the following to access teaching of the correct doctrine of the church: “The Biblical Doctrine Of The Church.” One can also reference “Biblical principles concerning the institution of the church and local autonomous churches” (From Jerald Finney’s Bible Study Notes”) which have been organized and also revised by correcting Scofield’s errors in most of his notes on “true church” doctrine. Understanding the doctrine of the church is very important for a believer since “Christ also loved the church, and gave himself for it; That he might sanctify and cleanse it with the washing of water by the word, That he might present it to himself a glorious church, not having spot, or wrinkle, or any such thing; but that it should be holy and without blemish.” Ep. 5:25-27. The believer who does not correctly understand this doctrine cannot understand other important principles and doctrines in the Bible. Of course, the believer should examine, with the Bible as his standard, what anyone says, including what this author writes, concerning any biblical doctrine.
Scofield’s Headnote to Ephesians says in relevant part:
“DATE. … Ephesians is the most impersonal of Paul’s letters. Indeed the words, ‘to the Ephesians,’ are not in the best manuscripts. Col 4:16 mentions an epistle to the Laodiceans. It has been conjectured that the letter known to us as Ephesians is really the Laodicean letter. Probably it was sent to Ephesus and Laodicea without being addressed to any church. The letter would then be ‘to the saints and the faithful in Christ Jesus’ anywhere.
“THEME. The doctrine of the Epistle confirms this view. It contains the highest church truth, but has nothing about church order. The church here is the true church, ‘His body,’ not the local church, as in Philippians, Corinthians, etc. Essentially, three lines of truth make up this Epistle: the believer’s exalted position through grace; the truth concerning the body of Christ; and a walk in accordance with that position.”
This short article cannot explain the error in the false conclusions he makes concerning the “true church, ‘His body’.” The teachings linked to above will explain what the Bible really teaches on the subject. Scofield’s conclusions on the “true church” do not withstand biblical scrutiny. Of course, any book of the Bible is written to “to the saints and the faithful in Christ Jesus” anywhere. However, when taken in the immediate and overall context, Ephesians certainly does not teach a “true church” as conceived by Scofield.
Notice that Scofield not only makes a false statement concerning the “true church,” but also discredits the King James Bible in a few of his notes. Sadly, many Christians have blindly followed Scofield or other teachers without checking out what they say against the authority – the word of God. I strongly disagree with Scofield’s assertion that the King James Bible was not based upon the best manuscripts. Although that is not the subject of this article, the subject is so important that it cannot go unmentioned. See King James Bible.
Scofield gets it right in some of his notes concerning some aspects of the doctrine of the church:
Headnote to Titus: “Titus has much in common with First Timothy. Both Epistles are concerned with the due order of the churches. The distinction is that in First Timothy sound doctrine is more prominent (1Tim. 1:3-10), in Titus the divine order for the local churches (Tit. 1:5). The permanent use of these Epistles lies in this twofold application, on the one hand to churches grown careless as to the truth of God, on the other, to churches careless as to the order of God’s house. The importance of this order is made solemnly emphatic in that the tests by which true elders and deacons may be known are repeated (1Tim. 3:1-7; Tit. 1:6-9). There are two divisions: I. The qualifications and functions of elders, 1.1-16. II. The pastoral work of the true elder, 2.1-3, 15.”
Note 1 to Acts 15.13, page 1169: “Dispensationally, [Acts 15.13 et. seq.] is the most important passage in the NT. It gives the divine purpose for this age, and for the beginning of the next. (1) The taking out from among the Gentiles of a people for His name, the distinctive work of the present, or church-age. The church is the ecclesia—the “called-out assembly.” [Here correctly explained what the church is for this age – a called out assembly. Such a thing cannot be universal, but must be local. As explained in Hebrews 12.22-24 (see below)]
Mt. 16.18: “And I say also unto thee, That thou art Peter, and upon this rock I will build my church; and the gates of hell shall not prevail against it.”
Acts 2:47: “Praising God, and having favour with all the people. And the Lord added to the church daily such as should be saved.”
1. Co. 12:12-28 “For as the body is one, and hath many members, and all the members of that one body, being many, are one body: so also is Christ. For by one Spirit are we all baptized into one body, whether we be Jews or Gentiles, whether we be bond or free; and have been all made to drink into one Spirit. For the body is not one member, but many. If the foot shall say, Because I am not the hand, I am not of the body; is it therefore not of the body? And if the ear shall say, Because I am not the eye, I am not of the body; is it therefore not of the body? If the whole body were an eye, where were the hearing? If the whole were hearing, where were the smelling? But now hath God set the members every one of them in the body, as it hath pleased him. And if they were all one member, where were the body? But now are they many members, yet but one body. And the eye cannot say unto the hand, I have no need of thee: nor again the head to the feet, I have no need of you. Nay, much more those members of the body, which seem to be more feeble, are necessary: And those members of the body, which we think to be less honourable, upon these we bestow more abundant honour; and our uncomely parts have more abundant comeliness. For our comely parts have no need: but God hath tempered the body together, having given more abundant honour to that part which lacked: That there should be no schism in the body; but that the members should have the same care one for another. And whether one member suffer, all the members suffer with it; or one member be honoured, all the members rejoice with it. Now ye are the body of Christ, and members in particular. And God hath set some in the church, first apostles, secondarily prophets, thirdly teachers, after that miracles, then gifts of healings, helps, governments, diversities of tongues.”
2 Co. 11:2-3: “For I am jealous over you with godly jealousy: for I have espoused you to one husband, that I may present you as a chaste virgin to Christ. But I fear, lest by any means, as the serpent beguiled Eve through his subtilty, so your minds should be corrupted from the simplicity that is in Christ.”
Ep. 1.22-23: “22 And hat put all things under his feet, and gave him to be the head over all things to the church, 23 Which is his body, the fullness of him that filleth all in all.”
Ep. 2.:19-22: “Now therefore ye are no more strangers and foreigners, but fellowcitizens with the saints, and of the household of God; And are built upon the foundation of the apostles and prophets, Jesus Christ himself being the chief corner stone; In whom all the building fitly framed together groweth unto an holy temple in the Lord: In whom ye also are builded together for an habitation of God through the Spirit.”
Ep. 3.1-10: “For this cause I Paul, the prisoner of Jesus Christ for you Gentiles, If ye have heard of the dispensation of the grace of God which is given me to you-ward: How that by revelation he made known unto me the mystery; (as I wrote afore in few words, Whereby, when ye read, ye may understand my knowledge in the mystery of Christ) Which in other ages was not made known unto the sons of men, as it is now revealed unto his holy apostles and prophets by the Spirit; That the Gentiles should be fellowheirs, and of the same body, and partakers of his promise in Christ by the gospel: Whereof I was made a minister, according to the gift of the grace of God given unto me by the effectual working of his power. Unto me, who am less than the least of all saints, is this grace given, that I should preach among the Gentiles the unsearchable riches of Christ; And to make all men see what is the fellowship of the mystery, which from the beginning of the world hath been hid in God, who created all things by Jesus Christ: To the intent that now unto the principalities and powers in heavenly places might be known by the church the manifold wisdom of God,”
Ep. 5:23, 25-27, 29-32: “(23) For the husband is the head of the wife, even as Christ is the head of the church: and he is the savior of the body. (24) Therefore as the church is subject unto Christ, so let the wives be to their own husbands in every thing. (25) Husbands, love your wives, even as Christ also loved the church, and gave himself for it; (26) That he might sanctify and cleanse it with the washing of water by the word. (27) That he might present it to himself a glorious church, not having spot, or wrinkle, or any such thing; but that it should be holy and without blemish. (29) For no man ever hated his own flesh; but nourisheth and cherisheth it, even as the Lord the church: (30) For we are members of his body, of his flesh, and of his bones. (31) For this cause shall a man leave his father and mother, and shall be joined unto his wife, and they two shall be one flesh. (32) This is a great mystery: but I speak concerning Christ and the church.”
Col. 1:18, 24: “(18) And he is the head of the body, the church: who is the beginning, the firstborn from the dead; that in all things he might have the preeminence…. (24) Who now rejoice in my sufferings for you, and fill up that which is behind of the afflictions of Christ in my flesh for his body’s sake, which is the church.”
He. 2:12: “Saying, I will declare thy name unto my brethren, in the midst of the church will I sing praise unto thee.”
1 Thes. 4.16-17: 1 “For the Lord himself shall descend from heaven with a shout, with the voice of the archangel, and with the trump of God: and the dead in Christ shall rise first: Then we which are alive and remain shall be caught up together with them in the clouds, to meet the Lord in the air: and so shall we ever be with the Lord.”
He. 12:23 which is the end of the line for Scofield’s sloppy “true church” doctrine: “To the general assembly and church of the firstborn, which are written in heaven, and to God the Judge of all, and to the spirits of just men made perfect,” [He. 12:22-24 says: “But ye are come unto mount Sion, and unto the city of the living God, the heavenly Jerusalem, and to an innumerable company of angels, To the general assembly and church of the firstborn, which are written in heaven, and to God the Judge of all, and to the spirits of just men made perfect, And to Jesus the mediator of the new covenant, and to the blood of sprinkling, that speaketh better things than that of Abel.” [Conclusion: The universal visible church spoken of here will come into existence in the heavenly Jerusalem.]
The WordPress.com stats helper monkeys prepared a 2013 annual report for this blog.
Here’s an excerpt:
The concert hall at the Sydney Opera House holds 2,700 people. This blog was viewed about 16,000 times in 2013. If it were a concert at Sydney Opera House, it would take about 6 sold-out performances for that many people to see it.
Is Separation of Church and State found in the Constitution? Knowing the correct answer to that question is vital in the success of the spiritual warfare of the Christian political activist in America. Does the First Amendment to the United States Constitution establish a wall which is to keep church out of state and state out of church; or does it set up a one way wall: that is, does it forbid state to stay out of church matters, but allow church to enter into state matters? If the latter, since “churches” vary in belief so dramatically, which church is to control in the affairs of state? Most Christians assert that the phrase “One nation under God” on our currency and in our Pledge of Allegiance make clear that the Constitution forbids separation of church and state. They state that the phrase “separation of church and state” is not found in the Constitution; that the Constitution through the First Amendment does not separate church and state. Are they correct in their understanding? [For a thorough analysis of the source of the misunderstandings-revisionist history-set alongside the easily verifiable history with complete citations, see information page on The Trail of Blood of the Martyrs of Jesus by clicking here.]
I begin with an actual encounter with a “Christian” political activist over this matter of the meaning of separation of church and state. Then I:
1) briefly explain my position with reference particularly to the beliefs of Thomas Jefferson and James Madison (with links to more extensive and in depth studies);
2) briefly reveal those who are promoting the incorrect version of “separation of church and state” to conservative Americans (and more specifically to “Christians”) today and their motives;
3) briefly answer the question of whether the Constitution or any other governing document requires the federal government to be guided by God and His principles and explain how a nation can proceed under God without combining church and state;
4) briefly address biblical teaching on the downfall of a nation;
5) conclude.
In 2008, I started a seminar in El Paso, Texas with the diagram at left. A activist Christian lady immediately raised her hand and pointed out that the diagram separated church and state and that she did not agree with this. I had anticipated this question because I had struggled with the issue of separation of church and state for many years. Some years before this seminar I had begun to read in books and articles and to hear on Christian radio and from other Christians that “separation of church and state is not found in the Constitution.” I repeated that sound bite many times myself, but I was always perplexed as to where to go from the simple statement. I had read that the Supreme Court totally misinterpreted Jefferson’s Danbury Letter to mean that the First Amendment created a wall between church and state that was never intended. I had also read that the original intent of the religion clause of the First Amendment was to keep the state out of church affairs but not to keep the church out of state affairs; that the wall only functioned one way. Was this true? I found the answers to these questions after years of historical and legal studies.
This sign gets it wrong: we want Separation of Church and State not Separation of God and State
I answered the lady’s concerns by stating that I believed that she and I were on the same page; that I believe that most of our founding fathers never intended to separate God and state, but that they did indeed intend to separate church and state. I mentioned that the writings of James Madison, Thomas Jefferson, and most of our Founding Fathers showed that they understood this. They knew that church-state unions have always, without exception, resulted in the corruption of both church and state as well as individual citizens, horrible persecutions (imprisonments, murder and torture) of those who did not bow down to the established “church” and its theology, and many other undesirable consequences. The history of the First Amendment proves this (See the “History of the First Amendment” which is available online in the PDF of God Betrayed Section IVand in Online form). Madison and Jefferson were eyewitnesses to the persecutions of dissenting Baptists in Virginia and they understood the history of the persecutions of all those who exercised their God-given freedom to choose a theology contrary to that of the church-state unions, the establishment. They were aware that all church-state unions, beginning with the marriage of church and state in the early fourth century, continuing throughout the dark and middle ages, the reformation, and in the American colonies up until the time they lived resulted in horrible persecutions of those who would not bow down to the established beliefs.
Jefferson’s writings make clear his position on separation of church and state. For example, in 1779 he wrote the Virginia Act for Religious Liberty which was passed in 1786. The act included three factors: church, state, and the individual. It protected the individual from loss at the hands of state incursion into his church affiliation, and implicitly banned church establishment. See En1 to read the entire act and another quote from Jefferson. Jefferson never swerved from his devotion to the complete independence of church and state (See also pp. 264-283 of God Betrayed to read more about Jefferson’s position. Click here to go directly to PDF of God Betrayed.).
Madison also fought for separation of church and state in Virginia. He wrote, in his famous “Memorial and Remonstrance:”
“… Because experience witnesses that ecclesiastical establishments, instead of maintaining the purity and efficacy of religion, have had a contrary operation. During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the clergy; ignorance and servility in the laity; in both, superstition, bigotry, and persecution. Inquire of the teachers of Christianity for the ages in which it appeared in its greatest luster; those of every sect point to the ages prior to its incorporation with civil policy. Propose a restoration of this primitive state, in which its teachers depended on the voluntary rewards of their flocks, many of them predict its downfall….
“Because the establishment in question is not necessary for the support of civil government…. If religion be not within the cognizance of civil government, how can its legal establishment be said to be necessary for civil government? What influences, in fact, have ecclesiastical establishments had on civil society? In some instances, they have been seen to erect a spiritual tyranny on the ruins of the civil authority; in more instances, have they been seen upholding the thrones of political tyranny; in no instance have they been seen the guardians of the liberties of the people. Rulers who wished to subvert the publick liberty, may have found on established clergy convenient auxiliaries. A just government instituted to secure and perpetuate it needs them not. Such a government will be best supported by protecting every citizen in the enjoyment of his religion, with the same equal hand which protects his person and property; by neither invading the equal hand which protects his person and property; by neither invading the equal rights of any sect, nor suffering any sect to invade those of another….”
George Carlin is wiser concerning church/state separation than most Christians. Caveat: He knows nothing about true churches under Christ, since heretical, apostate, and unlearned churches and believers predominate the landscape.
Thus, when the First Amendment was introduced and promoted by James Madison, the only question was the exact wording of the Amendment. The representatives at the Constitutional Convention understood that the purpose of the religion clause was (1) to place a two way wall between church and state (This purpose is stated in the establishment clause: “Congress shall make no law respecting an establishment of religion.”) and (2) to provide for freedom of conscious, also known as free will or soul liberty (This purpose is stated in the free exercise clause: “or prohibiting the free exercise thereof.”). These two purposes go hand in hand. The historical established churches, beginning with the spiritual harlot called the Catholic “church” and then her offspring-Protestant “churches”- violently persecuted (hung, burnt at the stake, drowned, buried alive, imprisoned, tortured with unspeakable horror) those who exercised their God-given free will in contradiction to the doctrines of the church-state establishment and were labeled “heretics” by the established church.
At the seminar, I explained my position in more detail and showed that the same theology that justified union of church and state was initially developed and expanded upon from earlier sources by Augustine, practiced by the Catholic church, and later by Protestant churches (in modified form). Proponents of those same theologies remain at work to achieve the impossible goals of their adherents (peace and unity throughout the earth) in America today. In fact, many adherents of those theologies are very active in, and are leaders in, the contemporary American political warfare. Many believe that they will set up the kingdom of heaven on earth, the millennium, either through the efforts of the church or through a church-state combination and without the intervention our Lord Jesus Christ. Others believe that there is no millennium, and that a worldwide church-state combination will bring peace and unity to the earth. Others, such as myself, are totally convinced that the Bible teaches that Christ Himself will return at Armageddon and set up and reign over the earth for a thousand years by power. See En2 for various explanations of millennialism.
Along with the question of whether First Amendment separates church and state, another question that needs to be addressed is whether the Constitution or any other governing document requires the federal government to be guided by God and His principles? The Founding Fathers while implementing the biblical principle of separation of church and state in the First Amendment did not understand that a nation should, within her organic governing documents, recognize that the God of the Bible, the only God, that He should be honored and hailed as the ruler of nations, and that His principles should be recognized and applied within the laws of the nation and in the interpretation of those laws.
A nation can proceed under God without combining church and state. How? The constitution of such a nation will:
1) name the name of Jesus as the Supreme ruler;
2) make clear that the nation will look to the biblical doctrines of government, church, and separation of church and state in ordering and carrying out its responsibilities under God;
3) lay out its God-given jurisdiction as explained in the Bible;
The First Amendment to the U.S. Constitution
4) separate church and state. The First Amendment implements the biblical principle of separation of church and state.
5) provide for religious liberty (also called soul liberty or freedom of conscience). The First Amendment does this.
6) guarantee freedom of speech, press, assembly and the right to petition the government for a redress of grievances. The First Amendment does this.
See En3 for information on an historical example of governing documents which proved that this can be done.
The Constitution allows, but does not require, Americans to recognize the God of the Universe, the God of creation, almighty God, and to operate according to His principles and to pray in the name of Jesus even at government functions. This is obvious from a study of history including the multitude of statements made by Presidents, senators, representatives, government officials at all levels of government; and from a reading and study of state constitutions, laws, and federal and state legal cases.
History also shows that almost everyone in America at the time of the adoption of the Constitution reverenced the Bible and the God of the Bible and that prayers were made to Him at official government functions. Of course, the United States Supreme Court has removed the recognition of God (and especially the Lord Jesus Christ) from practically all civil government affairs. See for an explanation of how the Supreme Court has done this: The Supreme Court Reinterprets the First Amendment and Removes God or Section V of God Betrayed.
However, sad to say, neither the Constitution nor any other federal governing document names the name of Jesus and requires that the United States government be guided by God and His principles (being guided by God and His principles is something entirely different from establishing a church). If you disagree, show me one Constitutional provision or federal law which either requires recognition of God (and specifically the Lord Jesus Christ) and/or His principles as laid out in His Word. I submit that there is none.
Unlearned Christians (this author was once in their fold) argue that the implementation of certain biblical principles in the Constitution prove that the Constitution is a “Christian” document. However, they fail to point out the enlightenment principles which pollute the Constitution. I deal more in depth with these matters in God Betrayed.
Unstudied Christians argue, as this author once did, that the Declaration of Independence did recognize God and that Americans march behind the banner of the Declaration. However, the Declaration was written over a decade before the adoption of the Constitution and the First Amendment, and the Declaration is not law despite the rhetoric which says, “We proceed under the banner of the Declaration of Independence.” This author contends that even the Declaration is flawed when biblically analyzed. Even if the contention that it is not flawed were correct, the Declaration is not controlling law and an examination of the Declaration and the Constitution leaves open the obvious contention that Americans had changed between the time of the writing of the Declaration and the adoption of the Constitution.
The Bible teaches that a Gentile nation, as well as the nation Israel, that rejects the one true God, the God of the Bible, and His principles will become more and more morally bankrupt, will digress to political tyranny, and ultimately be judged by God. The United States is a moral cesspool and is well into the political tyranny stage. You may go to the following audio teaching for a thorough examination of Scripture on this matter: “The Biblical Doctrine of Government.” That teaching is also available in detailed form in Section I God Betrayed in PDF form or which can be ordered by going to Order Information for Books by Jerald Finney. A thorough analysis is impossible in a short article such as this, but here are a few verses from the Old Testament which substantiate this conclusion:
“The LORD is high above all nations, and his glory above the heavens” Psm. 133:4.
“Let all the earth fear the LORD: let all the inhabitants of the world stand in awe of him…. “Blessed is the nation whose God is the LORD; and the people whom he hath chosen for his own inheritance…. There is no king saved by the multitude of an host: a mighty man is not delivered by much strength.” (Psm. 33.8, 12, 16; see the whole chapter of Psm. 33). [Bold emphasis mine]
“Why do the heathen rage, and the people imagine a vain thing? The kings of the earth set themselves, and the rulers take counsel together, against the LORD, and against his anointed, saying, Let us break their bands asunder and case their cords from us. He that sitteth in the heavens shall laugh: the LORD shall have them in derision. Then shall he speak unto them in his wrath, and vex them in his sore displeasure.…. Thou [Jesus] shalt break them with a rod of iron; thou shalt dash them in pieces like a potter’s vessel. Be wise now therefore, O ye kings: be instructed, ye judges of the earth. Serve the LORD with fear, and rejoice with trembling. Kiss the Son, lest he be angry, and ye perish from the way, when his wrath is kindled but a little. Blessed are all they that put their trust in him.” Psm. 2:1-5, 9-12 (The 2nd Psalm gives the order of the establishment of the kingdom.).
The Old Testament details God’s principles for nations, both Jew and Gentile, and lays out the complete history and fate of nations from beginning to end. God ordained civil government, and the fact that God desires nations to submit to Him and His principles is undeniable. That no nation ever has or ever will do so before He returns and establishes His Kingdom on earth is clear from a literal interpretation of scripture.
In spite of the flaws in the Constitution, America, to a great extent, originally honored God. Of course, the First Amendment was not a flaw; the religion clause was a statement of the biblical principle of separation of church and state. With the passing of time, the flaws in the document have made it easier for the natural progression of moral awfulness and political tyranny. This author, like most politically active “Christians” worked-not according to knowledge, understanding and wisdom-to “bring America back under God.” As a result of those efforts in the Republican Party (1982-beginning of the twenty-first century), I saw that America continued to grow worse in every way and at an accelerated pace in spite of our efforts. By 2002, I realized that America had become a grossly immoral nation. America is now a tyrannical and morally awful nation much worse than it was in 2002.
In 2005 God focused my efforts on His doctrine of the church, which is where they should have been in the first place. If Christians cannot get the doctrine of the church right in understanding and practice, how in the world do they think they can get civil government right? Even though many “believers” still seek to honor God in the political arena, they are not proceeding according to knowledge, wisdom, and understanding in either their government or their church efforts. God makes clear that when His people do not act according to knowledge (among other things), they will fall (See, e.g., 2 Pe. 1.2-10; Ho. 4).
For more in depth studies of the First Amendment, one can go to the following resources:
En1. Jefferson wrote: “Is uniformity attainable? Millions of innocent men, women, and children, since the introduction of Christianity, have been burnt, tortured, fined, imprisoned; yet we have not advanced one inch towards uniformity. What has been the effect of coercion? To make one half the world fools, and the other half hypocrites. To support roguery and error all over the earth.” Jefferson understood that establishment of a church (a church working with, over, or under civil government) always brings the worst of persecution of those who do not bow down to the church-state or state-church union.”
Virginia Bill for Religious Liberty drafted by Thomas Jefferson in 1779 and enacted in 1786.
The Virginia Bill for Religious Liberty written by Jefferson and passed in 1786 stated:
“I. Well aware that Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the Holy Author of our religion, who being Lord of both body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do;
that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such, endeavoring to impose them on others hath established and maintained false religions over the greatest part of the world and through all time;
that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness, … that our civil rights have no dependence on our religious opinions any more than [on] our opinions in physics or geometry;
that therefore the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion is depriving him injuriously of those privileges and advantages to which in common with his fellow citizens he has a natural right; …
that to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles, on supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency, will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with, or differ from his own;
that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt [open, or public] acts against peace and good order;
and, finally, that truth is great and will prevail if left to herself, that she is proper and sufficient antagonist to error and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate, errors [cease] to be dangerous when it is permitted freely to contradict them.
“II. Be it enacted by the General Assembly that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.
“III. And though we well know that this assembly, elected by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding assemblies, constituted with powers equal to her own, and that therefore to declare this act irrevocable would be of no effect in law, yet, as we are free to declare, and do declare, that the rights hereby asserted are of the natural right of mankind, and that if any act shall hereafter be passed to repeal the present or to narrow its operation, such act will be an infringement of natural rights.”
En2. The word millennium means “1000 years” and comes from Re. 20. 4-6 where it says that certain people “came to life, and reigned with Christ a thousand years. There are three major views on the time and nature of the millennium.
Amillennialism takes the position that this is a period during which Satan’s influence has been greatly reduced so that the gospel can be preached throughout the world. Christ does not bodily reign during this period, and there is no future millennium yet to come. Amillennialists believe that the term “thousand years” is a figure of speech for a long period of time in which God’s will will be accomplished. Christ will return at the end of this period, believers and unbelievers will be resurrected, unbelievers will be eternally condemned and believers reunited with their spirits, judged, and will enjoy heaven forever.
According to postmillennialism, Christ will return after the millennium. The church and state, operating during the period in which we now live, will establish peace and righteousness and a millennial age will occur when this occurs. At the end of that thousand years, Christ will return to earth, believers and unbelievers will be raised, the final judgment will occur, a new heaven and a new earth will be established, and we will enter into the eternal state.
Premillennialism teaches that Christ will return before the millennium, believers who have died will be raised from the dead, their bodies reunited with their spirits, will reign with Christ 1000 years. During this 1000 years, Satan will be bound. At the end of that period, he will be loosed and will lead the unbelievers of the millennium in rebellion against Christ. Satan and his followers will be defeated, Christ will raise the dead and they will be judged. Those whose names are not found written in the book of life will be cast, as was Satan, into the lake of fire. At the final judgment, believers will enter into the eternal state.
There are two main premillennial positions. Classic premillennialism says Christ will return after the great tribulation, rapture believers, and that believes will reign with Christ on earth for 1000 years. Pretribulational premillennialism teaches that Christ will return part way to earth before the tribulation, call believers to Himself, , and return to heaven with those believers. This will be followed by a seven year period of great tribulation. At the end of that time, Christ will return, crush all the Gentile armies which have come against Israel, and set up His millennial reign. See, e.g., Wayne Gruden, Systematic Theology (Grand Rapids, Michigan: Zondervan, 2000), pp. 1109-1113.
En3. The first government in history with complete religious freedom was the government of the colony or Rhode Island (See the online version, “The Baptists in Rhode Island” or go to Section IV, Chapter 6 of God Betrayed available in PDF form – for ordering information go to the following link: Order information for Books by Jerald Finney.).
The first government in history that was to have complete freedom of conscience and religious liberty also declared that the government was to be under the Lord Jesus Christ. Signed on March 7, 1638, the Portsmouth Compact read:
“We whose names are underwritten do swear solemnly, in the presence of Jehovah, to incorporate ourselves into a body politic, and as he shall help us, will submit our persons, lives and estates, unto our Lord Jesus Christ, the King of kings, and Lord of lords, and to all those most perfect and absolute laws of his, given us in his holy word of truth, to be guided and judged thereby.” 38 [19 signatures followed: Thomas Savage, William Dyre, William Freeborne, Philip Sherman, John Walker, Richard Carder, William Baulstone, Edward Hutchinson, Sen., Henry Bull, Randal Holden, William Coddington, John Clarke, William Hutchinson, John Coggshall, William Aspinwall, Samuel Wilbore, John Porter, Edward Hutchinson, Jun., and John Sanford.].
Three passages were marked in support of the compact: Exodus 24.3, 4; II Chronicles
2.3; and II Kings 11.17.
In August of 1638, the people of Providence approved the first public document establishing government without interference in religious matters, the Providence Compact:
“We whose names are here underwritten being desirous to inhabit in the town of Providence, do promise to submit ourselves in active or passive obedience to all such orders or agreement as shall be made for public good to the body in an orderly way, by the major consent of the present inhabitants, masters of families, incorporated together into a township, and such others whom they shall admit into the same, only in civil things.” [Signed by Stukely Westcoat, William Arnold, Thomas James, Robert Cole, John Greene, John Throckmorton, William Harris, William Carpenter, Thomas Olney, Francis Weston, Richard Watearman, and Ezekiel Holliman.]
As James R. Beller proclaims, the document was “the first of a series of American political documents promulgating government by the consent of the governed and liberty of conscience” (James R. Beller, America in Crimson Red: The Baptist History of America (Arnold, Missouri: Prairie Fire Press, 2004), p. 13). Thus, liberty of conscience was the basis for legislation in Rhode Island, and its annals have remained to this day [when Underhill wrote this] unsullied by the blot of persecution. (Roger Williams and Edward Bean Underhill, The Bloudy Tenent of Persecution for Cause of Conscience Discussed and Mr. Cotton’s Letter Examined and Answered. (London: Printed for the Society, by J. Haddon,Castle Street, Finsbury, 1848 (Reprint)), p. xxviii).
Click Image To Go To Teachings On Spiritual Warfare
Where do the judicial system and its lawyers and judges go to seek wisdom? To the Bible or to the movies? “Judges, of course, strive to be perceived as wise, so what better way to add a little Jedi wisdom to an opinion than by invoking Yoda, the Jedi Master himself?” (“A Long Time Ago, in a Courtroom Far, Far Away: There’s no denying that the Force is all around us,” 77 Texas Bar Journal, February, 2014). Do not mention the Lord Jesus Christ or his book as authority in litigation because to do so will violate the satanic version of “separation of church and state,” but it is very appropriate to “look at how George Lucas’s ‘galaxy far, far away’ openly provides insights for judges and lawyers in the resolution of cases.” In myriad ways “pop culture, in the form of Star Wars, has seeped into our legal culture. Do a quick Westlaw search for ‘Star Wars’ and you’ll find everthing from references to strategies that the ill-fated energy giant Enron code-named as ‘JEDI’ AND ‘Death Star’ to a county prosecutor in Michigan named Luke Skywalker.” (Id.). Click the following links to go to relevant articles from the Texas Bar Journal:
Most of the lawyers, judges, and other personnel within the system are nice, good, decent, hardworking people when viewed from a secular perspective. However, the system is now, like the rest of society, proceeding according to the principles of the god of this world. The above two law review articles make clear that this is true, and the state of the legal system corresponds to condition of individuals, families, churches, civil governments including the state and federal governments of the United States, and the world. The Bible tells us what has happened, is happening, and will happen.
Of course one expects the world to go the way of the devil; but tragically, very few members of fundamental Baptist churches (including pastors), much less members of other so-called “churches,” are equipped for the spiritual warfare God has called believers to fight. Few can explain biblical teaching concerning the God-given motivation and goal of a believer; the doctrines, practices, and order of a New Testament church; the doctrine of government; the doctrine of separation of church and state; what the Bible teaches about repentance and salvation (not what they learned from a workbook on “soul-winning”); spiritual warfare; history; the relationship between church and state; the distinctions between God’s dealings with Israel and God’s dealings with Gentile nations, etc. Few have as much as a rudimentary understanding of the origin, goals, and dangers of Hollywood, movies, Disney, country music, rock and roll music, contemporary “Christian” music, the sports industry, etc. As a result, most churches and church members have succumbed to the doctrines and practices of the world.
The desertion from church by young people after they become so-called adults is a prime example of the results of this unlearned, unwise church membership. As children, parents never understood biblical doctrines (never knew that biblical doctrines even existed). Thus, they never understood the evils of, for example, rock and roll music; country music; contemporary “Christian” music;” drinking; watching movies; television; getting caught up in following sports; making heroes of sports stars; dancing, and much more. They were never taught by their parents, the ones to whom God gave the responsibility. “Christian” parents, being spiritually ignorant and maybe even lost, depend upon unbiblical “youth programs,” “Christian” schools, and Sunday schools to ground their children in the faith. And of course church youth programs and Sunday schools do not do that delegated job. Instead, these church “ministries” have done much more harm than good, especially when viewed in light of the metamorphosis of those programs to their present condition and effect.
The great majority of youth who are brought up in “church” leave the church for the world when they grow up. They become doctors, lawyers, janitors, plumbers, carpenters, authors, etc. who believe and practice the principles of the god of this world. They are marching in step with unlearned, unwise members of the “churches” that remain to implement Satan’s agenda which includes a one world government working with a one world church, a new world order.
The solution available for any person is (1) repent and trust Christ for eternal salvation; (2) get into a biblically ordered church where the pastor and members believe and preach the whole word of God; (3) remain faithful to that church in fellowship and attendance; (3) begin an intense study of the Bible; (4) follow God as he leads; (5) remember:
“God is our refuge and strength, a very present help in trouble. Therefore will not we fear, though the earth be removed, and though the mountains be carried into the midst of the sea; Though the waters thereof roar and be troubled, though the mountains shake with the swelling thereof. Selah. There is a river, the streams whereof shall make glad the city of God, the holy place of the tabernacles of the most High. God is in the midst of her; she shall not be moved: God shall help her, and that right early. The heathen raged, the kingdoms were moved: he uttered his voice, the earth melted. The LORD of hosts is with us; the God of Jacob is our refuge. Selah. Come, behold the works of the LORD, what desolations he hath made in the earth. He maketh wars to cease unto the end of the earth; he breaketh the bow, and cutteth the spear in sunder; he burneth the chariot in the fire. Be still, and know that I am God: I will be exalted among the heathen, I will be exalted in the earth. The LORD of hosts is with us; the God of Jacob is our refuge. Selah.” (Psalms 46:1-11).
Relevant Facts And Relevant Laws, From Highest To Lowest,
concerning Northfield, Minnesota cop’s attack on Street Preachers who were acting in conformity with (1) God’s instructions while behaving according to the grace of God (thereby doing good to and benefitting their neighbors) and (2) the law of man.
As to speech in the public forum the job of peace officers is not to shut it down when someone complains; their job is to enforce the law by (1) protecting street preachers and others speaking in the public forum and (2) informing people who would disrupt and/or violate the rights of street preachers of the law concerning free speech in America. I street preached in Austin, Texas for 20+ years. The police in Austin understood and enforced the law. They protected us (and others speaking in the public forum) on numerous occasions. The Minneapolis Police Officer in the following video understands that his job is to protect those involved in First Amendment protected speech:
I. Relevant Facts (including link to audio of actual events)
II. Highest Law (God’s Law)
III. United States Constitution and relevant cases
IV. Constitution of the State of Minnesota
V. Northfield, Minnesota Code of Ordinances and Charter
Pastor Jason Cooley and some other men were street-preaching in Bridge Square Park in Northfield, Minnesota on December 22, 2013.
Bridge Square Park is a city park in Northfield and is therefore, for speech purposes, a free speech area according to the Highest Law as well as the United States Constitution. (To verify this, seehttp://www.ci.northfield.mn.us/Index.aspx?NID=284;see also, Northfield, Minnesota, Code of Ordinances>>PART II – NORTHFIELD CODE>> Chapter 50 – OFFENSES AND MISCELLANEOUS PROVISIONS>> ARTICLE V. OFFENSES INVOLVING PUBLIC MORALS>> Sec. 50-116. Curfew for minors…. Public parks and walkways includes Sechler Park; Odd Fellows Park; Central Park; Babcock Park; Way Park; Riverside Park; Cherry Park; Sibley Marsh; Sibley Swale; Bridge Square; Riverwalkway from Second Street to Fifth Street; River Pedestrian Bridge; and any park, playground or walkway maintained by the city [Emphasis mine]. (Relevant Northfield ordinances, including this one, are reproduced below. See also, the case excerpts below which interpret the First Amendment to the United States Constitution as to speech in a public forum.))
Hear the unconstitutional actions following the above mentioned street preaching of a police officer in Northfield, Minnesota on December 22, 2013 in Northfield, Minnesota: Street Preachers Rights Attempted To Be Chilled By the Police. After contacting the Northfield Mayor, City Council Members, the City Attorney, the Chief of Police, it appeared that the misguided actions of the officer in the encounter will not occur again. Certain citizens were happy about the results. Others mounted a misguided plan, which they never brought to fruition, probably because they learned the truth about freedom of speech in the public forum and knew that if they proceeded, they were doomed to failure and, also, would be the target of civil action by the speakers if they wanted to pursue civil action. Read the rest of the story at: Trials and Tribulations of Old Paths Baptist Church ‘No Small Stir’ Street Preaching Ministry.
For more detailed information on this see the “Separation of Church and State Law” (opbcbibletrust.wordpress.com). Particularly important entries on that website include”:
Fortunately, the highest law of the land is a statement of God’s law concerning freedom of religion (or soul liberty, or separation of church and state), freedom of speech, freedom of the press, freedom of assembly, and the right to petition the Government for a redress of grievances. For a complete explanation of this matter, see the resources above. Two resources on the above mentioned website cover the history of the First Amendment:
First Amendment to the United States Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Fourteenth Amendment to the United States Constitution:
“SECTION 1.All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
***
“SECTION 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
Cases:
Satan Is The God Of This World
1. Everson v. Board of Education, 330 U.S. 1, 67 S. Ct. 504, 91 L. Ed. 711, 1947 U.S. LEXIS 2959; 168 A.L.R. 1392 (1947). “In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State.’ Reynolds v. United States, supra at 164…” (Ibid., pp. 15-16). [Emphasis mine.]
Everson stated the original purpose of the religion clause—separation of church and state (not separation of God and state)—but added a twist that has been used to do something the First Amendment never intended and that is to remove God from all civil government matters (separating God and state), thereby creating a pluralistic state that is run to a great degree by the principles of the god of this world. However, the First Amendment and those believers in Christ who wish to engage the public through speech by preaching the Gospel in the public square stand in the way of total dominance by the forces of evil.
2. … The freedom of speech and press are among the fundamental personal rights and liberties which are secured to all persons by the Fourteenth Amendment against abridgment by the state. Thornhill v. Alabama, 310 U.S. 88, 95, 60 S.Ct. 736, 740, 84 L.ED. 1093 (1940).
3. Freedom of speech includes not only the spoken word, but also speech-related conduct, such as picketing, the wearing of arm bands and, in some recent highly publicized cases, flag burning as a type of political protest. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756.
4. “Whenever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.’ Hague v. C.I.O., 307 U.S. 496, 515-516, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (opinion of Mr. Justice Roberts, joined by Mr. Justice Black). Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147, 152, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969).”
5.[Government control of access to its property, public forums, littering] The extent to which the government can control access to its property for expressive purposes depends on the nature of the forums. Reed v. State, 762 S.W.2d 640, 643 (Tex. App.—Texarkana 1988, pet. Ref’d) citing Cornelius v. NAACP Legal Defense & Education Fund, 473 U.S. 788, 105 S.Ct. 3489, 87 L.Ed. 567 (1985); Olvera v. State, 806 S.W.2d 546 (Tex. Crim. App. 1991). Public forums are those areas which traditionally have been devoted to assembly and public debate, such as public streets, sidewalks, and parks. Id. “[The] Streets are natural and proper places for the dissemination of information and opinion; and one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.” Thornhill v. Alabama, 310 U.S. 88, 97-98, 102, 105-106, 60 S.Ct. 736, 741-742, 744, 746, 84 L.Ed. 1093 (1940).
Although a municipality may enact regulations in the interest of the public safety, health, welfare, or convenience, these may not abridge the individual liberties secured by the constitution to those who wish to speak, write, print, or circulate information or opinion. Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939). In Schneider, one appellant was charged with violating a law criminalizing the circulation and distribution of handbills designed, the city said, to prevent littering of the streets even though he did not litter himself—those to whom he handed the literature threw it down. The court said that the city could achieve the same thing without violating appellant’s freedom of speech by punishing those who threw the literature into the streets.
Thornton v. Alabama, 310 U.S. 88, 97-98, 102, 105-106, 60 S.Ct. 736, 741-742, 744, 746, 84 L.Ed. 1093 (1940):
“A threat … is inherent in a penal statute … which does not aim specifically at evils within the allowable area of State control but, on the contrary, sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech or of the press. The existence of such a statute, which readily lends itself to harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure, results in a continuous and pervasive restraining on all freedom of discussion that might reasonably be regarded as within its purview….
“Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period….
“[The] streets are natural and proper places for the dissemination of information and opinion; and one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.”
6. [Evils within allowable are of state control]
Terminiello v. Chicago, 337 U.S. 1; 69 S. Ct. 894; 93 L. Ed. 1131; 1949 U.S. LEXIS 2400 (1949):
“Freedom of speech, though not absolute, is protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.
“The vitality of civil and political institutions in our society depends on free discussion. As Chief Justice Hughes wrote in De Jonge v. Oregon, 299 U.S. 353, 365, it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes.
“Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire, supra, pp. 571-572, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. See Bridges v. California, 314 U.S. 252, 262; Craig v. Harney, 331 U.S. 367, 373. There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.
“The ordinance as construed by the trial court seriously invaded this province. It permitted conviction of petitioner if his speech stirred people to anger, invited public dispute, or brought about a condition of unrest. A conviction resting on any of those grounds may not stand.”
Substantive evils within the allowable are of state control are obstructing or unreasonable interfering with ingress to and egress for enumerated public places, blocking sidewalks, obstructing traffic, littering streets, committing assaults, and engaging in countless other forms of anti-social conduct. Olvera v. State, 806 S.W.2d 546, 548-549 (Tex. Crim. App. 1991) citing Coates v. Cincinnati, 402 U.S. 611, 91, S.Ct. 1686, 29 L.Ed.2d 214 (1971) and Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1968). Evil within allowable areas of state control include molestation or interference with person and vehicles, obstruction of pedestrians and automobiles, threatening or intimidating or coercing anyone, making loud noises, unpeaceful and disorderly conduct, acts of violence, and breaches of the peace. See, e.g., Carlson v. California, 310 U.S. 106, 60 S.Ct. 746, 84 L.Ed. 1104 (1940), Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736 (1940), Olvera v. State, 806 S.W. 2d 546 (Tex. Crim. App. 1991). See p. 25 of brief.
Municipal legislation meant to keep community streets open and available for movement of people and property is constitutional so long as the legislation does not abridge constitutional liberty of one to impart information through speech and distribution of literature. Schneider v. State, 308 U.S. 147, 160, 60 S.Ct. 146, 150, 84 L.Ed. 155 (1939). Crimes may be punished by law, but the freedom of speech and the press may not be abridged in the guise of regulations by the governing entity to prevent littering, fraud, or to promote the public health, welfare, or convenience. Id. While declaring laws unconstitutional which infringe upon first amendment rights, the Court has made clear what a city may do to punish evils within the allowable areas of state control: “[A] city is free to prevent people from blocking sidewalks, obstructing traffic, littering streets, committing assaults, or engaging in countless other forms of anti-social conduct. It can do so through the enactment and enforcement of ordinances directed with reasonable specificity toward the conduct to be prohibited.” Coates v. Cincinnati, 402 U.S. 611, 91, S.Ct. 1686, 29 L.Ed.2d 214 (1971).
7. [Disorderly conduct] In Gooding v. Wilson, 405 U.S. 518, 92 S. Ct. 1103, 31 L. Ed. 2d 408, a defendant was found guilty of using opprobrious words and abusive language in violation of a Georgia statute. The Fifth Circuit Court of Appeals declared the statute unconstitutionally vague and broad and set aside defendant’s conviction. “The constitutional guarantees of freedom of speech forbid the States to punish the use of words or [*522] language not within “narrowly limited classes of speech.” Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942).Even as to such a class, however, because “the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn,” Speiser v. Randall, 357 U.S. 513, 525 (1958), “in every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom,” Cantwell v. Connecticut, 310 U.S. 296, 304 (1940).” Government may pass laws which punish “fighting words. In Chaplinsky, we sustained a conviction under Chapter 378, § 2, of the Public Laws of New Hampshire, which provided: “No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name . . . . ‘Chaplinsky was convicted for addressing to another on a public sidewalk the words, ‘You are a _ _ _ damned racketeer,’ and ‘a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.’ Chaplinsky challenged the constitutionality of the statute as inhibiting freedom of expression because it was vague and indefinite. The Supreme Court of New Hampshire, however, ‘long before [*523] the words for which Chaplinsky was convicted,’ sharply limited the statutory language ‘offensive, derisive or annoying word’ to ‘fighting” words:
“No words were forbidden except such as have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed. . . .
“The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight. . . . Derisive and annoying words can be taken as coming within the purview of the statute . . . only when they have this characteristic of plainly tending to excite the addressee to a breach of the peace. . . .
“The dictionary definitions of ‘opprobrious’ and ‘abusive’ give them greater reach than “fighting” words. Webster’s Third New International Dictionary (1961) defined ‘opprobrious’ as ‘conveying or intended to convey disgrace,’ and ‘abusive’ as including ‘harsh insulting language.’ Georgia appellate decisions have construed § 26-6303 to apply to utterances that, although within these definitions, are not ‘fighting’ words as Chaplinsky defines them.”
8. The state of Louisiana both directly [see Cox v. State of Louisiana, 379 U.S. 559, 574, 85 S.Ct. 476, 486 (1965)] and indirectly [see Cox] attempted unsuccessfully to deny freedom of speech to picketers. The United States Supreme Court ruled against the state in both cases. Louisiana indirectly tried to abridge appellant’s freedom of speech and assembly by charging him with violation of “disturbing the peach” and “obstructing a public passage” penal statutes. 379 U.S. 536, 85 S.Ct. 453 (1965).
As to the “breach of the peace” charge, the Court stated that its independent examination of the record, which it is required to make, shows no conduct which the state had a right to prohibit as a breach of the peace. Id. At 545, 85 S.Ct. at 459. In addressing the “obstructing a public passage” conviction, the Court addressed the issue of the “right of a State or municipality to regulate the use of city streets and other facilities to assure the safety and convenience of the people in their use and concomitant right of the people of free speech and assembly.” Id. At 554, 85 S.Ct. at 464. There was no doubt that the sidewalk was obstructed by the picketers. Id. At 553, 85 S.Ct. at 464. The Court said that the statute, as applied, violated the appellant’s Constitutional guarantees of freedom of speech and assembly. Id. At 558, 85 S.Ct. at 466.
8. [As to when a governmental entity seeks to take away one’s freedom to display signs and banners in conjunction with his protected speech.] A municipality in Carlson v. People of State of California, 310 U.S. 106, 60 S.Ct. 746, 84 L.Ed. 1104 (1940) sought to enforce an ordinance which directly infringed on appellant’s freedom of speech. Carlson declared unconstitutional a municipal ordinance which declared it unlawful for any person, in or upon any public street, highway, sidewalk, alley or other public place … to carry or display any sign or banner in the vicinity of any place of business for the purpose of inducing or attempting to induce an person to refrain from purchasing merchandise or performing services or labor. Id. (emphasis mine).
Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed. 2d. 842 (1974).: Appellant had displayed an American flag upside down out of his apartment window with a peace symbol attached. at 405-406. The Court noted, and the state conceded, that appellant engaged in a form of communication. at 409, 94 S.Ct. at 2729-2730.
To apply an ordinance to prevent the display of banners or signs in conjunction with protected speech activity violates the speaker’s right to freedom of speech and the rights of the people to whom the speech was directed. (see p. 23-24 of brief).
“An assertion that ‘Jesus Saves,’ that ‘Abortion is Murder,’ that every woman has the ‘right to Choose,’ or that ‘Alcohol Kills,’ may have a claim to constitutional exemption from the ordinance [which prohibited certain political campaign signs] that is just as strong as ‘Roland Vincent—City Council.’ To create an exception for … political speech and not these other types of speech might create a risk of engaging in constitutionally forbidden content discrimination.” Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 104 S.Ct. 2118, 80 L.Ed. 772.
Under the Equal Protection Clause of the Fourteenth Amendment, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. Police Department of City of Chicago v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 2290, 33 L.Ed. 212 (1972)(Holding a Chicago ordinance unconstitutional under the Equal Protection Clause of the Fourteenth Amendment in a case where the equal protection claim was closely intertwined with First Amendment interests)(p 27 of brief). Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Id. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone. Id. Mr. Justice Black called an attempt by a government to pick and choose among the views it is willing to have discussed in picketing activities “censorship in its most odious form, unconstitutional under both the First and Fourteenth Amendments.” Cox v. Louisiana, 379 U.S. 536, 85 S. Ct. 453, 13 L.Ed. 2d 471 (1965) cited in 408 U.S. 92, 98-99, 92 S.Ct. 2291; Carey v. Brown, 477 U.S. 455, 100 S.Ct. 2286, 65 L.Ed. 263 (1980) reaffirmed Mosley.
Even if the purpose of an ordinance does not specifically aim at protected speech, it may indicectly attempt to deny freedom of speech. (see p. 34 of brief). Even if the purpose of [an ordinance such as a sign ordinance] is to keep community streets open and available for movement of people and property or to prevent littering, fraud, to promote the public health, welfare, or convenience, to prevent breaches of the peace or other crimes, it is constitutional only so long as it does not abridge constitutional liberty or one to impart information through speech and the distribution of literature. See Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939); Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed. 2d 214 (1971); Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453 (1965).
IV. Constitution of the state of Minnesota
Preamble: “We, the people of the state of Minnesota, grateful to God for our civil and religious liberty, and desiring to perpetuate its blessings and secure the same to ourselves and our posterity, do ordain and establish this Constitution.”
Article I. Bill of Rights:
Sec. 2. Rights and privileges.
No member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers. There shall be neither slavery nor involuntary servitude in the state otherwise than as punishment for a crime of which the party has been convicted.
Sec. 3. Liberty of the press.
The liberty of the press shall forever remain inviolate, and all persons may freely speak, write and publish their sentiments on all subjects, being responsible for the abuse of such right.
Sec. 4. Trial by jury.
The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy. A jury trial may be waived by the parties in all cases in the manner prescribed by law. The legislature may provide that the agreement of five-sixths of a jury in a civil action or proceeding, after not less than six hours’ deliberation, is a sufficient verdict. The legislature may provide for the number of jurors in a civil action or proceeding, provided that a jury have at least six members. [Amended, November 8, 1988]
Sec. 5. No excessive bail or unusual punishments. …
Sec. 6. Rights of accused in criminal prosecutions. …
Sec. 7. Due process; prosecutions; double jeopardy; self-incrimination; bail; habeas corpus. …
Sec. 8. Redress of injuries or wrongs.
Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive to his person, property or character, and to obtain justice freely and without purchase, completely and without denial, promptly and without delay, conformable to the laws.
Sec. 9. Treason defined. …
Sec. 10. Unreasonable searches and seizures prohibited. …
Sec. 11. Attainders, ex post facto laws and laws impairing contracts prohibited. …
Sec. 12. Imprisonment for debt; property exemption. …
Sec. 13. Private property for public use. …
Sec. 14. Military power subordinate. …
Sec. 15. Lands allodial; void agricultural leases. …
Sec. 16. Freedom of conscience; no preference to be given to any religious establishment or mode of worship. The enumeration of rights in this constitution shall not deny or impair others retained by and inherent in the people. The right of every man to worship God according to the dictates of his own conscience shall never be infringed; nor shall any man be compelled to attend, erect or support any place of worship, or to maintain any religious or ecclesiastical ministry, against his consent; nor shall any control of or interference with the rights of conscience be permitted, or any preference be given by law to any religious establishment or mode of worship; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state, nor shall any money be drawn from the treasury for the benefit of any religious societies or religious or theological seminaries.
Sec. 17. Religious tests and property qualifications prohibited. No religious test or amount of property shall be required as a qualification for any office of public trust in the state. No religious test or amount of property shall be required as a qualification of any voter at any election in this state; nor shall any person be rendered incompetent to give evidence in any court of law or equity in consequence of his opinion upon the subject of religion.
Cases: To be added.
V. Northfield, Minnesota Code of Ordinances and Charter
Northfield, Minnesota, Code of Ordinances >> Part 1 Northfield City Charter >> CHAPTER ONE.
Section 1.1. Preamble.
One of our nation’s most cherished qualities is freedom. There can be no freedom, however, without responsibility and order. Written documents governing our nation and state governments clearly declare the right of all persons to life, liberty, and the pursuit of happiness. Accompanying statements spell out the responsibilities and order that make freedom possible. It is proper that cities also spell out the freedoms and responsibilities of their citizens that make for good order.
Be it hereby declared that no person in the City of Northfield shall, on the grounds of age, race, color, creed, sex, religion, national origin, marital status or status with regard to public assistance or disability be subjected to discrimination in any form. Human freedom and human rights are indivisible. If anyone is denied equality, no one is free. The following charter is a declaration of the public policy of the City of Northfield to fulfill its responsibility to treat all of its citizens equally and with good order.
In order to promote and protect the health, safety, morals, comfort, convenience, and welfare of the inhabitants of the city, the city shall have all powers which may now or hereafter be possible for a municipal corporation in this state to exercise in harmony with the constitutions of this state and of the United States. It is the intention of this Charter to confer upon the city every power which it would have if it were specifically mentioned. Unless granted to some other officer or body, all powers are vested in the city council. [Emphasis mine. Note: The city would be subject to state and federal constitutions whether this were in the municipal code or not. This is because city law is subject to the higher laws.]
The council or an officer or officers formally authorized by the council may make investigations into the city’s affairs. The council may provide for an examination or audit of the accounts of an officer or department of the city government. The council may conduct surveys or research studies of subjects of municipal concern.
The ordinances embraced in this and the following chapters shall constitute and be
Char Carlson ParkCherry Park
designated the “Northfield, Minnesota, City Code” and may be so cited. Such ordinances may also be cited as the “Northfield Code.”
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Sec. 1-2. Definitions and rules of construction.
The following definitions and rules of construction shall apply to this Code and to all ordinances and resolutions unless the context requires otherwise:
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Dresden ParkG. A. Rysgaard Park
City. The term “city” means the City of Northfield, Minnesota.
City council and council. The terms “city council” and “council” mean the council of the City of Northfield, Minnesota.
Code. The term “Code” means the Northfield, Minnesota, City Code, as designated in section 1-1.
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Delegation of authority. A provision that authorizes or requires a city officer or city employee to perform an act or make a decision authorizes such officer or employee to act or make a decision through subordinates.
Grant ParkHauberg Woods Park
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Minn. Stat. The abbreviation “Minn. Stat.” means the Minnesota Statutes, as amended.
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Owner. The term “owner,” as applied to property, includes any part owner, joint owner, tenant in common, tenant in partnership, joint tenant or tenant by the entirety of the whole or part of such property.
Person. The term “person” means any human being; any governmental or political subdivision or public agency; any public or private corporation; any partnership; any firm, association or other organization; any receiver, trustee, assignee, agent, or other legal representative of any of the foregoing; or any other legal entity.
Heritage ParkHeywood Park
Personal property. The term “personal property” means any property other than real property.
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Premises. The term “premises,” as applied to real property, includes land and structures.
Property. The term “property” includes real property, personal property and mixed property.
Real property, real estate and land. The terms “real property,” “real estate,” and “land” include lands, buildings, tenements and hereditaments and all rights and interests therein, except chattel interests.
Hidden Valley ParkJefferson Park
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Sidewalk. The term “sidewalk” means that portion of a street between the curbline, or the lateral lines of a roadway where there is no curb, and the adjacent property line, intended for the use of pedestrians. If there is no public area between the lateral lines of the roadway and the abutting property line, the area immediately abutting the street line shall be construed as the sidewalk.
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State. The term “state” means the State of Minnesota.
John North ParkLashbrook Park
Street. The term “street” means any alley, avenue, boulevard, highway, road, lane, viaduct, bridge and the approach thereto, and any other public thoroughfare in the city. The term “street” also means the entire width thereof between abutting property lines. The term “street” includes a sidewalk or footpath.
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(c) Unless specified otherwise, all references to chapters or sections are to chapters or sections of this Code.
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Sec. 1-8. General penalty; continuing violations.
Liberty ParkOdd Fellows
(a) In this section the phrase “violation of this Code” means any of the following:
(1) Doing an act that is prohibited or made or declared unlawful, an offense, a violation or a misdemeanor by ordinance or by rule or regulation authorized by ordinance.
(2) Failure to perform an act that is required to be performed by ordinance or by rule or regulation authorized by ordinance.
(3) Failure to perform an act if the failure is prohibited or is made or declared unlawful, an offense, a violation or a misdemeanor by ordinance or by rule or regulation authorized by ordinance.
Old Memorial FieldPar Meadow Park
(4) Counseling, aiding or abetting a violation of this Code as defined in this subsection.
(b) In this section the phrase “violation of this Code” does not include the failure of a city officer or city employee to perform an official duty unless it is specifically provided that the failure to perform the duty is to be punished as provided in this section.
(c) Except as otherwise provided by law or ordinance:
(1) A person convicted of a violation of this Code that is not a petty misdemeanor shall be punished by a fine of not more than $1,000.00, imprisonment for a term not exceeding 90 days, or any combination thereof.
Prairie Hills ParkRiverside Lions Park
(2) A person convicted of a violation of this Code that is a petty misdemeanor shall be punished by a fine not exceeding $300.00.
(d) In any case a person convicted of a violation of this Code shall pay the costs of prosecution. Except as otherwise provided by law or ordinance:
(1) With respect to violations of this Code that are continuous with respect to time, each day that the violation continues is a separate offense.
(2) With respect to other violations, each act constitutes a separate offense.
(e) The imposition of a penalty does not prevent suspension or revocation of a license, permit or franchise or other administrative sanctions.
Roosevelt ParkSechlar Park
(f) Violations of this Code that are continuous with respect to time are a public nuisance and may be abated by injunctive or other equitable relief. The
imposition of a penalty does not prevent injunctive relief.
(Code 1986, § 960:00)
State law reference— Authorized penalty for ordinance violations, Minn. Stat. §§ 410.33, 412.231, 609.0332, 609.034.
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Sec. 1-11. Code does not affect prior offenses or rights.
Spring Creek ParkSibley Swale Park
a) Nothing in this Code or the ordinance adopting this Code affects any offense or act committed or done, any penalty or forfeiture incurred, or any contract or right established before the effective date of this Code.
No person shall encumber the city streets, sidewalks, alleys, lanes or public grounds with carriages, carts, wagons, sleighs or other vehicles or with boxes, lumber, firewood, posts, awnings, paper, ashes, refuse, offal, dirt, garbage, stones or other material or obstruction of any kind.
(1) Intentionally enter upon the property of another and, without claim of right, refuse to depart therefrom on demand of the owner, lawful possessor or person with authority to control access to the property;
(2) Intentionally enter upon the property of another without express consent of the owner, lawful possessor or person with authority to control access to the property in the following situations:
After such person has been given written notice by the owner, lawful possessor or person with authority to control access to the property directing that such person not enter upon the property; the written notice may be given to the person by certified mail or by service as provided for civil process; or
b. After the property has been conspicuously posted with a notice directing that no person or no person other than persons included in a named classification enter upon the property at any time or at specifically stated times; or
(3) Intentionally enter a building or structure of any kind without the consent, express or implied, of the owner, lawful possessor or person with authority to control access to the building or structure. Whoever enters a building or structure while open to the general public does so with consent, unless consent is withdrawn by giving notice to such person directing that such person not enter the building or structure; the written notice may be given to the person by certified mail or by service as provided for civil process.
(Code 1986, § 955:00)
State law reference— Trespass, Minn. Stat. § 609.605.
Sec. 50-27. Defacing sidewalks or public structures.
No person shall write, print, stick, post, or place any bill, placard or sign of any description upon the sidewalks or other public structure of the city.
(3) Disturb an assembly or meeting, not unlawful in its character;
(4) Spit upon any sidewalk or crosswalk;
(5) Appear in public or any exposed place in a state of nudity or in any indecent or lewd dress;
(6) Annoy, disturb, interfere with, obstruct or be offensive to others to a degree whereby a breach of peace may be or is likely to be occasioned;
(7) Fail or refuse to obey a police officer’s lawful order; or
(8) Be guilty of any indecent or obscene acts or any lewd, indecent or obscene conduct, language, or behavior.
Sec. 50-87. Noisy parties or assemblies.
(a) Any person who participates in any party or assembly of two or more people from which noise emanates of a sufficient volume or of sufficient nature to disturb the peace, quiet or repose of another person is guilty of a misdemeanor. Any owner or tenant of the place at which a disturbance is occurring, who has knowledge of the disturbance and fails to immediately abate the disturbance, is guilty of a misdemeanor.
(b) A police officer may order all persons present at a noisy party or assembly prohibited in subsection (a) of this section, other than the owners or tenants of the place at which the disturbance is occurring, to immediately disburse. Any person who shall refuse to leave after being so ordered to do so by a police officer shall be guilty of a misdemeanor.
(a) The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning:
Public parks and walkways includes Sechler Park; Odd Fellows Park; Central Park; Babcock Park; Way Park; Riverside Park; Cherry Park; Sibley Marsh; Sibley Swale; Bridge Square; Riverwalkway from Second Street to Fifth Street; River Pedestrian Bridge; and any park, playground or walkway maintained by the city. [Emphasis mine]
Public places includes public streets, parking lots, highways, roads, alleys, public buildings and grounds; places of amusement, refreshment or entertainment; vacant lots; or other unsupported places. [Emphasis mine]
Responsible adult includes a parent, legal guardian, or his/her adult designee, having care and custody of a minor under the age of 18 or any adult having responsibility for a supervised activity.
Supervised activity includes events sponsored and supervised by schools, churches or civic groups or events where a responsible adult is present.
(b) No minor under the age of 16 shall loiter, loaf or be idle in a public place or public park or walkway between the hours of 10:00 p.m. and 5:00 a.m. of the following day unless in the company of a responsible adult or going to, attending, or returning from a supervised activity.
(c) No minor under the age of 18 and over the age of 15 shall loiter, loaf or be idle in a public place or park or walkway between the hours of 12:00 midnight and 5:00 a.m. the following day unless in the company of a responsible adult or going to, attending, or returning from a supervised event.
(d) No parent, legal guardian or other adult having the care and custody of a minor under the age of 18 shall knowingly permit such minor to violate subsection (b) or (c) of this section.
(e) No person operating or in charge of any place of amusement, entertainment, or refreshment shall knowingly permit any minor under the age of 18 to loiter, loaf or be idle in such place during the hours prohibited by this section. This subsection shall not apply when the minor is accompanied by his/her parents, legal guardian, or other adult having the care and custody of the minor.
(f) It is a defense to prosecution under this section that the minor was:
(1) On an errand at the direction of the minor’s parent or guardian, without any detour or stop;
(2) In a motor vehicle involved in interstate travel;
(3) Engaged in an employment activity, or going to or returning home from an employment activity, without any detour or stop;
(4) Involved in an emergency;
(5) On the sidewalk abutting the minor’s residence or abutting the residence of a next-door neighbor if the neighbor did not complain to the police department about the minor’s presence;
(6) Attending an official school, religious, or other recreational activity supervised by adults and sponsored by the school district, a civic organization, or another similar entity that takes responsibility for the minor; or going to or returning home from, without any detour or stop, an official school, religious, or other recreational activity supervised by adults and sponsored by the city, a civic organization, or another similar entity that takes responsibility for the minor; or
(7) Exercising First Amendment rights protected by the United States Constitution, such as the free exercise of religion, freedom of speech, and the right of assembly. [Emphasis mine]
(g) Any person violating any provision of this section shall be guilty of a petty misdemeanor and punished by a fine of not more than $100.00.
All city parks as defined in section 50-116(a) shall be closed between the hours of 10:00 p.m. and 6:00 a.m. the following day. Any person found in the parks after closing hours shall be in violation of this section. Exceptions to this section shall include annual Defeat of Jesse James Days events, any person or groups granted special permission by city officials or city staff, or any person or groups wanting to camp overnight, after first obtaining permission from the police department. All permissions or special permissions referenced in this section shall be granted upon a showing that there will be compliance with all laws and ordinances and a showing that the proposed activity will not endanger park property, the public peace or the public safety.
The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
Peddler means any person who goes from house to house, place to place or from street to street conveying or transporting goods, wares or merchandise or offering or exposing the goods, wares or merchandise for sale, or making sales and delivering articles to purchasers. The term “peddler” does not include vendors of milk, bakery products, groceries, food products or ice, who distribute their products to regular customers on established routes.
Solicitor means any person who goes from house to house, place to place, or street to street, soliciting or taking or attempting to take orders for sale of goods, wares or merchandise, including magazines, books, periodicals or personal property of any nature for future delivery, or for service to be performed in the future, whether or not such individual has, carries or exposes for sale a sample of the subject of such order or whether or not advance payments on such orders are collected. The term “solicitor” includes any person who, for himself/herself or another, hires, leases, uses or occupies any building, motor vehicle, trailer, structure, tent, railroad boxcar, boat, hotel room, lodginghouse, apartment, shop or other place within the city for the primary purpose of exhibiting samples and taking orders for future delivery.
Transient merchant means any person, whether as owner, agent, consignee or employee, who engages in a temporary business of selling and delivering goods, wares and merchandise within the city and who, in furtherance of such purposes, hires, leases, uses or occupies any building, structure, motor vehicle, trailer, tent, railroad boxcar, boat, public room in a hotel, lodginghouse, apartment, shop or any street, alley or other place within the city for the exhibition and sale of such goods, wares and merchandise, either privately or at public auction, provided that the term “transient merchant” shall not be construed to include any person who, while occupying such temporary location, does not sell from stock, but exhibits samples for the purpose of securing orders for future delivery only.
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Sec. 58-3. Religious and charitable organizations.
(a) Any organization, society, association or corporation (“organization”) desiring to solicit or to have solicited in its name money, donations of money or property, or financial assistance of any kind or desiring to sell or distribute any item of literature or merchandise for which a fee is charged or solicited from persons other than members of such organization upon the streets, in office or business buildings, by house-to-house canvas, or in public places for a charitable, religious, patriotic or philanthropic purpose is exempt from article II of this chapter, provided there is filed a sworn application in writing on a form to be furnished by the finance director/city clerk which contains the following information:
(1) The organization’s name and the specific cause for which exemption is sought;
(2) Names and addresses of the officers and directors of the organization;
(3) The period during which solicitation is to be carried on; and
(4) Whether or not any commission, fee, wage or emolument is to be expended in connection with such solicitation and the amount thereof.
(b) Upon being satisfied that such an organization is a religious, charitable, patriotic or philanthropic organization, the finance director/city clerk shall issue a license without a fee to such organization. Such organization shall furnish all of its members, agents or representatives conducting solicitation credentials in writing stating the name of the organization, the name of the agent and the purpose of the solicitation.
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Sec. 58-7. Penalty.
Any person convicted of violating any provisions of this chapter shall be guilty of a petty misdemeanor. Each violation shall constitute a separate offense.
Jury nullification has been an issue near and dear to my heart since the time in the 1980s when the Lord was dealing with me about going to law school. After attending the University of Texas School of Law and getting my license to practice law in 1993, I attended a Fully Informed Jury Association seminar and pursued the issue in selected cases. I drafted a brief to present to the court and a Requested Jury Instruction on the issue. The judges became very antagonistic when presented with the brief and the instruction. I will not bore you with the entire battle, but present this article to you so that, by reading the brief and requested instruction you may gain some understanding of the issue. Since I have not been allowed to argue nullification in any of my Texas cases where I attempted to do so, I have come up with a few tactics devised to try to get the jury to apply their right to nullify. Visit the Fully Informed Jury Association by clicking the blue colored link. Following the brief below is a copy of the requested instruction. Note: This website will not allow me to correctly format the headings to the brief and requested instruction (some of the entries in the headings are not centered).
No. ______________
STATE OF TEXAS § IN [Name of Court]
§ VS.§OF § [NAME OF DEFENDANT] § [Name of county] COUNTY, TEXAS
BRIEF IN SUPPORT OF ALLOWING DEFENDANT, THROUGH HIS ATTORNEY, TO ARGUE JURY NULLIFICATION, AND ASKING THE COURT TO INCLUDE A JURY NULLIFICATION INSTRUCTION IN THE CHARGE
Defendant, by and through his attorney, respectfully shows the court as follows:
Jury nullification is a positive force in a civilized society. Only the jury is in a position to balance compassion against the letter of the law and assure justice in a proper case. “[T]he jury stands as a bulwark against laws which it deems unjust or excessively harsh.” Mouton v. State, 923 S.W.2d 219, 222 (Tex. App.–Houston [14th Dist.] 1996, no pet. history). “It is undisputed that a jury has the power of nullification.” Id. at 221. “[J]ury nullification is a recognized aspect of our jury system.” Id. The court in United States v. Burkhart, 501 F2d 993, 997 (6th Cir. 1974) noted that the law of jury nullification “allows a defense attorney “some leeway in persuading the jury to acquit out of considerations of mercy or obedience to a higher law.” Mouton at 221-22.
The majority in Sparf et al. v. United States, 156 U.S. 51 (1895), which was cited in Mouton, “suggested no way of eliminating the power of juries, sua sponte, to nullify the law. CLAY S. CONRAD, JURY NULLIFICATION 106 (Carolina Academic Press 1998). “The case determined only that federal judges were not obligated to inform jurors of their power to bring in a verdict based on the juror’s own judgment of the law.” Id. “The case did not hold that federal judges could not give jurors [a nullification] instruction, or that they must disingenuously inform jurors that they were bound to follow the courts instructions.” Id. (emphasis mine). “The case determined only that federal judges were not obligated to inform jurors of their power to bring in a verdict based on the juror’s own judgment of the law.” Id. “The case did not hold that federal judges could not give jurors such [a jury nullification] instruction.” Id. at 108.
The criminal justice system which allows the defense attorney to argue jury nullification and the judge to tell the jury that it has the right to nullify the law is a better system. And there are good reasons for a jury to be told that they have the right to nullify the law. Jurors may not be aware of their power to render a verdict according to conscience, or that they are immune from prosecution if they do so–particularly if they are under the impression that their oath binds them to enforcing the law as given in the court’s instructions. JURY NULLIFICATION at 126. “Counting on jurors to come to Court aware of their hidden powers runs counter to what little empirical evidence exists.” Id. at 133. “Furthermore, psychological studies indicate that a juror may be willing to convict and impose a cruel sentence if the legal system supports and applauds his actions, because judicial instructions have deprived him of any personal moral responsibility for his verdict.” Id.
Judge Jack B. Weinstein believes that “[n]ullification is but one legitimate result in an appropriate constitutional process safeguarded by judges and the judicial system. When juries refuse to convict on the basis of what they think are unjust laws, they are performing their duty as jurors.” Id. at 145-146 citing HON. Jack B. Weinstein, Considering Jury “Nullification”: When May and Should a Jury Reject the Law to do Justice?, 30 AM. CRIM. L. REV. 239, 240 (1993). He wrote:
“When jurors return with a “nullification” verdict, then, they have not in reality “nullified” anything: they have done their job. . . Juries are charged not with the task of blindly and mechanically applying the law, but of doing justice in light of the law, the evidence presented at trial, and their own knowledge of society and the world. To decide some outcomes are just and some are not is not possible without drawing upon personal views.” Id. at
District Court Judge Thomas Wiseman, in the Middle District of Tennessee, wrote:
“Argument against allowing the jury to hear information that might lead to nullification evinces a fear that the jury might actually serve its primary purpose, that is, it evinces a fear that the community might in fact think a law unjust. The government, whose duty it is to seek justice and not merely conviction, should not shy away from having a jury know the full facts and law of a case. Argument equating jury nullification with anarchy misses the point that in our criminal justice system the law as stated by the judge is secondary to the justice as meted out by a jury of the defendant’s peers. We have established the jury as the final arbiter of truth and justice in our criminal justice system…” United States v. Datcher, 830 F.Supp. 411, 412 (M.D. Tenn. 1993), discussed in Kristen K. Sauer, Informed Conviction: Instructing the Jury About Mandatory Sentencing Consequences, 95 COL. L.REV. (1995) and cited in JURY NULLICICATIONat 146-147.
A Brief History of “Jury Nullification”
History demonstrates that the advent and practice of jury nullification has been a positive and compassionate force in the development and operation of our criminal justice system. “Although the use of the jury in criminal trials in England was encouraged by the Assize of Clarendon in 1166, it was not until 1215 that juries were routinely used in the trial of criminal cases.” JURY NULLIFICATION at 17 citing SIR PATRICK DEVLIN, TRIAL BY JURY, 9 (3d ed. 1966)(Reprinted 1988). This was the result two events: the Pope’s condemnation of the entire system of trials by ordeal and his prohibition of clerics from participating in them and the Magna Charta. JURY NULLIFICATION at 17.
“Although originally juries which returned ‘incorrect verdicts’ were treated very harshly, the power of juries to correct oppressive or unjust laws was beginning to be recognized by the mid-seventeenth century. Id. at 23-28. Bushell’s Case in 1670 ushered in what has been called the heroic age of the English jury.” Id. at 24-28.
“In Bushell’s Case, jurors acquitted the Quakers William Penn and William Mead of the capital offenses of unlawful and tumultuous assembly, disturbance of the peace and riot. They were charged because they preached to their congregation in the street after the police locked them out of their church because the Quaker religion was illegal. After the evidence, the court told the jurors to convict. They did not. They were threatened with starvation, they were held three days without food, drink, or toilet facilities, but acquitted anyway. They were all fined a considerable sum. Eight paid the fine, but four were imprisoned for refusing to pay. One of those made out what was called a writ of Habeas Corpus ad Subjiciendum, which was decided 2 1/2 months later in their favor. The opinion in Bushell’sCase held no more than that a juror could never be punished for his verdict unless he delivered it in bad faith.” Id.
As a result, courts began to use “special verdicts.” Id. at 28. Nonetheless, juries insisted on returning general verdicts, especially in seditious libel cases where the law said that the fact of publication was the only element of a libel prosecution that concerned the jury. Id. at 29. Many pamphlets were published and distributed informing jurors of their right to judge the law. Id. More conventional academic and legal treatise writers also began to accept and promulgate the doctrine of jury independence. Id. at 30.
Alexander Hamilton argued “jury nullification” in Rex v. Zenger, How. St. Tr. 17:675 (1731). Id. at 32-35. John Peter Zenger was accused of seditious libel in New York. Id. The jury acquitted Zinger after only brief deliberations. Id. at 36. The reverberations of Hamilton’s arguments continued both in England and America for many years and prosecutions for seditious libel began to falter with increasing consistency. Id. at 36-38. As a result, the English Parliament in 1791 passed Fox’s Libel Act which re-established the right of juries to render a general verdict in libel cases as in all other criminal cases. Id. at 41-43. “Juries, by exercising the power implicit in the delivery of the general verdict, had demanded and received official recognition of their right to judge whether an alleged libel was in fact false, malicious and intentional.” Id. at 44.
“The founders of this country were in agreement as to the value of the trial by jury as an essential means of preventing oppression by the government. Their primary concern was more with the radical true law-finding power of the jury than with the jury’s power of amelioration.” Id. at 47-48. Many prominent founders such as Theophilus Parsons, a member of the Massachusetts Constitutional Convention and Chief Justice of the Massachusetts Supreme Court, John Adams, Thomas Jefferson, and Alexander Hamilton argued for the rights of jurors to judge the law. “The right of early American jurors to deliver a general verdict according to conscience was not a controversial issue during the early years of this country.” Id. at 52. Chief Justice John Jay, in a rare jury trial in front of the Supreme Court, instructed the jurors of their right to judge the law in the instructions he gave to the jury in Georgia v. Brailsford, 3 U.S. (3 Dall.) 1 (1794). Id. at 52-53. Other cases from the same period expressed the same conception of the role of the jury. Id. at 53.
That federal law continued to recognize the right of jury nullification is shown in Justice Van Ness’ instruction to the jury in United States v. Poyllon, 27 F.Cas. 608, 611 (D.C.D.N.Y. 1812), and by Chief Justice John Marshall’s instructions to the jury in United States v. Hastings, 26 F.Cas. 440, 442 (C.C.D.Vir. 1812): “That the jury in a capital case were judges, as well of the law as the fact, and were bound to acquit where either was doubtful.” Id. at 60-61. For almost five decades following the adoption of the Bill of Rights, the right of jurors to judge both law and fact was uncontroversially accepted. Id. at 60-63.
By the mid-nineteenth century, for several reasons, the prevalence of jury instructions charging jurors with the responsibility for reviewing both law and fact began to give way to increasingly constrained instructions. Id. at 65. For one thing, reducing the power of the jury to determine the law gave trial judges greater control in determining case outcome. Id. Another factor was reduced perception of a need for jury independence. Id. Americans no longer had unjust laws foisted on them by a foreign power across the sea. Id. Furthermore, most Americans were aware of their power to judge the law. Id. Jury independence was rarely used “and most Americans thought it should only be used to curtail gross excrescences of the criminal sanction.” Id. at 66-67.
“The laws establishing and protecting the institution of slavery and punishing those who aided fugitive slaves struck many Americans–including substantial numbers of Southerners–as cruel, unjust and fundamentally un-American.” Id. at 75. Juries in Massachusetts began ending slavery by finding in favor of slaves who sued for freedom. Id. at 75. In one case, the fate of Quock Walker, a “runaway slave,” was debated in a series of civil jury trials, culminating in a decision that “The said Quock Walker is a free man and not the property slave of the defendant,” and Mr. Walker was awarded damages for injuries suffered when his former master, Nathaniel Jennison caught and beat him. Id. at 75-76. Then, Jennison was found guilty of assaulting Mr. Walker and fined forty shillings in the case of Commonwealth v. Jennison. Id. at 76.
Chief Justice William Cushing, in his charge to the jury, instructed them that:
“As to the doctrine of slavery and the right of Christians to hold Africans in perpetual servitude, and sell and treat them as we do our horses and cattle, that (it is true) has been heretofore countenanced by the Province Laws formerly, but nowhere is it expressly enacted or established… But whatever sentiments have formerly prevailed in this particular or slid in upon us by the example of others, a different idea had taken place with the people of America, more favorable to the natural rights of mankind, and to that natural innate desire of Liberty, with which Heaven (without regard to color, complexion, or shape of noses–features) has inspired all the human race. And upon this ground our Constitution of Government, by which the people of this Commonwealth have solemnly bound themselves, sets out with declaring that all men are born free and equal–and that every subject is entitled to liberty, and to have it guarded by the laws, as well as life and property–and in short is totally repugnant to the idea of being born slaves. This being the case, I think the idea of slavery is inconsistent with our conduct and Constitution; and there can be no such thing as perpetual servitude of a rational creature, unless his liberty is forfeited by some criminal conduct or given up by personal consent or contract…” Id. at 76 citing ALBERT P. BLAUSTEIN & ROBERT L. ZANGRANDO, CIVIL RIGHTS AND AFRICAN AMERICANS, 45-46 (1991). “The jury of white male landowners freely chose to convict, heralding the end of slavery in Massachusetts and delivering a fatal blow to the institution throughout the Northeast.” Id. at 77.
Although slavery continued in the South, The Unconstitutionality of Slavery, by Lysander Spooner, which argued the illegality and unconstitutionality of slavery, was widely disseminated both in print and by orators such as Frederick Douglass and lead to one of the most thorough jury revolts in history. Id. at 77-78. The Fugitive Slave Act which was passed in 1850, one of the most infamous pieces of legislation ever passed by any United States legislature provided that a person accused of being a fugitive slave could, without due process of law, be brought before a quasi-judicial commissioner for a summary hearing without a jury. Id. at 79. The commissioner, if convinced of the claimant’s veracity, could return the slave to bondage. Id. The commissioner was paid ten dollars if the slave were returned, but only five dollars if the claim was rejected. Id. The Fugitive Slave Act also provided imprisonment of up to six months and a fine of up to one thousand dollars for anyone convicted of interfering with the recovery of fugitive slaves, or who rescued or harbored fugitives. Id. Any person with black skin could be seized as an escaped slave wholly on ex parte testimony. Id. The Act deprived those arrested under its auspices of the writ of Habeas Corpus.Id.
It is clear that, for whatever reason, jurors frequently refused to convict those who harbored or assisted fugitive slaves. Id. at 80. In one case, twenty-four men helped a captured slave named Fredrick Jenkins (alias Shadrack) escape. Id. at 81. Prosecution of the participants in Shadrack’s rescue was dropped by the government after two acquittals and several hung juries. Id. The second defendant, a black lawyer named Robert Morris, a descendant of slaves, was acquitted by a jury of twelve white men of assisting in the escape of a fugitive slave. Id. at 81-82. According to one authority, “[h]is lawyer told the jury that they should judge the law as well as the facts, and that if any of them conscientiously believed that the Fugitive Slave Law was unconstitutional, they should disregard any instructions by the judge to the contrary.” Id. at 81.
Other evidence that jurors were freely granted the power to deliver an independent verdict during the nineteenth century include jury independence provisions inserted into several state constitutions and state statutes granting jurors the power to judge the law. Id. at 88. Some of those survive until this day in one form or another, but in some states, courts restricted the role of jurors during the latter half of the nineteenth century, “often striking down or limiting earlier precedents and statutes.” Id. at 88-92.
In a sense, the United States Supreme Court rejected jury independence in Sparf et al. v. United States, 156 U.S. 51 (1895). Id. at 99-108. But the majority in Sparf “suggested no way of eliminating the power of juries, sua sponte, to nullify the law. Id. The case determined only that federal judges were not obligated to inform jurors of their power to bring in a verdict based on the juror’s own judgment of the law. Id. The case did not hold that federal judges could not give jurors such an instruction.” Id. at 108.
In spite of Sparf, during the closing decade of the nineteenth century, the prosecution found it increasingly difficult to prevail in labor cases. Id. at 106-108.
“Jury independence is a snapshot in the law, appropriately flaring up when the criminal law exceeds the limits of social consensus, dying away when the law has been reformed, only to flare up anew when the legislative ambition [and now judicial ambition] again overtakes its legitimate bounds.” Id. at 108. It is not debated that the laws which prohibited alcohol manufacture, sale, and consumption were routinely rejected by independent American juries. Id. at 108-115. In some areas of the country as many as sixty percent of alcohol-related prosecutions ended in acquittals. Id. at 109. “Prohibition has been described as a ‘crime category in which the jury was totally at war with the law.’” Id. “Jury independence . . . was still a strong aspect of American culture and many jurors were aware of their powers and willing to exercise them when appropriate.” Id. “Where juries did convict, they often delivered ‘compromise verdicts’ which resulted in reduced sentences for the accused.’” Id. at 111.
“During prohibition, John Henry Wigmore defended trial by jury on several grounds: that it prevented unpopular distrust of official justice, provided necessary flexibility in legal rules, educated the citizens of the country about the administration of the laws and improved verdicts by requiring that, even after the decision in Sparf et al., juries were deciding cases based both on judicial instructions and their own views of equity:
“Law and justice are from time to time in conflict. That is because law is a general rule (even the stated exceptions to the rules are general exceptions); while justice is the fairness of this precise case under all its circumstances. And as a rule of law only takes account of broadly typical conditions, and is aimed on average results, law and justice every so often do not coincide. * * *
“The jury, in the privacy of its retirement, adjusts the general rule of law to the justice of the particular case. Thus the odium of inflexible rules of law is avoided, and popular satisfaction is preserved.
“That is what the jury trial does. It supplies that flexibility of legal rules which is essential to justice and popular contentment.”
Id. at 112 citing John H. Wigmore, A Program for the Trial of Jury Trial, 12 J. AM. JUD. SOC. 166, 169-171 (1929).
Clarence Darrow, America’s most famous criminal defense lawyer of the period and a great opponent of Prohibition and supporter of jury nullification, stated, “Since men began making laws, the favorite form of repeal is by non-observance. It was in this way that Christianity conquered the Roman Empire. If Christians had obeyed the laws of Rome their religion would have died at its birth.” Id. at 114 citing DARROW, THE STORY OF MY LIFE, 293, 294 (1931).
“By the early twentieth century, it seemed that jury independence had become a doctrine of the past, anachronistically surviving in a few isolated jurisdictions and watered down and disparaged where it remained. Rejected by the federal courts and most state courts, it served as interesting fodder for an occasional law review article. Jury independence was not advocated openly, nor had it been a particularly lively topic of discussion since the demise of slavery and the repeal of the Fugitive Slave Act in 1850. The political nature of jury independence allowed the doctrine largely to hibernate until the 1960s when the Vietnam war cases brought it to the forefront as a tool of social protest.
“However, as the last quarter of the twentieth century approached, the rapidly increasing number of academic law journals required an increasing number of articles, in order to fill the equally increasing number of pages. Articles on jury independence found their way onto many of those pages. For the first time in 88 years of history, the doctrine of jury independence had established a life of its own, apart from any particular issue or policy.” Id. at 140-141.
Juries are still nullifying the law. Id. at 143-153 (examples given: e.g., defendant found not guilty of two counts of marijuana cultivation where he admitted to growing more than 40 plants in his home and his sole defense was that smoking and eating marijuana alleviated the nausea and weight loss associated with AIDS; a Michigan jury refused to punish Dr. Kevorkian for his role in helping Thomas Hyde commit suicide; a Colorado jury refused to convict a man for assisting his mother who requested his help because her suffering got to be too much in committing suicide; cases where juries refuse to convict women who have killed their batterers, not in self-defense, after years of abuse). Others categories of cases in which independent juries are likely to nullify the law include abortion protest cases, gun owner cases, and, should Roe v. Wade, 410 U.S. 113 (1973) ever be overturned, it is unlikely that independent juries would enforce laws criminalizing abortion. Id. at 152. In fact, against all reason, it seems to the attorney for defendant that the average “Pro-Choice” person is far more likely to nullify the law in the appropriate case than the average so-called “Pro-Lifer” many of whom have bought the liberal lie that “I am Pro-Life and would never have an abortion, but I don’t think the government should legislate morals. It ought to be up to the pregnant woman.” That reasoning would require the abolition of all our criminal laws. I represented an abortion clinic sidewalk counselor in Austin. At trial, the jury would have nullified the law and convicted had not the judge granted defendant’s motion for a directed verdict. After talking with the jurors after trial, it was apparent that the jurors had lied during voir dire so that they could get onto the jury. It was also apparent that they were angry because the judge followed the law and granted defendant’s motion for directed verdict after the close of the state’s evidence.
Conclusion
At times, jury nullification is necessary to assure that justice is done. A judge can allow the defense lawyer to argue jury nullification. A judge can, but is not required to instruct the jury of its power of nullification. To deny the jury the right to be fully informed – by either the defense lawyer or the judge or both – of its power of nullification in an attempt to prevent it from exercising the full extent of its proper function will likely result in an injustice in a case where the letter of the law and justice conflict. Sometimes, as history demonstrates, law and justice do not coincide.
Respectfully submitted,
____________________________________
Jerald C. Finney
P.O. Box 1346
Austin TX 78767
Tel. & FAX: (512)385-0761
State Bar No.: 00787466
ATTORNEY FOR DEFENDANT
VERIFICATION
STATE OF TEXAS §
§
COUNTY OF TRAVIS §
BEFORE ME, the undersigned authority, on this day personally appeared Jerald Finney who, upon being duly sworn, upon oath did acknowledge and state to me as follows:
“My name is Jerald Finney. I have read the above and foregoing statements and they are to my personal knowledge, true and correct.”
SIGNED this ____ day of _______________, 200___.
______________________________
Jerald Finney
SUBSCRIBED AND SWORN before me on this ______ day of _______________, 201__.
______________________________
Notary Public, State of Texas
______________________________
Printed Name of Notary
My Commission Expires:_________
No. ______________
STATE OF TEXAS § IN [Name of Court]
§
VS. § OF
§
[NAME OF DEFENDANT] § [Name of county] COUNTY, TEXAS
DEFENDANT’S REQUESTED INSTRUCTION NO. ___
TO THE HONORABLE JUDGE OF SAID COURT:
, defendant in this action, before the Court has presented the charge to the jury and in the time and manner required by law, requests that the Court include in the charge to be submitted to the jury the following instruction.
INSTRUCTION NO. ___:
It is presumed that juries are the best judges of fact. Accordingly, you are the sole judges of the true facts in this case.
I think it requires no explanation, however, that judges are presumed to be the best judges of the law. Accordingly, you must accept my instructions as being correct statements of the legal principles that generally apply in a case of the type you have heard.
The order in which the instructions are given is no indication of their relative importance. You should not single out certain instructions and disregard others but should construe each one in the light of and in harmony with the others.
These principles are intended to help you in reaching a fair result in this case. You should give them due respect. Moreover, justice will ordinarily be done by applying them as a whole to the facts which you find have been proven. You should do just that if, by doing so, you can do justice in this case.
Even so, it is difficult to draft legal statements that are so exact that they are right for all conceivable circumstances. Accordingly, you are entitled to act upon your conscientious feeling about what is a fair result in this case, and acquit the defendant if you believe that justice requires such a result.
Exercise your judgment without passion or prejudice, but with honesty and understanding. Give respectful regard to my statements of the law for what help they may be in arriving at conscientious determination of justice in this case. That is your highest duty as a public body and as officers of this court.
Respectfully submitted,
____________________________________
Jerald C. Finney
P.O. Box 1346
Austin TX 78767
Tel. & FAX: (512)385-0761
State Bar No.: 00787466
ATTORNEY FOR DEFENDANT
This requested instruction, having been duly and timely requested, is hereby ________________ and exception allowed. [State modification, if any]:
SIGNED this ________ day of _____________________________, 201__.
“Authority, The Greatest Thing In The Universe,” Dr. Greg Dixon 2005. This sermon explains the importance of authority and power and correct doctrine. It explains how great men of God can proceed according to some false doctrine and the consequences. For example, John and Charles Wesleys’ teachings led to the tongues movement and all its modern derivatives and adnerents such as TD Jakes, Joycd Meyers, Kenneth Hagan, etc.
“For as many as have sinned without law shall also perish without law: and as many as have sinned in the law shall be judged by the law; … In the day when God shall judge the secrets of men by Jesus Christ according to my gospel” (Romans 2.12, 16).
By intentionally preaching on politics before the upcoming election in defiance of the rule in Internal Revenue Code §501(c)(3) (“501c3”)(click the link to go directly to the law and read it for yourself), 1000 pastors plan to challenge the constitutionality of that provision. This article analyses their actions and intentions based upon a look at 501c3 in light of American civil law and Biblical principle and teaching.
American law says that hierarchal governance shall be in the following order: The constitution of the United States, those federal statutes that control states under the supremacy clause, the state constitution, state statute, and county and city ordinances. Thus, for example, when a person is charged with a crime for violating a city ordinance which forbids speech in the public forum (i.e., government owned property such as sidewalks and parks which have been traditional forums for free speech), one can move to quash the action based upon his United States and state constitutional rights to free speech. Of course, one’s constitutional right to free speech in a public forum does not apply to certain criminal activity such as obstructing the sidewalk by rendering the sidewalk impassable or rendering passage unreasonably inconvenient or hazardous after disobeying a reasonable request or order to move by a peace officer, fireman, or person with authority to control the use of the premises.
American hierarchal law is adequate to deal with a legal issue like the one presented in the preceding paragraph. However, in spite of its sufficiency in dealing with most temporal matters, it is incorrect and also inadequate. American hierarchal law does not recognize the highest law, God’s law as given in the Bible. God’s law is above man’s law whether man recognizes it or not. Civil governments, like individuals and churches, have a choice to make. God temporarily gives man free will because He wants man’s love. That which is forced can never be love. Thus, God allows civil governments to refuse to know and/or recognize that He is God. Nations who choose not to recognize God and operate within their God-ordained jurisdictions will ultimately be cursed according to their choice. Those who operate according to His principles will be blessed. No nation, individual or church can complain because reality, when looked at in the light provided by the Bible, gives man all he needs to know to make the right choice. Light ignored or rejected halts positive progress and brings ultimate undesirable consequences.
Click the image above to go to the article “Is Separation of Church and State Found in the Constitution?”
The author would note that God’s law teaches that civil government under God establishes separation of church and state and freedom of religion (which can also be called freedom of conscience or soul liberty) while at the same time recognizing His Supremacy, because, as stated in the last paragraph, God wants every man to have a choice (See “Is Separation of Church and State Found in the Constitution?“). Thus a nation under God will separate church and state and will guarantee religious freedom while at the same time recognizing God and keeping its own authority within the jurisdictional boundaries which God has established in His Word. Just because America does not recognize the highest law does not mean that God’s law is not in effect: Although the First Amendment to the United States Constitution still forbids and corresponding state constitutional provisions protect against religious establishment (union of church and state) and freedom of religion, due to her successful attempts to remove God from practically all civil government matters, America is beginning to suffer the inevitable consequences and is now a moral cesspool in which wickedness is the rule of the day.
Sadly, most of those who claim to know God and His law have accepted the American hierarchy of law as opposed to the Biblical hierarchy of law. Even the vast majority of pastors, men who should know better, claim that the Bible teaches that believers should obey every ordinance of man; and they cite Romans 13:1 or 1 Peter 2:13, out of context to support their position. (All these matters are dealt with on the “Separation of Church and State Law” website and also in books written by this author. Go to Render Unto God the Things that Are His: A Systematic Study of Romans 13 an Related Verses for an online version of the book which explains the true meaning of Romans 13:1, 1 Peter 2:13, and other related verses. Go to the Sermons page of “Separation of Church and State Law Website” to hear sermons on Romans 13, 1 Peter 2:13 and other relevant matters. See also, Endnote. Note. All Jerald Finney’s teachings can be accessed on his websites at no cost whatsoever.). They even go so far as to say that churches should incorporate and apply for 501c3 status, even though there is no ordinance of man in America requiring churches to do so. In fact, the laws of incorporation and 501c3 violate the First Amendment to the United States Constitution. (See infra).
A few years ago, the Alliance Defense Fund (“ADF”) had a pulpit initiative in which 100 pastors preached on politics in defiance of one of the several the rules they agreed to when they asked for and were granted 501c3 status. The ADF informed the Internal Revenue Service and widely advertised the date of their upcoming activity. After the date of their activity, the Internal Revenue Service simply ignored it. No action against the pastors and churches involved was taken.
Now, more than 1,000 pastors of churches who asked for and were granted 501c3 status are again planning to challenge the IRS next month by deliberately preaching politics ahead of the presidential election despite the law which forbids 501c3 churches and pastors from preaching on politics. (Go directly to “Pastors pledge to defy IRS, preach politics from pulpit ahead of election” by clicking link. The article is also reproduced in En2 below.). Their position is that prohibiting preachers from preaching on politics is unconstitutional; that the law violates the First Amendment to the United States Constitution. The First Amendment says:
The First Amendment to the U.S. Constitution
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
A cursory examination of the law and the position of the 1,000 pastors quickly reveals the folly of their action. Is not the entirety of Internal Revenue Code §501(c)(3) unconstitutional as to its application to churches? Is not it a law respecting an establishment of religion and a law which prohibits the free exercise thereof? If so, and if the 1,000 pastors truly honor the Constitution, then why did they seek 501c3 status in the first place? Why did they and untold thousands of other pastors not cancel their 501c3 status in its entirety and legally attack the entire law as being unconstitutional as applied to churches? Of course they and this author know the reason. They incorrectly perceived that such status would be of benefit to them and the churches they pastor as they proceed with their attempts to build their mini-kingdoms on earth as well as to establish the Kingdom of Heaven on earth; attempts guided by humanistic and/or heretical, not Biblical concepts.
A non-501c3 church which is careful to operate as a spiritual entity only, not a legal entity, is protected by God and by the First Amendment. It is a First Amendment Church; it is, as to its organization, a New Testament church. The federal government and the Internal Revenue Service understand this. The author has thoroughly explained all these matters in some detail in his books and websites. He quotes directly from the Internal Revenue Code, Internal Revenue Service Regulations, and from various other legal sources. See En1. The First Amendment is a statement of the Biblical principles of separation of church and state and protects any church who does not become a legal entity such as a corporation, unincorporated association, or charitable trust and who does not obtain 501c3 or 508 status.
First Amendment churches have many benefits which a 501c3 or a 508 church does not have. First Amendment churches are free to preach whatever God leads them to preach without persecution. They please God in their manner of organization since they submit themselves to no head other than their Bridegroom and Husband, the Lord Jesus Christ. The members of First Amendment churches have greater protection against criminal and civil actions and liability than do members of corporate 501c3 churches. First Amendment churches, unlike 501c3 churches, can have the power of God if they also honor other Biblical precepts. Again, all these matters are explained in detail in Jerald Finney’s books and websites. Many churches in America are now operating without legal entity status and without 501c3 status.
These 1,000 pastors, according to the Bible, are proceeding without Biblical knowledge. They want their cake and to eat it too. They want the part of the unconstitutional law that they like, and they want to discard the part of the unconstitutional law they do not like, based upon a constitutional argument that only the part of the law which they do not like is unconstitutional. God is not going to honor their efforts, no matter the outcome of their actions. These pastors simply do not seem to possess the wisdom necessary to understand that God wishes His churches to be under Him only, that He is sufficient without the help of their other “lover,” and that he in fact is jealous of His churches. They do not realize that First Amendment churches in America can do much more for the Lord than can 501c3 churches since non-501c3 churches can have something that they can never have – the power of God. They miss the main point of it all: legal entity status for a church violates the Biblical principles of separation of church and state and the right to free exercise of religion. They should readily understand all this since they are seeking a resolution to the problem from their 501c3 authority, the federal government and her court system, to decide the issue; and they will be required, as 501c3 churches which have submitted themselves to the federal government, to honor the decision of their sovereign. They want the Internal Revenue Service to challenge their political preaching so they can challenge the IRS by going to federal court, the designated agent of their sovereign.
It is obvious to the Bible believer that God is very displeased with what they are doing. They do not understand that they gave up their First Amendment rights (their God-given freedoms) and placed themselves under the Fourteenth Amendment as to many matters when they intentionally became legal entities and/or asked for and received 501c3status. They do not and maybe cannot understand American law, God’s law, and the true hierarchy of law. They do not understand the truth of what the Bible teaches about church, government, and separation of church and state. They are not and will not be free until they believe, understand, and act according to God’s word. “Then said Jesus to those Jews which believed on him, If ye continue in my word, then are ye my disciples indeed; And ye shall know the truth, and the truth shall make you free” (John 8.31-32).
Endnotes
En 1
The foundational truths for all Jerald Finney’s writing and teachings
More than 1,000 pastors are planning to challenge the IRS next month by deliberately preaching politics ahead of the presidential election despite a federal ban on endorsements from the pulpit.
The defiant move, they hope, will prompt the IRS to enforce a 1954 tax code amendment that prohibits tax-exempt organizations, such as churches, from making political endorsements. Alliance Defending Freedom, which is holding the October summit, said it wants the IRS to press the matter so it can be decided in court. The group believes the law violates the First Amendment by “muzzling” preachers.
“The purpose is to make sure that the pastor — and not the IRS — decides what is said from the pulpit.”
– Erik Stanley, Alliance Defending Freedom
“The purpose is to make sure that the pastor — and not the IRS — decides what is said from the pulpit,” Erik Stanley, senior legal counsel for the group, told FoxNews.com. “It is a head-on constitutional challenge.”
Stanley said pastors attending the Oct. 7 “Pulpit Freedom Sunday” will “preach sermons that will talk about the candidates running for office” and then “make a specific recommendation.” The sermons will be recorded and sent to the IRS.
“We’re hoping the IRS will respond by doing what they have threatened,” he said. “We have to wait for it to be applied to a particular church or pastor so that we can challenge it in court. We don’t think it’s going to take long for a judge to strike this down as unconstitutional.”
An amendment was made to the IRS tax code in 1954, stating that tax-exempt organizations are “absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.”
“Violation of this prohibition may result in denial or revocation of tax-exempt status and the imposition of certain excise tax,” the IRS says in its online guide for churches and religious organizations seeking tax exemption.
Stanley and others, like San Diego pastor Jim Garlow, say the IRS regularly threatens churches that they will lose their tax-exempt status if they preach politics. But Stanley and Garlow claim the government never acts on the threat because it wants to avoid a court battle.
“It is blatantly unconstitutional,” said Stanley. “They just prefer to put out these vague statements and regulations and enforce it through a system of intimidation … Pastors are afraid to address anything political from the pulpit.”
“The IRS will send out notices from time to time and say you crossed the line,” added Garlow, a senior pastor of Skyline Wesleyan Church in San Diego. “But when it’s time to go to court, they close the case.”
A spokeswoman for the IRS did not comment on the matter and instead referred all inquiries to the government’s onlinehandbook.
Garlow and other pastors say their concerns over the code extend well beyond the law.
“I’m very concerned about the spiritual side of this,” Garlow told FoxNews.com. “There’s a phenomenon occurring in America and that’s a loss of religious liberty.”
“If I would have said 50 years that ‘Tearing up a baby in the womb is a bad thing,’ people would have said ‘Of course it is,’” Garlow said. “But If I said that today, people would say ‘Pastor, you’re being too political.”
Pastors and churches today, generally speaking, are enticed by everything but the truth. Many Christians are easy prey for the humanistic, inaccurate, heretical, and/or apostate teachings of many Bible Colleges, churches, online “ministries,” television “ministries,” etc. Today’s spiritual quacks use business models, lies about civil law, psychology, and other inappropriate fields of study to attempt to achieve their secular goals for individual, family, church, and civil government. In order to implement their methods and plans, they must reject the foundation of truth; thus, they build their houses upon Biblical heresies. When Biblical history, precept, and teaching obviously contradict the earthly desires and mindsets of such pastors and other believers, they, instead of remaining true to the Lord, rush to adopt the ways of the world and twist truth to support and condone their perverted beliefs, practices and teachings. Their motivations are fear, greed, power, pleasure, and their own temporal happiness.
A prime example, among many, of enterprises designed to take advantage of earthly minded believers is StartCHURCH (online at http://startchurch.com). StartCHURCH is outside their field of expertise both Biblically and legally. A Biblically knowledgeable believer can quickly spot many spiritual heresies, distortions, and lies in the information posted on http://startchurch.com. In addition to the spiritual ignorance of StartCHURCH, the organization further delves into another field in which it demonstrates itself either totally inept and/or dishonest: the legal arena. They combine Biblical heresies with legal falsities. Only one example of their dishonesty or ineptitude will be documented in this article.
Someone recently forwarded to this author an online advertisement from StartCHURCH which is reproduced in relevant part in En1. That ad used fear, a familiar tactic, to get the interest of pastors and church members. Additionally it demonstrates that StartCHURCH is not of sound mind. “For God hath not given us the spirit of fear; but of power, and of love, and of a sound mind” (2 Timothy 1:7). After its attempt to arouse fears, the article gives a listing of seminar dates and times and issues which StartCHURCH will address at those seminars. Upon reading the advertisement, this author, a licensed attorney knowledgeable in church and state law, immediately realized that it was, at a minimum, misleading. It contradicted what he has learned from an intense study of civil law and what he has extensively taught concerning liability of church members. Consequently, he went to the law library and looked up the case mentioned in the ad, Hutchins v. Grace Tabernacle United Methodist Church. The entire case, with Lexis/Nexis headnotes, is reproduced in En2.
The author(s) of the ad and the accompanying article, which can be read in its entirety by clicking “All Members of One Church Get Sued at the Same Time” or by reading En3 below, is (are) extremely deceptive. Yes, as the article points out, the plaintiff in the case attempted to include all the members, in addition to the church and one employee, as defendants in the suit. Plaintiff sued defendant church and an employee in tort and contract and later filed a request to certify the action as a class action (to include all members of the church). However, the court ruled that the plaintiff would not be allowed to sue all the members. The court said:
“The members of an unincorporated association are not bound by the unauthorized or ungratified representation of a member…. If the members of an association assent to or ratify a contract in its name, they become liable under them…. Members of an unincorporated association may become liable for a contract by estoppel…. Members of an unincorporated association are individually liable for tortious acts of agents or employees of the association if the tort is committed within the scope of their authority” (See En2 below to verify all quotes and to ascertain whether this author is being truthful about the case while StartCHRUCH is misleading, as alleged). The court affirmed the order of the lower court which denied plaintiff’s request to certify her action against defendant church and employee as a class action because defendant church could not adequately and fairly protect the interests of the class. In other words, the court said the plaintiff could not sue all the members of the church.
Thus, the case supports what the author, a practicing attorney, knows and teaches and not the thesis of StartCHURCH. No matter how a church is organized, (a) member(s) of that church can only be charged or sued for crimes or torts in which the legal elements are proven or admitted and in which (that) (those) member(s) were somehow personally involved; that is, took an active part, authorized, or encouraged.
Furthermore, neither unincorporated association or corporate status are the best way to protect church members from liability. The best way is the manner advocated by Jerald Finney, the author of this article, and others with whom he is associated. A church can choose to operate in conformity to both Biblical principle and American civil law; and, in so doing, not only please the Lord Jesus Christ but also, among other things, minimize exposure to liability from criminal charges and civil suit.
Most importantly, a church who becomes an earthly, or legal, entity such as a corporation or unincorporated association violates Biblical principle and grieves the Lord. Jesus Christ makes clear that institution of the church (made up of local autonomous New Testament churches only), is His bride. He also compares the church to a wife, He being the Husband (See Ephesians 5:22-33). He wants no other authority over His bride.
Jerald Finney explains all the Biblical and legal principles, facts, and consequences involved on his websites, books, and audio teachings. See En4 for more information. Unlike StartCHURCH and many similar “ministries,” Finney’s motivation is love for the Lord Jesus Christ. He has not made any money in his “Church and State Law” ministry. He has received love gifts (which he reports as income to the Internal Revenue Service), but those gifts and income from the sale of books are far outweighed by the expenses of the ministry. His goal is “the glory of God.”
Jerald Finney challenges StartCHURCH or any other such “ministry” to examine his teachings and debate him on any matter with which they take issue. He also challenges believers to grow in knowledge and wisdom so that they can begin to please the Lord in the matter of church and state law.
Endnotes
En1. All Members of One Church Get Sued at the Same Time
Several years ago a church in Texas ran into some trouble when a man wanted to sue the church. The problem, however, was that the church was not incorporated, and so it could not be sued. Instead, he filed a class action lawsuit against every member of the church. Could he sue every member? Does the law allow members to be sued personally? The court that heard the case stated, “An unincorporated association is a voluntary group of persons, without a charter, formed by mutual consent for the purposes of promoting a common enterprise.” The court also stated, “Members of an unincorporated association are individually liable for tortious acts of agents or employees of the association if the tort is committed within the scope of their authority” (Hutchins v. Grace Tabernacle United Pentecostal Church).
Unincorporated churches with voting members are most at risk
This court case brings up something that ought to make its members think twice about their . . . click here to read the entire article
During this conference we will cover many topics that are absolutely critical to operating your church or ministry in a way that simultaneously benefits the church and pastor while protecting all involved from the ever-increasing scrutiny of the government. Many pastors confess that they know their church books are a mess, but they feel too intimidated to do anything about it. They often times lose sleep over it. This conference has you in mind!
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En2.
ERA L. HUTCHINS, Appellant v. GRACE TABERNACLE UNITED PENTECOSTAL CHURCH AND CLIFFORD PARKER, Appellees
No. 01-90-00481-CV
COURT OF APPEALS OF TEXAS, First District, Houston
804 S.W.2d 598; 1991 Tex. App. LEXIS 285
January 31, 1991, Delivered
January 31, 1991, Filed
PRIOR HISTORY:[**1] On Appeal from the 333rd District Court; Harris County, Texas; Trial Court Cause No. 89-17354; Hon. Davie Wilson.
DISPOSITION: Order affirmed.
CASE SUMMARY
Procedural History: Plaintiff appealed an interlocutory order of the 333rd District Court (Texas) denying her request to certify an action against defendant church and employee as a class action under Tex. R. Civ. P. 42.
Overview: Plaintiff sued defendant church and employee in tort and contract. Plaintiff sought actual and punitive damages, return of real property, a declaration of her rights and status under a lease, and in injunction against defendant church, its members, and its employees to prevent them from harming or returning to the property. Plaintiff later filed a request to certify the action as a class action under Tex. R. Civ. P. 42. The trial court denied the request and plaintiff appealed. The appeals court affirmed he denial because defendant church could not adequately and fairly protect the interests of the class. The court noted that while the members of the association who signed the contracts could be liable, as an unincorporated association, defendant church could n be liable for its own contracts. Hence, as a party who could not be liable, defendant church was not in a position to be the representative party for those who could be.
OUTCOME: The appeals court affirmed the denial of plaintiff’s request to certify her action against defendant church and employee as a class action because defendant church could not adequately and fairly protect the interests of the class. The court reasoned that as an unincorporated association, defendant church could not be liable for its on contracts, while the members of the church could be liable.
Hn1 An unincorporated association is not liable on its contracts, which are regarded as the liability of the individuals who sign them. The members of an unincorporated association are not bound by the unauthorized or unratified representations of a member. If the members of an association assent to or ratify a contract in its name, they become liable under them. Members of an unincorporated association may become liable for a contract by estoppel.
Hn2 Members of an unincorporated association are individually liable for tortious acts of agents or employees of the association if the tort is committed within the scope of their authority.
Hn3 Tex. R. Civ. P. 28 authorizes suit by or against an unincorporated association in the common name for the purpose of defending or enforcing a substantive right, but does not enlarge or diminish any substantive rights or obligations of parties. Rule 28 does not create in an unincorporated entity ability to hold real estate.
Hn4 The burden of proof is on plaintiff to establish her right to maintain an action as a class action.
Hn5 The standard the appellate court uses to review a district court’s refusal to certify a class is whether the court abused its discretion. The trial court abuses its discretion when it does not apply the law to the undisputed facts.
Hn6 The principal question underlying all class action decisions is: Will a class action furnish the most economical method for adjudicating a large number of related cases? If the answer is yes, and if the party moving for the certification of a class proves all the necessary elements for a class in Tex. R. Civ. P. 42, the trial court abuses its discretion in refusing to certify a class.
Hn7 Under Tex. R. Civ. P. 42(a), a party may bring a class action suit if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Hn8 In determining whether to certify a class, it is not necessary that all questions of law and fact be common to the class, just the principal ones.
COUNSEL: Bruce Ian Schimmel, Stephen P. Dillion, Houston, Texas. Don Stocking, Conroe, Texas.
JUDGES: Michol O’Connor, Justice. Chief Justice Evans and Justice Hughes also sitting. OPINION BY: O’CONNOR
OPINION
The question here involves the propriety of the trial court’s refusal to certify a suit as a class action. Era L. Hutchins, plaintiff, appeals from an interlocutory order denying her request to certify a class action under TEX.R.CIV.P. 42, which is an appealable interlocutory order under TEX.CIV.PRAC. & REM. CODE ANN. § 51.014(3) (Vernon Supp. 1991). We affirm.
1. The liability of associations
The underlying suit involves the liability of an unincorporated religious association and its members for the contracts and torts of a church. An unincorporated association is a voluntary group of persons, without a charter, formed by mutual consent for purposes of promoting a common enterprise. BLACK’S LAW DICTIONARY 1373 (5th ed. 1979). Hn1 An unincorporated association is not liable on its contracts, which are regarded as the liability of the individuals who sign them. Summerhillv. Wilkes, 133 S.W. 492, 493 (Tex.Civ.App. — Dallas 1910, no writ)(contract signed by the chairman of the building committee was not the liability of the unincorporated church association). The members of an unincorporated association are not bound by the unauthorized or unratified representations of a member. Kiteman v. Lacy, 144 S.W. 1184, 1186 (Tex.Civ.App. — Austin 1912, no writ). If the members of an association assent to or ratify a contract in its name, they become liable under them. Hardy v. Carter, 163 S.W. 1003, 1010 (Tex.Civ.App. — Amarillo 1914, writ dism’d or ref’d)(op. on reh’g). Members of an unincorporated association may become liable for a contract by estoppel. Abrams v. Brent, 362 S.W.2d 155, 158-59 (Tex.Civ.App. — Austin 1962, writ ref’d n.r.e.).
Hn2 Members of an unincorporated association are individually liable for tortious acts of agents or employees of the association if the tort is committed within the scope of their authority. Golden v. Wilder, 4 S.W.2d 140, 143-44 (Tex.Civ.App. — Fort Worth 1928, no writ)(op. on reh’g).
2. Plaintiff’s allegations
Plaintiff sued Grace Tabernacle United Pentecostal Church, and an employee of the Church, Clifford Parker, in tort and contract. Plaintiff seeks actual and punitive damages, return of the Malone Street property, a declaration of her rights and status under the lease, and an injunction against the Church, its members, and its employees to prevent them from harming or returning to the Malone Street property.
In her petition to certify a class action, plaintiff made the following claims: Plaintiff and her husband owned several contiguous lots in Tomball, known as 612 Malone Street, which they acquired piecemeal through deed, foreclosure on a deed of trust, litigation, and adverse possession. The Church building and parking lot are located on the Malone Street property. On August 15, 1972, plaintiff’s husband and V.E. Hall, a trustee of the Church, entered into a five-year lease for the Malone Street property. The lease was extended by oral agreement. Since 1987, the Church has refused to pay rent under the lease. Parker told plaintiff and her husband that he would help them clear their title to lots 27 and 28 by representing them before the local taxing authorities and by informing them when the Malone Street property was to be sold for taxes. Instead, Parker and the Church, in violation of a fiduciary duty to plaintiff and her husband, bought a fractional interest in lots 27 and 28 of the Malone Street property at a tax foreclosure sale.
Because the Church is an unincorporated entity, plaintiff contends the individual members are jointly and severally liable for breach of contract and the misconduct of the Church and Parker. Plaintiff states she is entitled to maintain a class action under TEX.R.CIV.P. 42 against all individuals who were members of the Church or have become members since September 1987 to the date of judgment.
Assuming for purposes of this opinion only that plaintiff will be able to prove all allegations in her petition, the question is how plaintiff can establish liability against the members of an unincorporated association. Plaintiff has only two choices: Plaintiff can join all members of the Church, past and present, going back to September 1987, or plaintiff can bring the suit as a class action. Plaintiff chose to bring the suit as a class action. The issue for this appeal is whether, on this record, the trial court erred in refusing to certify the suit as a class action.
3. The Church’sresponse
The Church filed a response to plaintiff’s motion for certification, stating there is no showing that the class should be liable for tortious conduct such as misrepresentation and conspiracy. The Church says that, because it is a voluntary organization subject to changes in membership, not all members would necessarily be liable for conspiracy or misrepresentation of the Church or of Parker. The Church contends there are individual members who have individual defenses that are inconsistent with the defenses of the Church and Parker. Thus, the Church goes on to say, it would be a burden for the attorney for the Church to inform all the members of their individual defenses.
The Church suggests that if any willful conduct is demonstrated against the Church, the liability for individual members can be satisfied in post-judgment proceedings. The Church cites no authority to support its suggestion that individual liability be established in post-judgment proceedings.
The Church also argues that under TEX.R.CIV.P. 28, plaintiff is required to sue the Church and is prohibited from suing the individual members. The Church misreads the rule. Hn3 Rule 28 authorizes suit by or against an unincorporated association in the common name for the purpose of defending or enforcing a substantive right, but does not enlarge or diminish any substantive rights or obligations of parties. TEX.R.CIV.P. 815; Parrish v. Looney, 194 S.W.2d 419, 424 (Tex.Civ.App. — Galveston 1946, no writ). Rule 28 does not create in an unincorporated entity ability to hold real estate. Id.
In brief, the Church wants both the advantage of an unincorporated entity (no liability for the entity), and at the same time wants the advantage of a corporate entity (no liability for its members).
4. The hearing on the certification
At the certification hearing, Hn4 the burden of proof was on plaintiff to establish her right to maintain an action as a class action. Life Ins. Co. of the Southwest v. Brister, 722 S.W.2d 764, 770 (Tex.App. — Fort Worth 1986, no writ). To support her motion to certify the class, plaintiff introduced the Church’s answers to interrogatories and the documents attached to the answers. Other than that evidence, the hearing was limited to argument of counsel.
5. The appeal
In two points of error, plaintiff maintains the judge erred in denying the certification of a class action on the issues (1) of title and possession of real property, and declaratory and injunctive relief, and (2) the damage issues.
Hn5 The standard we use to review a district court’s refusal to certify a class is whether the court abused its discretion. Parker County v. Spindletop Oil and Gas Co., 628 S.W.2d 765, 769 (Tex.1982); Townplace Homeowners’ Ass’n, Inc. v. McMahon, 594 S.W.2d 172, 177 (Tex.Civ.App. — Houston [1st Dist.] 1980, writ ref’d n.r.e.). The trial court abuses its discretion when it does not apply the law to the undisputed facts. Wiggins v. Enserch Exploration, Inc., 743 S.W.2d 332, 334 (Tex.App. — Dallas 1987, writ dism’d); see Camp v. Shannon, 162 Tex. 515, 518, 348 S.W.2d 517, 519 (1961).
6. Prerequisites to a class action
Hn6 The principal question underlying all class action decisions is: Will a class action furnish the most economical method for adjudicating a large number of related cases? Wente v. Georgia-Pacific Corp., 712 S.W.2d 253, 255, 257 (Tex.App. — Austin 1986, no writ). If the answer is yes, and if the party moving for the certification of a class proves all the necessary elements for a class in rule 42, the trial court abuses its discretion in refusing to certify a class. Plaintiff claims that she satisfied all the requirements of subpart (a) of rule 42.
Hn7 Under rule 42(a), a party may bring a class action suit if
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
a. Numerous members of the class
The first requirement is that the class be so numerous that joinder of all members is impractical. As part of its answers to interrogatories, the Church filed a list of 76 members of the Church. We hold that 76 potential defendants are a sufficient number of parties to meet the first requirement.
b. Common questions of law and fact
The second requirement is that questions of law or facts are common to the class. The central question of law in this case will be the liability of the individual members of an unincorporated church for the actions of the trustees. The central question of fact in this case will be whether the membership ratified or assented to the actions of the trustees, or if the membership is estopped to deny the actions of the trustees.
The Church contends that the individual members will assert different factual defenses, whether they were members at the time the Church did not pay its rents. Hn8 It is not necessary that all questions of law and fact be common to the class, just the principal ones. Franklin v. Donoho, 774 S.W.2d 308, 312 (Tex.App. — Austin 1989, no writ). Here, plaintiff plead that all members are responsible for the actions of the Church and its trustee under the theory of respondeat superior. At trial, the principal questions will be common to all members of the Church; if a person was not a member of the Church at the time of non-payment of the rent, that person would not be a member of the class.
c. Claims or defenses of representatives are typical
The third requirement is that the claims or defenses of the representative party are typical of the class. Plaintiff has named the Church as the representative party. Plaintiff’s claims against the Church are the same as plaintiff’s claims against the members of the Church: the Church and its members owe plaintiff for unpaid rent and for torts committed by the Church; plaintiff wants a declaratory judgment that she owns the land; and plaintiff wants an injunction against the membership from returning to the Malone Street property. In addition, plaintiff has claims against the trustees: the trustees defrauded her by taking property at the tax sale.
d. The class representative
The last requirement is that the designated class representative will fairly and adequately protect the interests of the class. In the pleadings for the certification of the class, plaintiff asked that “the Defendant Church” be appointed as the class representative. The Church is an unincorporated association that cannot be liable for its own contracts, see Summerhill, 133 S.W. at 493, or torts, see Kuteman, 144 S.W. at 1186. Liability belongs to the members of the association who sign the contracts, Summerhill, 133 S.W. at 493, or to the members when agents or employees of the association commit torts within the scope of their authority, Golden, 4 S.W.2d at 143-44. Accordingly, we hold that the Church, which cannot be liable, is not in a position to be the representative party for those who can be.
We affirm the order.
En3.
All Members of One Church Get Sued at the Same Time
March 12, 2002 by Paul Rivera
Several years ago a church in Texas ran into some trouble when a man wanted to sue the church. The problem, however, was that the church was not incorporated, and so it could not be sued. Instead, he filed a class action lawsuit against every member of the church. Could he sue every member? Does the law allow members to be sued personally?The court that heard the case stated, “An unincorporated association is a voluntary group of persons, without a charter, formed by mutual consent for the purposes of promoting a common enterprise.” The court also stated, “Members of an unincorporated association are individually liable for tortious acts of agents or employees of the association if the tort is committed within the scope of their authority” (Hutchins v. Grace Tabernacle United Pentecostal Church).
Unincorporated churches with voting members are most at risk
This court case brings up something that ought to make its members think twice about their legal status as a church. There are many churches that have voting members who vote on many issues such as salaries, purchase contracts, and other important things like real estate transactions and lease agreements. In essence, when members of the unincorporated church vote on a particular item, they are taking upon themselves potential personal liability because they become a direct personal party to the contract or transaction. This could bring disastrous results.
One of the first acts of a church
Incorporating ought to be one of the first acts of any church. In 2010, approximately 1,000 churches per month were sued. That number is likely to keep rising because today, many churches are starting in homes, hotel conference rooms, and schools, which means they have to sign more contracts and enter into unusual contracts. It is important to ensure that your church forms a legal structure to protect its members, board, and trustees. As mentioned before, incorporating should be done before conducting your first service.
What happens when you incorporate your church?
The legal concept of an artificial person exists where state law has created laws recognizing a corporation. The laws of all fifty states allow churches to create a corporation that exists separate from that of its members, officers, and board. The church uses the corporation to conduct its business and manage its assets.
What is indemnification?
When a church forms a corporation, it receives special power to indemnify its pastors, board members, and employees from liability for the action they take in behalf of the church. This allows one to serve on the board with the confidence of knowing that the acts he/she performs in behalf of the church will not come back to haunt him/her.
Where is your church?
Right now, there are many churches operating on a deficient legal foundation. Most pastors I have met state that from the first day they started their church, they had always intended on doing things the right way, but then ministry, preaching, and life got in the way. That does not have to be you. Today is the best day to start getting right.
[Added by Jerald Finney: To learn how to do things the right way, disregard all teaching and advertisments from StartCHURCH, and begin to study your Bible and the writings of Jerald Finney (see En5 below). Contact Jerald Finney at no charge when you are knowledgeable and ready to do things God’s way.]
The local church sanctified and cleansed by the washing of water by the word——————–A ministry of Charity Baptist Tabernacle of Amarillo, Texas led by Pastor Ben Hickam. "Would to God ye could bear with me a little in my folly: and indeed bear with me. For I am jealous over you with godly jealousy: for I have espoused you to one husband, that I may present you as a chaste virgin to Christ. But I fear, lest by any means, as the serpent beguiled Eve through his subtilty, so your minds should be corrupted from the simplicity that is in Christ" (2 Corinthians 11:1-3). ————————————Jerald Finney, a Christian Lawyer and member of Charity Baptist Tabernacle, having received this ministry in the Lord, explains how a church in America can remain under the Lord Jesus Christ and Him only. "As every man hath received the gift, even so minister the same one to another, as good stewards of the manifold grace of God. If any man speak, let him speak as the oracles of God; if any man minister, let him do it as of the ability which God giveth: that God in all things may be glorified through Jesus Christ, to whom be praise and dominion for ever and ever. Amen" (1 Peter 4:10-11; See also, Ephesians 4::1-16 and 1 Corinthians 12:1-25). "Take heed to the ministry which thou hast received in the Lord, that thou fulfil it" (Colossians 4:17). "And hath put all things under his feet, and gave him to be the head over all things to the church" (Ephesians 1.22; See also, e.g. Colossians 1:18).
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