NY Religious Corporations Law

[Douglas Laycock]

Perhaps these separate provisions were originally negotiated with leaders of each faith group, attempting to provide what each group wanted.  Even so, there is a high likelihood they got it wrong, or that orther institutions within the same faith group wanted, or now want, something different.  To the extent that these laws are imposing governance stuctures on religious organizations contrary to each organizations religious self-understanding, they are unconstitutional. 

Even if they got it right, and one of these statutory sections is exactly what a religious organization wants, there remains the problem that the religious organization cannot amend its governance rules without going back to the legislature, which is surely also unconstitutional. 

I take this to be the point of James Madison's Veto Message in 1811, vetoing a bill to incorporate the Episcopal Church in Alexandria (then part of DC).  The message is often cited for the proposition that Madison thought incorporation of churches is unconsistitutional, but that is not what he said.  He said: 

"The bill enacts into, and establishes by law, sundry rules and poceedings relative purely to the organization and polity of the church incorporated . . . so that no change could be made therein by the particular society, or by the gneral church of which it is a member, and whose authority it recognises.  This particular church, therefore, would so far be a religious establishment by law; a legal force and sanction being given to certain articles in its constitution and administration."   

He also objected that the bill gave the church authority to provide for the poor, which he said was superfluous if it referred to pious charity, and making the church a legal agent for performnig a public duty if it were anything more. 

Quoting "Friedman, Howard M." <HFriedm at utnet.utoledo.edu>:

> To the extent that the entire NY Religious Corporations Law is 
> mandatory, as opposed to merely default provisions that apply in the 
> absence of contrary rules in the organization's charter or bylaws, I 
> think there are serious constitutional issues with very many of the 
> internal governance provisions.
>
>
>
> *************************************
> Howard M. Friedman
> Disting. Univ. Professor Emeritus
> University of Toledo College of Law
> Toledo, OH 43606-3390
> Phone: (419) 530-2911, FAX (419) 530-4732
> E-mail: howard.friedman at utoledo.edu
> *************************************
>
> ________________________________
>
> From: religionlaw-bounces at lists.ucla.edu 
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of SAMUEL M. 
> KRIEGER
> Sent: Wednesday, March 11, 2009 1:11 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: Connecticut bill
>
>
>
> Just for the sake of perspective  on the proposed Connecticut 
> legislation, I would welcome any comments on  Section 200   of   the 
> New York Religious Corporations Law (codified in Article 10  
> applicable to "Other Denominations" - including Jewish Congregations 
> ) compared  to sub- sections (e) and (h) of the proposed Connecticut 
> legislation.
>
>
>
> ------
>
>
>
> "§  200.  Control  of  trustees  by  corporate  meetings;  salaries  of
>   ministers.
>
>
>
>   A  corporate  meeting  of  an  incorporated  church,  whose
>   trustees  are  elective  as  such, may give directions, not inconsistent
>   with law, as to the manner in which any of the temporal affairs  of  the
>   church   shall  be  administered  by  the  trustees  thereof;  and  such
>   directions shall be  followed  by  the  trustees.  The  trustees  of  an
>   incorporated  church  to which this article is applicable, shall have no
>   power to settle or remove or fix the salary of the minister, or  without
>   the  consent  of  a  corporate  meeting,  to  incur debts beyond what is
>   necessary for the care of the property of the corporation; or to fix  or
>   charge the time, nature or order of the public or social worship of such
>   church,  except  when  such  trustees are also the spiritual officers of
>   such church."  (emphasis supplied)
> --------------------
>
>
>
> The provison  has been  in   NY law in some form since 1813 and was  
> last  amended in 1909 .
>
>
>
>
>
> SAMUEL M. KRIEGER,ESQ.
> Krieger & Prager LLP
> 39 Broadway
> New York, NY 10006
>
>

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713
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