In Win for Rev. Falwell (and the ACLU), Judge Rules VA Must Allow Churches to Incorporate

Affiliate: ACLU of Virginia
April 17, 2002 12:00 am

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RICHMOND, VA–A federal judge has struck down a provision of the Virginia Constitution that bans religious organizations from incorporating, in a challenge filed by the Rev. Jerry Falwell and joined by the American Civil Liberties Union of Virginia, the group announced today.

“The judge applied well established constitutional principles to reach the conclusion that Virginia’s archaic ban on church incorporation cannot pass constitutional muster,” said Rebecca Glenberg, Legal Director of the ACLU of Virginia.

The ACLU joined the lawsuit as a “friend of the court” last fall, challenging the ban on the grounds that it violates the U.S. Constitution’s guarantee of free exercise of religion.

Judge Norman K. Moon agreed, and yesterday ordered the State Corporation Commission to grant Falwell’s Thomas Road Baptist Church a corporate charter.

Virginia is the only state in the nation that bans incorporation by religious institutions (other than West Virginia, which was still part of Virginia at the time the provisions were adopted). Virginia churches are governed by trustees appointed by Circuit Court judges. Virginia does not prohibit incorporation by charitable non-profit organizations that are not religious in nature.

Virginia law also places restrictions on the amount of land a church may own. Falwell has challenged these provisions in court as well, and the ACLU hopes to be able to argue in court that Virginia’s land restrictions are also unconstitutional.

“Virginia’s 18th-century lawmakers had good intentions when they decided not to allow churches to incorporate,” said ACLU of Virginia Executive Director Kent Willis. “At that time only the General Assembly had the power to grant corporate status, and the framers of the Constitution did not want a political body deciding which religious institutions would be allowed to incorporate and which ones would not. That would hardly be a good start for the still novel idea of religious freedom.”

“But that was long before the modern concept of incorporation, which is an administrative rather than political process,” added Willis. “The old law, placed in the modern context, discriminates against religious institutions by denying them the same opportunity to incorporate as other similar institutions.”

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