In a short Memorandum Opinion and Order signed late last month, the U.S. District Court for the Northern District of West Virginia struck down a West Virginia constitutional provision prohibiting churches from incorporating.  The case concerned Article VI, Section 47 of the West Virginia Constitution, which provides that “[n]o charter of incorporation shall be granted to any church or religious denomination.” The Court determined the West Virginia constitutional prohibition “is not neutral or generally applicable, and it does not further a compelling government interest” and therefore offends the U.S. Constitution.  Specifically, the court found that:

  • the West Virginia state constitution’s proscription of church incorporation is not neutral because “it denies incorporation to a defined class of individuals solely based upon their religion” and
  • “the State has not advanced any governmental interest, much less a compelling one, and the Court finds no compelling interest exists in prohibiting ‘any church or religious denomination’ from seeking incorporation. 

The court concludes that the provision “violates the Church’s First Amendment rights to the free exercise of religion, which is applicable to the States through the Fourteenth Amendment.”

The case is Hope Community Church v. Warner.  You can find a copy of the court’s Memorandum Opinion and Order here.  The court notes at the outset that the State of West Virginia did not oppose the plaintiff church’s Motion for Judgment on the Pleadings and shares in the recitation of facts the state’s checkered history of enforcement of the offending constitutional provision following an earlier decision striking down as unconstitutional a “nearly identical” provision in the Commonwealth of Virginia’s constitution.  See Falwell v. Miller, 203 F. Supp. 2d 624, 633 (W.D. Va. 2002).  According to the court, West Virginia is the last state to include in its constitution a prohibition on church incorporation.

Hat tip to friend-of-the-BLPB Tom Rutledge for flagging this development.

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Photo of Joan Heminway Joan Heminway

Professor Heminway brought nearly 15 years of corporate practice experience to the University of Tennessee College of Law when she joined the faculty in 2000. She practiced transactional business law (working in the areas of public offerings, private placements, mergers, acquisitions, dispositions, and…

Professor Heminway brought nearly 15 years of corporate practice experience to the University of Tennessee College of Law when she joined the faculty in 2000. She practiced transactional business law (working in the areas of public offerings, private placements, mergers, acquisitions, dispositions, and restructurings) in the Boston office of Skadden, Arps, Slate, Meagher & Flom LLP from 1985 through 2000.

She has served as an expert witness and consultant on business entity and finance and federal and state securities law matters and is a frequent academic and continuing legal education presenter on business law issues. Professor Heminway also has represented pro bono clients on political asylum applications, landlord/tenant appeals, social security/disability cases, and not-for-profit incorporations and related business law issues. Read More