One of the most effective defenses to any lawsuit is informed consent. To secure this defense, a church needs to prove to a court that the person complaining of a wrong was in fact fully aware of the church's policies and procedures and knowingly agreed to be bound by them. As one court has written:
When people voluntarily join together in pursuit of spiritual fulfillment, the First Amendment requires that the government respect their decision and not impose its own ideas on the religious organization. Under the First Amendment people may freely consent to being spiritually governed by an established set of ecclesiastical tenets defined and carried out by those chosen to interpret and impose them: "The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it." Watson v. Jones, supra. 1
If you can provide documentary evidence of informed consent (e.g., a written statement clearly describing a particular policy and a related membership covenant signed by the plaintiff), you often can dissuade a threatening attorney from even proceeding with a case, thus preventing an expensive legal battle.
If an attorney continues to press the case, clear proof of informed consent can still prevent a prolonged and costly trial. Your attorney can present your evidence to a judge before trial. If the judge concludes that you had informed consent for what you did, there is a good chance that he will dismiss the case before it even goes to trial.
Obtaining Informed Consent from Members
Church membership is generally viewed by the courts as being a matter of contract, whereby members freely choose to associate with a particular church community and in doing so accept the benefits and duties of that association.
These new materials have three core components:
• Inspiring – Model sermons and background teaching for your pastor to set a vision for what a culture of peace looks like in your church.
• Teaching – An eight-week small group study to enable your entire church to learn the basic principles of personal peacemaking together.
• Embedding – The resources needed to establish a Peacemaker Team and make peacemaking an ongoing and vital part of your church’s life.
The membership process provides an ideal means to obtain informed consent to a church's policies and practices. Informed consent is easier to prove if you establish membership in a clear and explicit manner. Ideally this should include four distinct steps:
In addition to describing your church's mission and doctrinal beliefs, a membership class should provide specific instruction about your policies, especially those dealing with conflict resolution, confidentiality, counseling, and church discipline (see model Relational Commitments
Membership interview: A membership interview may be performed by two officers of the church, who meet with the member to discuss the member's understanding of and consent to the church's mission and policies. A record of the meeting and its content should be signed by the officers and retained in the church files.
- Declaration of membership: Each member should be required to make a formal declaration, before witnesses, that he or she wishes to join the church and agrees to be bound by its policies. The content, date, and witnesses to the declaration (if other than the entire congregation) should be noted in your official Minutes.
- Written commitment: Further evidence of express informed consent may be obtained by requiring new members to sign a written commitment to membership, which includes a specific reference to having received a copy of the Relational Commitments and to being willing to support and submit to them (sample Covenants are included with the model Relational Commitments).
Applying Relational Commitments to Regular Attenders
One of the most serious legal liability issues faced by modern churches is how to hold non-member, regular attenders accountable to live godly lives. This issue is usually ignored until an attender is involved in sinful or disruptive behavior that may undermine the unity of the church or harm other people.
Most leaders realize that they can legitimately approach a troublesome attender and encourage repentance through personal and private conversations consistent with Matthew 18:15. If such conversations are unfruitful, they could take the process to the Matthew 18:16 level by involving two or three others in private conversations with a recalcitrant attender. But if that does not resolve the problem, leaders face a major dilemma.
Some churches have initiated formal corrective discipline and proceeded to "tell it to the church" (Matt. 18:17). Only later did they realize that publicizing personal information without informed consent can expose a church to lawsuits resulting in substantial damages awards. 2
The more typical response to these problems is to quietly and privately urge the attender to find another church. This may be an appropriate response in some situations, but most of the time it inevitably perpetuates the attender's sin and exposes another congregation to his harmful beliefs or behavior. This can have grave consequences when the attender has a pattern of spreading gossip or sowing discord, sexually seducing others, or defrauding people financially.
Certainly no other pastor wants to have such people walk into his church unannounced. Therefore, no pastor should willingly turn such people loose on other churches (Matt. 7:12).
There are two complementary solutions to this problem. The first is to actively encourage people to "stop dating the church,"3 to make a formal commitment to membership, and to expressly submit to your bylaws and Relational Commitments.
The second part of the solution is to obtain from regular attenders "implied informed consent" to your Relational Commitments. Implied informed consent means that a person has implicitly or indirectly consented to something by virtue of his conduct rather than by an explicit statement or signed document. 4
A church may obtain this consent by communicating with attenders to ensure that they understand that the Commitments will apply to them if they continue to attend your church (see the explanatory language in the introduction section of the model Commitments). Your church will also need to develop a visitation process so that new attenders are personally introduced to your Relational Commitments after they have had time to enjoy your church and form some personal relationships.
This kind of honesty and openness can be very appealing to church visitors. The Commitments are written in a way that will appeal to people who are looking for a church that puts a high priority on honoring God and fostering healthy relationships. The Commitments clearly indicate that your church is dedicated to promoting peace and reconciliation, preserving marriages and preventing divorce, providing solid biblical counseling, respecting confidences, protecting children from abuse, and using loving discipline to restore people who need help to break free from sin.
These are values that many people are earnestly looking for in a church today. When visitors see your commitment to these values, many of them may decide that your church is exactly where God wants them to be.
1 See, e.g., Guinn v. Church of Christ of Collinsville, 775 P.2d 766, 774 (Okla. 1989, emphasis added); Hester v. Barnett, 723 S.W.2d 544, 559-60 (Missouri 1987); ("The discipline the religious body may impose ... must be within the terms of the consent.")
2 See Hester v. Barnett, 723 S.W.2d 544, 559 (Missouri 1987).
3 See Joshua Harris' excellent book by this name: Stop Dating the Church. Sisters, OR: Multnomah, 2004.
4 For example, in Smith v. Calvary Christian Church, 614 N.W.2d 590 (Mich. Sup. Ct. 2000), the court found that a member's continued involvement in the church by attending services and meetings, even after his withdrawal, indicated his implicit agreement to remain subject to the church's governance, even though he had indicated that he had withdrawn his membership.