2. Management/Administration: 4. Legal Matters

In light of the fact that North American society is essentially mercenary, that is, it is a context within which each individual can freely engage in and exchange of goods and services in order to turn a profit, the potential for chaos, abuse, and conflict is incalculable. As U.S. Supreme Court Justice Felix Frankfurter put it, “If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.”[1] So, because not all men are angels[2]some form of governance or imposed order becomes necessary, a set of publicly disclosed legal codes and processes, that serve as a constraint on individual and institutional behavior and to which all members of a society are subject,[3]including the Church and its members.

  1. Civil Law and its Place in the Church

The Church certainly accepts the need for the rule of law and regularly prays those authorities charged with maintaining civil order asking that God would enable them to govern in peace, so that “in their tranquility we, too, may live calm and serene lives, in all piety and virtue.”[4]In order to take advantage of the benefits of this rule of law it will not only have to comply with the laws that pertain to them, but also deliberately establish its legal identity within the system. One way to do this is to incorporate the parish in keeping with the laws of the state it is in. In essence this allows the state to recognize the parish as a formal legal entity which is doing business in that state as a nonprofit corporation, and which it views as a corporation, that is a group of individuals acting as one rather than as individually.

This idea is, of course, not without some controversy. Some argue that it is not necessary since Churches are automatically classified as tax-exempt 501(c)(3) organization so donations to an unregistered, unincorporated church are automatically tax-deductible, However,

Although there is no requirement to do so, many churches seek recognition of tax-exempt status from the IRS because this recognition assures church leaders, members and contributors that the church is recognized as exempt and qualifies for related tax benefits. For example, contributors to a church that has been recognized as tax exempt would know that their contributions generally are tax-deductible.[5]

But, even if financial donations to an unincorporated entity are tax-deductible, incorporation does help prove tax-exempt status and make it easier to get the benefits of an IRS determination.

An IRS determination letter can aid the church in proving it qualifies for certain exemptions from local real estate transfer taxes, property taxes, or sales and use taxes. A determination letter can also be very useful to a member of the congregation who is being audited and must prove that his contributions to the church were in fact deductible.  It is also necessary to receive gifts from donor advised funds.

Others argue that incorporation causes the Church to transfer sovereignty to the state, that is, is it places itself under the control of the state? However, as David Gibbs points out

While it is true that incorporation places the church under those laws which govern corporations, it does not mean that the state has licensed you to preach. You may form a church and preach the gospel regardless of whether your church is incorporated.What it does mean is your church is now recognized by the state as a separate legal entity. The laws of the state leave it up to the discretion of the not-for-profit corporation to determine what officers it will have and what internal rules will govern its operation. These laws also leave it up to the corporation to determine how best to fulfill the purpose for which it was organized, so long as there is no breach of the law. Incorporating simply allows the church to enjoy the convenience of holding property in the church’s name, allows the church members to enjoy freedom from personal liability, and allows the church organization to continue in existence in spite of large fluctuations in membership and internal church disputes.[6]

It seems then, that we are, as a matter of fact, subject to the laws of the country and that being incorporated under those laws brings a number of advantages and safeguards to the Church. So, it is probably something we should be doing. But, how can we justify participating a secular legal system? On the one hand, we have little choice. On the other hand, doing so does not directly impact the nature of or the practices of the Church.

Another, now common, practice impacting the parish legal situation is the use of criminal background checks. Due to the rise in the number of sex related crimes in and by the Churches of our country many Orthodox Churches have felt the need to secure a more effective legal footing by establishing Church-wide, binding policies. This is certainly being done to protect members of the congregation from this kind of misconduct. But it is also being done to protect the Churches from the growing number of and sky-rocketing cost of lawsuits brought by those thus abused. For example, in just one Church, the Roman Catholic Church in America, “between 2004 and 2013, the Church spent a total of $2,744,876,843 in costs related to abuse allegations, which includes settlements, therapy for victims, support for offenders, attorneys’ fees, and other costs.”[7] Understandably then, in 2014 the Holy Synod of the Orthodox Church in America revised and reissued its “Policies, Standards, and Procedures on Sexual Misconduct.”[8]

It is the goal of the entire Church to provide a safe and healthy environment for all of the faithful of the Orthodox Church in America. The Church laments the sin of sexual misconduct and will not tolerate sexual misconduct by its clergy or any layperson. To further the prevention of sexual abuse of children, the Holy Synod has approved a training program by the non-profit organization “Darkness to Light”[9]Their training program, “Stewards of the Children” [SOC], is available for free to all those who are required to take the training.[10]

This program also includes the mandatory screening of all current clergy as well as “potential clergy, church employees, and volunteers.”[11]The screening process involves an application, interview, references, criminal history background check,[12]and training on sexual abuse prevention.[13]Part of this process involves hiring a company to run tri-annual criminal background checks[14]on those working in the Church. The OCA is now using a company called “Protect My Ministry,”[15]which promises to reduce both costs and risks to organizations and children, thus protecting both. The argument seems to be that the screening will prevent sexual misconduct, but if something were to happen the Church, if sued, would be able to mount an effective defense by claiming that it did everything humanly possible (due diligence) to prevent it.

It would appear that the general lack of moral integrity both in and outside the Church combined with the litigious tendencies of a mercenary culture make screening of one form or the other necessary. Still one might argue that by using these intrusive technologies we lose a very precious aspect of Church life, namely arch-pastoral oversight. Traditionally it was the bishop who knew his clergy so intimately, the pastor who knew his parishioners so well that any actual or even potential misconduct would be identified. St. Chrysostom describes the intimate, detailed knowledge required of a Shepard of souls.

For the Priest ought not only to be thus pure as one who has been dignified with so high a ministry, but very discreet, and skilled in many matters, and to be as well versed in the affairs of this life as they who are engaged in the world, and yet to be free from them all more than the recluses who occupy the mountains. For since he must mix with men who have wives, and who bring up children, who possess servants, and are surrounded with wealth, and fill public positions, and are persons of influence, he too should be a many-sided man—I say many-sided, not unreal, nor yet fawning and hypocritical, but full of much freedom and assurance, and knowing how to adapt himself profitably, where the circumstances of the case require it, and to be both kind and severe, for it is not possible to treat all those under one’s charge on one plan, since neither is it well for physicians to apply one course of treatment to all their sick, nor for a pilot to know but one way of contending with the winds. For, indeed, continual storms beset this ship of ours, and these storms do not assail from without only, but take their rise from within, and there is need of much condescension, and circumspection, and all these different matters have one end in view, the glory of God, and the edifying of the Church.[16]

So, does using secular companies with no interest in or involvement in Church other than providing a service for profit mean that we are ceding pastoral functions to non-ecclesial entities? Not necessarily! Actually, we are simply making use of more efficient, modern tools, and not, one would hope, abdicating our shepherding responsibilities. But the temptation to do so is very real.

  1. Civil Law: Identifying and Assessing the Threat Level

So, we are back to the idea that the technology is neutral and that using it will not affect the Church negatively. But is that the case? Questions of confidentiality and privacy aside, I fear that the use of criminal background checks may have two negative outcomes. One the one hand, they give a false sense of confidence and security, which if relied on could further erode the true practice of pastoral oversight. We assume that a proper screening regimen will prevent sexual abuse. But, these things still can and do happen. In the study of the Roman Catholic Church mentioned above, researchers found that in 2013 99.6% of all priest had been screened, yet in that same year 730 clerics[17]were accused of misconduct. So, screening alone will not suffice and will have to be but one component in a dynamic continuation and intensification of the traditional shepherding functions. On the other hand, background checks could alter, that is, narrow the scope of our understanding of what determines life in Christ.There will certainly be a temptation to focus on and be satisfied with the overall evaluation provided by background checks, the “criminal” aspects of screening while neglecting the more immediate and intimate spiritual qualities. If a person is not listed in some national register, if he has no record, will we still see the necessity of instilling in him the essentials of radical discipleship? Or will we concluded that some lawyers have done our work for us and that this is already a “good” person? So, these techniques must not be accepted uncritically. They can damage the Church.

  1. Civil Law: Response Options

In any case, I do not think that, given today’s challenges, we have much choice but to make use of these secular screening technologies. For that reason, our initial response should be to follow our bishops’direction and fully participate in and support not only the background checks themselves,[18]make available and take part in the recommended abuse prevention training programs,[19]and promulgate, defend, and implement parish-wide policies of safety.[20]

As far as I can tell. all the Orthodox Jurisdictions have done an exemplary job in providing encouragement, instructions, policy suggestions, training, as well as legal support for both clergy and parishes. Of course, we should never forget that the very need for background checks is indicative of failures at many levels of the Church’s life. For that reason, while we will want to make use of every tool available to us, we should deliberately embed those techniques in a larger discussion about the nature and scope of true pastoral oversight and deliberate re-activate and re-emphasize the role of the spiritual shepherd, of spiritual parents in keeping with Holy Tradition.

[1]“What is the Rule of Law. Part I,”  (2018). ABA Division for Public Education.

[2]“What is the Rule of Law. Part I.”

[3]“The World Justice Project has proposed a working definition of the rule of law that comprises four principles: 1. A system of self-government in which all persons, including the government, are accountable under the law 2. A system based on fair, publicized, broadly understood and stable laws 3. A fair, robust, and accessible legal process in which rights and responsibilities based in law are evenly enforced 4. Diverse, competent, and independent lawyers and judges.” “What is the Rule of Law. Part I.”See also Geranne Lautenbach, The concept of the rule of law and the European Court of Human Rights, First edition. ed. (Oxford, United Kingdom: Oxford University Press, 2013).

[4]The Divine Liturgy according to St. John Chrysostom,  (New York: Russian Orthodox Greek Catholic Church of America, 1967).

[5]“501(c)(3) Tax Guide for Churches & Religious Organizations,”  (2015). https://www.irs.gov/pub/irs-pdf/p1828.pdf.

[6]David Gibbs, “5 Questions on Church Incorporation,” 9Marks (2016), https://www.9marks.org/article/5-questions-on-church-incorporation/.

[7]Yasmine Hafiz, “Sex Abuse Cost The U.S. Catholic Church Nearly $3 Billion According To Report By Bishops Conference,” Huffpost2017, https://www.huffingtonpost.com/2014/04/04/sex-abuse-catholic-church_n_5085414.html.

[8]Holy Synod of Bishops of the Orthodox Church in America, “Policies, Standards, and Procedures on Sexual Misconduct,” (2014). https://oca.org/PDF/sexual-misconduct/2014-04-PSP-Sexual-Misconduct.pdf.

[9]“Background Check,” STANDS4 LLC, 2018, Definitions.net 2018, accessed June 30, 2018, https://www.definitions.net/definition/background%20check.

[10]“Resources for the Prevention of Sexual Misconduct,”  (2018). https://oca.org/about/sexual-misconduct.

[11]“Guidelines on Background Checks,”  (2017). https://oca.org/PDF/sexual-misconduct/2017-0314-hs-guidelines-background-check.pdf.

[12]A background check is “the process of looking up and compiling criminal records, commercial records and financial records of an individual or an organization.” It is “a verification of specific information which can include a chronological list of employment, education details, qualifications, financial information, credit details, employment reference, confirmation of address and identity or the verification of other specific information relating to a personor organization which is deemed just, legal and necessary according to government legislation.” “Background Check.”

[13]“Guidelines on Background Checks.”

[14]“A background check must be obtained, and renewed every three years for all readers, subdeacons, deacons, priests, and bishops in the Orthodox Church in America, as well as for all laypersons who have more than incidental contact with children in the course of their work in the Church.” “Guidelines on Background Checks.”

[15]“Protect My Ministry,” 2018, https://protectmyministry.com.

[16]John Chrysostom,On the Priesthood(2012), Book VI 4, Kindle.

[17]“538 of those accused were priests, of which 382 were diocesan priests, 110 belonged to a religious order, and forty-six had been incardinated elsewhere. Eleven deacons were accused, and 175 accused were of an unknown clerical status.” Hafiz, “Sex Abuse Cost The U.S. Catholic Church Nearly $3 Billion According To Report By Bishops Conference.”

[18]“Guidelines on Background Checks.”

[19]“Policies, Standards, and Procedures of the Orthodox Church in America on Sexual Misconduct,” OCS Synod of Bishops, 2014, accessed February 17, 2019, https://oca.org/PDF/sexual-misconduct/2014-04-PSP-Sexual-Misconduct.pdf.

[20]“Resources for the Prevention of Sexual Misconduct.””Child Safety Training,” Protect My Ministry, 2019, accessed February 17, 2019, https://protectmyministry.com/child-safety-training/online-training/.

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