Amendment 3: Should West Virginia’s constitution allow churches to incorporate?

Amendment 3 will ask West Virginia voters whether religious institutions should be allowed to incorporate.

West Virginia is the only state in the country that does not allow that.

That’s because the state inherited the provision from Virginia and never changed it. Virginia made its own change 20 years ago after the limitation was struck down by a federal judge.

Now West Virginia might change too.

This is one of four constitutional amendments that West Virginia voters are being asked to consider. Early voting starts Oct. 26, and Election Day is Nov. 8.

Amendment One: Can the courts intervene in West Virginia impeachments?

Amendment Two: Should the Legislature be able to shift property taxes?

What does Amendment Three do? 

Right now West Virginia’s Constitution says “No charter of incorporation shall be granted to any church or religious denomination.

That provision, inherited from Virginia’s constitution, originally came about as a way to get around the political implications of having the General Assembly making decisions about which religious institutions should be allowed to incorporate.

Now, limiting liability through incorporation is commonplace, and limiting religious institutions from doing so became out of step.

In 2001, the Rev. Jerry Falwell, supported by ACLU of Virginia, challenged that state’s incorporation ban in federal court.

The following year, a federal judge in the Western District of Virginia agreed and ordered Virginia’s State Corporation Commission to grant Falwell’s church a charter.

Because that was a district court decision and was not appealed to a level of the federal court system that would also cover West Virginia, there was no change in the Mountain State.

Charles Trump

“So West Virginia remains the only place in the country where there is a provision of the state Constitution that prohibits incorporation by churches,” said Senate Judiciary Chairman Charles Trump, R-Morgan.

Trump, who is a longtime attorney in Berkeley Springs, started getting questions from some curious pastors about why West Virginia has maintained the limitation.

“Some pastors in my senatorial district have asked me why does our Constitution have this — and it should not – and asked me to sponsor a resolution to allow churches to be incorporate if they choose that as their form of structuring governance,” said Trump, who sponsored a Senate resolution that led to the amendment measure.

“So it would be permissive. No church would have to incorporate, but a church that chose to do so could without being at odds with the language of Article 6, Section 47.”

What’s the argument for adopting the amendment?

Well, West Virginia stands out as the only state not allowing churches to incorporate. And the Virginia court case made an argument that the ban violates the U.S. Constitution’s guarantee of free exercise of religion.

There are practical reasons for religious institutions too, including as a safeguard from liability for individuals like pastors, elders, deacons and individual church members.

Ed Thompson

“We would support that,” said Ed Thompson of the Presbytery of West Virginia. “Really, everywhere else I have served, state law allows incorporation.

“I think it’s a good idea. It offers some protection for individual members from lawsuits, and I would certainly encourage voters to adopt that.”

The ACLU of West Virginia agrees.

“We believe that excluding religious bodies from incorporating unconstitutionally treats religious organizations differently than non-religious entities,” ACLU stated.

What’s the argument against it?

Really, there is no prominent argument against this amendment.

The resolution that kicked this off passed 32-0 in West Virginia’s Senate.

What would the Constitution say?

Article VI. The Legislature.

Section 47. Incorporation of religious denominations permitted. Provisions may be made by general laws for securing the title to church property, and for the sale and transfer thereof, so that it shall be held, used, or transferred for the purposes of such church or religious denomination. Provisions may also be made by general laws for the incorporation of churches or religious denominations

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