West Virginia Won’t Let Churches Get Incorporated

By Raul Rivera

Here is what to do

As the leader in establishing a legal foundation for churches, we recognize the unique challenge faced by West Virginia churches due to the state's prohibition on incorporation. However, West Virginia law offers a compelling alternative, allowing churches to form a legal entity with the full advantages typically afforded to a corporation before delving into the importance of understanding the historical context behind this restriction on incorporation.

Article VI, Section 47 of the West Virginia Constitution explicitly states: “No charter of incorporation shall be granted to any church or religious denomination.” This provision has made West Virginia the only state in the U.S. that does not allow churches or religious denominations to be incorporated. This goes back to 1863 when WV separated from Virginia (VA) during the Civil War. In forming their own constitution, WV adopted a significant portion of VA’s legal and constitutional framework by simply doing a “copy and paste.” In VA’s constitution was a provision prohibiting church incorporation. That was until the Rev. Jerry Falwell took the matter to court and sued the state of VA (Falwell v. Miller, 203 F. Supp. 2d 624 (W.D. Va. 2002)). The court ruled that prohibiting churches from incorporation was unconstitutional. This ruling marked the end of Virginia's 215-year prohibition on church incorporation.

Following the Falwell v. Miller decision, the WV legislature rectified the prohibition of church incorporation and passed legislation allowing churches to incorporate. However, the prohibition in the state constitution remained, and amending it would require a two-thirds majority vote by the House of Delegates and the Senate and a simple majority vote in a general election, a considerably more arduous process.

In November 2022, voters were presented with an amendment to remove the prohibition on church incorporation from the WV constitution, but it was surprisingly rejected by 55% of the vote. That negative vote forced the WV secretary of state to no longer allow church incorporations. For a more detailed background on this matter, I recommend you read a previous article titled Suing James Madison.

What is the answer in WV?

The state of West Virginia offers an alternative to incorporation for churches through the provisions of W. Va. Code §47-9A-3. This statute allows churches to establish themselves as VOLUNTARY ASSOCIATIONS. In essence, it is incorporation by another name.  The state grants churches the same rights and privileges as corporations if they form as voluntary associations. Below are 5 benefits of forming a church as a voluntary association.

1. Separate Legal Existence: An unincorporated nonprofit association is a legal entity separate from its members for the purposes of determining and enforcing rights, duties, and liabilities in contract and tort.
   
   
2. Own Property in Church Name: A nonprofit association in its name may acquire, hold, encumber, or transfer an estate or interest in real or personal property.
   
   
3. Board Members and all other Members are Protected: a person may not be liable for a tortious act or omission for which a nonprofit association is liable merely because the person is a member. In other words, you cannot be sued if you are on the board or if you are a member of the church.  Only the church can be sued. W. Va. Code § 36-11-8.
   
   
4. A Bad Act of One Member Cannot be Imputed as an Act of Other Members: A tortious act or omission of a member or other person for which a nonprofit association is liable may not be imputed to a person merely because the person is a member of the nonprofit association. In other words, the act of one church member cannot be imputed on another church member.
   
   
5. Organizational Perpetuity: An incorporated church is a separate legal entity that can exist beyond the lifespans of its founders or current members. This ensures continuity and can make long-term planning and property ownership more straightforward.

What if my church was incorporated between 2002 and 2022?

Don’t fall for unscrupulous individuals, whether attorneys or otherwise, who try to convince you that if your church incorporated between 2003 and 2022, it may be in jeopardy or some other legal quandary.  The Secretary of State of West Virginia has made it clear that it will not take any action against churches incorporated during the said period.

1. The state will not dissolve churches that were incorporated between 2002 and 2022
   
   
2. There is no provision under Chapter 31 that allows the state to dissolve churches.
   
   
3. More than 400 churches were incorporated during the period in question.  The principle of good faith reliance on the government's decisions is a strong factor that holds the state from taking any action.

I’m about to start a church in WV

If you are at the point where you are ready to start, give us a call, and through our StartRIGHT Service, you will be able to get started on a strong legal foundation. Whether it’s filing the Statement of Agent of Process, the Agreement for Association, bylaws, the ordination program, or the 501(c)(3), the StartRIGHT program covers it all. Call us at 770-638-3444, and let StartCHURCH help you protect what God has given you to lead.

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