Baptist Legal Update

The Wages of Tax Evasion Is Jail (Part 2)

2006-12-18T10:00:00.000-05:00

In last week’s blog, we reported on the conviction in federal court of creation evangelist Kent Hovind and his wife Jo of numerous federal tax offenses. Facing a maximum of over 200 years in prison, Mr. and Mrs. Hovind have sadly learned the truth that the wages of tax evasion is jail. This week’s blog continues the legal session from 2002, in which LLM Attorney Terry Lee Hamilton warned Baptist preachers of a “Federal Crackdown on Tax Evasion Schemes and Scams.” At the conclusion, Attorney Hamilton offers three simple recommendations designed with the purpose of keeping you from joining Kent and Jo Hovind in federal prison.

DEPARTMENT OF JUSTICE PRESS RELEASES IN 2002

1. February 1, 1001 -- Justice Department obtains permanent injunction against Atlanta tax return preparer
A federal court issued a permanent injunction against HEH Financial Services, Inc., which had made a frivolous misrepresentation under Section 861 of the Internal Revenue Code that only income earned by U.S. citizens working abroad was subject to income tax. The defendant was ordered to turn over records identifying all clients.

2. February 21, 2002 -- Justice Department obtains permanent injunction prohibiting the sale of illegal tax plans
A federal court in Florida issued a permanent injunction against Joseph N. Sweet and EDM Enterprises, which had made the frivolous misrepresentations that paying federal income tax was voluntary and that wages are not income. The defendants were ordered to identify all persons who purchased their tax shelter plans.

3. March 5, 2002 -- Justice Department sues to halt fraudulent income tax scheme
The Department of Justice sued the Joy Foundation in Illinois for charging thousands of dollars for materials containing false or fraudulent statements about income tax laws, including a scheme for “customers to begin sending a series of letters to the IRS that will, the defendants claim, decrease the risk of IRS audit and defeat criminal charges based on willfulness.” The government asked the court “to turn over to the government a list of participants.”

4. March 27, 2002 -- Federal court in Tampa orders tax fraud promoter to stop preparing bogus tax returns, promoting fraudulent tax scheme
A federal court ordered David Bosset to stop preparing bogus tax returns and to stop promoting a fraudulent tax scheme in which he “claimed that only income from foreign sources is subject to United States income taxes.” The court ordered Bosset to provide the Justice Department a complete list of clients back to 1998.”

5. September 26, 2002 -- Justice Department sues Florida man to halt tax scam
The Department of Justice filed a lawsuit against Everte C. Farnell, one of the promoters who “falsely claim that income from sources in the United States is not subject to federal income tax.” A Department of Justice attorney explained that Promoters of this scam line their pockets, while getting their customers in serious trouble.”

PENALTIES FOR PURSUING FRIVOLOUS TAX ARGUMENTS
Preachers preach about the wages of sin. What are the wages of tax evasion? In United States v. Sloan, 939 F.2d 499 (7th Cir. 1991), the Seventh Circuit Court of Appeals noted the following:

[Like moths to a flame, some people find themselves irresistibly drawn to the tax protester movement’s illusory claim that there is no legal requirement to pay federal income tax. And, like moths, these people sometimes get burned.]

In the 1980’s, Congress stiffened the penalties, up to $25,000, against taxpayers who bring frivolous claims before the courts. In Coleman v. Commissioner, 791 F.2d 68 (7th Cir. 1986), the Seventh Circuit explained Congress’ rationale, as follows: “Once the legal system has resolved a claim, judges and lawyers must move on to other things. They cannot endlessly rehear stale arguments. . . [T]here is no constitutional right to bring frivolous suits.” Please consider a couple of penalties imposed by the Tax Court in the year 2000 against taxpayers (and even their lawyers!) who had filed frivolous lawsuits.

• $25,000 against the Defendant Nis family and $10,600 against their attorney for pursuing “a strategy of noncooperation and delay, undertaken behind a smokescreen of frivolous tax-protester arguments.”
• $25,000 against Defendant Madge for pursuing frivolous arguments that his income was not taxable and that only foreign income was taxable.

In United States v. Remple, the federal district court for Arkansas considered frivolous arguments filed by the Rempels, noting the following:

[It is apparent to the court from some of the papers filed by the Rempels that they have at least had access to some of the publications of tax protester organizations. The publications of these organizations have a bad habit of giving lots of advice without explaining the consequences which can flow from the assertion of totally discredited positions and/or meritless factual positions.]

RECOMMENDATIONS
As mentioned in the opening paragraph of this section, “tax evaders are not only breaking the law but also becoming a poor testimony for the name of our Lord and Savior Jesus Christ.” Sadly, enticing tax evasion schemes and scams will continue to lure many Christians into making decisions that could cost them dearly, not only in loss of dollars, but also in loss of reputation.

LLM makes three simple recommendations:
1. As a good Christian and patriotic American, abide by the tax laws of America.
2. As a good steward, be a tax minimizer, not a tax evader.
3. If you are intrigued or enticed by any scheme such as those listed above, please seek competent legal counsel. Our staff will gladly review any documents supplied to LLM on behalf of a concerned Independent Baptist preacher to determine if those documents give “. . . lots of advice without explaining the consequences which can flow from the assertion of totally discredited positions. . . .”

The Wages of Tax Evasion Is Jail (Part 1)

2006-12-11T09:32:00.000-05:00

In the December 2006 issue of Light on the Law, a publication of Lighthouse Legal Ministries, LLM Attorney Terry Lee Hamilton reported on a sad day in American legal history:

[On November 2, 2006, creation evangelist Kent Hovind and his wife Jo were found guilty by a 12-person jury in a Florida federal court of numerous federal tax offenses. He faces a maximum of 288 years in prison, and she a maximum of 225 years. In previous seminars, Attorney Hamilton has pointed out that Mr. Hovind was following discredited legal theories which resulted in the conviction of several others. We are sad to see such a man (and his wife) follow the same path and now face the same consequences.]

In 2002, at LLM’s Eighth Annual Lighthouse Legal Seminar, Attorney Hamilton conducted a legal session on the topic of “Federal Crackdown on Tax Evasion Schemes and Scams.” The following is from the first part of that legal session:

FEDERAL CRACKDOWN ON TAX EVASION SCHEMES AND SCAMS

In November 1995, when Lighthouse Legal Ministries covered Taxes for Pastor and Church at its first legal seminar, the first specific topic covered in that session was entitled, “The Tithe Is the Lord’s; the Tax Is the Government’s.” LLM’s position then is the same as it is now: “As good stewards, we should be tax minimizers, not tax protesters.”

The government is both Biblically and legally authorized to assess and collect taxes against individuals. Tax protesters and tax evaders are not only breaking the law but also becoming a poor testimony for the name of our Lord Jesus Christ.

For the last several years, there has been much talk about a huge overhaul of the methods by which America assesses and collects taxes. Until that time, we must abide by the current system of tax laws.

Before you read the following information, allow me to take two disclaimers:
• I have never been an employee of the IRS.
• I have never been a tax preparer.
My only interest is helping preachers save money and avoid having to pay huge back tax payments, huge interest payments, and huge penalties.

TESTIMONY OF IRS COMMISSIONER BEFORE THE SENATE FINANCE COMMITTEE ON APRIL 11, 2002

Some of the persons and organizations which perpetrate tax schemes and tax scams eloquently, but falsely, claim that the IRS is a rogue agency which intentionally misrepresents the nation’s tax law to unlawfully gouge unwitting taxpayers. Such arguments, frankly, are laughable.
• The IRS enforces laws passed by Congress.
• The IRS is accountable to and reports to Congress annually and as requested by Congress.

On April 11, 2002, Charles O. Rossotti, Commissioner of the Internal Revenue Service, reported to Congress on the continued efforts of the IRS to “identify and combat actively promoted tax schemes,” declaring that such an effort “is our highest compliance priority.” The IRS is not only taking enforcement action against promoters of tax schemes, but also identifying and taking “enforcement action against participating taxpayers, including audits, civil penalties and criminal investigations.” Commissioner Rossotti cited four broad categories of tax schemes, as follows:
1. False description of the law to claim exemption from tax.
2. Misrepresentation of the facts to claim improper deductions and credits.
3. Use of trusts and/or offshore bank accounts to hide income.
4. Abusive tax avoidance transactions.

CONCLUSION

It was a sad day when creation evangelist Kent Hovind learned the truth of the title of this blog article—The Wages of Tax Evasion Is Jail. I do not want any Baptist preachers (and their wives) joining Kent and Jo Hovind in a federal prison. In our next posting, I will finish reprinting the 2002 legal article on “Federal Crackdown on Tax Evasion Schemes and Scams.”

What Church Schools in Ohio Should Do Today

2006-09-29T09:57:00.000-04:00

The victory for church schools in Ohio was achieved through the grace of God and through the faithful stand of church leaders in Ohio, particularly Pastor Randall Townsend, president of Christian Schools of Ohio, and Pastor Keith Hamblen, president of Buckeye Christian Schools Association. Through their efforts, the Ohio Department of Education issued a letter on September 27, 2006, revoking the department's earlier letters which were so threatening to church schools and parents.

The department's letter was issued by Attorney Matthew J. DeTemple, Chief Legal Counsel, basically setting forth what the Minimum Standards have been for church schools since 1983. Since the letter overrules the department's earlier letters and updates the schools' obligations under the Minimum Standards, we have taken the liberty to reproduce the letter in its entirety. After reading the letter, please read the additional comments which I make, setting forth what church schools in Ohio should do today.

___________________

Pastor Randall Townsend
President, Christian Schools of Ohio
1944 Meriline Avenue
Dayton, OH 45420

Re: Registration of non-chartered, non-tax supported schools, pursuant to Ohio Administrative Code Section 3301-35-08

Dear Pastor Townsend:

This letter responds to your inquiries concerning the above-reference registration process. As you are aware, Ohio Administrative Code ("O.A.C.") Section 3301-35-08 provides that a school, "which is not chartered or seeking a charter from the state board of education because of truly held religious beliefs, shall annually certify in a report to the parents of its pupils that the school meets Ohio minimum standards for non-chartered, non-tax supported schools...." The applicable minimum standards set forth in subsections (A) - (H) of O.A.C. Section 3301-35-08 are the following:

(A) School Year. The school shall be open for instruction with pupils in attendance for not less than one hundred eighty-two days each school year acccording to section 3313.48 of the Revised Code.

(B) School day. The school day for pupils in grades one through twelve shall be no less than five hours exclusive of the noon recess according to section 3313.48 of the Revised Code.

(C) Pupil Attendance. Pupil attendance shall be reported to facilitate administration of laws relating to compulsory education and the employment of minors. Parents shall be responsible for reporting their child's school enrollment or withdrawal. An individual in charge of the non-chartered, non-tax supported school may, as a matter of convenience, provide a report for the parent.

(1) The attendance report shall include the name, age, and place of residence of each pupil below eighteen years of age.

(2) The report shall be made to the treasurer of the board of education of the city, exempted village, or local school district in which the pupil resides.

(3) The report shall be made within the first two weeks of the beginning of each school year. In the case of pupil withdrawal or entrance during the school year, notice shall be given to the treasurer of the appropriate board(s) of education. Such notice shall be given withing the first week of the next school month.

(D) Teacher and administrator qualificaitons. Teachers and administrators shall have received a bachelor's degree or the equivalent therof from a recognized college or university.

(E) Courses of study. Each non-chartered, non-tax supported school shall have courses of study for the following subjects:

(1) Language arts;

(2) Geography, the history of the United States and Ohio, and national, state, and local government;

(3) Mathematics;

(4) Science;

(5) Health;

(6) Physical education;

(7) The fine arts, including music;

(8) First aid, safety, and fire prevention;

(9) Other subjects as prescribed by the non-chartered, non-tax supported school.

(F) Public promotion. Each non-chartered, non-tax suported school shall follow regular procedures for promotion from grade to grade of pupils who have met the school's educational requirements.

(G) Pupil health and safety. Each non-chartered, non-tax supported school shall comply with state and local health, fire, and safety laws.

(H) Pupils attending a non-chartered, non-tax supported school are not entitled to pupil transportation as provided pursuant to section 3327.01 of the Revised Code, and pupils attending a non-chartered, non-tax supported school are not entitled to auxiliary services as provided pursuant to section 3317.06 of the Revised Code.

O.A.C. Section 3301-35-08 further provides that "a copy of said report shall be filed with the Ohio department of education on or before the thirtieth of September of each year." Please be advised that, in accordance with O.A.C. Section 3301-35-08, the Ohio Department of Education ("ODE") will accept from a school desiring to be registered as an "08" school a copy of a certification made by the school in a report to parents that the school meets the above-referenced Ohio minimum standards.

In order for a school to properly "certify" in a report to parents that the school meets the applicable minimum standards, said report must be signed by the individual making such certification, and the full name of said individual must be identifiable (i.e., typed beneath the signature). Accordingly, a school desiring to be registered as an "08 school" for the 2006-2007 school year should, on or before September 30th, 2006, file with ODE a copy of its signed, annual certification to parents.

To properly register as an "08 school," ODE also needs the name of the school, it address, its telephone number (a P.O. Box will not serve as an address), and the school district in which the school is located. This information is required so that ODE and local public school districts can comply with the "Child Find" obligations of the Individuals with Disabilities Education Improvement Act (IDEIA) of 2004.

Certifications should be sent to the attention of Dr. Janet Schilk, Director, Office of Educational Reform, 25 South Front Street, Mail Stop 401, Columbus, Ohio 43215. The facsimile number for the Office of Educational Reform is (614) 995-3869. If you have any further questions, please contact me at (614) 466-4705.

Very truly your,

Matthew J. DeTemple
Chief Legal Counsel

___________________

WHAT CHURCH SCHOOLS IN OHIO SHOULD DO TODAY

The following matters should be addressed today.

1. REVISED LETTER. Assuming that the church has already filed its annual letter with the state, the church school should revise its annual letter as described below, give a copy of the revised letter to your parents, and fax a copy of the revised letter to Dr. Janet Schilk at 614-995-3869.

2. DUE DATE. The revised letter is due on September 30, 2006. Because of the time period in which the department finally changed its position, the due date for filing the revised letter has been extended by the department to October 6, 2006.

3. SIGNED AND CERTIFIED. The Minimum Standards require that the church school "annually certify in a report to the parents of its pupils that the school meets Ohio minimum standards for non-chartered, non-tax supported schools cited in paragraphs (A) to (H) of this rule." Accordingly, I suggest that you make a slight modification in your annual letter's opening paragraph, as follows:

"Our school, which is not chartered or seeking a charter from the State Board of Education because of truly held religious beliefs, hereby certifies in this report to the parents of its pupils that the school meets Ohio minimum standards for non-chartered, non-tax supported schools cited in paragraphs (A) to (H) of this rule, as follows:"

In addition, I recommend that the administrator sign his full name next to where his typed name appears in the heading of this letter.

4. NAME, ADDRESS, AND SCHOOL DISTRICT. LLM has always recommended that the name and address of the school appear on the annual report. In his September 27, 2006, letter, Attorney DeTemple requests, for the department's convenience, that the church school also list "the school district in which the school is located." Since this information could already be determined by the school's address, I see no problem honoring such a request.

I would suggest that the annual report include a new sentence concluding the letter, phrased as follows: "As our school address indicates, our school is located in the _________ school district."

Please call me at 440-964-0236 if you have any questions or problems with respect to this administrative resolution. We wish to thank Pastors Townsend, Hamblen, and Folger, as well as Rev. Daniel Whisner of Ohio Legislative Watch, for their faithful stand in this difficult matter. As we look forward to a prosperous school year, we all give God all the honor and glory.

Last Minute Victory in Church School Crisis

2006-09-29T09:47:00.000-04:00

We rejoice in the Lord that the church school crisis in Ohio has been averted at the last minute. For background on this glorious victory, please see the blog dated June 16, 2006, entitled "Beware of NEW State Education Form."

The threat to church schools in Ohio was so serious (one preacher called it "catastrophic") that Lighthouse Legal Ministries had already started preparing a complaint to file in federal district court to seek a preliminary and permanent injunction. Indeed, on the day that the settlement was reached, LLM Attorney Hamilton was preparing to fax a demand letter to the State Superintendent of Public Instruction.

To gain a better understanding of the efforts made by concerned Christian leaders to resolve this serious threat, we hereby reprint the demand letter that was never sent.

DEMAND LETTER that was never sent
________________________________

September 27, 2006

Dr. Susan Tave Zelman
Superintendent of Public Instruction
25 South Front Street
7th Floor
Columbus, OH 43215-4183

and

Dr. Janet M. Schilk, Director
Office of Educational Reform
Ohio Department of Education
25 South Front Street
Mail Stop 401
Columbus, OH 43215-4183

Re: Violation of constitutional rights of church schools and parents
which have a non-chartered, non-tax supported 08 church school

Dear Drs. Zelman and Schilk:

Please know that this office has been retained by Pastor Randall Townsend, Bible Baptist Church, Dayton, Ohio, and by Pastor Kevin Folger, Cleveland Baptist Church, Cleveland, Ohio, which churches have operated and continue to operate a non-chartered, non-tax supported 08 church school which is being threatened with “delisting” by your department and whose parents are being threatened with having their children “considered truant” by your department, despite the church schools’ long standing compliance with the State Minimum Standards as set forth in OAC 3301-35-08. As a consequence, these pastors, churches, and parents seek redress and relief.

1. The State of Ohio had a long and largely successful history of avoiding undue governmental interference with church schools until the 1970s, when the Department of Education issued highly detailed Minimum Standards which were applied to the burgeoning fundamentalist church school movement.

2. In the mid 1970s, Pastor Levi Whisner and several other parents at Tabernacle Christian School in Bradford, Ohio, were prosecuted for truancy violations because they failed to follow the new Minimum Standards which violated their truly held religious beliefs. After their conviction and a couple of appeals, the Ohio Supreme Court issued its landmark decision in State of Ohio v. Whisner, 1 OO3d 105, 47 OS2d 181, 351 NE2d 750 (1976), ruling that that the pervasive Minimum Standards unduly burdened the free exercise of religion.

3. The decision in the Whisner case led to several years of rule making by the State Board of
Education, resulting ultimately in Section 3301-35-08, Minimum Standards for Non-Chartered, Non-Tax Supported Schools. My clients have followed those Minimum Standards, as evidenced by annual letters from the Department of Education.

4. Although the Minimum Standards have continued to exist in substantially the same form for nearly a quarter of a century, and although no new regulations have been passed by the State Board of Education, in her June 9 and August 14, 2006, letters to my clients, Dr. Schilk, on behalf of the Ohio Department of Education, threatened the following actions as of September 30, 2006:

• To “delist” all 08 schools which do not fill out of the information on the state’s new mandatory reporting form, even though much of the information is not required by OAC 3301-35-08.
• That students enrolled in such 08 schools would “be considered truant.”

5. The department’s actions were unsettling, even catastrophic according to one preacher. In the Whisner spirit of seeking an administrative resolution, my clients and other concerned leaders called, wrote, and met with state officials on several occasions, seeking to explain how the department’s actions not only violated the Minimum Standards, but also the constitutional rights of parents and schools.

6. During negotiations with departmental officials, they made frequent reference to two problems which have led them to follow this year’s course of conduct:

• The rising number of homeschoolers posing as non-chartered, non-tax supported 08 schools in order to be eligible for the Post-Secondary Enrollment Option (PSEO).
My clients, which are non-chartered, non-tax supported 08 church schools, believe that the department and local school officials should apply home school regulations to tax-supported homeschoolers, and not violate the constitutional rights of hundreds of 08 church schools and thousands of parents.
• New federal reporting requirements under recent “changes in the Federal IDEIA regulations.” Even assuming that the new federal law requires the states to collect
information from 08 church schools, such information seeking must be done by the least drastic means, not Dr. Schilk’s most drastic means. In the case of one of my clients, the local school district sent a letter to the church school asking if they wanted to participate in the IDEIA program, which would grant federal funds to the church school or its students; the church school merely replied that it chose not to participate because, as an non-chartered, non-tax supported 08 church school, it would violate its truly held religious beliefs to accept government funding.

7. During the course of negotiations, the department apparently recently agreed to eliminate the form requirement, as long as the (unnecessary) information was supplied in a letter.

• While appreciating that concession, my clients continue to believe that such information
is not required under the Minimum Standards and still violates the constitution.
• That concession creates its own scheduling dilemma in that the September 30 deadline
will pass before the department could provide that option to 08 schools and give them time to respond.

Despite the efforts of my clients and other concerned parties, the department continues to threaten the following constitutional rights (see Whisner) of pastors, church schools, and parents:

• Violation of the free exercise of religious liberty.
• Violation of parental right to direct the upbringing and education of their children.

As a result of the egregious violation of the rights of my clients’ constitutional rights, they demand the following:

(1) Payment of $3,000.00 to each client for out-of-pocket expenses, humiliation, embarrassment, and inconvenience suffered as a result of the department’s actions;
(2) Attorney fees to date;
(3) Written assurance that the department will continue to enforce the Minimum Standards as it has in the past and will no longer threaten non-chartered, non-tax supported 08 church schools (and their parents) which are in compliance with the Minimum Standards.

Should your department not be inclined to accept this demand, my clients will have no other option but to proceed with litigation, which will include attorney’s fees pursuant to 42 U.S.C. § 1988. I look forward to your amicable response and successful administrative resolution within two weeks of the date of this letter.

Sincerely yours,

Terry Lee Hamilton

cc: Pastor Randall Townsend
Pastor Kevin Folger
Pastor Keith Hamblen
Rev. Daniel Whisner

___________________________

Praise the Lord that LLM's demand letter was never sent. As we rejoice in this major victory, we still have work to do. Please see the companion blog dated this same date. God bless you!

Seven Do's and Don'ts for Political Campaigning by Churches

2006-09-25T09:34:00.000-04:00

At LLM's 12th Annual Legal Seminar on November 14, 2006, we will be covering the IRS crackdown on political activities by churches. In anticipation of the upcoming Congressional elections earlier in November, Attorney Hamilton provides the following Seven Do's and Don'ts for Political Campaigning by Churches.

SEVEN DO'S FOR INDEPENDENT BAPTIST CHURCHES IN ORDER TO KEEP TAX-EXEMPT STATUS

1. DO invite all candidates for a political office to speak to the congregation for the purpose of voter education (all candidates do not have to appear).

2. DO, before each candidate speaks to the congregation, inform the congregation that the views expressed by each candidate are those of the candidate, not the church, and that the church does not endorse any candidate.

3. DO, as a leader of a religious organization, freely express your views on political campaigns in (1) either a public forum outside of the church setting or (2) even to your congregation in the church setting.

4. DO, when making such public comments, inform the listeners or readers that you are speaking for yourself as an individual and that your comments are strictly personal and not intended to represent the church.

5. DO conduct a neutral voter registration drive at the church.

6. DO distribute a compilation of voting records in a non-partisan manner for the purpose of voter education.

7. DO speak out on public policy issues in an educational manner.

SEVEN DON'TS FOR INDEPENDENT BAPTIST CHURCHES IN ORDER TO KEEP TAX-EXEMPT STATUS

1. DON’T make contributions to political campaign funds.

2. DON’T engage in fund raising on behalf of a candidate.

3. DON’T provide a public forum, on a partisan basis, for candidates to express their views.

4. DON’T make public statements either outside the church or within the church in favor of or in opposition to a candidate.

5. DON’T conduct a partisan voter registration drive at the church.

6. DON’T distribute a partisan voters education guide.

7. DON’T place a newspaper ad urging voters to vote for or against a candidate.

Should Churches Be Incorporated?

2006-09-18T10:06:00.000-04:00

Summary

Historically, most churches in America have chosen, for both legal and financial reasons, to incorporate rather than remain as an unincorporated association. In the last twenty-five years, good men have raised several objections to the incorporated status of churches in America. The purpose of this article is three-fold: (1) to review the features of unincorporated associations and corporations, (2) to compare the advantages and disadvantages of both, and (3) to answer some frequently asked questions about incorporation. It is not the purpose of this paper to tell a church what to believe on this issue; LLM defends, not dictates, the faith of Independent Baptist churches.

Unincorporated Associations

It is not required in America that churches incorporate. “A church or religious society may exist for all the purposes for which it was organized independently of any incorporation of the body . . . and, it is a matter of common knowledge that many do exist and are never incorporated.” Murphy v. Taylor, 289 So.2d 584, 586 (Ala. 1974), quoting Hundley v. Collins, 32 So. 575 (Ala. 1901). Indeed, most Independent Baptist churches are begun as unincorporated associations, i.e., by the voluntary association of two or more individuals under a common name for a particular purpose.

Historically, because of its informal organization, an unincorporated church had no legal existence, with the following consequences:
• The church could not own or transfer property in its own name; rather, the property had to be held by one or more persons in the church.
• The church could not enter into contracts or other legal obligations; rather, one or more persons in the church would have to enter into such contracts or other legal obligations. If the church defaulted on its mortgage payments, the members who signed the church’s mortgage contract would find that their money, houses, cars, or other property were at risk.
• The church could not sue or be sued; rather, one or more persons in the church would sue or be sued. If someone sued the church for injury from a slip and fall, the members of the church would be sued, placing their money, houses, cars, or other property at risk.

Several states have passed laws to limit the unfortunate legal consequences of the unincorporated association status upon individual members.

Incorporation

The principal aspect of a corporation, distinguishing it from an unincorporated association, is its status as an entity, able to exist and operate as a separate legal being [interestingly, the concept and name of incorporation is derived from the Bible -- the church as the “body” (corpus) of Christ]. The above-described legal shortcomings of an unincorporated church eventually caused most churches to adopt the corporate legal organization, for the following reasons:
• The church corporation could own or transfer property in its own name.
• The church corporation could enter into contracts or other legal obligations. If the church defaulted on its mortgage payments, the members who signed the church’s mortgage contract would not be personally liable.
• The church corporation could sue or be sued. If someone sued the church for injury from a slip and fall, the church corporation, not individual members of the church, would be liable. [NOTE: This discussion of unincorporated associations and corporations should not be construed as an endorsement of litigation; God’s Word in I Corinthians 6 flatly prohibits a Christian from taking a brother or the church to court.]

Since all corporations, including churches, are organized under state law, some Independent Baptist leaders have argued that churches should never incorporate. The following section answers some frequently asked questions on that important issue.

Frequently Asked Questions

1. “Aren’t incorporated churches creatures of the state?” No. Virtually every Independent Baptist church began as an unincorporated association. In due course, some of those already existing churches chose to adopt the corporate status, usually for the reasons mentioned above.

2. “Doesn’t incorporation of the church constitute a subordination of a church to the authority of the state?” No. God created three primary institutions -- the family, government,and the church -- each with its own God-ordained sphere of responsibility. The primary purposes of incorporation -- to own property, to enter into contracts, and to sue or be sued -- are within the sphere of the God-ordained role of government. “The law recognizes the distinction between the church as a religious group devoted to worship, preaching, missionary service, education and the promotion of social welfare, and the church as a business corporation owning real estate and making contracts . . . The former is a matter in which the state or the courts have no direct legal concern, while in the latter the activities of the church are subject to the same laws as those in secular affairs.” Gospel Tabernacle Body of Christ Church v. Peace Publishers & Co., 506 P.2d 1135 (Kan. 1973).

3. “I am Biblically opposed to government licensure of the church. Isn’t incorporation a form of licensure of the church?” No. Licensure is defined as “an administrative lifting of a legislative prohibition.” Under American constitutionalism, churches are not prohibited from forming or operating; there is no governmental agency which approves the creation of a church. Your church started before it was incorporated. As noted above, a “church . . . may exist for all the purposes for which it was organized independently of any incorporation of the body . . . and, it is a matter of common knowledge that many do exist and are never incorporated.”

4. “Aren’t incorporated churches subject to more governmental regulation than unincorporated churches?” No. With respect to taxes, zoning regulations, building regulations, fire regulations, health regulations, and employment regulations, an unincorporated church is subject to governmental laws to the same extent as incorporated churches.

5. “Are there any Biblical grounds for opposing incorporation of churches?” LLM defends, not dictates, the faith of Independent Baptist churches. LLM holds to the Biblical and historical Baptist doctrine of separation of church and state. If and when incorporation creates an unnecessarily intrusive and Biblically unwarranted relationship with the state, the church should reconsider incorporation.

6. “I don’t feel Biblically that my church should be incorporated. Can my church unincorporate itself?” Yes. Just as a church voluntarily chooses to incorporate, a church can voluntarily choose to dissolve its corporate status. LLM suggests that a church consult with an attorney to determine the statutory procedures for dissolving the church’s corporate status and the legal consequences of reverting to its status as an unincorporated association.

Should a Church School Be Separately Incorporated?

2006-07-19T08:30:00.000-04:00

CONCERNED PASTOR

I receive numerous telephone calls every day from Independent Baptist pastors all around the country. Each pastor is an individual with beliefs which may differ from mine in some respects. The purpose of Lighthouse Legal Ministries is to defend your religious beliefs, not mine.

I have received a couple of telephone calls recently from Independent Baptist preachers who are considering something new -- separately incorporating their church school.

MOST BAPTIST CHURCH SCHOOLS ARE NOT SEPARATELY INCORPORATED

Now, let me make it clear. Most Independent Baptist church schools are not separately incorporated because the church holds the belief that the church school is an integral and inseparable ministry of the church, just as Sunday School or Junior Church is; no Baptist church would even dream of separately incorporating those latter ministries.

ADVANTAGES OF SEPARATELY INCORPORATING A CHURCH SCHOOL

Is there any advantage to a Baptist church in separately incorporating the church school?
• Perhaps the church wants to shield itself from liability associated with operation of a church school. However, if the church continues to control the church school, the church would find itself still liable.
• Perhaps the church wants to establish different benefit programs for the school staff. Since there is such a variety of benefit programs in our churches, I could not comment generally on that issue.
• Under President Bush, faith-based initiatives have resulted in the government throwing millions of dollars at religious organizations. In 2005 alone, over $2 billion was given to such religious organizations, none of which, by definition, could be given directly to churches. However, separately incorporated religious organizations, including schools, would be eligible for grants. My position with regard to churches or church schools seeking governmental aid has been clearly expressed in previous blogs.
• Some churches which would never accept government grants would nonetheless seek funding from private sources. Such an approach does not violate our Baptist belief in separation of church and state. In some instances, the private donor will only make contributions to a non-church organization. In such a case, that church might consider separately incorporating the church school.

IRS FORMS 1023 AND 990

If a church decided to separately incorporate its church school in order to receive either government or private grants, the church school would have to be incorporated as a nonprofit organization in its state; then the separately incorporated school would file Form 1023 with the IRS in order to obtain tax exempt status. Filing incorporation papers is fairly easy and cheap, whereas filing Form 1023 costs hundreds of dollars and takes 6 to 12 months to accomplish.

Most tax exempt nonprofit organizations also have to file an annual Form 990, which goes into great detail in the organization's leadership and finances. For that reason, churches have always been exempt from filing Form 990. But are church schools exempt?

CHURCH SCHOOLS ARE EXEMPT FROM FILING FORM 990

In a recent ruling (IRS Private Letter 200615027), the IRS ruled that a separately incorporated, church-controlled private elementary and secondary school was exempt from federal income taxation and exempt from filing Form 990.

The IRS Code not only exempts churches but also "an educational organization (below college level) that has a program of a general academic nature, and that is affiliated with a church or operated by a religious order." In the case of a separately incorporated church school, it is "affiliated" with a church, convention, or association of churches if it is "operated, supervised, or controlled by" that church, convention, or association of churches.

In the event that your church considers separately incorporating your church school, please assure that the following IRS guidelines are met:

1. The school was created to further the religious purposes of the church by providing education consistent with the church’s religious teachings.

2. The spiritual teachings and virtues of the church were incorporated into all aspects of school life.

3. The school conducted mandatory weekly worship service for all students.

4. The church controlled the school’s board of directors.

5. A majority of the school’s board were required to be members of the church.

6. Admissions literature clearly identified the school’s relationship with the church.

CONCLUSION

If your church school can’t meet the above requirements, you probably shouldn’t be operating a church school anyway. If you have any questions or problems, please do not hesitate to call LLM Attorney Terry Lee Hamilton at 440-964-0236. God bless you!

MWCD -- Tax or Assessment?

2006-06-20T14:25:00.000-04:00

Several Independent Baptist churches located within the Muskingum Water Conservancy District (MWCD) in Ohio contacted LLM Attorney Terry Lee Hamilton about whether the efforts of the district to tax church real estate is in violation of the state constitutional ban on real estate taxes on church property. The legal analysis is fairly straightforward:

• If the district is taxing the church property,
then the taxation is unconstitutional.
• On the other hand, if the district is merely
placing an assessment on church property
for specific services, and those assessments
are placed in a specific fund, then such an
assessment is not unconstitutional.

The current statutory language describes what the district is doing as an assessment, while earlier statutes call it a tax. On behalf of three Independent Baptist churches in Ohio, LLM recently filed a brief (see excerpts below) in support of the contention that the MWCD assessment is really a tax. In addition, LLM is working with Dan Whisner at Ohio Legislative Watch and with other preachers to seek a legislative solution, which would be far better than years of inconclusive litigation. Please be in prayer!

STATE OF OHIO, TUSCARAWAS COUNTY
IN THE COURT OF COMMON PLEAS
(CONSERVANCY DIVISION)

IN THE MATTER OF THE :
MUSKINGUM WATERSHED
CONSERVANCY DISTRICT :

EXCEPTORS' MEMORANDUM IN OPPOSITION TO
MWCD'S MOTION FOR SUMMARY JUDGMENT AS TO SPECIFIC EXCEPTIONS

NOW COMES Attorney Terry Lee Hamilton, on behalf of Exceptors First Baptist Church of Ashland, Calvary Baptist Church of Ashland, and Twin Rivers Baptist Church of Marietta, and files this Memorandum in Opposition to MWCD's Motion for Summary Judgment as to Specific Exceptions.

I. ISSUE - WHETHER THERE REMAINS A GENUINE ISSUE FOR TRIAL, WITH RESPECT TO THE TAX EXEMPT STATUS OF CHURCHES, SUCH THAT THE MOTION FOR SUMMARY JUDGMENT SHOULD NOT BE GRANTED . . .

. . . As explained below, Exceptors maintain that there is a genuine issue of material fact as to whether the maintenance assessment is truly an assessment or a tax. Accordingly, the motion for summary judgment should not be granted.

II. TAX EXEMPTION FOR CHURCHES IN THE OHIO CONSTITUTION AND OHIO REVISED CODE

From the early days of Ohio's history, churches and religion have held a special legal status.

A. Northwest Ordinance of 1787. The governing principles of this ordinance, which included the territory of Ohio, contained the following language in Article III: "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."

B. Ohio Constitution. The Ohio Constitution continues to place a special legal status upon churches and religion.

1. Article I - Bill of Rights, § 7 - Rights of conscience; education; the necessity of religion and knowledge. The Ohio Bill of Rights expands upon the legal protections afforded in the Northwest Ordinance, as follows:

"Religion, morality, and knowledge, however, being essential to good government, it shall be the duty of the general assembly to pass suitable laws to protect every religious denomination in the peaceable enjoyment of its own mode of public worship, and to encourage schools and the means of instruction."

2. Article VII - Finance and Taxation, § 2 - Limitation of tax rate; exemption. With respect to taxation of real property, this section of the Ohio Constitution, cognizant of the special legal status of churches as found in Article 1, once again affords special legal protection for churches, as follows: "Without limiting the general power, subject to the provisions of Article I of this constitution, to determine the subjects and methods of taxation or exemption therefrom, general laws may be passed to exempt . . . , houses used exclusively for public worship, . . . "

As noted below, the General Assemby has passed legislation exempting "houses used exclusively for public worship."

C. Ohio Revised Code, § 5709.07 - Exemption of schools, churches, and colleges. In accordance with the above provisions of the Ohio Constitution, the General Assembly has exempted churches from real estate taxation, as follows:

" (A) The following property shall be exempt from taxation: . . .

(2) Houses used exclusively for public worship, the books and furniture in them, and the ground attached to them that is not leased or otherwise used with a view to profit and that is necessary for their proper occupancy, use, and enjoyment."

III. NATURE OF TAX VS. ASSESSMENT

Despite the special status of churches under the Ohio Constitution and statutes, resulting in their exemption from real estate tax, nonetheless churches are not exempt from special assessments. The distinction between a tax and a special assessment is addressed at 93 Oh Jur Water § 231, as follows:

"Observation: Although "tax" and "assessment" are similar concepts in that they are government-imposed financial burdens for a public or quasi-public purpose, Ohio maintains a functional distinction between the two: a tax is a burden levied on citizens for the general operation of the government, and by contrast, an assessment is a narrower burden levied on specific property owners to cover the cost of benefits bestowed on the property by public improvements.

Notice the functional distinction:
• Tax. " ... a tax is a burden levied on citizens for the general operation of the government,..."
• Assessment. "... an assessment is a narrower burden levied on specific property owners to cover the cost of benefits bestowed on the property by public improvements."

If MWCD passes a levy "on specific property owners to cover the cost of benefits bestowed on the property by public improvements," then that levy is an assessment. On the other hand, if MWCD passes a levy "for the general operation of the government," then that levy is a tax.

IV. THE PROPOSED MAINTENANCE ASSESSMENT IS REALLY A TAX

Notice again the legal conclusion made by MWCD at page 8 of its motion: "Any tax exemption provided to political subdivisions, churches, schools and other entities, does not equate to a similar exemption from a maintenance assessment." MWCD argues in support of its motion for summary judgment that churches are not exempt from maintenance assessments, thus raising the issue as to whether the maintenance assessment is an assessment or a tax.

• If the maintenance assessment meets the definition of an assessment, then churches would not be exempt from such assessments.
• However, if the maintenance assessment is truly a tax, then churches would be exempt as set forth above in the Ohio Constitution and statutes.

Is the maintenance assessment "a narrower burden levied on specific property owners to cover the cost of benefits bestowed on the property by public improvements"? MWCD's own motion belies its assertion that its purported maintenance assessment is really an assessment.

A. The Affidavit. Whereas an assessment is aimed at "specific property owners to cover the cost of benefits bestowed on the property by public improvements," according to the affidavit of Michael F. Lawrence (the only affidavit attached to MWCD's motion), the purported maintenance assessment would benefit all properties within the Muskingum Watershed, as follows:

"7. Benefits are conferred on each parcel of property situated within the Muskingum Watershed as a result of the Offical Plan of the MWCD. This is true of the parcels which are located on higher ground not subject to flooding, as well as those in low lying areas."

The affidavit clearly demonstrates that the maintenance assessment is not for specific property owners, but rather for "each parcel of property situated within the Muskingum Watershed;" therefore, as a general "burden levied on citizens for the general operation of the government," the purported maintenance assessment is really a tax.

B. Official Amended Plan. As noted on page 4 of its motion for summary judgment, the MWCD notes that "an Amended Official Plan was completed and approved by both the Board of Directors of the Conservancy District and the Conservancy Court in 2005." The Amended Official Plan is clearly aimed at all parcels of land in the MWCD, not specific property owners, as follows:

• Page 3 -- "Based on preliminary estimates, it is expected that the amended Official Plan will result in a total yearly assessment cost of approximately $12 per parcel for residential and agricultural property located in the jurisdiction of the MWCD. . ."
• Page 17 -- "The cost of the work to be performed as described in this plan will be assessed to the benefited owners of real property located within the jurisdictional boundaries of the MWCD as determined by the Board of Appraisers . . ."

If the maintenance assessment is really a tax on real estate, then clearly churches would be exempt from such taxation.

V. CHANGING THE NAME DOESN'T CHANGE THE NATURE. MWCD's first argument with respect to tax exemption of churches is stated again (see page 8 of its motion): "Any tax exemption provided to political subdivisions, churches, schools and other entities, does not equate to a similar exemption from a maintenance assessment." Certainly, relevant provisions of the Ohio Revised Code in Chapter 6101 specifically referenced assessments, not taxes.

However, it musts be noted that HB 617, passed in 2000, amended out the word "tax" or "taxes" in numerous sections. For most of the history of MWCD, it was authorized to levy both taxes and assessments, depending on whether the project was for specific property owners (assessment) or for the general operation of MWCD (tax). Changing the name from tax to assessment, or deleting the name tax, does not change the nature of the levy.

VI. CONCLUSION

There remains a genuine issue of material fact -- whether the maintenance assessment is really an assessment, in which case churches are not exempt, or whether the maintenance assessment is really a tax, in which case churches would be exempt. Accordingly, MWCD's motion for summary judgment with respect to churches should not be granted.

Terry Lee Hamilton (0030755)
1813 East 45th Street
Ashtabula, OH 44004
Telephone: (440) 964-0236
Attorney for Exceptors

Beware of NEW State Education Form!

2006-06-16T09:30:00.000-04:00

TELEPHONE CALLS STARTED POURING IN!!!

On June 9, 2006, the Ohio Department of Education sent out its annual letter to church schools which are non-chartered and non-tax supported. On June 14, telephone calls started pouring into the LLM office from church schools all over the state -- Bucyrus, Toledo, Dayton, and Conneaut. The state's annual letter raised two significant concerns. But first, a little background.

ANNUAL REPORTING REQUIRED

All church schools in Ohio are subject to the state Minimum Standards set forth in the Ohio Administrative Code, Rule 3301-35-08.
The reporting information contained at the top of the new state form, "Non-Chartered, Non-Tax Supported School Annual Certification Report," is correct, as follows:

"Rule 3301-35-08 of the Ohio Administrative Code (OAC) requires that a school, which is not chartered or seeking a charter from the State Board of Education because of truly held religious beliefs, shall annually certify in a report to the parents of the pupils that the school meets Ohio minimum standards for non-chartered, non-tax supported schools cited in paragraphs (A) to (H) of this rule. A copy of said report shall be filed with the Department of Education on or before the thirtieth of September of each year."

For many years, LLM has recommended (1) that such church schools send the state an annual letter which provides only the information required in the Minimum Standards (see sample below) and (2) that such church schools not use any form supplied by the state since such form might ask for more information than is required by the Minimum Standards. Alas, such advice is needed again.

BEWARE OF STATE EDUCATON FORM!!! IT IS NOT MANDATORY!

The form which the state submitted this year is especially egregious with respect to two matters:
1. "Please list or attach the truly held religous beliefs." The Minimum Standards do not require such a statement. Do not provide it.
2. Boxes asked for "Administrator/Teacher Name, Degree, and Institution Granting Degree." The Minimum Standards do not require church schools to submit such information.
Don't use the state form. IT IS NOT MANDATORY!

SUGGESTED LETTER

The following letter is suggested. If you have any questions, please call LLM Attorney Hamilton at 440-964-0236.

The Church School’s Suggested Annual Report to Parents,
with a copy to the Ohio Department of Education

To: The Parents of Students attending ***************** School

From: **************************, Administrator
(Name and Address of School)

Re: Annual Report to Parents

Date: (Please include date letter is sent)

Our school, which is not chartered or seeking a charter from the State Board of Education because of truly held religious beliefs, is reporting to you that we meet all standards required by the state for operating a non-chartered, non-tax supported school. These rules are as follows:

(A) School year. The school shall be open for instruction with pupils in attendance for not less than one hundred eighty-two days each school year according to section 3313.48 of the Revised Code.

(B) School day. The school day for pupils in grades one through twelve shall be no less than five hours exclusive of the noon recess according to section 3313.48 of the Revised Code.

(C) Pupil attendance. Pupil attendance shall be reported to facilitate administration of the laws relating to compulsory education and employment of minors. Parents shall be responsible for reporting their child’s school enrollment or withdrawal. An individual in charge of the non-chartered, non-tax supported school may, as a matter of convenience, provide the report for the parent.

(1) The attendance report shall include the name, age, and place of residence of each pupil below eighteen years of age.

(2) The report shall be made to the treasurer of the board of education of the city, exempted village, or local school district in which the pupil resides.

(3) The report shall be made within the first two weeks of the beginning of each school year. In the case of pupil withdrawal or entrance during the school years, notice shall be given to the treasurer of the appropriate board(s) of education. Such notice shall be given within the first week of the next school month.

(D) Teacher and administrator qualifications. Teachers and administrators shall have received a bachelor’s degree or the equivalent thereof from a recognized college or university.

OR ALTERNATIVELY

(D) Teacher and administrator qualifications. The teachers are qualified to teach in their respective areas.

(E) Courses of study. Each non-chartered, non-tax supported school shall have courses of study for the following subjects:

(1) Language arts;
(2) Geography, the history of the United States and Ohio, and national, state, and local government;
(3) Mathematics;
(4) Science;
(5) Health;
(6) Physical education;
(7) The fine arts, including music;
(8) First aid, safety, and fire prevention;
(9) Other subjects as prescribed by the non-chartered, non-tax supported school.

(F) Pupil promotion. Each non-chartered, non-tax supported school shall follow regular procedures for promotion from grade to grade of pupils who have met the school’s educational requirements.

(G) Pupil health and safety. Each non-chartered, non-tax supported school shall comply with state and local health, fire, and safety laws.

(H) Pupils attending a non-chartered, non-tax supported school are not entitled to pupil transportation as provided pursuant to section 3327.01 of the Revised Code, and pupils attending a non-chartered, non-tax supported school are not entitled to auxiliary services as provided pursuant to section 3317.06 of the Revised Code.

A non-chartered, non-tax supported school is not entitled to nonpublic administrative cost reimbursement provided pursuant to section 3317.063 of the Revised Code.

POLYGAMY!?! HOLM Sweet HOLM . . . Sweet HOLM . . . Sweet HOLM

2006-06-05T08:46:00.003-04:00

Let me give you another good reason to support President Bush's renewed call for a Marriage Amendment aimed at defining marriage as between one man and one woman. While the President is primarily aiming at undermining legal arguments in favor of same sex marriage, the Marriage Amendment would also undermine renewed legal arguments for polygamy.

POLYGAMY!?!

You thought it was dead, didn't you? If you have any historical perspective, you probably thought that polygamy died in the late 1800s when (1) the U.S. Supreme Court ruled that polygamy was unconstitutional and (2) the ruling elders in the Church of the Latter-day Saints (Mormons) received new revelation that their previously held doctrine of polygamy was wrong, in order for the Territory of Utah to become a state.

Well, it turns out that polygamy never died, but rather went into hiding, upheld as solid doctrine by fundamentalist Mormons who did not believe that God changed His mind about allowing multiple wives! One of those fundamental Mormon groups came out of the closet in a May 16, 2006, decision by the Utah Supreme Court, "Utah v. Holm."

HOLM SWEET HOLM . . . SWEET HOLM . . . SWEET HOLM!

Rodney Holm, a member of the Fundamentalist Church of Jesus Christ of Latter-day Saints (Fundamentalist Mormons) was legally married to Suzie in 1986. Subsequent to that marriage, he participated in a religious marriage ceremony with Wendy. Subsequent to that, he participated in another religious marriage ceremony with Ruth, the sixteen-year-old sister of Suzie. Got all that?

PROSECUTING POLYGAMY

Poor Rodney Holm! He couldn't catch a break.
• He was arrested and charged with bigamy and with unlawful sexual conduct with a sixteen- or seventeen-year old.
• One month before his trial was scheduled in 2003, the U.S. Supreme Court issued its infamous decision in "Lawrence v. Texas," which declared that it was unconstitutional for Texas to criminalize homosexual behavior. Why not argue, Mr. Holm's trial attorney cleverly deduced, that if criminalizing sexual behavior between consenting homosexuals was unconstitutional, then criminalizing sexual behavior in a consenting polygamous relationship was likewise unconstitutional.
• Mr. Holm also argued that since he did not obtain a state marriage license for both Wendy and Ruth, he really did not violate the bigamy statute.

Upon his conviction on both counts, Mr. Holm appealed. The Utah Supreme Court upheld the convictions, ruling that the state constitution specifically prohibits polygamy and that the federal constitution does not protect polygamy.

DISSENTING OPINION

The Utah case would not even merit a blog posting except for the 37-page dissenting opinion by Chief Justice Christine M. Durham, who wrote that the "Lawrence v. Texas" decision has overturned settled law on matters of consensual sexual relationships between adults.
• "I do not agree that the state can constitutionally criminalize private religiously motivated consensual relationships between adults."
• Chief Justice Durham concluded that the First Amendment Free Exercise Clause is violated when the state criminalizes such a religiously based polygamous relationship.
• Chief Justice Durham lent credence to Mr. Holm's argument that the 1879 U.S. Supreme Court decision in "Reynolds v. U.S.", which held that polygamy was unconstitutional, was "nothing more than a hollow relic of bygone days of fear, prejudice, and Victorian morality." The chief justice noted that the "Reynolds" case was based upon a fear that the "practice of polygamy threatened American democracy." She concluded that those "same fears . . have since been discounted by many as grounded more in bias than in fact."
• Chief Justice Durham compared the social damage of polygamous marriages such as Mr. Holm's marriages to the social damage caused by an unmarried cohabitating couple or by a married man who had a mistress on the side. None of those relationship should be governed by the state since none "can plausibly be said to threaten marriage as a social or legal institution."

CONCLUSION

The legal arguments raised by Chief Justice Durham are based fully upon the Supreme Court rationale in "Lawrence." If the case is appealed to the Supreme Court, will that court hear the case? With the departure of Justice O'Connor and the arrival of Justices Roberts and Alito, would the Supreme Court shift to the right in favor of one man-one woman marriage, or would the freewheeling, liberal spirit of "Lawrence" be upheld?

A better solution to this continued attack on the sanctity of marriage is the Marriage Amendment. The founding fathers would never have dreamed that such an amendment would be necessary; likewise, thirty-three years ago, when my wife Jan and I were married, we would never have dreamed that such an amendment would be necessary. But it is necessary now. Support the Marriage Amendment by contacting your senator.

Honoring a "Hands off" Hero

2006-05-22T09:50:00.000-04:00

On Wednesday, May 17, 2006, I had the privilege of attending the Annual Prayer Breakfast held in the Atrium of the State Capitol Building in Columbus, Ohio. This annual event, hosted by Rev. Dan Whisner and Ohio Legislative Watch, brought together dozens of pastors and legislators from all four corners of Ohio for a special time of prayer, especially for our Ohio legislators.

We live in a great state in a great nation where we have the freedom to offer prayer in the State Capitol Building to our Lord and Saviour Jesus Christ. But freedom is never free. As our Founding Fathers proclaimed at the conclusion of the Declaration of Independence, "with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor."

Each generation must fight battles--sometimes overseas, sometimes in courtrooms--to keep America free. As I was talking with Rev. Dan Whisner last week at the Ohio State Capitol, he reminded me that the year 2006 is the 30th anniversary of one of the greatest courtroom victories of our generation--State of Ohio v. Whisner, 351 NE2d 750 (Ohio 1976).

A HERO OF FAITH

Rev. Dan Whisner, now approaching 50, remembers well the battles which his father, Pastor Levi Whisner of God's Tabernacle, fought with the local school board and prosecutor in Darke County over his church school. The state and local public school officials wanted to control every aspect of the private church school, even requiring a license to operate. But Levi Whisner had a different view of education. He wanted to provide for his own children and for other children in his church school a Bible-based, Christ centered education untainted by the humanistic philosophy of the state education system. As a matter of faith, he didn't want the state's money, and he didn't want the state's control.

MAJOR COURT VICTORY!!!

When he was prosecuted for violating the state's education laws, Levi Whisner did not back down, and ultimately the Ohio Supreme Court backed him up, ruling that the state's education regulation were stifling freedom of religion and the parents' freedom to educate their children. The court, citing a 19th Century case, borrowed the phrase "hands off," ordering the state to keep its "hands off" of church schools.

WHO WILL BE A "HANDS OFF" HERO IN THE NEXT GENERATION?

Pastor Levi Whisner's heroics inspired his son Dan to start Ohio Legislative Watch, which has been helping to guard our state's liberties in Ohio's legislature for the last twenty years. As we honor Levi Whisner and the 30th anniversary of his great legal victory, we ask and pray: Who will be the "hands off" hero in the next generation?

Should Pastors Become Agents of the State?

2006-05-09T08:17:00.000-04:00

In last week's blog, based upon the recent passage of SB 17 in the Ohio General Assembly, we asked the question: "Should Pastors Be Mandatory Reporters of Child Abuse?" In that blog, we reprinted my 2004 testimony before the Ohio General Assembly.

Based upon the testimony of concerned Baptist leaders in 2004, SB 17 was modified to eliminate the requirement of mandatory reporting of child abuse allegations by clergy regarding church members. Nonetheless, a serious constitutional dilemma remains in the statute: the requirement that clergy report on allegations concerning other clergy. The following is the text of the testimony of LLM Attorney Terry Lee Hamilton presented to the Ohio General Assembly in 2005.

____________________________________________________

CONVERTING CLERGY TO AGENTS OF THE STATE:
CONTINUING CONSTITUTIONAL PROBLEMS WITH SB 17

SUMMARY

• All decent citizens and churches support legislative efforts to protect children and to prosecute child molesters. To achieve those goals, the legislation should focus on the perpetrators of child sexual abuse and on churches which cover up such abuse.
• The mandatory reporting requirements of SB 17, requiring tens of thousands of faithful clergy to become agents of the state by reporting suspicion of child abuse, were the only constitutionally suspect provisions in that initial bill.
• SB 17 removed significant constitutional difficulties by eliminating the requirement that clergy must report suspicion of child abuse by church members to the state.
• However, by continuing to require clergy to report suspicion of child abuse by other clergy or church leaders, SB 17 still stifles liberty and undermines separation of church and state, creating a situation, not unlike Nazi Germany and Communist Russia, where the state converted clergy to agents of the state.
• Heretofore, for sound public policy reasons, the General Assembly has not seen fit to include clergy within the list of mandatory reporters. Rather, the legislature should continue to focus on the perpetrators of child sexual abuse and on churches which cover up such abuse.

SB 17 -- RESPONDING TO A CRISIS IN THE ROMAN CATHOLIC CHURCH

No one who attended House and Senate hearings on SB 100 and SB 17 doubts that the chief impetus behind the legislation is the continuing legal scandals involving child sexual abuse by Roman Catholic priests. To its credit, the Roman Catholic church has stepped forward to take both internal and legislative efforts to reduce the risk of continuing child sexual abuse by priests.

Independent Baptist preachers and churches join all decent citizens and churches in Ohio in expressing their disgust at child sexual abuse, especially at the hands of priests or other religious leaders. Those preachers and churches support legislative efforts to protect children and to prosecute child molesters, such as the SB 17 provision which would amend ORC § 2901.13. By not tolling the statute of limitations for a criminal prosecution of child abuse until the “victim of the offense reaches the age of majority,” the prosecutors of this state would have a longer arm to prosecute perpetrators of child sexual abuse.

However, the amendment to § 2151.421, adding clergy to the list of mandatory reporters of suspicion of child abuse, raises serious constitutional issues without enabling the state to better pursue the child molesters; rather, the bill would create a constitutionally infirm relationship between the church and state, converting thousands of faithful pastors in Ohio into agents of the state, converting them into criminals if they don’t comply.

Both the U.S. and Ohio constitutions prohibit governmental action which would chill freedom of speech and religion by establishing a prior restraint upon communication. Imagine the following scenario:

"Suppose the initial S.B. 17 passed in late 2005. And suppose Pastor Smith reflects on his long ministry to the people of his church. Church members have come to value his wisdom and discretion during counseling sessions, knowing that anything they share will be held in strictest confidence. “All that may change now,” Pastor Smith muses as he reads the written statement which now resides on his desk.

WARNING: Before you come to me with your personal problems and spiritual battles, beware of my legal duty to report to the police or the Department of Child Protective Services any statement which you may make to me concerning child abuse or suspicion of abuse.

If you come to your pastor with personal problems or spiritual battles about murder, adultery, theft, lying, covetousness, lust of the flesh, lust of the eyes, pride of life, financial problems, physical problems, family problems, or almost any problem or difficulty in life, I will gladly counsel you in strictest confidence.

BEWARE: But if you breathe a word that may possibly be construed as child abuse, then under S.B. 17, I must report whatever you have told me to the proper authorities, who may investigate and prosecute you or your loved ones to the fullest extent of the law."

After hearing testimony on SB 17, the Senate wisely amended the bill, omitting a requirement that clergy must report to the state suspicion of child abuse by church members, thereby avoiding a potential constitutional conflict of chilling freedom of speech and religion and placing a prior restraint on both First Amendment liberties.

Some organizations, indeed, some churches, do not oppose making pastors mandatory reporters. For example, the Catholic Bishops of Ohio, as a response to the scandal of child molestation by dozens of Roman Catholic priests, do not see any constitutional problem of making all of their priests and other religious leaders agents of the state, just as are lawyers, doctors, and dozens of other health care and child care professionals. However, three simple observations belie such an untenable position.

1. The current statutory list of mandatory reporters is composed of formally trained professionals who, for the most part, follow secular or state professional standards. On the other hand, there are no secular or state standards (indeed, by definition, there can be none) for clergy, who are God’s agents, not the state’s agents.
2. The First Amendment to the U. S. Constitution (and corresponding provision of the Ohio Constitution) provides for freedom of religion and separation of church and state. Such freedoms are not found in either constitution for lawyers, doctors, and other health care and child care professionals.
3. The government should treat pastors and churches just the same as it treats members of the press, the only other institution protected under the First Amendment. Otherwise, if it were constitutionally permissible to convert clergy into agents of the state, then it would be likewise permissible to convert members of the press into agents of the state, making them subject to prosecution in the same way clergy would be.

SB 17 -- FOCUSING MORE ON CHILD MOLESTERS AND CHURCHES THAT COVER IT UP, BUT STILL CREATING A CONSTITUTIONALLY INFIRM RELATIONSHIP BETWEEN CHURCH AND STATE

As noted in the previous section, Independent Baptist preachers and churches join all decent citizens and churches in Ohio in expressing their disgust at child sexual abuse, especially at the hands of priests or other religious leaders. Those preachers and churches support legislative efforts to protect children and to prosecute child molesters, including most of the new provisions found in Sub. SB 17, as follows:

• The amendment to § 2305.111 expands the definition of child sexual abuse to include situations where the “actor is a cleric, and the victim is a member of, or attends, the church or congregation served by the cleric.” All decent citizens and churches are in favor of such a change, which focuses on the perpetrator of child sexual abuse.
• The amendment to § 2907.03 expands the scope of the crime of “sexual battery” to include when the “other person is a minor, the offender is a cleric, and the other person is a member of, or attends, the church or congregation served by the cleric.” All decent citizens and churches are in favor of such a change, which focuses on the perpetrator of child sexual abuse.
• The amendment to § 2305.111 extends the statute of limitations in civil actions to “twenty years after the cause of action acrrues . . . upon the date on which the victim reaches the age of majority.” All decent citizens and churches are in favor of such a change, which focuses on the perpetrator of child sexual abuse and upon those churches which cover it up.
• The amendment to § 5120.173 creates a one year opportunity to sue, going back thirty five years. All decent citizens and churches are in favor of such a change, which focuses on the child molester and the church which covers it up.

Another favorable feature of Sub. SB 17 is that it removes the mandatory reporting requirement with respect to clergy reporting suspicion of child abuse by church members, thereby wisely continuing down the path of avoiding unnecessary constitutional conflict. However, in its sole provision raising constitutional difficulties, SB 17 retains one aspect of mandatory reporting: clergy reporting suspicion of child abuse by fellow clergy.

The constitutional dilemma of making every pastor in the state an agent of the state for purposes of mandatory reporting of suspicion of child abuse by fellow pastors is perhaps best illustrated by a couple of historical examples.

• In order to cement his control of Nazi Germany, Adoph Hitler issued decrees that all clergy were agents of the state with respect to reporting any fellow clergy who may make statements which could be construed as in opposition to the leaders, philosophy, or practices of Nazi Germany. Some clergy who opposed that despotic regime paid with jail sentences, while others paid with their lives.
• In Communist Russia, until the Berlin Wall fell, and in Communist China today, the state imposed a policy of religious leaders spying, or keeping their eyes out, for any religious practices which might undermine the authority of the state.
In both cases, freedom of religion as well as freedom of speech were sharply curtailed. In both cases, it all started by making the religious leaders agents of the state. Is either path the path that the Ohio legislature wants to take the State of Ohio on?

_____________________________________________

Yet, when Gov. Taft signed SB 17 into law on May 2, 2006, clergy became mandatory reporters of other clergy for whom there was reason to believe child abuse had occurred. Those concerned about the loss of liberties in America should mourn again.

Should Pastors Be Mandatory Reporters of Child Abuse?

2006-05-08T14:32:00.000-04:00

On May 1, 2006, much to my regret, the General Assembly sent SB 17 to the Governor's office for signature. For reasons stated below, LLM has vigorously opposed the passage of SB 17 (and its predecessor bill, SB 100), a law which would include pastors within the statutory list of mandatory reporters of suspicion of child abuse. LLM Attorney Hamilton testified before the General Assembly in both 2004 and 2005. The following is the text of my 2004 testimony in opposition to SB 100.

______________________________________________

TESTIMONY BY ATTORNEY TERRY LEE HAMILTON
IN OPPOSITION TO S.B. 100 (125TH GENERAL ASSEMBLY)

SUMMARY
Attorney Hamilton, on behalf of hundreds of Independent Baptist churches and hundreds of other like-minded churches in Ohio, opposes the passage of S.B. 100, which expands the list of specified professions and persons that are subject to existing mandatory child abuse reporting provisions so that the provisions also apply to clergy. Heretofore, for sound public policy reasons, the General Assembly has not seen fit to include clergy within the list of mandatory reporters. Those same public policy reasons still prevail today -- upholding separation of church and state, upholding privacy and confidentiality, and avoiding unnecessary conflicts over freedom of religion in America.

ATTORNEY TERRY LEE HAMILTON
Attorney Hamilton was a trial attorney for the U.S. government in Washington, DC, from 1977 to 1984. For the last twenty years, he has practiced law in Ohio, defending hundreds of Independent Baptist churches and like-minded churches in Ohio and a dozen other states in cases involving separation of church and state.

INDEPENDENT BAPTIST CHURCHES
Attorney Hamilton represents hundreds of Independent Baptist churches in Ohio and hundreds of other Independent Baptist churches around America. Baptist churches, an integral part of American history since the early 1600s, were instrumental in the passage of our nationÂ’s Bill of Rights and have been steadfast advocates of freedom of religion and separation of church and state.

The Baptist devotion to liberty and separation of church and state is based upon their literal interpretation and practice of the Bible, GodÂ’s Holy Word.
Â• Government, ordained of God for the protection of life, is to be honored and respected by Christians (Romans 13:1-7; I Peter 2:13-17).
Â• The Bible teaches both separation of church and state (Matthew 22:21) and liberty (Galatians 3:17). Christians should not use Â“liberty for a cloak of maliciousness, but as the servants of GodÂ” (I Peter 2:16).
Â• Baptists believe that churches should be supported by the tithes and offerings of GodÂ’s people
(Malachi 3:8), not by government handouts. As Justice Souter stated in his dissenting opinion
in the 1997 Supreme Court opinion, Agostini v. Felton, Â“religions supported by governments
are compromised just as surely as the religious freedom of dissenters is burdened when the
government supports religion.Â”

INDEPENDENT BAPTIST CHURCHES SUPPORT LAWS WHICH PROTECT CHILDREN
Before expressing our problems with S.B. 100, it would be profitable to first explain those things which Independent Baptists do not have a problem with.
Â• Jesus loves children (Â“Suffer the little children to come unto me, and forbid them not: for of such is the kingdom of GodÂ” -- Mark 10:14). Independent Baptist churches, with their Sunday Schools, Junior Churches, Church Schools, bus ministries, and so forth, also love children and want to provide them a quality Bible-based, Christ-centered education and life.
Â• Independent Baptists do not oppose laws which protect children. Jesus made it very clear that we should make protection of children a top priority (Matthew 18:6).
Â• Independent Baptists do not oppose the existing mandatory reporting laws applied to various professions. But none of those existing professions raises the problems found with S.B. 100.

S. B. 100 STIFLES LIBERTY AND UNDERMINES SEPARATION OF CHURCH AND STATE
For sound public policy reasons, the General Assembly, recognizing the constitutional problems of free exercise of religion and separation of church and state, has heretofore not applied the mandatory reporting laws to clergy.
1. Â“Sacred Trust.Â” The General Assembly has previously recognized the sacred trust inherent in the relationship between pastor and church member. That sacred trust extends to all relationships within the local church, not just between pastor and penitent.
2. Privacy and Confidentiality. Persons of all ages must have the liberty, the freedom, the confidence that when they talk with their pastor, those conversations will not be forwarded to the police or child protective service agents.
3. Definition of Child Abuse. We live in an age when society has changed dramatically. For example, although the courts have consistently upheld the right of parents and church schools to discipline children, state agencies charged with investigating allegations of child abuse have consistently labeled corporal discipline as child abuse. It is not difficult to imagine situations where pastors are arrested for failing to report that a parent spanked his child.

Other church groups which may support S.B. 100 have their own agenda. The agenda of Independent Baptist churches is advocacy of freedom of religion and separation of church and state. The stateÂ’s interest in protection of children is adequately served by the existing laws. S.B. 100 should not be passed.

________________________________________

In next week's blog, we will address a couple of drastic consequences of passage of SB 17. But the bill which finally becomes law does contain at least one minor victory. Stay tuned next week!

What Is the Source of Liberty?

2006-04-25T14:35:00.000-04:00

In last week's blog, we asked the philosophical question, "Who Is Responsible for Educating Children?" We answered that question by referring to two sources: God's law and man's law. Perhaps surprisingly, both God's law and man's law agree that parents, not the government or church, are primarily responsible for educating their children.

What is the source for parental liberty to raise their own children? Last week, we examined three court decisions which upheld parental authority to nourish and bring up their children. Listen to the words of those judges.
• "One of the most important natural duties of the parent is his obligation to educate his child, . ." That language speaks in terms of natural law. We shall shortly examine the greatest statement of natural law in American history.
• "[T]he liberty of parents and guardians to direct the upbringing and education of children under their control . . . The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only." That language speaks of the "fundamental theory of liberty upon which all governments in this Union repose. . ." We shall shortly examine the constitution of Indiana for further instruction on our title question.
• "Nor does this court have any difficulty in concurring with those courts that have found within the ambit of the free exercise clause a constitutional right to education ones children . . ." We shall also examine the First Amendment of the U.S. Constitution as we search for the answer to the question: "What is the source of liberty?"

I. DECLARATION OF INDEPENDENCE. The greatest expression of natural rights and liberty in American history is found in our Declaration of Independence: "We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness . . ."

In 1776, in a land established upon the Word of God, even an avowed deist such as Thomas Jefferson was fully aware of the source of liberty -- not a what, but a Who -- Creator God. The Declaration of Independence makes it clear that government is not the source of liberty; rather, as Jefferson next declares, "That to secure these Rights, Governments are instituted among Men, . . ."

II. CONSTITUTION OF INDIANA. The first constitution of the State of Indiana was drafted in 1816 in the territorial capital of Corydon, which later that year became the first state capital. The first section of the first article is derived from Jefferson's language penned forty years earlier:

"That the general, great and essential principles of liberty and free Government may be recognized and unalterably established; WE declare, That all men are born equally free and independent, and have certain natural, inherent, and unalienable rights; among which are the enjoying and defending life and liberty, and of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety."

Although the source of liberty and those "natural, inherent, and unalienable rights" is only implied, that source is specifically mentioned in section 3, as follows (each clause is preceded by a number):
1. "That all men have a natural and indefeasible right to worship Almighty God, according to the dictates of their own consciences:
2. That no man shall be compelled to attend, erect, or support any place of Worship, or to maintain any ministry against his consent:
3. That no human authority can, in any case whatever, control or interfere with the rights of conscience:
4. And that no preference shall ever be given by law to any religious societies, or modes of worship;
5. and no religious test shall be required as a qualification to any office of trust or profit."

Lest the reader wonder about the importance of these rights, consider the case of Abdul Rahman, the Afghani citizen mentioned in our first blog, the man who was charged with the crime of converting from Islam to Christianity. His country, Afghanistan, and numerous other Muslim countries, which do not believe in the separation of mosque and state, do not protect the religious liberties of its citizens. Would you rather live in a Muslim country or in America?

Lest the reader become incensed at Muslim countries in which the marriage of mosque and state results in the denial of religious liberty, keep in mind that the Muslim influence was virtually nonexistent in Indiana in 1816. Rather, the drafters of Indiana's first constitution were reacting to the marriage of church and state and the lack of religious liberty as found in colonial America and in the early United States! For example:
• The Pilgrims who established Massachusetts (1) did not believe in separation of church and state and (2) did not believe in freedom of conscience. With respect to Baptist preachers and believers who sought "to worship Almighty God, according to the dictates of their own consciences," the Pilgrims violated all five of the religious liberties found in the first Indiana constitution.
• In colonial Virginia, in which the Church of England was the established church, Baptist preachers were arrested and beaten for the crime of preaching the Gospel without first obtaining a license to preach from the Church of England. The lawyer who defended several Baptist preachers was Patrick Henry, a good Presbyterian. When Patrick Henry was later governor of Virginia, he supported legislation which would compel tithing to the church of your own choice, a great step forward in liberty for a people who had previously been forced to support the state Church of England. The legislation failed because of opposition of Baptist leaders, who believed, as Indiana legislators later believed, that "That no man shall be compelled to attend, erect, or support any place of Worship, or to maintain any ministry against his consent."

Just as Muslims do not believe in (1) separation of church and state and (2) freedom of conscience, neither do Roman Catholics and most Protestants, who retained their opposition to those fundamental liberties when they separated from the Roman Catholic Church during the Reformation.

III. CONSTITUTION OF THE UNITED STATES OF AMERICA. The Constitution, drafted and submitted to the states for ratification in 1787, faced intense opposition in several states. One of the reluctant states was Virginia, which opposed the Constitution unless religious and civil liberties were guaranted by a Bill of Rights. Baptist preachers, including John Leland, mindful of the earlier denial of religious liberty in such states as Massachusetts and Virginia, were among the leading opponents, insisting that religious liberty must be the law of the land.

Virginia finally voted for the U.S. Constitution in the middle of 1788, when the Bill of Rights, the first ten amendments, were added. The very First Amendment, and the very first freedom protected by the U.S. Constitution, is as follows: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Please notice two things:
• This clause is the soul of brevity, expressing in sixteen words the twin pillars of religious liberty -- (1) separation of church and state and (2) freedom of conscience.
• These twin pillars of religious liberty were not insisted upon by Pilgrims, Anglicans, or Roman Catholics, who believed in neither, but rather by the strong contingent of Baptists in the original thirteen states.

In other words, the first liberty in the First Amendment is nothing more than codification of doctrinally distinctive Baptist beliefs -- separation of church and state and freedom of conscience. Since the adoption of the U.S. Constitution in 1789, America's principles of liberty have taken root in America and have been exported throughout the world. America and the world owes much to Baptists who stood firmly on the Word of God on behalf of religious liberty.

IV. CONCLUSION. Take one final look at the Declaration of Independence. Since the source of liberty is God, the freedom to worship God is foundational to all other liberties. The corollary has been borne out by history and by current events -- if a nation does not have religious liberty, then all other liberties wither, cut off from the source. America and the world continue to owe much to Baptists who continue to stand firmly on the Word of God on behalf of religious liberty.

Who Is Responsible for Educating Children?

2006-04-24T12:53:00.000-04:00

It was an honor when Dr. Daniel Haifley, pastor of Grace Bible Baptist Church, Syracuse, IN, invited me to speak at the First Annual Home School Expo held on the grounds of Indiana Fundamental Bible College on April 29, 2006. As I examined the details of Indiana home school laws, it was perhaps fitting to place such an examination in the larger context of a philosophical issue: Who is responsible for educating children?

I. THREE PLAUSIBLE ALTERNATIVES

As we examine the question of “Who is responsible for educating children?”, let us consider three plausible alternatives.

# 1 -- The government is responsible for educating children.

This alternative, commonly expressed in the last 150 years by educators, humanists, and bureaucrats in America and around the world, faces two problems:
• Biblically, government plays no role in education. The Biblically ordained role of government is protection of life and property, not education of children.
• Legally, the courts of America have consistently ruled that government is not primarily responsible for educating children.

# 2 -- The church is responsible for educating children.

The church, assuredly “the pillar and ground of the truth” (I Timothy 3:15), should provide numerous opportunities for children to learn the truths of God’s Word; but nowhere does the Bible place upon the church the primary responsibility for educating children.

# 3 -- Parents are responsible for educating children.

Both Biblically and legally, parents have always had the primary responsibility for educating their children.
• In Deuteronomy 6:1-7, the fathers were responsible for teaching God’s Words to his children.
• “My son, hear the instruction of thy father, and forsake not the law of thy mother” (Proverbs 1:8).

As we will see, God's law and man's law agree on this big philosophical issue. Of course, the reason why is that man's law is based upon God's law (an issue which must be reserved for another day).

II. THREE COURT OPINIONS

As the following three court opinions demonstrate (one Indiana Court of Appeals decision, one U.S. Supreme Court decision, and one federal district court decision), discussed in chronological order, both state and federal courts have clearly placed upon the parents the responsibility for educating children.

A. 1904 -- The State v. Peterman, 32 Ind.App. 665, 70 N.E. 550, decided by the Indiana Court of Appeals near the beginning of the 20th Century, held that the Indiana compulsory attendance laws allowed for the operation of home schools. With regard to the question, “Who is responsible for educating children?”, the Indiana court quoted from a Massachusetts opinion which set forth that court’s opinion as to the relative duties of both parents and government, as follows:

"One of the most important natural duties of the parent is his obligation to educate his child, and this duty he owes not to the child only, but to the commonwealth. If he neglects to perform it, or wilfully refuses to do so, he may be coerced by law to execute such civil obligation. The welfare of the child and the best interests of society require that the State shall exert its sovereign authority to secure to the child the opportunity to acquire an education."

B. 1925 -- Pierce v. Society of Sisters of the Holy Names of Jesus, 268 U.S. 510, was a U.S. Supreme Court case which reviewed the recently enacted Oregon compulsory attendance law which compelled parents to send their children to public schools. The Supreme Court noted the role of government with respect to education of children:

"No question is raised concerning the power of the state reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare."

However, with regard to the question, “Who is responsible for educating children?”, the U.S. Supreme Court could not have answered more clearly.

"[W]e think it entirely plain that the Act of 1922 [the compulsory attendance law] unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. . . The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations."

C. 1985 -- Mazanec v. North Judson-San Pierre School Corporation, 614 F.Supp. 1152. This home schooling case was decided in the federal district court for the Northern District of Indiana, South Bend Division. Applying the Indiana compulsory attendance laws to a home schooling family, the federal judge ruled as follows:

"This court has no difficulty with the values that were announced in Pierce v. Society of Sisters, . . years ago. Nor does this court have any difficulty in concurring with those courts that have found within the ambit of the free exercise clause a constitutional right to educate ones children in an educationally proper home environment, understanding that the State retains a legitimate interest in the fulfillment of certain minimal requirements as established legislatively and administratively as a matter of public policy."

Praise the Lord that we live in America! But the battles for liberty shall never wane. In the meantime, may parents never forget these words by Supreme Court Justice McReynolds: "[T]hose [parents] who nurture him [children] have the right, coupled with the high duty, to recognize and prepare him for additional obligations."

The MySpace Controversy

2006-04-17T09:34:00.000-04:00

In the last few months, numerous Independent Baptist churches, colleges, and schools have been rocked by the MySpace controversy. As with so many other current issues, legal concerns abound. If you want the insight of an Independent Baptist attorney about this increasingly popular but controversial Internet site and how to respond to it, read on.

PERSONAL BACKGROUND. Any time that you read an article about the Internet, be aware of the author's background. As for this author:
• I am 57 years old, thus 40 or so years removed from the MySpace generation.
• I remember when computers were the size of a large room.
• I graduated from law school 30 years ago (in 1976), before computers invaded the hallowed halls of academia.
• I worked as a lawyer for nearly 20 years before I sullied my fingers with a computer keyboard.
In other words, I have been dragged kicking and screaming into the computer age, whereas the youth of today have grown up immersed and fully wired in the brave new world of the Internet, chat rooms, text messaging, and blogging.

MYSPACE. MySpace describes itself as "a place for friends." Frankly, I don't relate to MySpace; most people my age don't relate to virtual hangouts or virtual community centers. I am accustomed to dealing with people face to face; I am notorious for loathing the impersonality of drive-thru windows at banks and fast food places. However, before I can address the MyPlace controversy, I must first discuss this new form of interactive media.
• MySpace was formed in 2003 in California. In 2005 it was purchased by Rupert Murdoch's News Corp., owner of Fox News.
• MySpace provides online space to teenagers and young adults to post personal pictures, profiles, and blogs.
• The membership of MySpace as of January 2006 was about 40,000,000 teenagers and young adults (yes, that number is forty million!!!!).

How do you personally compare to this MySpace generation? Consider the results of a recent Kaiser Family Foundation study: teenagers aged 15 to 18 average nearly 6 and a 1/2 hours a day watching TV, playing video games, surfing the Net, and social networking on the Net (e.g., MySpace). How do I compare?
• I don't even own a TV!
• I wouldn't waste my time playing a video game!
• I search the Net for research on specific projects; I am as likely to "surf" the Net as surf at Waikiki!
• The average teenager spends one hour and 22 minutes per day social networking on the Internet; I spend 0 hours and 0 minutes!

DANGERS IN MYSPACE AND OTHER SOCIAL NETWORKS. MySpace is just one of numerous social Networks (others include Facebook, Friendster, Buzz-Oven, and Xanga).
• Before we Baptists became concerned, several public schools, private schools, Catholic schools, and even libraries restricted access to MySpace because it has become "such a haven for student gossip and malicious comments."
• A quick view of the MySpace website reveals "profanity-laced comments, off-color topics and suggestive photos."
• Such social Networks have become an obvious target for "online enticement."
• Some private schools have even banned their pupils from accessing MySpace at home.

WHAT CAN PASTORS, EDUCATORS, AND PARENTS DO TO PROTECT THEIR CHILDREN?

1. Pastors, educators, and parents who are Internet savvy may ask "Doesn't the Children's Online Privacy Protection Act (effective April 21, 2000) protect children from such Internet danger?" The general answer is No; teenagers and young adults voluntarily sign up to join MySpace, either wittingly or unwittingly giving up their privacy to the whole world!

2. Are there any privacy concerns if pastors, educators, and parents monitor their students or children online? Once again, the answer is No. Young people who become members of MySpace, opening up their personal and private lives not only to friends but also to all of the perverts in the entire world, can hardly expect legal protection from a concerned pastor, educator, or parent monitoring them online.

3. Should Baptist parents allow their children to join MySpace? That is a family question, not a legal question. In my personal opinion, a responsible parent should prohibit his teenager from going to MySpace unless that parent did NOT object to his teenager being exposed to the following: "student gossip and malicious comments," "profanity-laced comments, off-color topics and suggestive photos," and "online enticement."

Proverbs 29:15 applies as much to the current generation as it did in Solomon's day: "a child left to himself bringeth his mother to shame." If a parent allows his child access to the Internet, then the parent should (1) become savvy enough to monitor the child's Internet use and to conduct personal research on MySpace and other similar social Networks, then (2) search the Scriptures, pray about the matter, seek the pastor's counsel, and make Biblically and spiritually correct decisions for the family.

4. Should Baptist pastors prohibit teenagers in the church from joining MySpace? A pastor can warn the teenagers in church about smoking, gambling, drinking, and drugs, but he can't monitor their activities full time. On the other hand, membership in MySpace can be monitored online with a click of the mouse. I know of at least one Baptist preacher who forbids teenagers in the church youth group from belonging to MySpace. In light of the controversy raging today, I would encourage Baptist preachers to conduct personal research on MySpace and other similar social Networks, then search the Scriptures, pray about the matter, and seek God's will on whether and how he should confront the issue of social Networking.

5. Should Baptist educators prohibit teenagers in the church school or Bible college from joining MySpace? Each school has the right to set its own policies and standards for admission and discipline; if the school has a clearly written policy which forbids unscriptural conduct or prohibits students from belonging to such social Networks, the church may lawfully enforce such policies without fear of lawsuits by either disgruntled students or parents.

CONCLUSION. If you are like me, being kicked and dragged into the Internet age, you may not be aware of the pervasiveness and danger of social Networks. But I have come to the same conclusion that the Apostle Paul came to nearly 2,000 years ago: "Be not deceived: evil communications corrupt good manners. Awake to righteousness, and sin not" (I Corinthians 15:33-34). We must get our heads out of the sand, become informed about the dangers of this new potentially harmful interactive media, then take appropriate steps to protect our children in the home, church, and school.

On the other hand, we can't ignore or deny that our children are living in this brave new wireless world. We must also do our homework to find positive, constructive, safer alternatives for our teenagers in this MySpace-dominated world. Do you have any ideas?

God bless you all!

TERRY LEE HAMILTON

Why Baptist Churches Should Never Accept State Aid!

2006-04-13T08:47:00.000-04:00

Sometimes, the U.S. Supreme Court issues a unanimous decision which reaffirms, in the boldest possible way, the correctness of our Baptist beliefs and practices. The recent court decision of "Rumsfeld v. Forum for Academic and Institutional Rights, Inc. [FAIR]," 547 U.S. ____ (March 6, 2006), pitting homosexuals and liberal law schools against military recruiters, brightly illuminates the correctness of the Baptist doctrine of separation of church and state.

THE “FAIR” CASE

Congress has adopted the following policy “with respect to homosexuals in the military. . . [A] person may not serve in the Armed Forces if he has engaged in homosexual acts, stated that he is a homosexual, or married a person of the same sex.” As you read the opening paragraph of Chief Justice Roberts’ unanimous opinion, try to spot an issue which relates to our Baptist beliefs.

"When law schools began restricting the
access of military recruiters to their
students because of disagreement with the
Government’s policy on homosexuals in
the military, Congress responded by
enacting the Solomon Amendment. . .
That provision specifies that if any part
of an institution of higher education
denies military recruiters access equal to
that provided other recruiters, the entire
institution would lose certain federal
funds. The law schools responded by
suing, alleging that the Solomon
Amendment infringed their First
Amendment freedoms of speech and
association."

RULING

If you haven’t yet spotted the issue which relates to our Baptist beliefs, consider the following: “The Solomon Amendment, however, forces institutions to choose between enforcing their non-discrimination policy against military recruiters in this way and continuing to receive specified federal funding.” A unanimous Supreme Court held that the Solomon Amendment does not violate the First Amendment freedoms of speech and association.

STATE AID FOR CHURCHES

In other recent Supreme Court decisions, the Court has ruled that the Establishment Clause is not violated when federal funds for education and other faith-based initiatives are directed to churches. However, in every instance where federal funding is accepted, the church school or church must accept applicable federal regulations, which may or may not violate the church’s faith or practice.

Consider the following scenario, which changes the facts just a little bit from the recent Supreme Court decision. Suppose a church school has been receiving federal funding for generations and is dependent upon that federal funding for continued existence. Then suppose that the government issues a new policy that the recipients of federal funding must issue a policy that not only prohibits discrimination against homosexuals, but also requires the recipient to embrace homosexuality as an acceptable sexual orientation.

In that scenario, the church school would face the same dilemma that the law schools faced in the FAIR case. The regulation forces churches to choose between (1) their beliefs on homosexuality and (2) continuing to receive federal funding.

BAPTIST BELIEFS AVOID THE DILEMMA

The liberal law schools faced a dilemma -- either stand up for their beliefs or sit down and accept federal funding. Those law schools chose to sit down. How about our Baptist churches? As you ponder which is more important to you -- your beliefs or your pocketbook -- consider the famous quote by that prince of Baptist preachers, Charles Haddon Spurgeon, pithily expressing our Baptist beliefs with respect to this dilemma: “[W]e are not ready to accept any help from the State, to prostitute the purity of the Bride of Christ . . .”

Faith-Based Initiatives: God or Mammon?

2006-04-03T09:48:00.000-04:00

President George Bush, as far as we know, is a born again Christian. One of the goals of his administration is the expansion of faith-based initiatives.

In the year 2005, the federal government gave faith-based grants totalling over TWO BILLION DOLLARS!!!!!!!

Surely, our Independent Baptist churches could use more funds to start more churches and help more missionaries. But where should those funds come from?
• From God?
or
• From Government?

Historicallly, Baptists have opposed state aid to churches, whereas Roman Catholic churches and Protestant churches, which do not believe in separation of church and state, have not hesitated to reach their hand into the government's vouchers. To better understand the Biblical and historical Baptist opposition to state aid for churches, let us examine three Baptist voices from the past.

1. ISAAC BACKUS. This Baptist preacher from New England during the colonial and revolutionary era was the leading Baptist opponent opposing the common practice of governmental taxation of the citizenry to support churches, usually state-sponsored churches. In a 1999 article published by the Library of Congress entitled "Religion and the Founding of the American Republic," the Library of Congress described Baptist preacher Backus and his Baptist beliefs as follows:

"Backus forcefully states the Baptists’ opposition to state support of the churches. This opposition was grounded in the Baptists’ reading of the New Testament and also of ecclesiastical history which demonstrated that state support of religion inevitably corrupted the churches. Backus and other Baptist leaders agreed with their clerical adversaries in believing that religion was necessary for social prosperity and happiness but they believed that the best way for the state to assure the health of religion was to leave it alone and let it take its own course, which, the Baptists were convinced, would result in vital, evangelical religion covering the land."

Please take a moment to read that paragraph again, a paragraph written, not by a Baptist historian, but by the Library of Congress. May we Baptists continue to follow our Biblical and historical Baptist beliefs with regard to separation of church and state and opposition to state aid to churches, and may be continue to labor for Jesus in the hope of a "vital, evangelical religion covering the land."

2. PATRICK HENRY AND GEORGE W. BUSH. There are good Christian men, not Baptists, who have made misguided attempts to help churches by providing state aid. One of those good Christian men was Patrick Henry, the famous colonial and revolutionary era attorney and politican who uttered the immortal words: "Give me liberty or give me death!"

Patrick Henry, a good Presbyterian, was opposed to governmental taxation to support the officially sponsored Church of England. When he was governor of Virginia, he supported legislation that would have required the state to impose governmental taxes, which would then be distributed to the church of the taxpayer's choice. Such an idea, which sounded great to the Protestant Henry, was staunchly opposed by the large contingent of Baptists in Virginia.

In one sense, George W. Bush is the Patrick Henry of today. He is taking great measures to protect the liberty which we value so highly in America, yet he is making misguided attempts to provide government funding to churches, an attempt which would ultimately undermine the same liberty which he is trying to defend. Baptist preachers today need to realize, as Issac Backus did 250 years ago, that (1) "state support of religion inevitably corrupted the churches" and (2) "the best way for the state to assure the health of religion was to leave it alone."

3. CHARLES HADDON SPURGEON. Perhaps the most famous Baptist preacher of all time, Charles Haddon Spurgeon of Metropolitan Tabernacle in London, England, held firm Baptists beliefs with respect to separation of church and state and opposition to state support of churches. Perhaps his most pithy statement on these issues is the following:

"Persecuted alike by Romanists and Protestants of almost every sect, yet there has never existed a government holding Baptist principles which persecuted others; nor, I believe, any body of Baptists ever held it to be right to put the consciences of others under the control of man.

We have ever been ready to suffer, as our martyrologies will prove, but we are not ready to accept any help from the State, to prostitute the purity of the Bride of Christ to any alliance with Government, and we will never make the Church, although the Queen, the despot over the consciences of men."

Spurgeon's beliefs, and our beliefs, go back to Jesus, Who stated even more pithily in the Sermon on the Mount, "Ye cannot serve God and mammon" (Luke 6:24). As Baptists, we believe that the local church should depend upon God (and God's people), not on government. Despite the perhaps well-intentioned efforts of leaders such as Patrick Hentry and George W. Bush, we Baptists should continue to resist the temptation of faith-based grants from the government, lest we "prostitute the purity of the Bride of Christ to any alliance with Government."

In next week's blog, we will examine a recent Supreme Court decision, which illuminates in a most enlightening manner, what happens to the firmly held principles of groups which feed at the government trough. See you next week!

TERRY LEE HAMILTON

Distinctives of the BAPTIST LEGAL UPDATE

2006-03-28T11:45:00.000-05:00

Welcome back to Lighthouse Legal Ministries' weekly blog, the BAPTIST LEGAL UPDATE! The blog's purpose is stated in our masthead: "a Baptist perspective on current legal news."

In this second blog, we want to focus on the distinctives of the BAPTIST LEGAL UPDATE. Of the myriads of blogs and regular news sources which flood the media, why would you click on www.baptistlaw.blogspot.com to receive a weekly Baptist Legal Update?

1. Oriented Exclusively to Independent Baptist Churches

LLM, a ministry of Lighthouse Baptist Church, Ashtabula, OH, Pastor John Jones, is distinctively Independent Baptist.
• LLM provides free legal services exclusively to likeminded independent, fundamental, Baptist churches.
• LLM is supported exclusively by likeminded independent, fundamental, Baptist churches.
• LLM is accountable only to such faithfully supporting churches.

Other legal ministries may provide legal assistance to Independent Baptist churches, and more power to them. But other legal ministries are also supported by Charismatic, Protestant, and Roman Catholic churches, for whom they also provide legal services. Those other legal ministries cannot afford to express exclusively Independent Baptist viewpoints.

2. Written Exclusively by an Experienced Independent Baptist Attorney

The weekly Baptist Legal Update is written by LLM Attorney Terry Lee Hamilton, a faithful family man and active member of Lighthouse Baptist Church, where he is a Sunday School teacher, Junior Church director, trustee, and soulwinner. LLM Attorney Hamilton has been practicing law for nearly thirty years.
• Seven years as a trial attorney with the U.S. Government in Washington, DC.
• Eleven years with a private law firm in cases involving separation of church and state.
• For the last eleven years, he has worked exclusively at Lighthouse Legal Ministries, providing legal assistance exclusively to Independent Baptist churches.

3. A Conservative or Fundamental Viewpoint Is Not Necessarily Equivalent to the Viewpoint of an Independent Baptist

LLM Attorney Hamilton, who is both conservative and fundamental, is grateful for all of the conservative and/or fundamental voices in the media today. But a conservative and fundamental viewpoint is not necessarily equivalent to an Independent Baptist perspective. For example:
• Social Conservatives. Both Rush Limbaugh and Sean Hannity are good conservative commentators; but do you think that the cigar-smoking, profane Mr. Limbaugh or the rock solid Roman Catholic Mr. Hannity has a Bible-based, Independent Baptist viewpoint on all of the current legal news?
• Religious Conservatives. The media is filled with conservative Christian commentators such as James Dobson, Charles Colson, and D. James Kennedy; but do you think that such Protestant leaders have an Independent Baptist viewpoint?

The purpose of the Baptist Legal Update is not to stir up strife with either social or religious conservatives, but rather to stir up Baptists and the world to understand and appreciate the importance of the Biblical and Baptist doctrine of separation of church and state, the foundation upon which religious liberty rests both in America and around the world.

Thank you for reading this second blog at www.baptistlaw.blogspot.com. Your comments would be greatly appreciated. God bless you!

TERRY LEE HAMILTON

"Save Abdul Rahman"?

2006-03-28T09:45:00.000-05:00

Announcing the new . . . LLM BLOG!!!!
BAPTIST LEGAL UPDATE
Bookmark us at www.baptistlaw.blogspot.com

Lighthouse Legal Ministries has always had a unique Biblical and legal perspective on the news and events of our day. We have never been in step with the mainstream media (not even close), and we also find ourselves frequently in sharp disagreement with many of today's social and religious conservatives. The LLM perspective reflects our commitment to Baptist beliefs and doctrines, doctrines which we believe to have been historically correct throughout history.

As such, we are continually searching for new ways to get across our message -- to cut through the clutter and misinformation that abound in the mainstream media. We send out our newsletter, we conduct seminars and other special conferences -- all designed to share our Baptist perspective, a view that is not found elsewhere. This month will mark the beginning of a new way to make our voice heard -- an LLM blog entitled the Baptist Legal Update!

This blog provides LLM a quick way to provide weekly analysis and commentary on the news of the day, as well as share our legal, Biblical, and historical Baptist perspective on our society. The Baptist Legal Update will appear each Monday at www.baptistlaw.blogspot.com.

We hope that you will make the Baptist Legal Update a part of your weekly schedule. You will find it to be both enlightening and inspiring. Below is our first analysis and commentary, from a Baptist perspective, on current legal news -- the international concern over the fate of a solitary Christian in Afghanistan -- Abdul Rahman.

"SAVE ABDUL RAHMAN"?

If you haven't kept up with the story, the following are some different media voices [and the Baptist Legal Update] about Abdul Rahman.

1. U.S. Government, Voice of America, March 18, 2006. "An Afghan man who recently admitted he converted to Christianity faces the
death penalty under the country's strict Islamic legal system. The trial is a critical test of Afghanistan's new constitution and
democratic government. . . Prosecuting attorney Abdul Wasi . . . says Rahman is a traitor to Islam and is like a cancer inside
Afghanistan. Under Islamic law and under the Afghan constitution, he says, the defendant should be executed."

[Baptist Legal Update (BLU) -- The martyrdom of Abdul Rahman would be perfectly consistent with the Islamic religion, which does
not believe in separation of church and state. But the Islamists are not the only religion which does not believe in separation of
church and state; both the Roman Catholic Church and the Protestant churches have historically rejected the Baptist doctrine of
separation of church and state, embracing rather the doctrine of marriage of church and state. The outrage today by Roman
Catholic and Protestant leaders was not evident for hundreds of years when Baptists by the millions were martyred by Roman
Catholic and Protestant-dominated governments in Europe, England, Puritan New England, and colonial Virginia.]

2. CNN.com, March 22, 2006. "Rahman's case raises thorny issues between Afghanistan and the Western allies, . . 'We have
underscored also to Foreign Minister Abdulah that we believe that tolerance and freedom of worship are important elements of any
democracy,' U.S. State Department spokesman Scott McCormack . . ."

[BLU: Baptists have always believed in the importance of freedom of worship; but, historically, freedom of religion was not an
element of Western civilization for hundreds of years in Europe, England, and America. For example, the Pilgrims traveled to
America in 1610 to escape religious persecution at the hands of the church and state in England; however, when they arrived in
America, the Pilgrims set up their own marriage of church and state which denied freedom of religion to other believers. The
freedom of religion which the world embraces today dates back only to the efforts of Baptist preachers Roger Williams and John
Clarke, who fled the persecution of the Pilgrims to establish the colony of Rhode Island, the first society with true freedom
of religion. The world today owes a great debt to Baptists, but sadly, not only the world, but also most Baptists, are unaware of the
critical role which Baptists played in establishing freedom of religion in America and around the world.]

3. USA Today, March 23, 2006. "Afghan police arrested him last month after discovering a Bible in his possession during questioning
over a dispute over custody of his two daughters. . . Television footage of Rahman at last week's hearing showed him leafing through
a Bible before saying, 'They want to sentence me to death, and I accept it, but I am not a deserter and not an infidel. I am a Christian."

[BLU: If you lived in Afghanistan, would you be arrested for having a Bible in your possession? If you knew that you were going to
be sentenced to death for being a Christian, would you still name the name of Christ?]

"We think he could be mad. He is not a normal person. He doesn't talk like a normal person," Zanari [a state prosecutor] told the
Associated Press."

[BLU: If the Afghanistan government, or the U.S. government, or a co-worker or neighbor talked to you about your faith in Jesus,
would they conclude that you are mad? Would you want to be accused of not being a "normal person"?]

There have been rallies around the world and much news now about "Save Abdul Rahman." Three thoughts:
1. Were there rallies around the world opposing the martyrdom of millions of Baptists?
2. Save Abdul Rahman? It sounds like he may already be saved!
3. Let us pray that each one of us Baptists will have the zeal to (1) see our co-workers and neighbors saved and (2) support missionaries
preaching the Gospel around the world!

The purpose of this blog is not to stir up strife with Roman Catholics, Protestants, or Muslims, but rather stir up Baptists and the world to understand and appreciate the importance of the Biblical and Baptist doctrine of separation of church and state, the foundation upon which religious liberty rests both in America and around the world.

Thank you for reading this first blog at www.baptistlaw.blogspot.com. Your comments would be greatly appreciated. God bless you!

TERRY LEE HAMILTON