You could say that I am at odds with Thomas Jefferson. In fact, some have jokingly referred to the litigation in which we are currently engaged as the “Tom and Jerry Show.” It is not an actual conflict between the great founding father and me; yet we are involved – about 200 years after the fact – in a significant religious freedom battle.
In a lawsuit brought by Thomas Road Baptist Church and me in November 2001, we challenged Mr. Jefferson’s 1779 Statute of Virginia for Religious Freedom. The General Assembly outlawed corporate charters for churches in 1787 and included that ban and other restrictions on church ownership of property in the state constitution and the Code of Virginia.
We are represented in this action by Mathew Staver of Liberty Counsel and my son, Jerry Falwell Jr., who earned his law degree at the University of Virginia – a school established by Mr. Jefferson. It was Jerry Jr. who first conceived the idea of challenging these centuries-old laws on constitutional grounds.
He suggested several years ago that Thomas Road would likely be successful if it challenged this 18th century ban on church incorporation and other Jeffersonian Virginia laws restricting the amount of property that churches can own and laws requiring churches to obtain court approval in order to engage in basic real estate transactions.
These laws have plagued our church – and many others in the state – for decades. A successful challenge would have far-reaching ramifications.
My initial reaction was cynical. I wondered how laws written by Thomas Jefferson and James Madison could actually be unconstitutional. But, on Monday, in a landmark decision, U.S. District Judge Norman Moon ruled that the 18th century Virginia law prohibiting the incorporation of churches unconstitutionally restricts the free exercise of religion. This is important news for our ministry and other large ministries in Virginia.
Judge Moon ordered the State Corporation Commission to grant our Lynchburg-based church a corporate charter. Now, Thomas Road will become the first church to be incorporated in Virginia since the Revolutionary War era.
“Unlike other groups in Virginia, members of ‘a church or religious denomination’ are … denied the benefits of incorporation because of their religious status,” Judge Moon wrote in his opinion. He agreed with us that Virginia’s constitution targeted churches and placed a disability on churches not placed on other persons or groups.
In addition to the incorporation ban, under laws dating from the Revolution, Virginia churches are not allowed to own more than 15 acres of property in a city or town or more than 250 acres in any county. Churches cannot sell, encumber or improve the real estate that they do own without court approval for each transaction. Churches are further restricted from owning more than $10 million in personal property. (Only West Virginia has similar restrictions because it was once part of the State of Virginia.)
It has been very burdensome over the years to operate our church under these property restrictions and to petition circuit court judges for approval of every major business transaction in which the church engaged.
Since founding Thomas Road Church 46 years ago, this ministry has dramatically grown into a 4,300-acre enterprise that includes our television and radio broadcasting networks, Liberty University (which maintains about 5,000 resident students), a new retirement village, two youth camps, a ministry to unwed mothers, a ministry to alcoholics and drug addicts, and many other programs.
Our 3,200-seat church has not expanded from its original plot of 29 acres of residential property. Out of necessity, we need to promptly build a 6,000-seat sanctuary (expandable to 12,000 seats) and ministry complex on 146 acres adjacent to Liberty University. We are still awaiting a decision from the courts on this second prong of our legal action – challenging Virginia’s property restrictions. Plans for the expansion remain on hold.
Mr. Jefferson, the eminent founding father, could have never known that churches like Thomas Road would claim more than 20,000 members and draw several thousand in attendance each week. He could never have conceived how the 15-acre designation would hamstring the efforts of such churches in this modern age.
Jerry Jr. recently pointed out to me that, before the Revolutionary War, all citizens of Virginia were required to attend and pay tithes to the Anglican Church. In those days, incorporation meant that the church was actually a division of the government and, apparently, had the power to tax. It was this form of established church that Jefferson was attempting to eliminate through the passage of the laws that we are now challenging.
Jefferson is a man whom I hold in high regard, and I would have supported his efforts to disestablish the Anglican Church if I had been one of his contemporaries.
I think if he were alive today, he would concede that these antiquated laws have outlived their usefulness. There are today other safeguards built into the law that did not exist in Jefferson’s day that would prevent the church and state from ever again becoming a single, unified force.
State Corporation Commission spokesman Ken Schrad said the commission will not appeal Judge Moon’s decision and would grant Thomas Road a corporate charter. This charter will give our church added protection from liability lawsuits, the ability to sue as an organization and the power to enter contracts – rights that non-church groups have enjoyed for centuries.
We are thankful to God for this historic legal victory.