On Friday, I filed a federal lawsuit claiming that Virginia’s constitution – which prohibits churches from incorporating – violates the United States Constitution. My son, Jerry Falwell, Jr., chief counsel for Liberty University, and Mathew Staver, chief counsel at the Orlando, Fla.-based Liberty Counsel, are representing me in this suit.
My suit also challenges state law, which prohibits churches from owning more than 15 acres of property in cities or 250 acres in any one county, and which also requires churches to obtain court oversight regarding the disposition of any real property. In addition, state law prohibits churches from owning more than $10 million in personal property.
These laws restricting religious freedom resemble laws that one would expect to find in one of the former Soviet-controlled states, not in the United States of America. However, churches in Virginia have operated under these restrictive laws since the early days of our state’s history.
Thomas Road Baptist Church, which I founded as a young pastor in 1956, is presently located on 25 acres of property in Lynchburg. Because the church is prohibited from incorporating in Virginia, the title of the property is held by trustees. However, we have plans now to build a new sanctuary on a 60-acre plot of land that is adjacent to the Liberty University campus. The church wants to conduct services in both locations, but state law enjoins us from owning more than 15 acres of property, unless the local city increases the amount to 50 acres.
Upon completion of the new sanctuary, Thomas Road Baptist Church will occupy more than 50 acres of land within the city of Lynchburg. Thus the quandary – what to do with property in excess of 50 acres?
Only two states — Virginia and West Virginia — currently prohibit churches from incorporating and limit the amount of property churches may own. (Following the split from Virginia in 1863, West Virginia incorporated Virginia law into its own state constitution and statutes.)
The origin of the Virginia constitution provision prohibiting churches from incorporating, and state statutes limiting the amount of property a church may own, can be traced back to the 1600s. In 1609, the Anglican Church was established in Virginia. The Episcopal Church later replaced the Anglican Church. Thomas Jefferson and James Madison led a movement in opposition to the incorporation of churches within Virginia in the late 18th century. The theories of church-state separationism professed by Madison and Jefferson are reflected in Virginia’s constitutional ban against church incorporation.
Because the church in England owned an extensive amount of property, movements to disestablish state religions in this country took on the form of prohibiting incorporation. An unincorporated association could not hold property in its own name, and thus the provisions passed in Virginia were designed to limit the power of churches. In 1832, the Virginia Supreme Court candidly acknowledged “the decided hostility of the legislative power to religious incorporations.”
This fear of denominational dominion was certainly understandable at the time, given the religious intolerance our forefathers had escaped in England. They wanted to do all they could to prevent similar problems in our new nation. However, while these laws may have once served a clear purpose, I believe they are now patently antiquated.
My lawsuit requests the federal court to immediately enjoin the enforcement of Virginia constitution, Article IV, section 14(20) (prohibition against incorporation), Virginia’s statutes, section 57-12 (limitation on real and personal property) and 57-15 (court oversight of church land transactions), and Lynchburg ordinance, section 18-46 (limitation on land ownership).
“The archaic Virginia laws no longer serve a present-day purpose and, in fact, are blatantly hostile toward churches,” said Mathew Staver..
Jerry Falwell, Jr. added that, “The Supreme Court has required, at a minimum, that the government remain neutral toward religion, but these Virginia laws are designed to suppress churches and cause the state to collide with religion.”
Tragically, the state continues to enforce these outmoded laws. Requiring court oversight of all land transactions actually entangles the state with religion. In this case, the state of Virginia would have to somehow bifurcate our new church sanctuary into portions owned by the church and portions owned by some other non-church entity.
Should we win this important religious-freedom case, churches in Virginia will have escaped unnecessarily repressive laws that no longer have any meaning at all.
