MARTINSBURG – A federal judge has ordered the West Virginia Secretary of State’s office to issue a certificate of incorporation to a Hedgesville church.
In her September 27 memorandum opinion and order, U.S. District Judge Gina Groh said the state Constitution violates the U.S. Constitution by prohibiting churches from incorporating.
“The West Virginia Secretary of State is hereby ordered that he may not refuse to issue a certificate of incorporation to the church based on Article VI, Section 47 of the West Virginia Constitution,” Groh wrote in her opinion.
Groh
| File photo
In December, Hope Community Church in Hedgesville filed its complaint in federal court against Mac Warner in his official capacity as Secretary of State.
The church, which was founded in 1937 and has continuously served as an Assemblies of God church since then, claimed the state Constitution provides that no charter of incorporation shall be granted to any church or religious denomination. But, following the 2002 Falwell v. Miller federal court decision in Virginia, the West Virginia Secretary of State’s office began issuing incorporation certificates to churches that applied for them.
The Falwell ruling held that Virginia’s constitutional prohibition against church incorporation violated the First Amendment right to free exercise of religion made applicable to the states by the Fourteenth Amendment.
The practice of the WVSOS office issuing incorporation certificates to churches continued until sometime at least in 2020, possibly longer, according to the complaint.
There are many reasons why churches and other ministries decide to incorporate. The most common reasons are to protect individual members from personal liability associated with the negligent actions of fellow members and to allow the church to operate as its own entity. Incorporation allows churches to manage assets like other nonprofit organizations and businesses.
West Virginia was the last state that prohibits religious incorporation, but it almost joined the rest of the nation a few years ago.
In 2021, the state Legislature adopted Senate Joint Resolution 4, proposing an amendment to the state Constitution to remove the prohibition on incorporation of churches and replace it with language expressly permitting churches to be incorporated.
Hope Community Church voted to incorporate and submitted articles of incorporation online to the WVSOS office on September 29, 2022.
But on November 8, 2022, voters rejected the amendment.
After that vote, Warner’s office refused to incorporate Hope Community Church. It received a letter from the office December 5, 2022.
“The church remains unincorporated and is prohibited from enjoying the benefits of incorporation provided to churches in the other 49 states and to other non-church entities in the State of West Virginia,” the complaint stated.
Groh’s order said denying a church the benefits of incorporation “because of their religious status” is unconstitutional. She also said there is no compelling reason to continue the practice.
“The state has not advanced any governmental interest, much less a compelling one, and the court finds no compelling interest exists in prohibiting ‘any church or religious denomination’ from seeking incorporation,” Groh wrote.
The church accused the WVSOS office of violating its right to free exercise of religion, right to equal protection and the Establishment Clause of the U.S. Constitution.
“The federal court ruled today that the West Virginia Constitution’s prohibition of church and religious organization incorporation is unconstitutional, and therefore, the West Virginia Secretary of State is prohibited from enforcing that provision,” Mike Queen, Deputy Chief of Staff and Director of Communications for Secretary of State Mac Warner said Friday. “The staff in the West Virginia Secretary of State's office has been made aware of this judicial directive.
“Secretary Warner has indicated that we will no longer reject applications for incorporation by churches or religious organizations.”
The church was represented by Charles S. Trump of Trump & Trump in Berkeley Springs and by Glenn S. Reynolds of Reynolds Law Group in Chesapeake, Va. Trump was a Republican state Senator who introduced SJR 4. This spring, he won a seat on the state Supreme Court. He joins the bench in January.
U.S. District Court for the Northern District of West Virginia case number 3:23-cv-231
