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Legal matters should concern churches, expert says

For more than 45 years, attorney Gary McKean has helped churches navigate their legal responsibilities.

LAYTON, Utah (BP) – When God created Gary McKean, He gave him flat feet, and gave Southern Baptists McKean’s legal expertise.

The flat feet canceled McKean’s dream of being a Naval officer. He turned to law instead because it “intrigued me, especially after taking an undergraduate Constitutional law course.”

McKean was honored during the recent annual meeting of the Utah Idaho Southern Baptist Convention for 15 years’ service as a volunteer on the state convention staff, but pre- and post-retirement as a county attorney he has served Southern Baptists for more than 45 years, including an eight-year stint (2006-2014) on the SBC Executive Committee.

“Gary’s work with our churches and legal guidance has saved our churches thousands of dollars and many headaches,” UISBC Executive Director Rob Lee told messengers to the two-state convention’s 58th annual meeting. “Without Gary’s legal guidance our state convention of churches would not function as effectively.”

One of the things McKean does each year is post in the December issue of UI Connections, the state convention’s online communications tool, three things churches need to do in December, and the one to be done in January.

He tells church leaders to check the applicable laws and procedures for their state or local governments and confirm their compliance for the following before the end of the calendar year:

  • Confirm that a corporate renewal form has been submitted to the state.
  • Designate by resolution the housing allowance for pastors for the coming year.
  • Confirm the renewal of the church’s property tax exemption with the county tax assessor.
  • In January, provide receipts or statements to all donors confirming each donor’s giving in the last year.

McKean talked with Baptist Press about how knowledge of legal matters is essential for pastors and churches these days.

“This is something that is generally not taught in seminaries,” McKean said. “The essential factor is that any given church has two natures: the spiritual or ecclesiastical and the business or corporate. Each engenders legal aspects. 

“It also means churches need to understand distinctions of function and responsibility between ecclesiastical leaders and corporate officers,” McKean continued. “Trustees have corporate duties and fiduciary roles that often are not understood by churches.” 

He notes that many churches are concerned with liability. Traditionally that has been based on claims of negligence, but today it may also be in terms of non-compliance, such as child safety. That necessitates well-considered risk management consisting of four basic components: having policies, training on those policies, monitoring compliance with these policies, and keeping records of all of that.

“More governmental regulations have to be dealt with, such as with property, zoning, tax exemption, employment, sex abuse, religious liberty and more,” the longtime attorney said. “The need for legal advice and legal awareness on such regulations and other laws is increasing exponentially.

“As long as there have been churches there have been legal matters to be addressed by the church. Over the last 30 to 40 years, the legal climate has been changing.” 

In today’s litigious climate, churches face a greater possibility of legal claims.

McKean listed several hot-button cultural issues that 10 years ago wouldn’t have been significant: transgender bathrooms for youth and children, same sex weddings, armed church security, various types of discrimination and the ongoing struggle to preserve religious liberties.

Courts will generally recognize a “ministerial exception,” meaning that the court will not rule on a theological or spiritual doctrine, but courts can and often will find there are secular aspects the court can rule on.

As stated in McKean’s report at the 2022 UISBC annual meeting, “Each church should take the time to review its governing documents, its articles of incorporation, constitution/statement of beliefs, bylaws, and policies. Churches should be made aware of legal trends, developments, and concerns as these may impact the church’s ministry.” 

Churches need to be aware that when churches close or disband, there is a legal responsibility to lawfully dissolve the church entity and properly dispose of any assets, McKean told Baptist Press. For example, trustees are responsible for those assets and could incur personal liability if they were to give assets to another church rather than applying those assets to a church debt or give any assets to individual church members.

McKean helps churches with all these issues, leads legal seminars and provides legal resources on the UISBC website.

“When we talk about legal things with churches, I try to impress on everybody that the purpose of the church’s governing documents is to encourage and enable the church to fulfill its mission,” McKean said. “The mission is everything.

“It’s important to understand what the law is, and what resources are available. There are a lot of Christian lawyers around the country. One important source for me is the Christian Legal Society. I’ve been very active in it for years. One reason is its central emphasis on fulfilling Micah 6:8.”

CLS serves Christ through the practice of law, the defense of religious freedom, and providing legal aid to the needy, according to its website. McKean and other Christian attorneys operated a CLS Legal Clinic in Layton for 20 years.

Insurance companies, Christian and religious liberties firms, Southern Baptists’ Ethics & Religious Liberty Commission and many state conventions make available resources, videos, webinars and more for churches. 

“These can be very informative and helpful,” McKean said. “Churches need to have a heightened awareness of the law and factor into that what they need to do next.”

What to do if a suit is filed against a church? Don’t panic, the attorney said.

  • First, contact and listen to an attorney, preferably a Christian who has some knowledge of how churches work. CLS can help locate an attorney.
  • Second, notify the church’s insurance company.
  • Third, designate a team and leader to deal with the suit. (Typically, that should be the trustees and their chairman.)
  • Fourth, keep the members informed.
  • And fifth, maintain a Christian witness through what can be a tiring and lengthy process.  

Churches ought to regularly review their governing documents – in particular their policies – and make sure they are following those policies, McKean suggested. They can have their local fire and law enforcement departments visit and inspect their facility for safety and security and provide training as well. They can consider having Christian attorneys or other experts lead seminars on children’s ministries, risk management, security, sexual abuse and more. 

“A church’s respect for the law will reflect the faith, character, and witness of the church and certainly its trust in God,” McKean said.