What do a New York non-denominational Christian church, a Jewish synagogue, and a Buddhist temple have in common? Each house of worship is probably incorporated under Article 10 of the New York Religious Corporation Law’s (“RCL”), a catch-all provision for “other denominations” not covered by other provisions of the RCL. But other denominations have an additional, but often overlooked, option in RCL Article 9. New York churches should understand differences between these options, and ensure their practice complies with their governance documents and the law.
New York’s Religious Corporations Law is old—portions of it go back to 1784—and can seem odd to modern eyes. For starters, in most states, religious organizations incorporate under state laws governing non-profits generally.[1] In New York, churches[2] incorporate under special religious corporation structures, broken into individually tailored provisions tracking the internal rules of various Christian denominations. These denomination-specific provisions are a historic legacy of the state churches of the original colonies.[3] But while most states with denomination-specific rules cover one or two denominations, New York provides special rules for at least thirty-five separate denominations, including Episcopal, Presbyterian, Roman Catholic, Orthodox, Reformed Dutch, Lutheran, Baptist, Ukrainian Orthodox, Methodist, Assemblies of God, and Coptic Orthodox.[4]
What about everyone else? Other churches can choose between one of two “catch-all” Articles. The more common, with a more developed set of governance procedures, is Article 10, “Other Denominations.” Article 9, “Free Churches,” in contrast, is defined less by what it requires than what it forbids: churches incorporated under Article 9 are prohibited from charging a “pew fee”[5]—a historical anomaly for all but a few religious groups.
New York churches are governed in part by specific requirements contained in the RCL article under which the church is incorporated. Under both Article 9 and Article 10, a group of trustees oversee the “temporal,” ie non-spiritual, affairs of the church, such as budgeting or the purchase of property. Unlike Article 9, Article 10 gives church members a non-negotiable level of control. Members of Article 10 churches have statutory voting rights over key matters such as hiring a minister, selling property, and electing Trustees. Under Article 10, the members are the church; the trustees are merely the members’ delegates, entrusted to manage temporal affairs, and prohibited from making certain “spiritual” decisions. Under Article 9, a self-perpetuating Board of Trustees functions as the church. Church members do not have voting rights.
The choice between Article 10 and Article 9 is, at heart, a choice about who governs the church: the full body of members or a board of trustees. The chart below highlights key differences in more detail. Whatever form a church takes, it is critical to understand and abide by the accompanying governance provisions—both those adopted by the church and those mandated by statute. Failure to do so could result in disputes over employment, property, and other matters. New York courts have invalidated decisions made by Article 10 churches without required member approval. But by understanding the RCL, a church can choose and follow a structure that supports its values, and spend less time trouble-shooting and more time advancing its mission.
| Article 9 | Article 10 | |
| Incorporation | 7 or more people, called “subscribers,” sign and file a certificate of incorporation and obtain judicial consent. All initial subscribers must be *U.S. citizens, and at least a majority must be New York residents. | 6 or more church members post notice of a meeting for incorporation. Qualified voters vote to incorporate, then file a certificate of incorporation. |
| Number of Trustees | Initially 7; may later be increased up to 11. | Initially 3, 6, or 9; may later be changed to any increment of 3 between 3 and 24. |
| Qualifications of Trustees | At least 5 of the initial trustees may not be ministers of any denomination. Successor trustees must be *U.S. citizens and New York residents. | Chosen from qualified voters at the meeting for incorporation; thereafter elected by members. Voter qualifications may include membership in the denomination, regular attendance, or financial contributions. |
| Vacancies on the Board | When a board vacancy arises, the remaining trustees determine who will fill it. | Replacements and other board vacancies are filled by the members. |
| Term Length | No term limits. | 3 year, renewable term limits. |
| Board Control | The corporation is the Board of Trustees, who manage the temporal affairs of the church. Ministers or priests, who manage the spiritual affairs of the church, may never constitute a majority of the Board. | The corporation is the members, who elect trustees to manage the temporal affairs of the church. Only members can make certain church decisions, such as hiring or firing a minister. |
*This requirement may prove to be unconstitutional, but to my knowledge, it has never been challenged.
[1] A review of state law in 1995 counted twelve states offering special provisions for religious incorporation. Associational Structures of Religious Organizations, Patty Gerstenblith; 439 Brigham Young University Law Review (1995), at 450.
[2] “Church” is defined as “a religious corporation created to enable its members to meet for divine worship or other religious observances,” (N.Y. RCL Article 1 Section 2) and describes houses of worships of all stripes, including synagogues and temples.
[3] Gerstenblith, supra, n. 1, at 452, n. 41.
[4] See N.Y. RCL Articles 3-8B; 11-21.
[5] Historically, many charges charged a “pew fee” as a form of revenue. See, e.g., http://diosav.org/sites/all/files/archives/S8644p03.pdf (last viewed on November 09, 2014).