America is one of the most litigious countries in the world. Our culture is also becoming increasingly hostile toward biblical values. Therefore, when a church carries out culturally rejected practices of pastoral care and personal accountability, such as biblical church discipline, it will sometimes receive a letter from a member’s attorney threatening to sue the church for defamation, invasion of privacy and intentional infliction of emotional distress. Church leaders who refused to back down from such threats have sometimes found themselves forced into court, subjected to days of stressful cross-examination and shocked to see juries penalize their churches with six-figure damages awards. This trend was accelerated by a 1984 court decision called Guinn v Collinsville Church of Christ, which resulted in a $390,000 judgment against a church and its leaders, and has continued to expand through similar court decisions since then.
Many of these judgments have occurred because churches failed to clearly establish and communicate how they will exercise pastoral care over members who persist in conflict and sin. As a result, unrepentant members have been able to persuade modern juries that a church’s actions were unreasonable and offensive, which is not difficult to do in a culture that prizes autonomy and despises accountability.
Even when churches have won in court, they usually pay an enormous price in terms of legal fees, lost time and energy, damaged witness, distraction from ministry and congregational confusion and dissension. Therefore, in today’s legal climate, it is not good enough for a church to behave so well that it will prevail in a lawsuit. Instead, churches must act with such wisdom and integrity that they will prevent lawsuits from being filed in the first place.
The most important step in avoiding legal liability is to obey Jesus’ timeless command to treat others the same way you would like to be treated yourself (Matt. 7:12). For church leaders, this means, among other things, being authentically approachable and accountable, building safeguards against the misuse of power in the church, exercising discipline in a gentle and redemptive manner, and making every reasonable effort to protect members from foreseeable harm. (You can learn additional leadership safeguards through our free online course, The Relationally Wise Leader). The consistent practice of these principles will help your church avoid many of the relational missteps that cause offense and lead to legal threats.
But even when you treat others in a way that is loving, redemptive and biblically appropriate, some people may still take offense, especially if they are angry that their sins of dishonesty, pride, lust or adultery are being addressed in an attempt to restore them to a right relationship with God and others, as Jesus commands in Matthew 18:15-20.
In these situations, one of the most effective ways to prevent a lawsuit is to have previously adopted explicit biblical policies that clearly and comprehensively describe how your church will shepherd its members, especially when carrying out pastoral ministry intended to restore a member who is caught in sin (Gal. 6:1; Luke 15:1-7; Matt. 18:12-20). These types of policies will provide your church with one of the most effective defenses against any lawsuit: informed consent. To secure this defense, a church needs to be able to prove that the person complaining of a wrong was fully informed of the church’s pastoral policies and procedures and knowingly consented to be bound by them.
Although many churches have provisions in their bylaws about “exercising discipline pursuant to Matthew 18,” this kind of general statement is completely insufficient for today’s individualistic and anti-church legal climate. Therefore, it is essential that churches update their governing documents by adding more detailed language that preserves the church’s right to shepherd its flock and rescue wayward members from sin.
This added language should address specific challenges that may arise, such as disclosing or withholding confidential information, continuing discipline after a member attempts to leave the church or informing your members of your disciplinary actions in order to protect others from harm (e.g., when a dishonest businessman is defrauding senior members through misleading investment schemes, or an immoral man is seducing young women in singles groups ).
Based on our experience in mediating and arbitrating hundreds of lawsuits against churches, RW360 has developed model “Relational Commitments” that churches can use to define and communicate their policies on conflict resolution, divorce and remarriage, counseling methodology and limitations (including the “clergy-penitent privilege“), confidentiality and church discipline. Churches may adapt these model commitments according to their ecclesiastical beliefs and practices, and then make this document available to their members to clearly establish the pastoral and relational practices that will be followed in their church.
By adopting this type of governing document, churches can strengthen their ability to live out the gospel and obey God’s command to restore straying sheep, while simultaneously reducing their exposure to legal threats. [1]
Click here to download model Relational Commitments (a Word document that will appear in your Downloads folder).
~ Ken Sande
[1] One attorney who reviewed these commitments said he would have probably charged at least $20,000 to research and write a resource that so carefully integrated sound theology with sound legal risk management. RW360 is making this resource available to churches for free.