In many churches, new members affirm vows that include a commitment to submit to the government and discipline of the church. Often, this affirmation is made verbally before the congregation. While spiritually meaningful, the church should consider bolstering that verbal affirmation with a written one.

As an initial matter, churches who practice church discipline should provide robust details about the disciplinary process and procedures in their constitution or bylaws. Typically, they will outline both informal and formal disciplinary procedures, which may include:

1. Private informal confrontation;
2. Private formal admonishment by witnesses;
3. Public admonishment; and
4. A formal hearing that may result in excommunication.

These processes are designed to be redemptive and restorative, but they can also become flashpoints for legal conflict if a member feels or alleges they are not properly documented or communicated.

The Risk of Undocumented Consent

A recent occurrence illustrates the potential problems churches face when there is no written or documented consent. A particular church received a letter from an attorney representing a former member who had been subject to church discipline. The letter threatened legal action, including criminal charges, against the church’s leadership for counseling the member’s family and proceeding with discipline after the member attempted to resign.

Although the member had signed a general statement of submission to church leadership, the document did not clearly outline the disciplinary process or require explicit consent to it. While the former member was clearly out of line, this lack of clarity opened the door to legal threats and confusion.

Strengthening the Church’s Legal Position

To mitigate these risks, churches should consider implementing a more formal process for documenting a member’s informed consent to church governance and discipline. This could include:

• A written membership application that includes a summary of the church’s disciplinary procedures;
• A signed acknowledgment that the member has read and agrees to the church’s constitution, including its discipline provisions;
• A clear explanation that resignation does not nullify ongoing disciplinary proceedings.

Such documentation not only strengthens the church’s legal position, but also reinforces the seriousness and spiritual weight of church membership.

Addressing the Resignation Loophole

Some church constitutions wisely include provisions that prevent members from resigning in order to escape discipline. For example, a clause might state that any resignation offered to thwart corrective discipline is invalid. This ensures that the church retains the authority to complete the disciplinary process, even if the member attempts to withdraw.

Churches should review their governing documents to ensure they include similar language. Additionally, they should consider whether the language clearly defines when a member is considered “under discipline,” to avoid ambiguity that could be exploited.

Conclusion: Legal Counsel as a Ministry Partner

While no document can completely shield a church from legal threats, a well-drafted membership agreement and constitution are the first lines of defense. By seeking legal guidance and implementing clear, documented procedures, churches can carry out this responsibility with both spiritual integrity and legal prudence. If you would like assistance with writing or revising your church’s disciplinary policies and procedures, or navigating a disciplinary issue, our attorneys are here to assist.