If you find the title to today’s editorial confusing, just keep reading and by the end, everything should make sense.
Yesterday, we covered Amendments 1 and 4. Today’s we’re going to explain what Amendment 3 — “Incorporation of Churches or Religious Denominations” — is all about.
Amendment 3 is the least controversial but perhaps the most confusing. The proposed amendment changes a section of the West Virginia Constitution from “Incorporation of religious denominations prohibited” to “Incorporation of religious denominations permitted,” deletes the sentence “No charter of incorporation shall be granted to any church or religious denomination” and adds the sentence “Provisions may also be made by general laws for the incorporation of churches or religious denominations.” The remainder of the code would stay the same and read: “Provisions may be made by general laws for securing the title to church property, and for the sale and transfer thereof, so that it shall be held, used, or transferred for the purposes of such church or religious denomination.”
In short, the original state code says the state cannot grant charters of incorporation to churches or religious denominations. The amendment says the state can.
Here’s why it may be confusing: Despite what the state constitution says, West Virginia has been granting charters of incorporation to churches for almost two decades.
Back in 2002, the U.S. Supreme Court ruled a Virginia prohibition against incorporating churches was unconstitutional. That ruling made the West Virginia law unenforceable, but it did not remove the language from the state’s constitution. If voters approve Amendment 3, then the prohibitive language will be removed from the constitution. If voters do not approve Amendment 3, the business of incorporating churches will still continue as it has for the last 20-ish years.
So why is Amendment 3 even on the ballot? As we recently saw, Supreme Court decisions can be reversed, and old laws can go back into effect. If a future court were to revisit that 2002 case and overturn the ruling, West Virginia’s law would once again be enforceable — unless voters approve an amendment now to alter the language.
As we’ve reported, churches incorporate in order to obtain some legal protections, such as liability, and to make it easier to borrow money and purchase property.
So what voters are really deciding is whether or not to bring West Virginia state code in line with federal laws and to protect the current practice of incorporating churches rather than rely solely on a Supreme Court ruling.
Or, as our title suggests, voters are deciding whether or not to legalize an illegal (in West Virginia) yet legal (according to federal laws and courts) practice.