W.Va. Churches Now Eligible To Incorporate

Updated on Monday, September 30, 2024 at 3:40 p.m.

Churches and religious organizations in the Mountain State can now also operate as businesses, following a Thursday decision from the United States District Court for the Northern District of West Virginia.

The federal court ruled that a clause of the West Virginia Constitution prohibiting churches and religious bodies from incorporating violates the First Amendment of the United States Constitution, which protects the “free exercise” of religion.

Incorporation is the process of registering a business with the state government as a legal and financial entity. Corporations have central management and are owned by shareholders who are “not personally liable for the obligations of the company,” according to the West Virginia Secretary of State Business Division.

West Virginia was the only state in the nation that prohibited churches from incorporating, according to the district court. Virginia had a similar provision in its constitution until 2002, when a separate district court ruled the policy unconstitutional.

The district court’s memorandum opinion and order released last week said the West Virginia secretary of state “began issuing certificates of incorporation to churches” after the 2002 decision, despite being prohibited under state law. According to Michael Queen, deputy chief of staff and director of communications for the secretary of state’s office, the practice was followed through three different secretary of state tenures, resulting in the registration of more than 400 religious groups as nonprofit corporations in West Virginia.

The court said this practice continued until 2022, when a ballot measure to remove the policy from the West Virginia Constitution was voted down by the public.

“After the majority of voters voted down the proposed amendment, and given the previously cited constitutional language, there was no longer an arguable potential for exercising discretion when interpreting the incorporation prohibition, and our office stopped accepting corporate filings from churches and religious organizations to form nonprofit corporations,” Queen wrote in a Monday email to West Virginia Public Broadcasting.

The state then continued to refuse applications to incorporate from churches until a complaint was filed by Hope Community Church, located in the Berkeley County town of Hedgesville. The church did not respond to phone call or email requests for comment on this story.

The West Virginia secretary of state filed an answer to this complaint, after which the church filed a motion for judgment from the court. This gave the district court the opportunity to review the provision in the state’s constitution, which it ultimately deemed unconstitutional.

“West Virginia’s prohibition on the incorporation of churches is neither neutral nor generally applicable because it denies incorporation to a defined class of individuals solely based upon their religion,” read the decision. “Every other group in West Virginia may apply for incorporation, but members of ‘any church or religious denomination’ are uniquely prohibited from incorporating the organizations to which they belong.”

Queen said the court’s decision took effect immediately upon release.

“The staff in the West Virginia secretary of state’s office has been made aware of this judicial directive,” Queen wrote. West Virginia Secretary of State Mac Warner “has indicated that we will no longer reject applications for incorporation by churches or religious organizations.”

Queen wrote that he has not personally seen any requests to incorporate from churches since the decision was released Thursday. Any religious groups interested in registering would file an application with the secretary of state’s office including articles of incorporation and a 501(c)(3) statement from the Internal Revenue Service, he wrote.

Queen also said Warner has no plans to appeal the court’s decision.

View the full text of the court decision here:

**Editor’s note: This story was updated to include comment from Michael Queen, deputy chief of staff and director of communications for the West Virginia secretary of state’s office.