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Open letter to the Houston, Texas City Attorney concerning the subpoenas duces tecum of certain pastors

Jerald Finney
October 16, 2014

Mainstream “Christians” are up in arms about some subpoenas duces tecum to certain pastors issued by the city of Houston. The story as it has unfolded to this point, 1:27 p.m. October 16, 2014, is reported in the following articles:

Mayor, city attorney distance themselves from sermon subpoenas: http://www.chron.com/news/politics/houston/article/Parker-calls-ERO-sermon-supboeana-overly-broad-5824816.php

Houston mayor, city attorney: On second thought, maybe those subpoenas were a wee bit broad: http://hotair.com/archives/2014/10/16/houston-mayor-city-attorney-on-second-thought-maybe-those-subpoenas-were-a-wee-bit-broad/

Houston Mayor backs off subpoenas to pastors: http://www.breitbart.com/Breitbart-Texas/2014/10/15/BREAKING-Houston-Mayor-Backs-Off-From-Subpoenas-to-Pastors

City of Houston demands pastors turn over sermons: http://www.foxnews.com/opinion/2014/10/14/city-houston-demands-pastors-turn-over-sermons/

This believer is dismayed with the unlearned positions of the Christian representatives as reported in the news. Of course, news media is not always reliable. This author wishes to set the record straight as to some of the incorrect “Christian” positions involved in this controversy. The following is an open letter which was just e-mailed to David Feldman, the Houston, Texas city attorney.

Jerald c. Finney

Attorney at Law
P.O. Box 1346
Austin, Texas 78767
Phone: (512)385-0761
Fax: (512)385-0761
E-mail: jerald.finney@sbcglobal.net

11/15/2014

City of Houston Legal Department
P.O. Box 368
Houston, TX 77001-0368

ATTN: City Attorney David Feldman

RE:  False assertions by Christian leader in the matter concerning subpoena (and subpoena duces tecum) controversy.

Dear Mr. Feldman:

As an attorney who has practiced church and state law since 2005, I am very concerned about the false alleged representations of Tony Perkins (as reported in the news). I am a Christian and I find it very vexing to look at the incorrect assertions of other “Christians” in controversies between church and state. It is time that the truth be brought out when the relationship between church and state in the United States comes to the forefront.

I understand that one cannot depend upon news sources for the truth. I wish to address what Tony Perkins is reported to have said (the source is http://www.foxnews.com/opinion/2014/10/14/city-houston-demands-pastors-turn-over-sermons/). The linked article states that Perkins said:

“Tony Perkins, the head of the Family Research Council, said pastors around the nation should rally around the Houston ministers.

“‘The state is breaching the wall of separation between church and state,” Perkins told me. ‘Pastors need to step forward and challenge this across the country. I’d like to see literally thousands of pastors after they read this story begin to challenge government authorities – to dare them to come into their churches and demand their sermons.’

“Perkins called the actions by Houston’s mayor ‘obscene’ and said they ‘should not be tolerated.’

“‘This is a shot across the bow of the church,’ he said.

“This is the moment I wrote about in my book, ‘God Less America.’ I predicted that the government would one day try to silence American pastors. I warned that under the guise of ‘tolerance and diversity’ elected officials would attempt to deconstruct religious liberty.

“Sadly, that day arrived sooner than even I expected.”

I take issue with Perkins on several counts and advise pastors that they should not rally around the Houston “ministers,” unless those Houston ministers and their representatives as well as the pastors who would rally around them repent of their lack of knowledge, embrace knowledge, and then proceed accordingly.

My first contention is that the state is not necessarily “breaching the wall of separation of church and state.” Whether the subpoenas were overbroad is a totally legal matter. However, if a church involved is a legal entity such as an incorporated Internal Revenue Code Section 501(c)(3) religious organization, that church has already combined with the state thereby rejecting the Biblical and First Amendment principle of “separation of church and state.” I explain these matters in much detail in God’s Churches/Spiritual or Legal Entities (a fairly short work which explains church incorporation and Internal Revenue Code Section 501(c)(3) status), and also in the much more comprehensive book God Betrayed/Separation of Church and State: The Biblical Principles and the American Application. I also maintain a website on which all my articles, audio teachings, and books are available free. I will just briefly explain some of the intricacies of these matters in these letters. For more details, refer to the resource list at the end of this letter.

Perkins complains that the state is breaching the wall between church and state. How can he make such a complaint when incorporated 501c3 churches have already given up much or their protections under the First Amendment to the United States Constitution? They have gone to the state for legal status and certain perceived protections. They have decided to become legal entities and agreed to the terms of that new status.

By contracting with the state through incorporation, churches supposedly gain certain “protections” while giving up certain constitutional rights. While a corporate church must “obey the laws of its creation,” it also has constitutionally protected rights which are quite different and less effective than the rights she had while a spiritual entity protected by God and the First Amendment. A church which is not satisfied with God’s liberty, provisions, and protections (protection of which is guaranteed by the First Amendment) seeks incorporation.  Incorporating a church alters the legal status of that church.

Incorporation places the church partially under the Fourteenth Amendment to the United States Constitution as a “artificial person.” Such an artificial person is a legal fiction or a creature of statute.

  • Civil law makes clear that the sovereign of the corporation is the state.
  • The civil law of incorporation excludes God entirely as regards certain matters controlled by the contracts created by incorporation. A court will not consider biblical principles in a matter involving a contract dispute out of an incorporated “church.” The court will only look at secular laws and cases. Of course, courts have declined involvement with “ecclesiastical” matters. The court will decide what is ecclesiastical and what is not.
  • Incorporation creates several contractual relationships. Contracts are between the state and the corporation, between the corporation and its members, between the members themselves, and between the members and the state.

Most incorporated churches also seek and obtain Internal Revenue Code Section 501(c)(3)(“501c3”) or Section 508) status. Such status further compromises the First Amendment and Biblical status of churches. Either status subjects churches to five rules:

 “1. must be organized and operated exclusively for religious, educational, scientific, or other charitable purposes,

“2. net earnings must not inure to the benefit of any private individual or shareholder,

“3. no substantial part of its activity may be attempting to influence legislation,

“4. the organization may not intervene in political activity,

“5. the organization’s purposes and activities may not be illegal or violate fundamental public policy.”

 Obviously, 501c3 is federal law whereas incorporation is state law. However, one must review the state laws of incorporation to understand the relationship of 501c3 status with state law. At the very least, a church which violates (a) 501c3 rule(s) can be audited by the Internal Revenue Service with the option of appeal to federal court from agency determinations. Furthermore, it seems that by obtaining 501c3 status a church has admitted that those matters which are implicated by the 501c3 rules are not ecclesiastical and that infringements of those rules are subject to court action.

I get into these matters much more thoroughly in the resources mentioned above and linked to below.

The point is that these churches have voluntarily given up much of their First Amendment protections and are subject to court action as to certain matters. They are willing parties to the contracts and rules created by incorporation and 501c3 status. They have agreed that the state, through its courts, is the controlling party and that they will abide by the decisions of those courts. When an action is initiated in court, all constitutional and statutory rules and procedures apply. An action may be attacked using every legal maneuver provided for. In the matter at hand, incorporated 501c3 churches may not maintain that they have all their First Amendment rights since they now fall under the Fourteenth Amendment as to non-ecclesiastical matters. The court, being the controlling party, as stated above, decides what is ecclesiastical and what is not. Again, 501c3 churches have, in return for what they perceive to be benefits from the federal government, conceded that certain matters are not ecclesiastical.

By willingly (or ignorantly) becoming legal entities, these churches have denounced the Biblical principle of separation of church and state and placed themselves partially under a head other than the Lord Jesus Christ. Ironically, sometimes such churches argue that separation of church and state is not in the constitution and at other times they argue that the state is breaching the wall between church and state. They also sometimes make the false argument that the wall between church and state is only meant to keep the state out of church affairs and not the church out of state affairs, even though most such churches have corporate 501c3 status and have agreed to the accompanying laws and rules.

 Yours most sincerely,

 

Jerald C. Finney

Jcf

P.S. Following are links to the free online and PDF forms of books and other works by Jerald Finney.

All books, except An Abridged History of the First Amendment, by Jerald Finney are available free in both PDF and online form. One may go to Order information for books by Jerald Finney should he desire to order any of the books which are in print.

God Betrayed/Separation of Church and State: The Biblical Principles and the American Application (Link to preview of God Betrayed)(Free: PDFonline form) may be ordered from Amazon by clicking the following link: God Betrayed on Amazon.com or from Barnes and Nobel by clicking the following link: God Betrayed on Barnes and Noble. All books by Jerald Finney as well as many of the books he has referenced and read may also be ordered by left clicking Order Information for Books by Jerald Finney or directly from Amazon by going to the following links:

  1. Render Unto God the Things that Are His: A Systematic Study of Romans 13 and Related Verses (Kindle only)(PDFonline form);
  2. The Most Important Thing: Loving God and/or Winning Souls (Kindle only from Amazon.com; see Order information for books by Jerald Finney to order directly from Kerygma Publishing Co.)(PDFonline form) ;
  3. Separation of Church and State/God’s Churches: Spiritual or Legal Entities? (Link to preview of Separation of Church and State/God’s Churches: Spiritual or Legal Entities?) which can also be ordered by clicking the following Barnes and Noble link: Separation of Church and State on Barnes and Noble (PDFonline form)
  4. An Abridged History of the First Amendment is available in online and  PDF form only.
  5. Tract on the legality of street preaching is available in PDF only.
  6. “Quick Reference Guide for Churches Seeking to Organize According to the Principles of the New Testament” is available in PDF only.
  7. Miscellaneous articles by Jerald Finney.
  8. Links to some of Jerald Finney’s writings on legal issues.

Click here to see for updated list of Finney’s books. This Endnote is complete up to August 1, 2014.

The following links are to the PDF versions of books, booklets, and pamphlets by Jerald Finney

God Betrayed/Separation of Church and State: The Biblical Principles and the American Application

Separation of Church and State: God’s Churches – Spiritual or Legal Entities?

Render Unto God the Things that Are His: A Systematic Study of Romans 13 and Related Verses

The Most Important Thing: Loving God and/or Winning Souls

An Abridged History of the First Amendment

Quick Reference Guide for Churches Seeking To Organize According To New Testament Guidelines

Tract: “Street Preaching In America: Is It Legal?”


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