West Virginia’s Complicated Relationship with Church Incorporation

By H. Robert Showers, Esq. and Justin R. Coleman, Esq.

West Virginia’s current Constitution prohibits the State from allowing any church under its authority to incorporate, making it the last state not to allow church incorporation. Article VI, Section 47 of the West Virginia Constitution explicitly states: “No charter of incorporation shall be granted to any church or religious denomination.” [1] Surprisingly to some, this provision was anything but a recent development. In fact, West Virginia’s prohibition against church incorporation is a vestige of Virginia’s former constitutional prohibition, which the 2002 Falwell v. Miller decision [2] finally eradicated.

By the end of 2006, Virginia’s legislative and constitutional changes had fully instituted church incorporation. Following Virginia’s long-awaited acquiescence to religious liberty, West Virginia was the only state in the Union that prohibited church incorporation.

The effects of Falwell and the Virginia constitutional changes were not confined to the borders of Virginia; rather, Virginia’s legal revolution catalyzed sudden statutory changes in West Virginia. Until 2003, West Virginia Code Section 31E-3-301 stated:

(a) Corporations may be organized under this chapter for any lawful purpose, including any one or more of the following purposes: Charitable, benevolent, eleemosynary, educational, civic, patriotic, political, social, fraternal, literary, cultural, athletic, scientific, agricultural, horticultural, animal husbandry, and professional commercial, industrial or trade association.

(b) No charters or certificates of incorporation may be granted or issued to any church or religious denomination. [3]

The original Section 31E-3-301 was a “safety net” undergirding the West Virginia Constitution’s prohibition of church incorporation. With both of these provisions in place, a church was entirely precluded from incorporating. However, the West Virginia legislature swiftly amended Section 31E-3-301 soon after Virginia’s Falwell decision.

The statute’s amended text reads as follows:

Corporations may be organized under this chapter for any lawful purpose, including any one or more of the following purposes: Charitable, benevolent, eleemosynary, educational, civic, patriotic, political, religious, social, fraternal, literary, cultural, athletic, scientific, agricultural, horticultural, animal husbandry, and professional commercial, industrial or trade association [4] (emphasis added).

The West Virginia legislature not only struck out the portion of the statute prohibiting incorporation, but also specifically inserted the word “religious” into the list of purposes for which an organization could incorporate. It is apparent from the amended statute that the West Virginia legislature was finally conforming to the national status quo. However, this legislative shift entirely flouted the still-unaltered State Constitution. The new language of Section 31E-3-301 was a subtle—but illegal—attempt to subvert the Constitution’s explicit prohibition of church incorporation.

The West Virginia Secretary of State’s office apparently sided with the legislature in ignoring the West Virginia Constitution. Any West Virginia organization that wishes to incorporate must be authorized by the Secretary’s office—and hundreds of churches since the Falwell decision have done so, despite the constitutional prohibition. [5] From conversations with officials in the Secretary of State’s Business and Licensing Division, it is clear that West Virginia officials were unaware, until recently, of the State Constitution’s prohibition on church incorporation. Regardless, hundreds of West Virginia churches became illegally incorporated, and if their status were ever challenged in court, they would likely lose.

To complicate matters even further, the people of West Virginia voted against a constitutional amendment that would have allowed churches to incorporate.

In April 2021, the West Virginia House and Senate adopted Senate Joint Resolution 4 (hereafter “the Amendment”), which would have altered West Virginia Constitution Article VI, Section 47 to read as follows:

47. Incorporation of religious denominations prohibitedpermitted.

No charter of incorporation shall be granted to any church or religious denomination.  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. Provisions may also be made by general laws for the incorporation of churches or religious denominations. [6]

The Amendment—upon voter approval in November 2022—would have resolved the bizarre conflict between the prohibition of Constitution Section 47 and the permissiveness of Code Section 31E-3-301. Following the Amendment, churches in West Virginia finally would have been able to incorporate with no legal qualms.

But the citizens of West Virginia would not accept this result. In November 2022, roughly fifty-five percent of voters affirmed the Constitution’s prohibition by voting against the Amendment. [7] This development made the issue more split than ever: The West Virginia Constitution and people are against church incorporation, but West Virginia Code expressly allows churches to incorporate. Nonetheless, the Constitution has the final say, so the “incorporated” churches in West Virginia are on shaky ground at best.

UPDATE (October 4, 2024): After the failed referendum, the West Virginia Secretary of State began denying churches’ applications to incorporate. [8] Hope Community Church of Hedgesville, West Virginia, sued the WV Secretary of State for an injunction and declaratory judgment that the WV Constitution’s prohibition violates the U.S. Constitution’s Free Exercise clause. [9] On behalf of the church, Reynolds Law Group filed a Motion for Judgment on the Pleadings in the U.S. District Court for the Northern District of West Virginia. [10] On September 26, 2024, the Judge granted judgment on the pleadings for the church, requiring the WV Secretary of State to issue certificates of incorporation to churches in the state. [11]

Any West Virginia church that “incorporated” before October 2024 technically did so illegally—regardless of the Secretary of State’s permission. Churches need not fear penalties or other retaliation for their illicit incorporation. However, they would be wise to contact knowledgeable church and non-profit attorneys to help strengthen their legal standing to the extent possible.

Churches that wish to incorporate now that West Virginia’s prohibition is null should immediately seek legal counsel for advice in this novel territory. Simms Showers employs a number of experienced church/nonprofit attorneys who are ready and able to help churches navigate the challenges of incorporating in West Virginia.

Legal Disclaimer: This memorandum is provided for general information purposes only and is not a substitute for legal advice particular to your situation. No recipients of this memo should act or refrain from acting solely on the basis of this memorandum without seeking professional legal counsel. Simms Showers LLP expressly disclaims all liability relating to actions taken or not taken based solely on the content of this memorandum. Please contact Justin Coleman at jrc@simmsshowerslaw.com for legal advice that will meet your specific needs.

1. Va. Const. art. VI, § 47.
2. Falwell v. Miller, 203 F. Supp. 2d 624 (W.D. Va. 2002).
3. Va. Code § 31E-3-301 (amended 2003).
4. Id.
5. The largest open database of companies in the world, opencorporates.com, https://opencorporates.com/companies/us_wv?q=church&utf8=%E2%9C%93, (filter “Jurisdiction” to “West Virginia,” then search for “church”).
6. S.J. Res. 4, 2021 Leg., 85th Sess. (W. Va. 2021).
7. West Virginia Amendment 3 Election Results: Allow the Incorporation of New Religious Denominations and Churches, N.Y. Times, https://www.nytimes.com/interactive/2022/11/08/us/elections/results-west-virginia-amendment-3-allow-the-incorporation-of-new-religious-denominations-and-churches.html (last visited Mar. 10, 2023).
8. Plaintiff’s Motion for Judgment on the Pleadings at ¶ 15, Hope Community Church v. The Honorable Mac Warner, No. 3:23-CV-231 (N.D. W. Va. filed Jan. 25, 2024).
9. Id. at 16.
10. Id. at 1.
11. Hope Cmty. Church v. Warner, No. 3:23-CV-231, 2024 U.S. Dist. LEXIS 174965, at *6 (N.D. W. Va. Sept. 26, 2024).