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DEFINING RELIGION IN AMERICAN LAW

by Bruce J. Casino

This paper will seek to provide an insight into the issue of how "religion" is to be defined. This issue is crucial to international human rights law since the protections afforded religious freedom by the various international and national treaties, conventions, declarations and constitutions apply only to religious beliefs and actions. The American legal system has long been concerned with this definitional issue and has developed more case law and legal commentary on the subject than any other nation. Thus the insights provided by American law may prove useful as governmental agencies or courts in other nations or international tribunals consider the issue.

The analysis included in this paper of the United States Internal Revenue Service criteria for determining whether an organization is a "church" for purposes of tax exemption also serves to develop the definitional issue and, in particular, to explore the dilemma of developing narrow definitional boundaries for religion.

According to one American court, a "religious organization" is merely "an organized association of persons dedicated to religious purposes." Therefore, if the organization is animated by religious belief, it cannot, by definition, fail to be a religious organization. Ordinarily, however, the American government and the courts have been reluctant to examine the content of religious belief.

Neither this court, nor any branch of this government, will consider the merits or fallacies of religion. Nor will the court compare the beliefs, dogmas and practices of a newly organized religion with those of an older,

more established religion. Nor will the court praise or condemn a religion, however excellent or fanatical or preposterous it may seem. Were the court to do so, it would impinge upon the guarantee of the First Amendment.

Judges and IRS officials are "not oracles of theological verity, and the Founders did not intend for them to be declarants of religious orthodoxy." It is obvious, however, that proper application of the tax laws respecting religious organizations requires a definition, or at least guidelines, meeting constitutional standards. The first amendment would indeed become "a limitless excuse for avoiding all unwanted legal obligations" if all claims to religious protection were accepted merely because they are asserted. Therefore, at least a working definition of religion is needed, so that minimum standards can be discerned and applied to "religious organizations" claiming tax-exempt status. Attempts to develop a working definition of "religion" in the American context must begin with the language of the United States Constitution, the intent of the framers, and interpretation by the Supreme Court.

I. The Framers' Intent

The first amendment declares, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ." The very terms of the Constitution render the definition of the term "religion" critical. The intent of the framers of the Constitution is a subject of much debate, and no consensus has emerged. Thomas Jefferson, James Madison and Roger Williams each influenced the drafters of the first amendment. Jefferson advocated total separation of church and state to protect the state from influences by churches. Madison believed that church and state could achieve best their respective purposes if each were free from interference by the other. Williams saw the need for the protection of religion from the control of government as the primary concern.

The framers thus did not share a single unitary notion of religion. Madison called religion "the duty which we owe to our creator, and the manner of discharging it." Jefferson, while theistic in outlook, embraced a much broader outlook concerning religion and what should be protected as religious. Jefferson's Act for Establishing Religious Freedom (in Virginia) "was meant to be universal . . . to comprehend within the mantle of its protection the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and infidel of every denomination." The framers, however, almost certainly did not foresee the problems that would emerge with the increase in the size and area of activity of government and the growing pluralism of the country.

II. Evolution of Supreme Court Efforts to Define Religion.

The Supreme Court made its first effort to define religion in 1890, ignoring Jefferson's universalistic approach in favor of the traditional theistic approach. In Davis v. Beason, the Court stated: "The term ‘religion’ has reference to one's views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will." This theistic notion of religion was dominant until the 1940's, when the Supreme Court, in a series of decisions, changed direction in regard to both the belief/action distinction and the theistic definition of religion. In United States v. Ballard, Justice Douglas, writing for the majority, embraced a much broader definition of religion:

Freedom of religious belief, is basic in a society of free men. It embraces the right to maintain theories of life and of death and the hereafter which are rank heresy to followers of orthodox faiths . . . . Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines of beliefs. Religious experiences which are as real as life to some may be incomprehensible to others. Yet the fact they may be beyond the ken of mortals does not mean that they can be made suspect before the law.

As Judge Hand had asserted, religion need not be bound by reason and logic. In Everson v. Board of Education, the principles of voluntarism, essentially the notion that belief should be free and not coerced, and separatism, the belief that religion and government should not involve themselves in the other’s activities, were developed. These two purposes find expression in the contemporary understanding of the two religion clauses of the Constitution: the free exercise clause and the establishment clause.

In Torcaso v. Watkins, the Court broke the theistic mold which had theretofore restricted the American legal definition of religion. According to the Court, the first amendment precluded government from aiding "those religions based on a belief in the existence of God as against those religions founded on different beliefs." The Court noted that "[a]mong religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and others." This expanded position reflected a recognition of the great diversity of religious beliefs in modern America.

While Congress has provided no definition of religion in the context of federal tax exemptions, it did so in the Universal Military Training and Service Act of 1948. The Act’s provision allowing a military exemption for those conscientiously opposed to war due to religious credences defined religious training and belief as "an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation but [not including] . . . essentially political, sociological, or philosophical views or a merely personal moral code."

In 1965, the Supreme Court interpreted this definition, in United States v. Seeger, to allow conscientious objector status to persons bound by a perceived duty to realities superior to man, but not affiliated with any orthodox religion. The Court found that Congress intended the term "Supreme Being" to encompass all religious but not purely political, sociological, or philosophical beliefs. Thus, the key determination was

whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption. Where such beliefs have parallel positions in the lives of the respective holders we cannot say that one is in a relation to a ‘Supreme Being’ and the other is not.

In Welsh v. United States, the Court reinforced Seeger’s interpretation of the Universal Military Training and Service Act, finding that although Welsh could not characterize his beliefs as religious, they nevertheless "function as a religion in his life," and holding that he was therefore qualified for exemption under the statute. The Court distinguished registrants who do not have strong convictions, and "those whose objection to war does not rest at all upon moral, ethical, or religious principle but instead rests solely upon considerations of policy, pragmatism, or expediency."

In 1972, Wisconsin v. Yoder indicated that the test arising out of Seeger and Welsh would not, in fact, allow the first amendment definition of religion to encompass the broad spectrum of beliefs recognized as the functional equivalent of religion in Welsh. In other words, functional equivalence in the statutory sense did not necessarily mean equivalence in the constitutional sense. The Court emphasized that philosophical and personal beliefs were not protected by the first amendment religion clauses, declaring that "the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests." In support of its decision to allow the Amish to remove their children from the public education system after the eighth grade, the Yoder Court emphasized the "almost 300 years of consistent practice" of the Amish in this regard, as well as the fact that the beliefs were shared by an organized group. Using age and organizational structure as criteria is a highly dubious method of defining religion, but the Yoder court was probably indicating factors influential in its decision rather than attempting to provide a coherent definition.

The Court in Thomas v. Review Board again signalled that personal philosophical choice is not protected by the first amendment religion clauses. Chief Justice Burger stated that "[o]nly beliefs rooted in religion are protected by the Free Exercise Clause, which, by its terms, gives special protection to the exercise of religion." While not defining religion, the Thomas decision makes it clear that a constitutional definition should distinguish between religion and mere conscientious belief.

III. Alternative Definitions of Religion.

An attempt at a broader definition of religion which has met with some court approval is the "ultimate concern" test. In Seeger, the Court relied on this view of the renowned progressive theologian, Paul Tillich. Tillich defines faith as "the state of being ultimately concerned" and God as "the ground of all being." This "ultimate concern" approach is attractive because of its universality and has received support from some commentators. Under this view, no belief is more valuable than any other and respect for deeply held religious beliefs is emphasized.

Tillich’s approach does not provide any clarity for the legal process, however. An advocate of the "ultimate concern" approach points out that "civil religion in America," communism, Marxism, nazism, Italian fascism, and Japanese militarism might all fit into this category. While Tillich himself would distinguish concerns such as nationalism as idolatrous, claiming to be ultimate without really being so, this would be a difficult distinction for the legal process because it involves judgments as to whether an ultimate concern is "heretical" or "true." Each man’s conscience cannot make him a law unto himself. Furthermore, religious belief is not always ultimate in the functional sense, although its subject matter may be ultimate religious beliefs.

Under the ultimate concern test, the degree of concern is at issue; the test tends to protect those with much faith as against those of little faith. How concerned is "ultimate concerned?" How is concerned measured? Should not the churchgoer who attends services only on Christmas or Easter also be protected by the first amendment? As Justice Harlan stated: "Common experience teaches that among ‘religious’ individuals some are weak and others strong adherents to tenets . . . ." The ‘ultimate concern’ definition also creates a problem in that it would tend to benefit those with sufficient intelligence and ability to communicate how their beliefs fall within the protected category and discriminate against those without that ability.

Another commentator, Jesse H. Choper, outlines a different approach, which he describes as the "extratemporal consequences" criterion. This criterion would provide first amendment protection only for beliefs the violation of which involved severe spiritual repercussions. Choper argues that this "special cruelty" factor, which results from being forced to do something that will put one’s soul in jeopardy, is the best explanation of the justification for religion’s special exemption from governmental regulations. Choper himself acknowledges that the Universalist, Secular Humanism, Deism and Ethical Culture movements would fall outside this definition. Choper’s approach fails to acknowledge that the fact that psychic anguish may be at least as extreme for one who has violated what is "only" a moral scruple as it is for one who has violated a religious prohibition. Also, such an analysis constrains unnecessarily the definition of religion by focusing strictly on one narrow concept, eternal damnation or its equivalent, which is identified with only some religions.

An alternative solution which, while limited, at least moves us in the direction of a neutral definition is that provided in Fellowship of Humanity v. County of Alameda. After a sensitive consideration of first amendment concerns, the court concluded:

[t]he inquiry in such a case is the objective one of whether or not the belief occupies the same place in the lives of its holders that the orthodox beliefs occupy in the lives of believing majorities, and whether a given group that claims the exemption conducts itself the way groups conceded to be religious conduct themselves.

This approach is imperfect in that it uses traditional religions as its staring point, and thereby retains too much of the prejudice inherent in the "I know it when I see it" standard. However, the court in Fellowship of Humanity discussed four seemingly reasonable and neutral factors which it said should be examined in determining whether a qualified "religion" is present: "(1) a belief, not necessarily referring to supernatural powers; (2) a cult, involving a gregarious association openly expressing the belief; (3) a system of moral practice directly resulting from an adherence to the belief; and (4) an organization within the cult designed to observe the tenets of belief."

Some commentators have argued that a dual system utilizing different definitions of religion for each of the two religion clauses should be used. Professor Tribe, for instance, seeks to avoid what he sees as an increasingly severe constitutional dilemma by using a bifurcated definition of religion. In Tribe’s view, the free exercise clause should be construed to protect all that is "arguably religious" while the establishment clause should not be applied to anything "arguably non-religious." Van Alstyne looks to the different purposes underlying the two religion clauses as necessitating dual definitions. This approach, while assisting in guaranteeing religious freedom, does not seek to define religion, but merely to set parameters. A unitary definition may prove more useful when, as in the case of tax exemption, both religion clauses are implicated.

An eminently reasonable definition of religious belief originates in the writings of the renowned French sociologist of religion, Emile Durkheim. Durkheim saw men experiencing two facets of life, the "sacred" and the "profane."

The profane referred to the experience in everyday life, of which work and the workaday world was its most central and significant type case. The sacred was residual to, and other than, this workaday sphere. It lay somehow outside the profane sphere and evoked an attitude of awe and reverence. Religion was the attitude characteristic of this kind of experience . . . .

Believers hold the world of the sacred to be more deeply real and meaningful than the everyday worlds of the profane. The concept of the sacred and the profane may provide a more flexible definitional approach, which would embrace all known religions yet exclude concepts such as communism, facism, and socialism which, while capable of encompassing comprehensive and deeply held beliefs, do not invoke a transcendent reality – the sacred. Systems of belief that are grounded in the profane, that is, in "observable facts, about which evidence can be gathered, experts consulted, empirical conclusions drawn, and policies made, fall squarely within the realm of traditional governmental decision-making." Because belief in the sacred or transcendent is, by definition, not knowable or verifiable in the physical world, government cannot dictate to or deny such beliefs or experiences and must refrain from regulating their expression.

The essence of any workable criteria that the courts and the IRS must use in determining whether an organization is a religion must be comprised of two elements: (1) a sincerely held belief in a sacred or transcendent reality and (2) an organization whose purpose and practice is to express that belief. This approach has the advantage of constitutionally required neutrality. The inclusion of the "sincerity," "purpose" and "practice" criteria would enable the courts to eliminate shams claiming to have a religious character. Any test can be applied in a biased fashion, but the proposed test stresses equal treatment of all organizations claiming to be religions, which is the key problem with the courts’ treatment of the mail-order ministries. It is less complex and would tend to include a greater variety of religions than would the IRS’ cumbersome fourteen criteria. Shams could be excluded by examining indicia of sincerity, practice reflecting belief, and related purpose. Sincerity is a legitimate inquiry.

IV. The IRS Criteria.

The IRS recognizes that the "statutory term ‘religion’ cannot be defined with precision" and the fact that "serious Constitutional difficulties would be presented if this section were interpreted to exclude even those beliefs that do not encompass a Supreme Being." The IRS nonetheless uses a subjective, highly questionable, fourteen point-test to determine whether or not an organization is a "church". Courts often use one or more of these criteria in determining that a mail-order ministry is not qualified for tax exemption. In general, the criteria tend to apply to large, formal, well-established churches but not to smaller and less traditional or established denominations. Indeed, because they discriminate between religious organizations, they would seem to violate the first amendment. The IRS, as is argued below, should abandon these criteria and use the test proposed above as its standard to determine whether or not an organization is, in fact, a church.

The IRS criteria are:

a distinct legal existence,

a recognized creed and form of worship,

a definite and distinct ecclesiastical government,

a formal code of doctrine and discipline

a distinct religious history,

a membership not associated with any other church or denomination,

an organization of ordained ministers,

ordained ministers selected after completing prescribed studies,

a literature of its own,

established places of worship,

regular congregations,

regular religious services,

Sunday schools for religious instruction of the young,

school for the preparation of its ministers.

Each of these criteria is fundamentally flawed. As to the first criterion, a religious organization should not be required to have a distinct legal existence, since a "church" may decide not to incorporate for reasons of its own. In addition, a denomination may have no formal organization. For example, the Plymouth Brethren believe that "such denominational structures are unscriptural and divisive. Locally, some are incorporated, some are not." This requirement "poses a special threat to ministers who serve the poor. Many such ministers lack the legal sophistication and resources to incorporate their churches even if such formal structure were consistent with their theology."

The second criterion is flawed because recognized creed and form of worship is sometimes imperceptible even in major denominations. The Unitarian Universalists, for example, a denomination of approximately 200,000 members, follows

No formal or central creed. Their ministers and members are not required to pass any test of faith. Freedom of belief among Unitarians is broad enough to include agnosticism, humanism, even atheism, on the one hand, and, on the other, a belief in God which can be manifested in a wide range of definitions - from that of a "personal god" to a an "Ultimate Reality." May Unitarians feel the word "God" a stumbling block to communication about the supreme matters of the spirit. They choose to avoid an excessive use of all words that stand in the way of, instead of encouraging, profound understanding.

Unitarians feel that "[t]here is clearly a pride in being creedless, in having open membership." Moreover, a religious body may believe only in doing "whatever is right." A "recognized" form of worship as a criteria immerses the IRS in intractable sectarian strife. The form of worship may vary significantly among churches within the same denomination.

Some forms of Unitarian worship resemble services in other Protestant churches. In one city, a Unitarian church may have the atmosphere of a Lutheran or Episcopalian or Congregationalist service. Each church is free to develop a service of worship that best serves its people, and Unitarian ministers through long tradition are accorded the right of a free pulpit. Unitarians employ many variations of the great human-divine theme of religion as expressed in meditation, music and poetry.

Furthermore, commentators note that a Quaker meeting for worship has no fixed,

pre-arranged character. It is held without ritual or an ordained minister, and with no outward sacraments or formalized program. It takes place in a meeting house without a steeple, stained-glass windows, alter, credos or organ . . . . It should be emphasized that the form of Quaker worship and ministry is not prescribed or uniform.

The Plymouth Brethren "oppose formalism in worship and have no liturgy."

The third IRS criterion also poses a problem. A definite and distinct ecclesiastical government is not a sine qua non of a religious organization. It may be that "any written organizational guide" would be anathema to a particular church. Churches in the Protestant Congregationalist tradition would not consider any polity beyond the local church. For instance, there are tens of thousands of local Baptist churches in the United States, "each one independent of the others." Each Unitarian Church enjoys full self-determination in all matters and "jealously guards its interests as an autonomous body." Plymouth Brethren are governed locally and "even this form of government is often informal."

The fourth requirement, that a church have a formal code of doctrine and discipline, may contradict a fundamental tenet of an organization that it have "no traditional doctrine." For example, the Quakers do not have a "written or spoken formal creed . . . . The Society never requires of its members the acceptance of any formula or belief." The Plymouth Brethren "oppose man made creeds as being human additions to the Word of God. Many other evangelicals share this view."

The problem with the fifth criterion is that a new religion, by definition, cannot have "a distinct religious history." "American civilization from the beginning and in each passing century has been continuously marked by extraordinary religious fertility and continues to exhibit this propensity to the present day." The emergence of new religions is a common occurrence in American history. "The first Amendment serves to protect all religions, old and new, against government harassment, intrusion, injury and discrimination." Baptists, Quakers, Mormons and Jehovah's Witnesses each experienced persecution in America when their churches were new. Although no one would dispute that this history is unfortunate, a similar dynamic is at work in the present attitude of many in government toward new religions. Moreover, even established religious groups might not have a distinct history. "Due to the informal nature of the Plymouth Brethren, their religious history is indistinct."

The sixth criterion, that a church must have a membership not associated with any other church or denomination, stems from confessional Christianity. It does not apply among Japanese, Chinese, or Asian Indians, for instance, who find it quite common to be members of and attend various religious services.

One of the best-known features of Chinese universalism is that the three religions - Confucianism, Buddhism and Taoism - are virtually treated as one. The religious allegiance of the average man is not related to one the three religions. He does not belong to a confession or creed. He participates unconcerned as to any apparent lack of consistency, alternatively in Buddhist, Taoist or Confucian rites. He is, by nature, a religious pragmatist.

One of the goals of the ecumenical movement is increased interaction and "association" between denominations and churches and their members. Religions such as the Bahai and Theosophy aim at unity of all religions.

Gandhi said that "[m]ore than all, people of all religions should learn to worship together on occasion." The Plymouth Brethren do not practice formal church membership because "they believe church membership has no basis in Scripture, divides Christians from one another and can be a crutch which leads to a false sense of salvation." The American tendency toward exclusive religious affiliation is by no means universal. A Japanese, for instance, may be married as a Shintoist and buried as Buddhist. "The Japanese never developed the idea, so prevalent in South and West Asia as well as the West, that a person had to adhere exclusively to one religion or another . . . Japanese were usually both Buddhists and Shintoists at the same time and often enough Confucianists as well."

The seventh, or "organization of ordained ministers," criterion has no relevance for churches that do not distinguish minister from congregant. Among Quakers "there is no division between clergy an laity, the vocation of every Friend is to be a lay minister." The Plymouth Brethren believe in the Reformation doctrine of the priesthood of all believers; the distinction between clergy and laity, practiced by many churches, it considered unscriptural. Also, Jehovah's Witnesses believe that all their members are ministers, that they are a "body of ministers."

The question posed by the eighth criterion - whether or not ministers are ordained after completing a course of study - is irrelevant. Paul, for instance, was "called" on the road to Damascus. Jesus called disciples without seminary training who were, among other professions, fishermen and tax collectors (perhaps all hope is not lost for the IRS). The historic significance of revelation and the mystical call to religious office is ignored by this criterion. The churches of the Appalachian mountains see the presence of "the uneducated preacher" as one aspect of the "fullest expression . . . of the mountain spirit and the mountain religious tradition."

[O]ne individual or another (usually male) among the people became convinced that God was calling him to preach and exhort. So he would set about establishing a church of his own, often on his property, either in his house or a separate building he might construct. Like a patron to his neighbors in a lonely mountain hollow, he invited them to join with him in seeking the Word and will of God.

In addition, most Unitarian Universalist' "[p]rofessional ministers have the burden to legitimate themselves by achievement rather than by an ascribed status." In some black churches, especially Baptist and Pentecostal, the majority of the pastors receive no formal training. "[A] man with a good voice and attractive personality, a sense of humor, and sufficient desire can find a church to serve without formal training." Finally, Jehovah's Witnesses believe that true ordination comes directly from God. "Jehovah through Christ ordains his witnesses to serve as ministers - John 15:16." This concept is common in evangelical denominations. "Those who preach in Plymouth Brethren assemblies are generally well-versed in the Word of God, but usually they have no formal seminary training."

It is unlikely that an ethnic or tribal religion will have "a literature of its own," as required by the IRS' ninth criterion. Oral tradition and participation are the means of transferring the religion between generations in such groups. Among the American Indians, there is an "absence of recorded dogma." One federal court has held that whether a religious organization has extensive literature is not constitutionally dispositive. If relied upon by the IRS, this test would tend to favor more established, traditional, articulate and intellectual churches.

The tenth standard, the "established places of worship" test, discriminates against new churches, since a newly formed church might not be able to establish a place of worship even if this is its top priority. Moreover, there are a number of religious organizations that do not believe in established places of worship. The Quakers, for example, have no sacred building in which religious services are held. Establishment of a "temple of stone" is not constitutionally required for a church to constitute a religion. Although most Plymouth Brethren have buildings for worship, many meet in private homes. Furthermore, for those religions that do not believe in deities, there is not "worship" and thus no "place of worship." The terms of the test itself indicate its bias.

The arguments against the eleventh criterion's requirement of "regular congregations" are essentially the same as those against the need for a separate church membership outlined above. Congregants who do not "regularly" attend services may nonetheless be considered practicing church members.

The twelfth criterion also excludes certain religious groups. For example, Quakers do not have a "religious service" in the strict sense of that term. Furthermore, services of some organized religions include only mystical contemplation and meditation, although these activities could be constructed as religious services.

The thirteenth requirement, that there be Sunday schools for religious instruction of the young, is clearly a biased criterion base on a mainstream Christian concept. For example, many faiths worship on days other than Sunday. Moreover, there are a number of churches which do not believe in establishing separate schools for religious education of their young. Sunday school is not a necessity and is not present in many cultures in which religion is a pervasive element in followers' lives. Some churches and synagogues focus on a "singles" ministry or a

"seniors" ministry. There are also some homosexual churches in which the presence of children may be less likely.

Finally, since, as outlined above, churches should not be required to have clergy, the existence of schools for the preparation of its ministers, as imposed by the fourteenth criterion, should similarly not be required. In a survey of 250 American denominations over ninety percent report no seminaries or schools of religion.

In summary, the IRS criteria are hopelessly flawed. They favor large, well-established, high or formal churches and discriminate against small, new, unconventional, informal or low churches. The Christian churches of the New Testament at Philippi, Corinth, and Thessalonica arguably would not meet the first through eighth, tenth, eleventh, and fourteenth criteria of the IRS test. The criteria are conceptually flawed and should be abandoned. In their place, the IRS should use a simpler, broader, and more constitutionally acceptable definition.