This article will succinctly answer several questions:
What did “establishment or religion” mean in the colonies?
What did “establishment or religion” mean at the time of the adoption of the First Amendment?[i]
What happened with the remaining forced religious establishments after the adoption of the First Amendment?
What does “establishment or religion” mean today?
I. Introduction: Meaning of “Establishment of Religion” II. The Path to Multiple Establishments in the American Colonies III. State Establishments IV. Conclusion
I. Introduction: Meaning of “Establishment of Religion”
To understand these issues, one must first define “establishment of religion” and understand the meaning of “law ‘respecting’ an ‘establishment of religion.” At the adoption of the First Amendment, “No law respecting” meant “no law concerning or touching the subject of.” That still leaves unresolved the meaning of “establishment of religion.” Prior to colonization and for some time thereafter, “establishment of religion” meant one officially recognized church which worked with, over, or under the state, the civil government. The original meaning of “establishment of religion” which existed prior to and at the founding of America, was replaced by a “multiple establishment” understanding long before the adoption of the First Amendment. “The evidence demonstrates that by an establishment of religion the framers meant any government policy that aided religion and its agencies, the religious establishments.”[ii]
“After the American Revolution, seven of the fourteen states that comprised the Union in 1791 required establishments of religion by law. The other states which originally had established churches, had already done away with forced establishment in favor of chosen establishment and they all provided for multiple establishment. No state maintained a single or preferential establishment of religion. An establishment of religion meant to those who framed and ratified the First Amendment what it meant to the states: support of religion on a nonpreferential basis. It was specifically this support on a nonpreferential basis that the establishment clause of the First Amendment sought to forbid.”[iii]
In 1833, Massachusetts became the last state to replace forced establishment of religion with establishment of religion by choice. The First Amendment forbade establishment of religion in federal jurisdiction.
II. The Path to Multiple Establishments in the American Colonies
Establishment by choice and the free exercise of religion (soul liberty) took different paths in America. Almost all the colonies started out with single establishments of religion. Due to a variety of factors, by the time of the adoption of the First Amendment, all state establishments, whether by force or choice, were general or multiple establishments.
In the conventional sense, before the colonization of America as well as in most of the original colonies when founded, an establishment of religion meant the legal union of government and a single church or denomination such as Catholicism (numerous European countries), Calvinism (Geneva), Presbyterianism (Scotland), Lutheranism (Germany), or the Church of England.
With the founding of the colonies, conventional establishments existed in the southern colonies of Virginia, Maryland, North Carolina, South Carolina, and Georgia. In 1778, South Carolina created an establishment or religion endorsed by William Tennent. “He called it a ‘general establishment’ because it recognized and nurtured the legal equality of all Protestants without preferring one denomination over others.” These general establishments were replaced by multiple establishment.
New England, Massachusetts, New Hampshire, and Connecticut at first had single establishments, Congregationalism. Massachusetts, Connecticut, and New Hampshire were founded and ruled by the Puritans, who came to American for freedom of religion “for themselves only.” The Puritans felt that they were the right people, at the right place, at the right time to establish a “city on a hill” to light the world, to show the world the rightness and resulting blessings of doing things God’s way (according to their Calvinist theology). Their experiment was well on its way to self-destruction by 1660. Gradually, the exclusive establishments in these New England colonies were replaced by multiple establishments.
Persecutions of “heretics,” those whose conscience prohibited them from bowing down to the colonial establishments were well documented. Those who supported establishment of their church were persecuted when in a colony with another established church. For example, Anglicans in New England were persecuted when they went to Massachusetts, and Presbyterians and others were persecuted to one extent or another in Virginia and other southern colonies. However, in opposing the persecuting establishment, they never favored complete separation of church and state and combined church and state when in the majority or in control.
A minority remnant of the Baptists were the only ones who consistently stood against union of church and state. That most Baptists by that time did not oppose total separation of church and state became clear when most of them sought certificates and compromised on the issue when the move toward multiple establishments had taken force.
Among those who stood their ground and led the fight against any establishment were Roger Williams, Dr. John Clarke, Isaac Backus, and John Leland. In New England, Roger Williams, Dr. John Clarke, and later, Isaac Backus wrote extensively against establishment and chronicled the persecutions which continued until the eve of the American Revolution and after, to a lesser extent.[iv] On the eve of the American Revolution, in 1774, eighteen Baptists were jailed in Warwick, Massachusetts for refusing to pay taxes in support of the town’s Congregational minister. To be exempted from paying the ministerial tax, a Baptist had to obtain a certificate that he regularly attended a church of his own denomination. For a copy of the certificate, he had to pay a tax of four pence. Isaac Backus, and some of his followers opposed the tax and the certificate and maintained that they were persecuted by the Congregational majority. John Adams, a Congregationalist (Puritan) leader stated that the establishment was “but a slender one” that did not infringe religious liberty.
In 1774, Baptists still paid ministerial taxes in Virginia and other colonies for building churches and were imprisoned for preaching in unlicensed Houses, preaching without Anglican ordination, and for other infractions. Virginia Baptists were beaten by mobs, fined, and imprisoned for their religious beliefs which prevented them from obeying the laws of the established Anglican Church, preaching. The Virginia establishment originated with the colonies first charter in 1606.
Rhode Island not only never had an establishment of any kind, but also commanded complete religious freedom of soul liberty for all. Pennsylvania, Delaware, and New Jersey had no establishment of religion, but did not allow completed religious freedom for all. For example, Pennsylvania did not grant freedom of religion to Catholics.
In New York, Massachusetts, Connecticut, and New Hampshire, the pattern of establishment was diversified and unique. New York was the first example of an establishment very different from the European type, a general establishment without preference to one church over others.
III. State Establishments
The First Amendment, which until 1947 applied only to the federal government, forbade establishment of religion and guaranteed soul liberty at the national level only. After the First Amendment was adopted, states which still had laws requiring establishment gradually amended their constitutions to do away with the requirement that churches be “established.” All state constitutions allow churches to became established, but also provide that a church can make the choice not to become established. State constitutional provisions regarding church and state do not require establishment and also mandate soul liberty or the free exercise of religion.
A remnant of the Baptists continued to stand against any kind of establishment, including establishment by incorporation until all states had done away with forced establishment. John Leland was notable Baptist preacher, writer, and activist against union of church and state during a period starting in the 1780’s in Virginia and later in Massachusetts and Connecticut. The efforts and writings of earlier Baptist leaders, especially those of Isaac Backus, continued their influenced during this period. Most Baptists had already been severed from their roots and betrayed God and their historic Baptist forefathers who had stood against the establishment to the death.[v]
New Jersey (1776), Pennsylvania (1776), New York (1777), and Delaware (1776 and 1792) made clear in their Constitutions that there would be no coerced establishment of religion.
North Carolina, by its constitution of 1776, became the first southern state to enact preferential establishment. “In Maryland, Georgia, and South Carolina, ‘an establishment of religion’ meant very much what it did in the three New England states that maintained multiple establishments. However, those three southern states merely permitted but did not create establishment.”[vi]
In six other states, pro-establisment parties were forced to make concessions to the growing sentiment against any forced establishments. Four other states replaced single establishments by authorizing multiple establishments, and two substituted multiple establishments for dual ones. “The evidence relating to each of these six proves that an …an establishment of religion was not restricted in meaning to a state church or to a system of public support of one sect alone; instead, and establishment of religion meant public support of several or all churches, with preference to none.”[vii]
Three of these states—Massachusetts, New Hampshire, and Connecticut—were in New England. The 1780 Massachusetts Constitution allowed for the possibility that a Baptist or some other minority minister might be elected by a town and receive the taxes of his congregation. This happened in several towns where the Baptists became the majority. In those towns, the Baptist ministers, by law, were supposed to receive their salaries from the town treasuries. As the Reverend John Leland pointed out, in towns where Baptists formed a majority, they might “tax all in the town or precincts to part with their money for religious uses,” thereby violating Baptist principles.[viii] A minority of Baptists stood on Bible principles and followed Isaac Backus in refusing to compromise their beliefs; but a majority followed men such as Hezekiah Smith and compromised on the important doctrine of separation of church and state. The conflicts continued until 1833, when Massachusetts became to last state to do away with required establishments.
New Hampshire’s establishment of religion after the Revolution did not significantly differ from that of Massachusetts. Article VI of its 1784 Declaration of Rights created a multiple establishment. The majority of New Hampshire’s Baptists, sometimes sought the incorporation of their churches, as in Massachusetts, to insure tax exemption of their congregants from a local Congregational church. But, says William G. McLoughlin, most of the petitions to incorporate “seemed to originate from the Baptists’ desire to enable their congregations to levy religious taxes on their own members which could be binding in law,” the Baptists as well as Congregationalists also accepted from the state ministerial lands regardless of the demands of some of them for a separation of church and state.[ix] The establishment of religion in New Hampshire fell victim to state politics, not to the drive to separate church and state because of the principle of voluntarism. “Voters, increasingly non-Congregationalist, rallied around the Democrats’ condemnation of the tax system as having promoted an establishment of religion that supposedly favored the prevailing denomination at the expense of the religious liberty of others.” The Democrats passed a Toleration Act in 1919 that ended the system of tax support for religion.[x]
In 1784, Connecticut passed its Toleration Act which allowed certain Protestant denominations to publicly worship “in a way agreeable to their consciences” and be exempted from taxes if they produced certificates. Due to continuing protests and changes in the law which did not satisfy many dissenters who continued to protest, a law was passed that allowed nonconformists to write their own certificates attesting membership in a different religious society which they supported, thus exempting them for the support of the town church. John Leland, in a tract describing the evils of an establishment of religion, did not doubt that Connecticut had one, even though one’s contribution to religion went to the church whose worship one attended.[xi] The battle in Connecticut continued. In 1802 the Baptists in petitioned the legislature to repeal the system of compulsory religious taxes; held a statewide convention remonstrating against Connecticut’s establishment because it favored the Congregationalists and because religion should be left to voluntary support, petitioned the government in 1804 because the required certificates did not apply to the Congregationalists as well as others. The consistent argument of the Baptists, except for a minority led by Isaac Backus, was that the existing church-state relationship preferred Congregationalism and that private donations should be the only source of support to religion, despite Baptist participation in the establishment’s largess. In 1816, Connecticut received a windfall repayment from the United States for its costs incurred in the War of 1812 and divided 6/7 of it among the denominations and the Baptists accepted their share. The Baptists, except for a remnant who stood for complete separation of church and state, compromised when it became “practical.” In 1818, Connecticut provided that no one could be compelled to support any religious society, yet allowed any religious society to tax itself and privately collect the assessment from each member. As with every state, Connecticut provided for voluntary incorporation by churches.
“Maryland’s constitution of 1776 ended the former supremacy of the Episcopalian church, which had an exclusive establishment during the colonial period; but allowed the legislature to legislate multiple or nonpreferential establishment of “Christian,” to include Roman Catholic churches. In 1810, Maryland amended its constitution to remove any taxation for support of any religion. Churches could still incorporate under state law, but no religious taxes were to be collected from anyone.
When the First Amendment was adopted, South Carolina’s constitution permitted multiple establishment and collection of taxes for religious support of the established churches. Under the constitution of 1778, all Protestant denominations were treated equally. “Any religious society of a Protestant denomination might therefore be incorporated and become ‘a church of the established religion of this State’ on condition of subscribing to articles of faith: a belief in God, a promise to worship him publicly, profession of Christianity as ‘the true religion’ and reliance on the Scriptures as divinely inspired.” No one was required to pay toward any church that he did not “freely join.” This was the first religious establishment ever that “did not exact religious assessments.” [xii] The 1790 South Carolina constitution did away with religious taxes altogether, but still allowed incorporation of churches.
The Baptists led the fight for religious liberty in Virginia. Many were abused and jailed for their refusal to bow down to the established church/state in Virginia. They influenced statesmen like Thomas Jefferson, George Washington, and James Madison to fight for religious liberty in Virginia. The result was the 1776 Virginia Bill for Religious Liberty.
Although Virginia still had single establishment before 1776, no state or colony had a statute that included every religion. Three of the states with multiple establishments authorized by law established Protestantism and three established Christianity. The establishments of all six included all denominations and sects with a sufficient number of members to form a church. Protestantism was synonymous with religion because Jews and Roman Catholics were nonexistent or too few to make a difference; “and where Christianity was established, as in Maryland which had many Catholics, Jews were scarcely known.” “Clearly the provisions of these six states show that to understand the American meaning of “an establishment of religion” one cannot adopt a definition based on European experience.”[xiii]
Georgia’s constitution of 1777 permitted multiple establishment without exception, thereby replacing the exclusive establishment of the Anglican church. The establishment of religion meant government tax support of all churches, with preference for none. The 1789 constitution permitted multiple establishments. In 1798, Georgia finally guaranteed nonpreferential establishment of religion and that no person should be “obliged to pay tithes, taxes, or any other rate, for … any place of worship, or for maintenance of any minister or ministry, contrary to what he believes to be right, or hath voluntarily engaged.”
Vermont became the fourteenth state in 1791 and had a multiple establishment. Due largely to the stand of Baptists in Vermont, that state repealed all laws concerning taxation for religion, thus doing away with forced union of church and state.
As establishment became available to all churches, many or the majority of churches incorporated. Today the overwhelming majority of churches, to include Baptist churches, incorporate in order to obtain perceived temporal earthly benefits for the state governments After the addition of 26 United States Code §§ 501(c)(3) and 508, churches sought benefits from the federal government as well by obtaining “tax exempt” status.
All church state establishments which have ever existed came about as a result of a civil government law which combined church and state. In all cases, a church or churches combined with the state under man’s law for perceived benefits from the state. That is the case in America. Even today, one of the reasons for choosing such arrangements is financial. All reasons given by churches for joining with the state are based upon man’s temporal, fleshly, earthly and legal reasoning. All such reasons, by their very nature, circumvent God’s eternal, spiritual, heavenly, and Biblical principles for His churches. [xiv]
[iv] See, e.g., Isaac Backus. A History of New England With Particular Reference to the Denomination of Christians Called Baptists, Volumes 1 and 2 (Eugene, Oregon: Wipf & Stock, Previously Published by Backus Historical Society, 1871)(originally published in the late 1700’s); Williams, Roger and Underhill, Edward Bean. The Bloudy Tenent of Persecution for Cause of Conscience Discussed and Mr. Cotton’s Letter Examined and Answered. London: Printed for the Society, by J. Haddon, Castle Street, Finsbury, 1848 (Reprint)(originally published in 1644); Clarke, John. Ill News from New-England or A Narative of New-Englands Persecution. Paris, Ark.: The Baptist Standard Bearer, Inc., Reprint: 1stprinted in 1652; List of Scholarly Resources Which Explain and Comprehensively Document the True History of Religious Freedom in America.
[viii] “The Yankee Spy” (1794), in L.F. Greene, ed., The Writings of John Leland (New York, reprint 1969), pp. 225, 227, cited in id., p. 40. John Leland (May 14, 1754 – January 14, 1841) was an American Baptist minister who preached in Virginia,, Massachusetts, and Connecticut, as well an outspoken abolitionist. He was an important figure in the struggle for religious liberty in the United States.
[ix] William G. McLoughlin, New England Dissent1630-1833: The Baptists and the Sepration of Church and State (Cambridge, Mass., 1971, 2 vols.), II, pp. 874, 886, cited in Levy, The Establishment Clause/Religion and the First Amendment, p. 40.
Recommended sermon which further explains this preliminary article: Authority, the Greatest Thing in the Universe Dr. Greg Dixon 2005.
This sermon explains the two meanings of power as used in the Bible and the importance of authority and power and correct doctrine to a church. It explains how great men of God can proceed according to some false doctrine and the consequences thereof.
Recommended: listen to this 7 min. 24 sec. excerpt from a sermon, in conjunction with this article: A Call to Anguish
A Call to Anguish: Churches Reject God’s Authority
God grieves because His people neither understand nor honor His authority and His precepts. God’s grief calls churches and believers to anguish, but few grieve, few cry, few pray, few even know that there is a call to anguish. The call started a long time ago. Authentic churches in the colonies and then the new nation, even though warned by God’s remnant, betrayed their roots and compromised the authority of God. Their betrayal passed on to future churches. The betrayal of God increased exponentially for 225 plus years to this very day. This article points out one proof of the consequences of this betrayal that should call believers and churches to anguish.
God ordained civil government and laid out its jurisdiction. God gave civil government no authority or ability to define “church.” God defines “church” in the New Testament. God also made clear that church and state were to remain totally separate. Yet, that was never the case, except for a remnant, in either the American colonies or the states.
“Anthony Levandowski has already filed paperwork with the IRS for the nonprofit corporation that is going to run this new religion. Officially, this new faith will be known as ‘Way Of The Future.’” The article goes on to explain the tenets of the “Way Of The Future,” which include a faith in science which will create a “Godhead” which will make things better and a denial of the existence of God.
Had God remained the sole authority for churches, organizations like “Way of the Future” could have existed, but they could not have received official sanction and “benefits” from any authority, earthly or heavenly.
Religious Americans, to include many Baptists alongside obviously heretical or apostate Protestants and Catholics, gave civil government the power, the authority to define “church.” Civil government took to the task, first in issues involving state non-profit corporate status; then, later in the twentieth century, income tax exemption status.
As to federal tax exemption law, the authority has developed a process and rationale to determine whether an organization applying for 501(c)(3) tax exempt status is a “church.” When determining whether an organization is a “church,” a “religious organization,” or a “religious society,” the IRS (and court, if the IRS ruling is appealed), has a 14 part criteria, which—though not all-conclusive since other factors will be considered when deemed appropriate by the IRS—is a man-made definition; a definition which is partially contrary to the Word of God. En 1gives the IRS definition of church with link to online IRS webpage; En 2 discusses a sample IRS ruling; En 3 briefly discusses some cases which have attempted to define church and links directly to those cases.
The IRS agency makes initial determinations, but the ultimate authority is the judiciary. Regardless of the ruling of the IRS, the losing party can appeal to the appropriate court asking for reversal and laying out their arguments for their position. Ultimately, the case could go all the way to man’s highest authority on issues such as this, the United States Supreme Court.
What is wrong with this? God made clear that Christ in heaven is to be the only authority (power or head) “over all things to” His churches. Put another way, a church, the spiritual body whose feet walk and work on earth, is to be connected to only one spiritual head, Christ in heaven. This connection was made after Christ ascended to heaven and filled the members of the church with the Holy Ghost on the day of Pentecost (Ac. 2.4). God the Son, before his ascension, walked with his disciples and apostles. God the Holy Ghost now indwelt them, thereby giving them a direct spiritual link to their God-ordained Head who was now in heaven.
“And what is the exceeding greatness of his power to us-ward who believe, according to the working of his mighty power, Which he wrought in Christ, when he raised him from the dead, and set him at his own right hand in the heavenly places, Far above all principality, and power, and might, and dominion, and every name that is named, not only in this world, but also in that which is to come: And hath put all things under his feet, and gave him to be the head over all things to the church, Which is his body, the fulness of him that filleth all in all” (Ep. 1.19-23).
“Now therefore ye are no more strangers and foreigners, but fellowcitizens with the saints, and of the household of God; And are built upon the foundation of the apostles and prophets, Jesus Christ himself being the chief corner stone; In whom all the building fitly framed together groweth unto an holy temple in the Lord: In whom ye also are builded together for an habitation of God through the Spirit” (Ep. 2.19-23).
“And he is the head of the body, the church: who is the beginning, the firstborn from the dead; that in all things he might have the preeminence” (Col. 1.18).
From the above verses, and many more that could be quoted, one sees that God desires his churches to be spiritual entities or bodies (See also, e.g., Ep. 4 and the whole book of Ep., Col., and 1 Co. 12 for more on churches as spiritual bodies) connected to their only God ordained Head, the Lord Jesus Christ in heaven, while walking and working for the glory of God as heavenly, spiritual, eternal entities only here on the earth. Churches are to be “builded together for an habitation of God through the Spirit,” not built together as corporate 501(c)(3) or 508 organizations according to man’s earthly, temporal, legal laws.
Most of the credit for the door being opened to Godless “religions” to gain the ability to be labeled as “churches” lies with not only with Protestants and Catholics but also with the progenitors of those martyrs who gave their lives standing for New Testament principles, one of which is separation of church and state. Once they had an opportunity to do so, the majority of even authentic Baptist believers and churches who honored and even died standing for the principle of separation of church and state while persecuted betrayed their head, their authority, the Lord Jesus Christ. They incorporated, and with the advent of tax exempt law, they applied for tax exempt status; along with many new breeds of “churches.”
All incorporated and/or 501(c)(3) and 508 “churches” operate under the authority of both the state government of incorporaton and the federal government, even those who also have or once had some connection to the Lord Jesus Christ. The latter sometimes operate partially under Jesus Christ and partially under civil government; sometimes solely under the authority of civil government.
New Testament churches who obtain state non-profit corporation status and get federal tax exempt status partially or totally lose the power of God. They are no longer spiritual entities only under the authority, headship or power of Christ alone. They have chosen to become earthly legal entities partially or totally connected to earthly heads, the government of the state of incorporation and the federal government. Without the power of God, they are ill-equipped to do their work: the perfecting of the saints (inside the assembly), the work of the ministry, the edification of the body of Christ, going into all the world and preaching the gospel to every creature (Mk. 16.15), and performance of other duties outside the assembly. They no longer resemble the spiritual bodies described in the New Testament:
“And he gave some, apostles; and some, prophets; and some, evangelists; and some, pastors and teachers; For the perfecting of the saints, for the work of the ministry, for the edifying of the body of Christ: Till we all come in the unity of the faith, and of the knowledge of the Son of God, unto a perfect man, unto the measure of the stature of the fulness of Christ: That we henceforth be no more children, tossed to and fro, and carried about with every wind of doctrine, by the sleight of men, and cunning craftiness, whereby they lie in wait to deceive; But speaking the truth in love, may grow up into him in all things, which is the head, even Christ: From whom the whole body fitly joined together and compacted by that which every joint supplieth, according to the effectual working in the measure of every part, maketh increase of the body unto the edifying of itself in love.” (Ep. 4.11-16)[Bold emphasis mine]
See also, e.g., 1 Co. 12.
Aditionally, by mixing church and state, churches opened the door to the untenable situation where an earthly temporal civil government which has neither the authority nor the ability to understand spiritual matters is granted power over the church and put in charge of defining “church,” “religious organization,” “religious society,” etc. This mixing of the holy with the unholy has resulted in the inevitable consequences we see shaping up as a result of civil government definition of “church.”
In conclusion, should the IRS and/or the court decide that “Way Of The Future” is a qualified tax exempt religious organization or church, true churches will coexist as earthly legal entities alongside not only already existing corporate 501(c)(3) organizations such as Planned Parenthood, the Church of Wicca, and the Church of Satan, but also another Godless and God-defying organization which directly challenges God and His existence. Because they do not remain under their God-ordained authority (power or headship)—the Lord Jesus Christ—they will possess either no power of God or, at best, a watered down power of God. They betray their Lord, they lose God’s power, God grieves, and they could care less!
Churches have betrayed God, lost the power of God, and caused our Lord who loved the church and gave himself for it to grieve by incorporating and getting 501(c)(3) status. Where is the anguish?
“The term church is found, but not specifically defined, in the Internal Revenue Code. With the exception of the special rules for church audits, the use of the term church also includes conventions and associations of churches as well as integrated auxiliaries of a church.
“Certain characteristics are generally attributed to churches. These attributes of a church have been developed by the IRS and by court decisions. They include:
Distinct legal existence
Recognized creed and form of worship
Definite and distinct ecclesiastical government
Formal code of doctrine and discipline
Distinct religious history
Membership not associated with any other church or denomination
Organization of ordained ministers
Ordained ministers selected after completing prescribed courses of study
Literature of its own
Established places of worship
Regular religious services
Sunday schools for the religious instruction of the young
Schools for the preparation of its members
“The IRS generally uses a combination of these characteristics, together with other facts and circumstances, to determine whether an organization is considered a church for federal tax purposes.
En 2: Internal Revenue Service Private Letter Ruling 8833001, 1988 PRL LEXIS 1594:
Just one illustration of what can happen when the civil government determines if an organization is a church, when IRS officials determine what constitutes a church within the meaning of IRC § 170(b)(1)(A)(i), follows. The threshold question in determining whether an organization is a church described in § 170(b)(1)(A)(i) is whether the organization qualifies as a religious organization described in § 501(c)(3). Using the 14-part IRS test to determine whether a religious organization was a church, IRS officials held that an organization with the following purpose as stated in its articles of incorporation and bylaws was a church: “[T]o establish an ecumenical church to help people learn to pay attention, wake up, and discover what both Christ and Buddha referred to as one’s true self.”
The ruling stated:
“The organization was established to develop an ecumenical form of religious practice, place greater significance on the modes of religious expression that would unify western and eastern modes of religious practice, place greater significance on the mystical or interior experience of religious truth than that of most western church denominations, and be more spiritually satisfying to members than other existing church organizations.”
In other words, the IRS determined that an organization whose purpose was directly contrary to the principles for a church laid down by the Lord in His Word was a church.
Note. The above ruling is available on LEXIS, a legal website which charges for its services. The website can be assessed in some public law libraries and law firm libraries.
En 3: A small sampling of cases which have attempted to define church and links directly to those cases. These cases cite many other cases which deal with the definition of “church”:
A family organized as an incorporated 501(c)(3) “religious society” and claimed property tax exemption. “People may not transform their families into religious organizations and thereby obtain exemption for property over which their dominion and use remain unaffected. Granting tax exempt status to PCO would exalt form over substance and violate the rule of construction that exemption statutes are strictly construed.” The case cites and discusses various cases from other jurisdictions.
Purported religious organization which was organized and operated primarily for motive of tax avoidance by private individuals in control of 501(c)(3) corporation, had no formally trained or ordained ministry, had no sacraments, rituals, education classes or literature of its own, had no liturgy other than simple meetings resembling mere social gatherings or discussion groups and did not require a belief in any supreme being or other being, and whose doctrine and beliefs were intentionally vague and nonbinding upon its members and whose members freely continued to practice other religions, was not a “church” as such term was used in state’s tax exemption laws.
Threshold question in determining whether real property is “church” entitled to tax exemption is whether entity claiming exemption is “church” within meaning of statute…. The organization in this case was an incorporated 501(c)(3) church. Test for determining whether organization is “church” entitled to tax exemption is subjective one, focusing on sincerity of belief and taking into account evidence on objective issues. … Principal motivation for organizing religious corporation was tax minimization and therefore, organization was not “church” and, therefore was not entitled to real property tax exemption in view of evidence that most of financial contributions to organization came from individual founder, that most of founder’s income came from taxpayer, that founder was primary beneficiary of organization’s financial actions, and that founder and his wife, who was co-founder, dominated meetings of organization’s board of trustees.
The precise question involved in the instant case–whether the reverence of a deity is a prerequisite to the receiving of a tax exemption for church property. A humanist organization organized as a nonprofit corporation under the laws of California, Fellowship of Humanity, applied for property tax exemption on the ground that the property was used “solely and exclusively for religious worship….” The fundamental question–is a belief in God or gods essential to “religious worship,” as those terms are used in the state Constitution? The answer of the court: “No.”
The Supreme Court of Wisconsin reviewed the evidence and concluded that “The evidence indicates that Basic Bible was established to evade taxation. Basic Bible failed to meet its burden of proving that it is a “church” or “religious association” under [Wisconsin law]. The court held that Basic Bible was not property tax exempt.” The fact that the church held “in trust” the property for which a property tax exemption was sought was not a factor in the decision. The Court concluded that incorporation and 501(c)(3) status is not a prerequisite for church property tax exemption; and, again, made clear that the fact that the church held the property “in trust” did not disqualify the church from property tax exemption.
En 4 For further study for the interested believer:
The Wisconsin Supreme Court stated, in its opinion, that:
The court of appeals had no obligation to look beyond the issues raised by Bible Baptist, but had the discretion to do so. The “church” was organized as a trust. The principle issue which it in its discretion addressed was the circuit court’s conclusion that for a ‘church’ to claim a tax exemption, it must be incorporated under the laws of Wisconsin or another state. The Supreme Court of Wisconsin agreed with the conclusion of the appeals court that the church need not be incorporated to claim a tax exemption.The Court stated: “We need not reiterate the excellent discussion and analysis underpinning that conclusion that appears in the court of appeals opinion. 157 Wis. 2d at 539-49” [the citation for this case].
This page will look at only the circuit courts analysis that led to the conclusion that a church, which was organized as a trust, need not be incorporated to claim a tax exemption. The following excerpt is from the opinion of the court of appeals, 157 Wis. 2d at 539-49, on that matter:
We hold only that the church was not required to show that it was incorporated as a religious society or corporation under ch. 187, Stats., or otherwise, to establish that its property is exempt from taxation under sec. 70.11(4).
We recognize that “[o]ne who seeks to have his property exempt from taxation is required to bring himself within the terms of the exemption statute…. The taxpayer has the burden of demonstrating that it is entitled to tax-exempt status…. This is especially true in situations where, as here, there is a great potential for abuse because a church is controlled by an individual, a family or a small group of individuals. Id. The church must come forward with candid disclosure of the facts bearing on the exemption application. Id. What the ninth circuit said with respect to the Church of Scientology’s request for exemption from income tax under sec. 501(c)(3), I.R.C., is equally applicable to the Basic Bible Church’s claim of exemption under sec. 70.11(4), Stats. However, the county, on appeal, does not argue that the church has not brought itself within sec. 70.11(4), Stats., except for the insufficiency of its organization.
We turn therefore to the issue of whether the Basic Bible Church was required to show that it was incorporated to establish that it was an “entity” which could claim tax exemption under sec. 70.11(4), Stats. The statute does not impose the requirement. Ordinarily, this finding would end the case. A combination of factors, however, creates an ambiguity which persuaded the circuit court that to be exempt from taxation under sec. 70.11(4), a church or religious association must be an incorporated entity.
The first factor is the church’s failure to take formal action under state or federal law to “charter” the church. The court cited ch. 187, Stats., and I.R.C. sec. 501(c)(3). Ambiguity may be created by the interaction of separate statutes.State v. Kenyon, 85 Wis. 2d 36, 49, 270 N.W.2d 160, 166 (1978).
The second factor is the church’s failure to seek exemption from federal income tax under I.R.C. sec. 501(c)(3). Section 501(c)(3), I.R.C., however, does not provide for the incorporation or chartering of churches or religious organizations. Tax exemption thereunder is limited to a corporation, community chest, fund, or foundation. The Basic Bible Church does not claim it qualifies as one of the enumerated organizations. No significance can be attached to the church’s failure to seek tax exemption under I.R.C. sec. 501(c)(3).
The final factor is the decision inIn re Zarling, 70 Bankr. 402 (Bankr. E.D. Wis. 1987). In Zarling, the court voided a transfer by the debtor of his interest in his farm to the Universal Life Church Charter No. 22406. The court found that the transfer was fraudulent. The court held that because a certificate acknowledging the existence of the Church as a corporation was not filed pursuant to secs. 187.01(2) or 187.09, Stats., prior to the conveyance, the Church-grantee was “a non-existent entity.” The court’s holding must be viewed in context. The debtor, Zarling, filed a certificate of incorporation under sec. 187.09 five years after the transfer, and attempted to make the filing “nunc pro tunc” the transfer. If Zarling is limited to its holding that the filing did not incorporate the Church “nunc pro tunc,” it is good law. To the extent that the decision declares all unincorporated churches or unincorporated religious associations “non-existent entit[ies],” we reject it.
We conclude, however, that these factors are sufficient to make it uncertain whether a church or religious organization must be incorporated for its property to be exempt under sec. 70.11(4), Stats. We therefore examine the legislative history of the pertinent statutes. “One of the most valuable extrinsic aids of judicial construction is legislative history.” [Citations omitted}.
The first exemption from taxation of the property of churches and religious organizations appears in sec. 24, ch. 47, Revised Statutes of 1849. Chapter 47 prescribed the procedure by which persons belonging to a church congregation or religious society, “not already incorporated,” could incorporate. Section 24 exempted from taxation every church, parsonage and schoolhouse belonging to any religious society, with the land belonging thereto, not to exceed three acres in any one town, village or township, or one city lot. The exemption was not limited to religious societies incorporated under ch. 47.
Chapter 130, Laws of 1868, provided for the assessment of property for taxation and for exemptions therefrom. Section 2, 3d exempted “[p]ersonal property owned by any religious, scientific, literary or benevolent association, used exclusively for the purposes of such association, and the real property necessary for the location and convenience of the buildings of such association . . . not exceeding ten acres. . . .” Chapter 130 did not define “association.”
Section 2 of ch. 130, Laws of 1868, was incorporated, without substantial change, in sec. 1038, subd. 3, Wisconsin Statutes of 1898. Section 1038, subd. 3 was renumbered sec. 70.11(4), Stats., by sec. 16, ch. 69, Laws of 1921. Throughout its history, the exemption from taxation of property of churches and religious associations has been accorded in substantially the same language. No “linkage” has existed between the exemption statutes and those affecting the organization of churches and religious associations or societies.
Chapter 411, Laws of 1876, provided for the incorporation of religious societies. Apparently this act replaced ch. 47 of the revised statutes of 1849. Chapter 411 is silent as to the taxation or exemption of the property of religious societies incorporated thereunder.
The procedures for the incorporation of religious societies were included in ch. 91, Revised Statutes of 1878. Nash’s Wisconsin Annotations (1914), sec. 1990, ch. 91 at 753, states:
The revisers of 1878 in their note said: “Chapter 411, 1876, is taken to have been intended as a revision of the law for the incorporation of religious societies.The privilege of organizing a corporation is extended to all classes and denominations, it not being supposed the law means to be intolerant of any religious belief or to be partial in its offer of privileges.”
The same annotation at page 755 states:
“Church” and “Congregation.”A church consists of those who are communicants, have made a public profession of religion and are united by a religious bond of common spiritual welfare. It is the spiritual body, not the legal one. But a religious society or congregation, under the statute, is a voluntary association of persons, generally but not necessarily in connection with a church proper, united for the purpose of having a common place of worship and to provide a proper teacher to instruct them in doctrines and duties, etc. [Citations omitted.]
Thus, the legislature distinguished a church, as the spiritual body, from a religious society, incorporated under the statute, as the legal body of a voluntary association of persons united for religious purposes.
Decisions interpreting ch. 91, Revised Statutes of 1878, make plain that failure of a church or religious organization to incorporate thereunder did not affect the power of the church or religious organization to hold title to property. “Under the repeated decisions of this court, we must hold that the mere fact that [a] church or religious society had not yet been incorporated at the time of the delivery of [a] deed in no way frustrated the trust thereby created, if such trust was otherwise valid.”Fadness v. Braunborg, 73 Wis. 257, 278-79, 41 N.W. 84, 90 (1889) (emphasis in original). The county does not claim that the trust pursuant to which the subject property was conveyed to Sherri L. Graf and Barbara J. Pogue as trustees for the church is invalid.
In Holm v. Holm, 81 Wis. 374, 382, 51 N.W. 579, 581 (1892), the facts included that the Norwegian Evangelical Lutheran Church of Roche-a-Cree was a voluntary association until February 7, 1889. The court noted that “[p]rior to that date the title to the churches in which the members of the association worshiped was vested in trustees named in . . . deeds, and their successors in office. . . . The trusts imposed by such deeds appear to have been valid upon the principles stated by this court in Fadness v. Braunborg. . . .” Id.
In Franke v. Mann, 106 Wis. 118, 131, 81 N.W. 1014, 1018-19 (1900), the court said that the power given to trustees of a religious corporation formed under ch. 91, R.S. 1878, was limited to the particular purposes expressly or impliedly named in the act of incorporation. The court further said that “[w]hat has been said is in harmony with the law regarding trusts for religious uses, whether the trustees be officers of a religious corporation or of an unincorporated ecclesiastical body. . . .” Id. at 131-32, 81 N.W. at 1019 (emphasis added).
It is plain from these decisions that the court did not consider that the legislature, by offering to ecclesiastical bodies the advantages of incorporation, intended to impose corporate structure upon such bodies. The property of unincorporated ecclesiastical bodies was commonly held in trust for the benefit of the members.
The Basic Bible Church established that title to the real estate subject to foreclosure was held in the name of the trustees for the benefit of the church. We conclude that the trust constituted an “entity” which could claim tax exemption under sec. 70.11(4), Stats., for the benefit of the Basic Bible Church. We further conclude that the legislative history of the pertinent statutes does not disclose a legislative intent to require that a church or religious association be incorporated before it may claim tax exemption under sec. 70.11(4).
The Procedural History and Opinions [Trial Court, Court of Appeals, Supreme Court of Minnesota]:
Trial Court: The issue considered was “whether the holding of religious services on a parcel of real estate, even though extending over a period of time, exempts that property from real estate taxation. In holding that it does not, the trial court concluded: “[Basic Bible has] not followed any of the traditional or authorized means of obtaining tax exempt status on this property. They have indicated that there is no need to do so. Under the position proposed by respondents, any person could contend, and could actually hold religious services upon a parcel of real estate and declare it exempt from taxation. This could be carried to an unworkable extreme. There would be no control and no means of follow-up. Since all lands are subject to tax unless exempted by law, the burden is upon respondents to show why they are They have failed in meeting this obligation. (Emphasis supplied).”The court found that since Basic Bible was not incorporated and had no 501(c)(3) status, there was no entity to claim exemption as a church or religious association [The alleged church held property through trustees.]. The court found that the County complied with the statutory foreclosure requirements, that Basis Bible was not a legal entity, and held that Basic Bible was not tax exempt. It placed emphasis on Basic Bible’s failure to incorporate.
Basic Bible, acting, pro se, appealed through three of its members, raising only two issues: (1) Did the trial court err in proceeding without responding to challenges to its jurisdiction? (2) Did the trial court have the authority to hear a case concerning the property of a church (nonstate entity)?
– Court of Appeals: Reversed the judgment of the trial court, totally ignored the only issues raised by Bible Baptist, reviewed the entire trial court decision and concluded that the trial court’s holding that a church must incorporate before it can claim tax exempt status before it can claim tax exempt status under the statute was erroneous. The court held that, by not arguing on appeal the bona fides of Basic Bible waived that issue. The court further held that the title to the real estate was properly held in the name of the trustees for the benefit of Basic Bible, and that the trust was an “entity” which “could claim tax exemption. The court did not decide whether Basic Bible was tax exempt.
The county appealed to the Supreme Court of Wisconsin:
The Court stated that the court of appeals had no obligation to look beyond the issues raised by Bible Baptist, but had the discretion to do so. The principle issue which it in its discretion addressed was the circuit court’s conclusion that for a “church” to claim a tax exemption, it must be incorporated under the laws of Wisconsin or another state. The Supreme Court of Wisconsin agreed with the conclusion of the appeals court that the church need not be incorporated to claim a tax exemption. The Court stated: “We need not reiterate the excellent discussion and analysis underpinning that conclusion that appears in the court of appeals opinion. 157 Wis. 2d at 539-49. (The analysis in that opinion will also be looked at and added as a post on this webpage). That conclusion was, however, substantially irrelevant. It was not outcome determinative of the fundamental question posed by this litigation: Did Basic Bible meet its burden to demonstrate that it was tax exempt?” The Court stated that Basic Bible did not even assert on appeal a basis for tax exemption. It only asserted that the circuit court was without jurisdiction. However, [the law] confers plenary subject matter jurisdiction upon the circuit court and [the law] grants circuit courts the jurisdiction to hear tax foreclosure cases.As to the assertion that the court was without jurisdiction “bordered on the frivolous,” and this, the only issue before the court of appeals, could have been dealt with fully in a very summary opinion affirming that court. The fact that the court of appeals correctly concluded that the circuit court erred as a matter of law when it held that incorporation was necessary for a tax exemption did not in itself warrant a reversal of the circuit court. The only question posed is whether the taxpayer has sustained its burden to prove tax exemption. It is clear from the record that it did not.The appeals court concluded that the entire record, which demonstrated taxpayer’s lack of proof of right to exemption, was non-existent because the county waived any objection to the bona fides of the church by not attacking the bona fides on appeal.
The county had no reason at all to assert or argue a position on which it had prevailed—a position that was not assailed by the appellant in the court of appeals. It is obviously unfair to expect the “respondent” to “respond” to issues not raised by appellant. The record shows a total failure of proof of tax exempt status. The trial court’s error in that respect cannot be converted into an affirmative tax exempt status. It merely demonstrated that one of many reasons for not affording tax exempt status was incorrect. The controlling issue on this review is whether Basic Bible is a “church” or “religious association” entitled to property tax exemption under sec. 70.11(4), Stats. The burden of proving tax exempt status is upon the taxpayer. “Tax exemption statutes are matters of legislative grace, and they are to be strictly construed against the granting of the exemption.” Where the facts are established, the determination of whether a taxpayer is a “church” or “religious organization” under sec. 70.11(4), Stats., is subject to de novo review.
The court then stated five tests necessary to prove that a church” or “religious association” entitled to tax exempt status under [the statute]: (1) the taxpayer must be a bona fide church or religious association; (2) the property must be owned and used exclusively for the purposes of the church or religious association; (3) the property involved must be less than 10 acres; (4) the property must be necessary for location and convenience of buildings; and (5) the property must not be used for profit.
The first test requires the circuit court to consider the sincerity of the organization’s asserted beliefs, considering all the evidence and determining whether the beliefs are held in good faith or whether the “forms of religious organization were erected for the sole purpose of cloaking a secular enterprise with the legal protections of religion. [two federal cases cited which accept this means of determination]. “Moreover, it avoids the inherent constitutional difficulty in attempting to define “church” or “religious association” in a theistic manner.”
Again, the court stated that incorporation is not a prerequisite to tax exempt status. 459. “It is clear that had the legislature intended to require churches and religious associations to incorporate to gain tax exempt status, it in all likelihood would have specifically so provided…. Most importantly, however, the trial court must consider whether the alleged religious beliefs are sincerely held or whether they are merely a subterfuge designed to evade taxation. 460. As the trial court noted, any person could contend, and could actually hold religious services upon a parcel of real estate and declare it exempt from taxation. In 1978, the acting IRS Commissioner described a modern ‘tax avoidance device’:
“Some individuals and organizations are marketing and promoting ‘plans’ to avoid income taxes. While the ‘plans’ vary in certain respects, a common theme calls for an individual taxpayer to obtain minister’s credentials and a charter for a church or religious order by mail for a fee from churches that may or may not be recognized as exempt from federal income tax under I.R.C. § 501(c)(3). No profession of adherence to a creed, dogma, or moral code is required and no duties or fiduciary responsibilities are undertaken in order to receive and administer these charters or credentials.
“The ‘plan’ then calls for the individual to take a ‘vow of poverty’ and to assign his assets (house, car, savings account, etc.) and the income earned from current employment to the purported church or order. A major portion of the income assigned to church or order from this unrelated occupation is set aside for housing, food, clothing, and other items
“. . . .
“Those interested in protecting the preferences for churches must agree that the Service has an obligation to be vigorous in stopping such schemes.”
The court then examined the facts in the record and concluded that the record as a whole supports the conclusion that Basis Bible is not a bona fide church or religious association under [the law—sec.70.11(14]. “The evidence indicates that Basic Bible was established to evade taxation. Basic Bible failed to meet its burden of proving that it is a “church” or “religious association” under [Wisconsin law]. The court held that Basic Bible is not tax Exempt.
Basic Bible conveyed real estate to Sherri L. Graf and Barbara J. Pogue in trust for the church’s benefit. Basic Bible was not incorporated, nor did it obtain 501(c)(3) status. Basic Baptist filed a property tax exemption certificate with the local tax assessor and the exemption was not granted. The county began in rem tax foreclosure proceedings.
“Basic Bible responded that it was a religious organization, and pursuant to sec. 70.11(4), Stats., was not subject to taxation on the real estate because it was used for religious purposes. Basic Bible presented numerous witnesses, all of whom testified that they had attended “religious services” on the property at various times since 1977. Other activities on the property included bible studies, a memorial service, counselling, agricultural training, and legal research.
“Sherri Graf, an ordained minister in the Life Science Church, testified that she is a trustee of Basic Bible, that her husband, Wilbert Kelly, is the pastor of Basic Bible, and that they have resided on the property since 1977. Sherri Graf testified that the parent church in Minneapolis is an exempt organization under I.R.C. sec. 501(c)(3), but acknowledged that Basic Bible had not applied for and did not have such status. Sherri Graf acknowledged that Basic Bible had not taken any action under any state or federal law to incorporate or formally charter Basic Bible. Her testimony revealed that neither she nor Wilbert Kelly had any income and that they lived on donations from individuals visiting Basic Bible. Sherri Graf stated that Basic Bible was always open and was open to everyone.
“Assertedly, Basic Bible’s beliefs are based upon the King James version of the Bible, the United States Constitution and the Declaration of Independence. Among the “fundamental beliefs” of Basic Bible, set forth in a cover letter its members are charged to distribute along with the Declaration of Independence and the United States Constitution, is the following:
“The Laws of Nature and of Nature’s Creator are in part set out in the Declaration of Independence and the Constitution of the United States. These are the fundamental Laws and are recognized by the Basic Bible Church.
“The members of the Basic Bible Church are bound by oath or affirmation to support these Fundamentals as these represent the Will of the Creator and the Laws of Nature in part; a sacred belief is that each individual owns the right to his own life, that he owns no right over the life of any one else, and that no one else owns any right over his life.
“Other beliefs include a conviction that income taxes are illegal, and that federal reserve notes are “frauds” in violation of the law of God and of the Constitution.
Other facts brought out in the Supreme Court of Wisconsin opinion:
“Included in the record of this case is a solicitation letter issued by the parent church of Basic Bible, which states:
“The Basic Bible Church of America offors [sic] a religious program whereby you can set up an Auxiliary Church of the Basic Bible Church of America out of your own home, office or business and use the Auxiliary Church that you and your trustees have complete control of the assets of to distribute the church tenets and doctrine to the general public.
“This auxiliary church may compliment your own particular church and gives you the opportunity for religious fulfillment and practice of your own religion according to the dictates of your own conscience.
“As is shown in the brief attached hereto, as an incidental benefit you can become completely exempt from income taxes, in some states, property taxes, Social Security Taxes and sales taxes in most states, plus-discounts at most stores and airlines.
“The Basic Bible Church of America is incorporated under the laws of Minnesota and as shown by the tax exempt letter attached hereto, has a Federal Tax Exempt letter of recognition.
“Attached to the letter is a ‘brief’ discussing the attributes of a ‘religious organization’ under the IRS Code. Of nine pages included in the letter, one is the above invitation to join, one is a statement of the “fundamental beliefs and philosophy” of the Basic Bible Church, and fully seven pages are devoted to the tax exempt status of the church. The only inference that can be drawn from this letter is that the Basic Bible Church of America is a subterfuge designed to evade taxation. Sherri Graf’s testimony at trial strengthens this inference:
“Our Church Charter also informs us that we are created pursuant to 501(c)(3) of the Internal Revenue Code. As far as state tax exemption, to the best of my knowledge, Chapter 11000 has not applied for such an exemption. We believe, under the laws, the first amendment, as well as the Constitution of the State of Wisconsin, and the tax laws in the State of Wisconsin, that Church property is exempt and that we are doing what is required and would fall into consideration under such law.”
This brief article is an informed Christian reply to an articles, IRS Again Pressured To Hammer U.S. Churches, and Trump Relaxes 501(c)(3) Political Activity Rules. Churches who violate the rules that come with Internal Revenue Code Section 501(c)(3) status should – subject to challenge presented to their chosen authority, the government court – have their tax exemption revoked. They agreed to the rules when they voluntarily and contrary to First Amendment and Bible principles sought and obtained 501(c) status. President Trump has no power to cancel the rules that come with 501(c)(3). Only the legislature can do so, subject to Presidential agreement and signing of legislation. The issue is one of authority. Christ wants to be the only Head of His churches (See, e.g., Ephesians and Colossians).
This article is written and being disseminated to both sides for the glory of God. I have contacted Freedom From Religion Foundation and encouraged them to go to this article for Biblical, historical, and legal arguments which support their position. It is time that Christians face the consequences for their hypocritical betrayal of our Lord by seeking and gaining legal entity status of any kind (incorporation, 501c3 or 508 status, unincorporated association status, etc.). This is being done in accordance with Bible principles.
I have covered the reasons – Biblical, historical, and legal – for this position in my writings which are available online. The following articles deal with the issue and link to materials which give more in depth analysis of Bible principles, history, and law:
A good law review article on the tax exemption for churches is:
“Prohibition in Search of a Rationale: What the Tax Code Prohibits; Why; to What End?” (Deirdre Dessingue, Prohibition in Search of a Rationale: What the Tax Code Prohibits; Why; To What End?, 42 B.C.L. Rev. 903 (2001), http://lawdigitalcommons.bc.edu/bclr/vol42/iss4/6)(PDF at http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2186&context=bclr)(Abstract: Each Presidential election renews the thorny debate over the appropriate role of churches and other religious organizations in American political life. Although churches are subject to other restraints on political activity, the prohibition on church political activity under section 501(c)(3) of the Internal Revenue Code is the harshest in terms of penalties. Faced with the extraordinary scope of the prohibition as interpreted by the IRS, and perceived non-enforcement of egregious violations, churches tend toward one or two extremes: they either ignore the prohibition and endorse candidates or they avoid legitimate involvement with important policy issues.)”
1. FELLOWSHIP OF HUMANITY (a Nonprofit Corporation) v. COUNTY OF ALAMEDA, 153 Cal.App.2d 673 (California Court of Appeals. First Dist., Div. One, 1957) Fellowship of Humanity was a nonprofit corporation organized under the laws of California. The precise question involved in the instant case–whether the reverence of a deity is a prerequisite to the receiving of a tax exemption for church property. In this case, a humanist organization applied for property tax exemption on the ground that the property was used “solely and exclusively for religious worship” within the meaning of article XIII, section 1 1/2 of the state Constitution. The trial court below determined that the Fellowship did use its property” solely and exclusively for religious worship” and was entitled to the claimed exemption. The basic problem involved is whether or not, under the findings, the respondent is entitled to this tax exemption. The solution to this problem turns upon whether or not the conclusion that respondent uses its property “solely and exclusively for religious worship,” as these terms are used in article XIII, section 1 1/2, is supported by the findings. Appellants contend that the term “religious worship” necessarily requires reverence to, and adoration of, a Supreme Being, and that under the findings the respondent organization does not require as a condition of membership that its members believe in God, and that such an organization does not use its premises “solely and exclusively for religious” The fundamental question–is a belief in God or gods essential to “religious worship,” as those terms are used in the state Constitution?
In this case, born again students of the Word of God can easily see how preposterous putting secularists (courts) in the position of defining “church,” “religion,” “religious practice,” etc. All man’s laws which give benefits to religion and churches make necessary the definition of such terms. That is one very good reason that a church should remain under the First Amendment and corresponding state constitutional provisions and laws. Incorporating, getting 501c3 status or becoming a legal entity of any kind takes a church out from under such provisions and from under God thereby violating New Testament Church Doctrine and grieving our Lord.
Notes from the case:
If this strict rule of construction is applicable in the instant case it can reasonably be argued that the words “religious worship,” in their strict and limited sense, and in their commonly accepted sense, include the concept of a Supreme Being governing the universe.  Generally speaking, “religious worship” is expressed by prayers, reverence, homage and adoration paid to a deity, and include the seeking out by prayer and otherwise the will of the deity for divine guidance. This is the generally accepted dictionary definition of the term. Webster’s Unabridged Dictionary (2d ed.) includes within its definition of the term the following: “Worship: … 5. Act of paying divine honors to a deity; religious reverence and homage; adoration, or reverence, paid to God, a being viewed as God, or something held as sacred from a reputed connection with God.” “Religion: … 1. The service and adoration of God or a god as expressed in forms of worship … 6. An apprehension, awareness, or conviction of the existence of a supreme being …”
It is not necessary to cite other dictionary definitions. Many dictionaries contain similar definitions.
Some of the decided cases, in various situations, have interpreted the terms “religion,” and “religious,” and “worship” as including the recognition of a deity. One of the leading cases is Davis v. Beason, 133 U.S. 333 [10 S.Ct. 299, 33 L.Ed. 637], which approves the restrictive interpretation of the word “religion.” That case involved a prosecution for conspiracy. Under federal law citizens of the territory of Idaho were required to swear when registering as electors that they did not practice bigamy or polygamy, and that they were not members of organizations which held as a tenet the practice of polygamy. The Mormon Church, at that time, advocated polygamy, and defendants were members of that church. The question involved was whether the advocacy of polygamy was protected as a “religious” tenet under the federal Constitution. In the course of its opinion the court stated (133 U.S. at p. 342): “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 was probably dicta because the actual holding of this case was that “however 682*682 free the exercise of religion may be, it must be subordinate to the criminal laws of the country passed with reference to actions regarded by general consent as properly the subjects of punitive legislation.” (P. 342.)
There have also been several cases interpreting the “religious training and belief” exception to the draft act. In Berman v. United States, 156 F.2d 377 (cert. den. 329 U.S. 795 [67 S.Ct. 480, 91 L.Ed. 680]), the court was required to construe a provision of the Selective Service Act of 1940 which granted an exemption to persons conscientiously opposed to participation in war “by reason of religious training and belief.” It was held by the majority that the defendant, who was a humanist, did not qualify, because [fn. *](156 F.2d at p. 380): “It is our opinion that the expression ‘by reason of religious training and belief’ is plain language, and was written into the statute for the specific purpose of distinguishing between a conscientious social belief, or a sincere devotion to a high moralistic philosophy, and one based upon an individual’s belief in his responsibility to an authority higher and beyond any worldly one. … It would be quite ridiculous to argue that the use of the word ‘religion’ (in section 1 of the First Amendment) could have been understood by the authors of this part of our national charter or by those having to do with its adoption as meaning to be inclusive of morals or of devotion to human welfare or of policy of government. Congress has and does make laws respecting the establishment of all of these subjects. … There are those who have a philosophy of life, and who live up to it. There is evidence that this is so in regard to appellant. However, no matter how pure and admirable his standard may be, and no matter how devotedly he adheres to it, his philosophy and morals and social policy without the concept of deity cannot be said to be religion in the sense of that term as it is used in the statute.”
As will later appear there were contrary interpretations of the language of the 1940 act. But Congress apparently approved the definition of the majority in the Berman case when it passed the Universal Military Training and Service Act of 1948 by providing that “[r]eligious training and belief in this connection means an individual’s belief in a relation to a Supreme Being involving duties superior to those arising 683*683 from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code.” (50 U.S.C.A. App. 456(j).) In George v. United States, 196 F.2d 445, 451, the court said of this definition that it “comports with the spirit in which ‘Religion’ is understood generally, and the manner in which it has been defined by the courts. It is couched in terms of the relationship of the individual to a Supreme Being, and comports with the standard or accepted understanding of the meaning of ‘Religion’ in American society.” The court also pointed out that even if the statutory definition were unduly restrictive, this was a matter for Congress to determine.
There are other cases recognizing that a belief in a Supreme Being is essential to the concept of religious worship. In United States v. MacIntosh, 283 U.S. 605, 633 [51 S.Ct. 570, 75 L.Ed. 1302], in a dissent by Chief Justice Hughes, is to be found an approval of the definition of religion given in Davis v. Beason, 133 U.S. 333 [10 S.Ct. 299, 33 L.Ed. 637]. The Chief Justice stated: “The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation. … [Here follows the quotation from Davis v. Beason.] One cannot speak of religious liberty, with proper appreciation of its essential and historic significance, without assuming the existence of a belief in supreme allegiance to the will of God.”
The statement of Chief Justice Hughes limiting religions to those faiths who venerate a Supreme Being has not gone unchallenged. In a dissent in the Berman case, which will be discussed more fully later in this opinion, Chief Judge Denman wrote that Chief Justice Hughes was only concerned with MacIntosh’s belief in his personal “God” and was not attempting to give an all-inclusive definition of “religion.” “To attribute to such highly educated men as Hughes, Holmes, Brandeis and Stone [the four dissenters] an ignorance of Taoism or Comte’s humanism, or their denial that either is a religion if the question had been presented to them, would be an unwarranted assertion of their ignorance of the history of religious beliefs.” (156 F.2d 384, n. 2.)
There are several state decisions holding or implying in various situations that the commonly accepted and generally understood meanings of “religion” and of “religious worship” include as an essential element the recognition of a deity, and the concomitant obligations which that recognition imposes. (See Nikulnikoff v. Archbishop etc. of Russian 684*684 O.G.C.Ch., 142 Misc. 894 [255 N.Y.S. 653]; In re Opinion of the Justices, 309 Mass. 555 [34 N.E.2d 431]; People v. Deutsche Evangelisch Lutherische, etc., Confession, 249 Ill. 132 [94 N.E. 162]; People v. Board of Education of Dist. 24, 245 Ill. 334 [92 N.E. 251]; see also cases collected 76 C.J.S. pp. 727-730; see the following annotations: 168 A.L.R. 1222; 83 A.L.R. 773; 22 A.L.R. 907; 81 A.L.R. 1453; 34 A.L.R. 1067, for discussion of related subjects)
These authorities, if a strict, limited interpretation is to be given to the exemption in article XIII, section 1 1/2, would support the conclusion that a belief in a Supreme Being and adoration of that Supreme Being are essential elements of “religious worship”
These cases and definitions do not stand unquestioned.  In the first place there are forms of belief generally and commonly accepted as religions and whose adherents, numbering in the millions, practice what is commonly accepted as religious worship, which do not include or require as essential the belief in a deity. Taoism, classic Buddhism, and Confucianism, are among these religions. In the second place, there are dictionary definitions and decided cases holding that the terms “religion” and “religious worship” do not necessarily import a belief in a deity.
The same dictionary cited by appellants (Webster’s Unabridged, 2d ed.) contains the following definition of “religion”: “8. a. A pursuit, an object of pursuit, a principle, or the like, arousing in one religious convictions and feelings such as great faith, devotion or fervor, or followed with religious zeal, conscientiousness or fidelity as, patriotism was to him a religion. b. Acceptance of or devotion to such an ideal as a standard for one’s life.”
Funk and Wagnalls (1915 edition) contains this definition of “religion”: “Any system of faith, doctrine and worship; as the Christian religion; the religions of the Orient.”
Webster also contains a broader definition of the word “worship” than the one relied upon by appellants. It is: “1. To treat with the reverence due to merit or worth; to respect; honor. 2. To revere with extreme respect and veneration.”
The Oxford Universal Dictionary, 3d edition, 1955, also contains broad definitions of the terms in question: “Religion … 4. A particular system of faith and worship …” “Worship” is defined as “b. … Veneration similar to that paid to a deity” 685*685
The Encyclopedia of the Social Sciences includes at least Taoism and classic Buddhism as among “those religions which lack the conception of an omnipotent and transcendent God.” (Vol. 13, p. 237.)
There are also a series of cases holding or implying in various situations that the terms in question should not or constitutionally cannot be limited to those faiths revering a deity, and holding that a belief in a deity is not essential to religion, or religious worship.
In Estate of Hinckley, 58 Cal. 457, the income of a trust was to be devoted to foster “Religion, Learning and Charity.” The court was called to pass upon whether “religion” was a valid charitable purpose. In holding that it was the court stated (p. 512): “In its primary sense (from religare, to rebind, to bind back), it imports, as applied to moral questions, only a recognition of a conscientious duty to recall and obey restraining principles of conduct. In such sense we suppose there is no atheist who will admit that he is without religion.”
In Ex parte Jentzsch, 112 Cal. 468 [44 P. 803, 32 L.R.A. 664], the court held a statute requiring barbershops to be closed on Sundays and legal holidays to be unconstitutional. The court stated that a Sunday closing statute should not be considered as a religious enactment, but as a civil and secular enactment, and reasoned as follows (p. 471): “Under a constitution which guarantees to all equal liberty of religion and conscience, any law which forbids an act not itself contra bonos mores, because that act is repugnant to the beliefs of one religious sect, of necessity interferes with the liberty of those who hold to other beliefs or to none at all.”
“Liberty of conscience and belief is preserved alike to the followers of Christ, to Buddhist and Mohammedan, to all who think that their tenets alone are illumined by the light of divine truth; but it is equally preserved to the skeptic, agnostic, atheist, and infidel, who says in his heart, ‘There is no God.’ ”
In United States v. Kauten, 133 F.2d 703, and in United States v. Downer, 135 F.2d 521,the Second Circuit gave a much broader interpretation to the phrase “religious training and belief” in the draft act than was given by the majority in the Berman case, supra, written by the Ninth Circuit. In the Kauten case the court held that the phrase in question did not require a belief in a deity to entitle the registrant to the exemption. Justice Augustus Hand, speaking for the court, defined the type of belief that would qualify the registrant 686*686 for the exemption as follows (p. 708): “We are not convinced by anything in the record that the registrant did not report for induction because of a compelling voice of conscience, which, we should regard as a religious impulse, … Religious belief arises from a sense of the inadequacy of reason as a means of relating the individual to his fellowmen and to his universe–a sense common to men in the most primitive and in the mostly highly civilized societies. It accepts the aid of logic but refuses to be limited by it. It is a belief finding expression in a conscience which categorically requires the believer to disregard elementary self-interest and to accept martyrdom in preference to transgressing its tenets.”
Just three months later the same court in the Downer case, supra, found one Randolph Phillips to be a conscientious objector. Phillips “received his early religious training in the Presbyterian Church, although he stated that he was not now a member of any religious sect or organization. He is opposed to killing men, or assisting directly or indirectly in the killing of men … He would not fight even to repel invasion, but believes that ‘war is ethically and invariably wrong.’ … ‘[F]rom whom I derived my opposition to killing men … I cannot specifically say. …’ … His further sworn assertion that ‘my opposition to war is deep-rooted, based not on political considerations but on a general humanitarian concept which is essentially religious in character,’ appears, therefore, borne out by the record.” (135 F.2d at p. 523.) The exemption was granted.
The definitions thus given by the Second Circuit were disapproved by the majority opinion in the Berman case, and were apparently disapproved by Congress when it amended the draft act in 1948 and adopted the limited definition of the Berman case. However, as already indicated, the Berman decision was not unanimous. Chief Judge Denman wrote a strong and convincing dissent. He was willing to adopt the broad definitions of “religious training and belief” found in the Kauten and Downer cases. The dissent is entitled to particular consideration because the appellant in that case was a humanist. There is much worthy of note in the opinion, but the following quotation is particularly relevant (156 F.2d at p. 384): “It is true that there is no evidence that Berman’s religious conviction that he should not kill his fellow man flowed from the command of some god or gods of one or another of the world’s many religiouscongregations, and 687*687 we may assume that such was not its source. But many of the great religious faiths with hundreds of millions of followers have no god. … It is wrong to say that ‘a sincere devotion to a moralistic philosophy’ is inconsistent with ‘a belief in his responsibility to an authority higher and beyond any earthly one,’ if that supernatural authority is confined to a belief in a particular god. This would exclude all Taoist China and in the Western world all believers in Comte’s religion of humanism in which humanity is exalted into the throne occupied by a supreme being in monotheistic religions.”
There is an Illinois case that is also worthy of mention. It is In re Walker, 200 Ill. 566 [66 N.E. 144], which involved the interpretation of a constitutional provision very similar to the one involved here. The court, in interpreting the words “property used exclusively for … religious purposes” appearing in the Illinois Constitution, and the words “churchproperty actually and exclusively used for public worship,” appearing in the Illinois statute, felt that such terms must be interpreted in connection with an Illinois constitutional provision similar to article I, section 4 of the California Constitution. [fn. *] In this connection the Illinois court stated (p. 147): “[O]ur constitution therefore constitutes a guaranty of absolute freedom of thought and faith, whether orthodox, heterodox, Christian, Jewish, Catholic, Protestant, liberal, conservative, Calvinistic, Armenian, Unitarian, or other religious belief, theology, or philosophy, and also the right of the free exercise and enjoyment of religious professions and worship of any variety or form; the only restraint upon the free 688*688 exercise of liberty of conscience being that oaths and affirmations shall not thereby be dispensed with, licentious acts excused, or practices justified which are dangerous to the peace and safety of the state.”
“Any definition of ‘public worship,’ to be acceptable, must be sufficiently broad and comprehensive to include within the beneficial operation of the statute of exemptions the church property of all congregations, and every denomination or form of religious faith and worship. The difficulties attending the task of formulating a definition of the term ‘public worship,’ so that it will be applicable to and comprehend every variety of religious faith and belief, and every religious philosophy of life and death, and omit none, is apparent.”
There is one other case to which reference should be made–a case that was decided by the District of Columbia Tax Court after the instant case was tried, and a case which is now on appeal to the United States Court of Appeals for the District of Columbia Circuit. The case is Washington Ethical Society v. District of Columbia, the tax court decision being reported in 84 Wash. Law. Reporter 1072. In that case the tax court was presented directly with the precise question involved in the instant case–whether the reverence of a deity is a prerequisite to the receiving of a tax exemption for church property. The tax court was presented with a statute exempting church buildings from real property taxation when “primarily and regularly used for religious worship …” It was required to determine whether the Washington Ethical Society was a church within the meaning of this statute. The Washington Ethical Society is an affiliate of the American Ethical Union, and adheres to their tenets, beliefs and practices. These tenets, beliefs and practices are substantially similar to the basic beliefs, tenets and practices of respondent in the instant case. The essential thesis of the Ethical Movement, as stated by the tax court (p. 1074) is that “morals, ethical conduct and right living are good in themselves, and for that reason must be practiced, and not because of any command or sanction of any deity or Supreme Being …”
“… Its basis fundamentally is the negation of a personal God or any Supreme Being. It denies that there is some heavenly father or deity which is concerned with the affairs of men; … that it is futile to appeal to such or to thank him for the blessings or blame him for the ills of mankind; that we mortals alone are responsible for advantages and disadvantages; and that if we are to be helped, we must help ourselves. … 689*689”
“The Ethical Movement does not require that any of its members believe in, or have any concept of God.”
Were the buildings of this organization used for “religious worship” within the meaning of the statute? The court in an exhaustive opinion came to the conclusion, after expressing many doubts on the subject, that such buildings were not used for religious worship. It quoted from many authorities to the effect that a belief in a deity is not essential to a religion, and pointed out that the case law defining the term was “somewhat confused” (p. 1078). It then cited and discussed many of the cases already cited in this opinion, and cited and discussed many others not cited herein. It then concluded (p. 1082): “After considering all of the foregoing sources bearing upon the meaning of religion, the Court concludes that the generally accepted definition of religion … is substantially the same as that adopted and approved in the Selective Service Act of 1948 and the Naturalization Act of 1950, that is to say, ‘belief in relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views of a merely personal moral code.’ ” Such definition, it was held, “comports with the primary definition in most of the dictionaries and encyclopedias and in the majority of the decisions of the courts, and appears to be most generally accepted.”
It can be observed from this review of the dictionary definitions, and of the case law, that the definitions given are confused, uncertain and certainly not conclusive. In all of the cases cited, except the tax case, the courts were not faced with the precise problem here involved. The most that can be said of these decisions is that there are expressions approving and disapproving the view that “religious worship” need not necessarily involve the concept of homage to a deity. In many of the apparently conflicting cases the result can be explained, in part at least, by the context in which the question was presented.
The views of scholars in this confused field are also conflicting. Many define “religion” in terms of a deity or of a Supreme Being. To others theism plays little or no part in their concept of the term. Many of these authorities are compiled in the amicus curiae brief of the American Civil Liberties Union. Others are referred to in the tax court opinion, supra. Little would be gained by attempting to compile the conflicting views. Suffice it to say that many 690*690 authorities in the field include nontheistic beliefs among the world’s recognized religions. Particularly pertinent is the following statement by Francis Potter in “The Story of Religion” (p. XVII): “A new definition of religion itself is already emerging. Whereas Cicero was satisfied to call it ‘the pious worship of God,’ and Menzies only a generation ago won acclaim for terming it ‘the worship of higher powers from a sense of need,’ there is a tendency today to question the necessity of including the supernatural in a definition of religion.”
“The idea of religion without God is shocking to Christians, Jews, and Muhammadans, but Buddha and Confucius long ago founded nontheistic religions and some modern Unitarian Humanists insist that the idea of God is a positive hindrance to the progress of real religion.”
“An inclusive definition, then, must recognize both varieties of religion, theistic and non-theistic.”
“The author’s present definition of religion and religions is as follows:”
“Religion: is the endeavor of divided and incomplete human personality to attain unity and completion, usually but not necessarily by seeking the help of an ideally complete divine person or persons.”
“Religions are systems of belief and practice which arise among the disciples of some man who has attained a satisfying measure of success in his endeavors to unify and complete his personality.”
One of the most respected groups to recognize the humanists as a religious group are the Unitarians. Unitarianism is generally accepted by most authorities as one of the recognized religions. Yet under Unitarian doctrine there is a peaceful coexistence of theists and humanists. A substantial part of the membership and clergy of the Unitarian Church are humanists. In the “Pocket Guide to Unitarianism,” edited by Harry B. Scholefield, appears the following (p. 4):
“Some Unitarians call themselves ‘humanists’ and others call themselves ‘theists.’ The difference between the two groups is not so much a matter for controversy as for mutual understanding and appreciation. The humanist is content, before this life’s unanswerable questions, to leave them unanswered. He sees enough in the human scene to demand all his energies of mind and spirit. The fundamental questions seem real enough, but speculation upon them seems hopeless, and all answers proposed must rest upon what William James 691*691 called ‘over-beliefs.’ The humanist says in effect, ‘One world at a time. I am interested in the world where I am now, in the moral purposes and meanings which the human mind has infused into it, and in the achievement of such ethical goals and ways of life as are possible.’ A similar attitude was taken by Buddha …”
It is quite apparent from what has been said that authorities can be found to support a limited definition of the terms involved, and that other authorities can be found to support a broader interpretation. It will be noted that, generally speaking, those who advocate the limited definition draw the line in reference to a particular belief held or not held by the group involved: i.e., do the members of the group believe in God? Their position appears to be that the sole criterion of “approved” religious activity is activity which centers around a deity. This interpretation could lead to some strange results.  Certainly, even appellants would not limit the exemption to those who believe in the Christian or Judaic God. The worship of other gods would clearly fall within the exemption. Appellants, at oral argument, conceded that even idol worshipers would qualify for the exemption under the test advocated by them. It also follows, of course, that a great many unorthodox but theistic cults in the United States, such as Father Divine’s Peace Mission Movement, whose followers believe that Father Divine is God, would qualify for the exemption. Drawing the dividing line between theistic and nontheistic beliefs would seem to be somewhat arbitrary.  In a country where religious tolerance is accepted it would not seem that the limited definition is in accord with our traditions.
There is another factor to be considered. Underlying the whole subject is the First Amendment to the United States Constitution which provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The provisions of the California Constitution guaranteeing a separation of church and state have already been quoted.  The First Amendment to the United States Constitution is made applicable to the states by the Fourteenth Amendment. (Cantwell v. Connecticut, 310 U.S. 296 [60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352].)
Just what does this provision mean when it is applied to state tax exemptions of church property?  It is perfectly obvious that any type of statutory exemption that discriminates between types of religious belief–that discriminates 692*692 on the basis of the content of such belief–would offend both the federal and state constitutional provisions. Thus the United States Supreme Court stated in Everson v. Board of Education, 330 U.S. 1, 15 [67 S.Ct. 504, 91 L.Ed. 711, 168 A.L.R. 1392]: “Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.” In American Sugar Refining Co. v. Louisiana, 179 U.S. 89, 92 [21 S.Ct. 43, 45 L.Ed. 102], appears the following: “Of course, if such [tax exemption] discrimination were purely arbitrary, oppressive or capricious, and made to depend upon differences of color, race, nativity, religious opinions, political affiliations or other considerations having no possible connection with the duties of citizens as taxpayers, such exemption would be pure favoritism, and a denial of the equal protection of the laws to the less favored classes.” (See also Watchtower B. & T. Soc. v. County of Los Angeles, 30 Cal.2d 426 [182 P.2d 178], which broadly implies that a tax discriminating between types of religious belief is unconstitutional.)
 Under the constitutional provision the state has no power to decide the validity of the beliefs held by the group involved. The principal case establishing this concept is United States v. Ballard, 322 U.S. 78, 86 [64 S.Ct. 882, 88 L.Ed. 1148], which holds that: “Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs.” (See Silving, “The Unknown and the Unknowable,” 35 Cal.L.Rev. 352.)  If those concepts are sound, and it is submitted that they are well settled, then the only valid test a state may apply in determining the tax exemption is a purely objective one. Once the validity or content of the belief is considered, the test becomes subjective and invalid.  Thus the only 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. The content of the belief, under such test, is not a matter of governmental concern.
Under this test the belief or nonbelief in a Supreme Being is a false factor. The only way the state can determine the existence or nonexistence of “religious worship” is to approach the problem objectively. It is not permitted to test validity of, or to compare beliefs. This simply means that 693*693 “religion” fills a void that exists in the lives of most men. Regardless of why a particular belief suffices, as long as it serves this purpose, it must be accorded the same status of an orthodox religious belief. Of course, the belief cannot violate the laws or morals of the community, but subject to this limitation, the content of the belief is not a matter of governmental concern.
 If this be a correct approach, and we submit that it is, the proper interpretation of the terms “religion” or “religious” in tax exemption laws should not include any reference to whether the beliefs involved are theistic or nontheistic. Religion simply includes: (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. The content of the belief is of no moment. Assuming this definition of “religion” is correct, then it necessarily follows that any lawful means of formally observing the tenets of the cult is “worship,” within the meaning of the taxexemption provision. Admittedly, respondent meets these tests.
There is still another problem involved that has not been discussed, and that is the anomalous nature of the church exemption. [14a] Direct tax subsidies of any churchor sect or of all churches and sects are undoubtedly prohibited by the First Amendment to the United States Constitution above quoted.  Separation of church and state is compelled by the federal and state Constitutions. As stated by Mr. Justice Shenk, speaking for the majority of the court in First Unitarian Church v. County of Los Angeles, 48 Cal.2d 419, at p. 434 [311 P.2d 508]: “Without the slightest doubt the First Amendment reflects the philosophy that church and state should be kept separate.” [14b] A tax exemption is, obviously, an indirect subsidy. Thus, logically, any tax exemption to a church, regardless of the beliefs of its members, can be questioned. The more recent United States Supreme Court cases have indicated how divided that court is on this problem, and have made it clear that it is not easy to justify logically the tax exemption provisions. In Everson v. Board of Education, 330 U.S. 1 [67 S.Ct. 504, 91 L.Ed. 711, 168 A.L.R. 1392], the majority of the court upheld payment by a school board that compensated parents for their children’s bus fares even though the children were attending parochial schools. 694*694 The court stated that the state had gone to the “verge” of its constitutional power, and then stated (p. 15): “Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. … No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.” That is ominous language so far as the validity of tax exemption provisions for churches is concerned.
In McCollum v. Board of Education, 333 U.S. 203 [68 S.Ct. 461, 92 L.Ed. 649, 2 A.L.R.2d 1338], the court was faced with a so-called “released time” statute under which children in public schools were given, if they desired, time off from regular school work, to attend sectarian religious instruction classes conducted by the church of their choice. The classes were held on school property. The statute was held to be unconstitutional. The court stated (p. 212): “Here not only are the State’s tax-supported public school buildings used for the dissemination of religious doctrines. The State also affords sectarian groups an invaluable aid in that it helps to provide pupils for their religious classes through use of the State’s compulsory school machinery. This is not a separation of Church and State.”
The most recent opinion in point is Zorach v. Clauson, 343 U.S. 306 [72 S.Ct. 679, 96 L.Ed. 954], which upheld a “released time” statute where the classes were not held on school property. The philosophy of the opinion indicates no important retreat from the principles previously announced. At page 314 appears the following: “Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person. But we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence.”
Without delving into the subleties of the various majority, concurring and dissenting opinions in these cases, which contain frequent references to the constitutional prohibition against discrimination between religious sects, it is the view of many legal commentators that the rationale of these opinions makes it difficult to uphold, logically, the church exemption provisions. (See, for example, Paulsen, Preferment of 695*695Religious Institutions in Tax and Labor Regulation, 14 Law and Contem. Problems, 144, 148; Constitutionality of Tax Benefits Accorded Religion, 49 Columb. L. Rev. 968; 9 Stan. L. Rev. 366; see also Silving, the “Unknown and the Unknowable,” 35 Cal. L. Rev. 352, 365.)
On the other hand we know, of course, that every state and the District of Columbia has a constitutional or statutory provision exempting church property from taxation. In most of the cases where these statutes have received judicial consideration, their constitutionality has been assumed. In California the Supreme Court recently has held that the tax exemption provision is valid. It was so held in Lundberg v. County of Alameda, 46 Cal.2d 644 [298 P.2d 1]. That case involved the validity of a tax exemptionto property “used exclusively for school purposes … and owned and operated by religious, hospital or charitable funds, foundations, or corporations” subject to certain limitations. (Rev. & Tax. Code, 214.) The court held that the First Amendment to the United States Constitution was not violated because, first, the religious school exemption was enacted to promote the public welfare by encouraging the education of the young, and second, such provisions must be upheld because of their very universality. In connection with this second point, the court stated (pp. 654-655): “Secondly, even if we regard the exemption as benefiting religious organizations, it does not follow that it violates the First Amendment. The practice of granting tax exemptions benefiting religious sects began in the colonial period. (See Paulsen, Preferment of Religious Institutions in Tax and Labor Legislation (1949), 14 Law & Contemp. Prob. 144, 147-148; Torpey, Judicial Doctrines of Religious Rights in America (1948), ch. VI, pp. 171-174; Zollman, Tax Exemptions of American Church Property(1916), 14 Mich. L. Rev. 646, 647- 650.) Today, at least some tax exemption for religious groups is authorized by statutory or constitutional provisions in every state and the District of Columbia, as well as by federal law. (See note (1949) 49 Columb. L. Rev. 968, 969-982.) No case has been found holding that the granting of such exemptions is contrary to state or federal constitutional provisions prohibiting the support or establishment of religion, and, where the matter has been raised, the exemptions have been upheld. (Garrett Biblical Institute v. Elmhurst State Bank, 331 Ill. 308 [163 N.E. 1, 5]; Trustees of Griswold College v. State of Iowa, 46 Iowa 275, 282 [26 Am. Rep. 138].) The United States Supreme Court, in 696*696 discussing the prohibition of laws respecting the establishment of religion, recently stated that the standard of constitutionality is the separation of church and state, and that the problem, like many others in constitutional law, is one of degree. (Zorach v. Clauson, 343 U.S. 306, 314 [72 S.Ct. 679, 96 L.Ed. 954].) The principle of separation of church and state is not impaired by granting tax exemptions to religious groups generally, and it seems clear that the First Amendment was not intended to prohibit such exemptions. Accordingly, an exemption of property used for educational purposes may validly be applied to school property owned and operated by religious organizations.”
It is interesting to note that the United States Supreme Court dismissed an appeal in the Lundberg case because that appeal did not present a “substantial federal question.” (352 U.S. 921.)
The first reason given by the Supreme Court of California for upholding the exemption is not applicable to the church exemption. The second one is applicable.  Certainly, while the very universality of the practice of exempting church property from taxation may not be a conclusive test of constitutionality, it certainly is a sound reason for courts to be extremely reluctant to take any steps to disturb such a practice.
This discussion about the validity of church tax exemption provisions is not indulged in because the members of this court have any doubts about the constitutionality of such provisions, but because the discussion suggests, first, that a logical and legal justification of such provisions must be found, and secondly, that in interpreting such provisions the court should be very careful not to limit them by such a narrow construction that by the very limitations imposed, constitutionality is adversely affected.
First, as to a legal justification for the provisions.  It is sound public policy to encourage, by tax exemption as well as by direct subsidy, private undertakings in the fields that are properly within the realm of governmental responsibility. Thus, welfare, charitable and private educational grants and subsidies are valid. All churches that warrant the exemption perform some of these tasks. Therefore, churches can be indirectly subsidized for the performance of these tasks. But this indirect subsidy is not for the activities that are peculiarily religious in the sense of dogma or doctrine, but for the many other things all churches do which are properly cognizable 697*697 by the state. This is the legal justification suggested in several of the above articles. This view received indirect judicial recognition in the dissenting opinion of Mr. Justice Reed in the McCollum case when he stated (333 U.S. at p. 249): “It seems clear to me that the ‘aid’ referred to by the Court in the Everson case could not have been those incidental advantages that religious bodies, with other groups similarly situated, obtain as a by-product of organized society. This explains the well-known fact that all churches receive ‘aid’ from government in the form of freedom from taxation.” It also received judicial recognition in the majority opinion in First Unitarian Church v. County of Los Angeles, 48 Cal.2d 419, 438-439 [311 P.2d 508], when it was stated: “This legitimate objective [to grant the church exemption] is sought to be accomplished by placing in a favored economic position, and thus to promote their well being and sphere of influence, those particular persons and groups of individuals who are capable of formulating policies relating to good morals and respect for the law. It has been said that when churchproperties are exempted from taxation ‘it must be because, apart from religiousconsiderations, churches are regarded as institutions established to inculcate principles of sound morality, leading citizens to a more ready obedience to the laws.’ (County of Santa Clara v. Southern Pac. R. Co., 18 F. 385, 400 …)”
How do these observations apply to the instant case?  The answer is obvious. We should interpret article XIII, section 1 1/2, if possible, so as not to offend the federal Constitution. If the words “religious worship” are given a narrow, limited meaning, so as to require a belief in and adoration of a Supreme Being, then grave doubts would exist as to the constitutionality of the section. On the other hand, a definition which emphasizes the “nonreligious” facets of the conduct of respondent will serve to sustain the constitutionality of the section. Our interpretation of the tax exemption provision must be as broad as is reasonably necessary to uphold it. If we limit the exemption to those who advocate theism then it is quite possible that the Supreme Court of the United States may hold that such an interpretation encourages particular religious doctrines and practices and thus violates the division between church and state.  Theism is a concept which is peculiar to religious theory and practice in the technical sense. It is not a feature common to those advantages gained by the state and supportable by it, through the 698*698 activities of private educational and charitable institutions. The problem can be reduced to a simple formula. If the state cannot constitutionally subsidize religion under the First Amendment, then it cannot subsidize theism. If the state can constitutionally subsidize those functions of religious groups which are not related to “religion” in its narrow sense, then it must subsidize those nontheistic groups which perform the same functions. The First Amendment precludes a classification based on them.
The basic question then is not whether theism is necessarily the basic element of “religion.” It can be assumed that the words “religious worship” in the ordinary and commonly used sense require a belief in a Supreme Being.  But the United States Constitution prohibits a subsidy to foster “religious worship,” used in this sense. The real question is whether the activities of the Fellowship of Humanity which in the above sense are “nonreligious,” and which include all of the Fellowship’s activities, are analogous to the activities, serve the same place in the lives of its members, and occupy the same place in society, as the activities of the theistic churches.  In the present case, it is conceded that in all respects the Fellowship’s activities are similar to those of the theistic groups, except for their belief or lack of belief in a Supreme Being. It therefore follows that the constitutional exemption is equally applicable to both groups. Respondent is therefore entitled to the exemption.
 The next contention of appellants is that even if the property of respondent is devoted to “religious worship” as those words are used in article XIII, section 1 1/2 of the California Constitution, such property is not used “solely and exclusively” for such purpose within the meaning of the section. Appellants rely on the findings to the effect that the property is occasionally used by other organizations and occasionally for dances, dinners and meetings held by respondent. The contention does not require lengthy consideration. Such provisions are to be “reasonably construed, having in mind the object of the provision, and in furtherance of its underlying intent.” (San Francisco-Oakland T. Rys. v. Johnson, 210 Cal. 138, 150 [291 P. 197].) One of the cases referred to with approval in that case is First Unitarian Soc. v. Town of Hartford, 66 Conn. 368 [34 A. 89]. The court there stated (p. 90): “The policy on which the exemption of church buildings from taxation is granted is the encouragement of religion; and that policy is not hindered, but, 699*699 rather, promoted, by permitting this building to be used for profit when not needed for those services distinctly called ‘religious services’; for literary, scientific, or entertaining exercises, or for any other thing not inappropriate to be had in a church.”
Under the cases, it is certainly well settled that however strict the courts may be in determining whether the use of property brings it within the exemption at all, if the court once holds that the property generally qualifies for the exemption, it will be extremely liberal in holding that some incidental use does not take it out of the exemption. Thus in Y.M.C.A. v. County of Los Angeles, 35 Cal.2d 760 [221 P.2d 47], …
1 Thessalonians 5:21: “Prove all things; hold fast that which is good.”
Putting on the Armour of Light
The Rubber Meets the Road
The principles proclaimed in this article have now been tested and will continue to be tested and honored by the men of OPBC, a church who seeks to obey God in all matters. See the latest test at: OPBC Street Preachers Actions against University of Minnesota Peace Officer who acted unlawfully; for more, see also, Articles Dealing with Street Preaching and Attacks on Street Preaching. God is pleased when believers do things as he has instructed them in the Bible; whereas, using methods contrary to God’s word will, sooner or later, result in negative consequences. As a result of doing things God’s way, no OPBC street preacher has ever been arrested, the police in cities who have been educated by communications with the Chiefs of Police, City Attorneys, Mayors, and city council members of various Minnesota towns and cities. OPBC street preachers stood their ground on the field while gaining the respect of police and city officials. As a result, the police in cities dealt with now protect the street preachers and put those who would assault them or apply the “hecklers veto” in their place.
One’s heart, flesh, emotions, and reasoning tell him, when his civil rights are violated, to sue for damages, including vindictive damages; and as a lawyer, I am taught, in civil cases, to go for everything I can get. Are man’s heart, flesh, emotions and reasoning consistent with God’s Word – the believer’s God-ordained sole source of faith, belief, and practice? What does the Bible teach about this important issue as related to illegal official interference with street preaching? That is the subject of this article.
Both the goal and the method matter to God. An active believer with good intentions but the wrong methodology can do great harm to the cause of Christ. Of course, street preaching done correctly according to Bible principles is immediately beneficial. However, legal action which does not comply with Bible principles is not wise and harms the cause of Christ. When a ministry takes proper preemptive action when trouble from authorities is anticipated or encountered, God is glorified, His Bible methods are honored, government officials including peace officers, city counsel, and mayors are educated in the law; a good working relationship is established with those officials, especially the police; and the effort and considerable time needed to pursue the issue in court can be used instead for doing the works God has commanded His churches to do – it is a lot easier to take proper action before, not after, encounters.
A good example of taking the wrong course of action is Miller v. City of St. Paul, 823 F. 3d 503, from the federal 8th Circuit Court of Appeals (click to go directly to case). First, the actions of the David Miller as described in the facts of the case is commendable. David Miller is a great man of God who tirelessly works for our Lord. I admire him.
However, the case illustrates (1) the considerable time, effort and resources involved in litigating such a case; (2) that during litigation, even good lawyers can make costly mistakes, errors in procedure, evidence, and so forth; (3) that simple preemptive action would have allowed David to do what the Lord led him to do on the street and avoided any need for such consuming after-encounter legal action. Notice, if you read the case, that the police officer bluffed him-the actual city policies did not comport with her orders and actions. Because of the officers deceptions, David left and filed suit after the fact. The city, which was included in the suit, had a policy which favored David and was not liable. Only the individual lone-wolf officer was in the wrong.
Hopefully, the concerned believer will read and study the Bible reasoning and conclusions in this article in an effort to examine not only himself, his motives, and his methods but also the assertions herein. If he can show this author and OPBC where they are wrong according to the Bible, he can greatly help the cause of Christ by honest Holy Spirit led communications. All our desire should be to please our Lord by doing things His way.
Putting on the Armour of Light
“The night is far spent, the day is at hand: let us therefore cast off the works of darkness, and let us put on the armour of light” Romans 13:12 .
Several years ago I became concerned that pastors and other believers were hurting the cause of Christ by suing cities, mayors, individual police officers and others who disobeyed the law and cited and/or arrested them falsely for exercising their First Amendment right to freedom of religion and speech in the public forum. As this article will show, I modified my position (repented as to that part of my belief which was not correct: see the conclusion beginning with the paragraph in red at the end of the article before the Endnotes) later as I discussed the matter with my pastor after the church I am a member of met the police head on as a result of their preaching of the Gospel in the public forum. I announced my belief and the reasons for it, and read a few relevant Scriptures at a meeting attended by quite a number of Fundamental Baptist pastors. I also stated my belief that filing for injunction as opposed to suing for punitive damages when one’s rights are threatened and/or violated does not violate Biblical precepts. Some of the verses which led me to this conclusion are:
Mt. 5.10-12, 38-48; 6.8-15; 18.21-35; Lk. 6.27-46; 9.51-56; Ro. 8.28; 12.9-21; 13.8-14; 14.19; Ga. 6.10; 1 Thes. 5.15; 1 Ti. 3.1-7; 2 Ti.1,8; 2.8-12; 3.12; 3.12; Ja. 3.17; 1 Pe. 2.9-25 (esp. 15-16 and 20-25); 3.14-17; 4; Ge. 50.16-20; Le. 19.18; De. 32.35 and other verses.
[Most of the above verses from the Bible are reproduced in EN 1. This is done for the convenience of the reader and also because many people either do not have a Bible, or they have an interpretation of the Bible such as the NIV, the ASB, the Living Bible, etc. Reading an interpretation can only confuse one when he wants to get into the truth about doctrine. Please read those verses so that you will understand what the Bible says about taking vengeance, the believer’s reaction to evil against him, one’s actions against his enemies, about the believer’s attitude in time of persecution, etc. Consider this article in light of Biblical teaching, not in light of your traditions. In response to a mailing publicizing this article, one pastor who has been a longtime beloved friend has already e-mailed me to “unsubscribe” him from my e-mail list. He merely states that he is making this request because I obviously do not “understand the clear statutes of Scripture.” He gives no reasoning in his request because he cannot.I still love him and his church, but I cannot let anything, including family and friendship stand between me and my Lord. I believe that Scripture clearly supports my position. I always leave open the challenge, “Show me where I am wrong.” If you can show me, I will publish my repentance. By the way, I have received communications from other pastors who are supportive of this article. Really, the only thing that matters is the truth of the matter according to the word of God.]
My beliefs about this matter of suing for damages were challenged the way that most, if not all, Fundamental Baptist preachers address issues – in a sermon at a future meeting. Instead of in-depth, studied communication in a search for truth, their chosen method is preaching since the pastor is the boss. If he has a concern or if he needs to be uplifted, he goes to other pastors in his chosen circle, the “clergy,” the chosen ones and perhaps a “layman” or “laymen” in his church who are fully persuaded that the “man of God,” the pastor, as boss, is the only one accountable to God and that whatever he deems to be the truth is the truth. Many lost people understand that counsel as to their worldly concerns is profitable. “… For the children of this world are in their generation wiser than the children of light” (Lk.16.8b).
I was anxious to hear the pre-announced sermon since I had hopes that the preacher, a man for whom I had and have a great deal of respect, would take out his Bible and “show me” where I was wrong. He did not. He explained that after he filed suit in a case where the law enforcement violated his First Amendment rights, the police whom he included in the suits suddenly started treating him with the greatest of respect, that he won quite a sum in damages, etc. He relied on one verse which I do not remember but which did not support his position and a portion of another verse: “earnestly contend for the faith which was once delivered unto the saints” (the last part of Jude 1.3; Jude deals with apostates and apostasy in a church). To understand “how” God wishes a believer to react to a violation of his constitutional rights exercised in the public forum (the method) one has to do some serious Bible study. Verses taken out of context are often used to support heresy. We talked briefly after his message, but he never offered any explanation of why I was wrong. He did give me some unneeded advice on how to proceed with an injunction. His sermon and our brief conversation were cordial but unfruitful. I still love him; I only mention this to point out the cavalier manner by which some very important matters are sometimes handled.
The Rubber Meets the Road
Due to an incident in Faribault, Minnesota in which police officers violated the rights of men from the church I am a member of, Old Paths Baptist Church (“OPBC”) of Northfield, Minnesota, OPBC had to deal with God and His principles and earthly authorities head on.
I found that my position, which at that time was no suing for damages whatsoever, was partially right and partially wrong. I learned this through talks with my pastor, Pastor Jason Cooley, and more Bible study as the incident in Faribault played out. Instead of preaching to me, he got out his Bible and examined Scripture and talked to me about it. It was important that we do so because it appeared that, in spite of all our sincere efforts to avoid litigation (getting federal court intervention), the City of Faribault, their Chief of Police, and the police department were going to allow a city code to trump the First Amendment speech protections for our men who were preaching in the public forum. All this is reflected in the correspondence in the Endnotes. Thankfully, the city through the Chief of Police, after I got the city attorney and city council involved in the correspondence, seems to have acknowledged that the First Amendment trumps a city ordinance. The law is given in the many cases I cited and quote from in my e-mail correspondence which is in the Endnotes below.
Many police departments and police officers, including Chiefs of Police, like many Americans, make up the law concerning First Amendment rights. Those in larger towns and cities usually know the law of free speech in the public forum since they regularly deal with all kinds of activists. This is not true in smaller towns and cities where the issue has never arisen. Shame on believers and churches who have not followed biblical guidelines and done their duty to go into all the world and preach the Gospel in this nation where, unlike many nations, they can do so under the protection of man’s law.
After the Faribault police violated the speech rights of the OPBC street preachers, I posted the following report online (no longer online):
“Faribault police officers approached them. One of the officers arguably assaulted (petty misdemeanor assault) Brother Pearson as he was preaching by poking his with his finger as he stood on a stand street preaching. As the officer poked Brother Pearson with his finger he told him, “Get down from there. I said get down from there.” Brother Pearson kept preaching. The officer said that if they did not leave, they would be going to jail. One female officer told them that if they did not leave, they would be cited and arrested. She threatened them by saying they would cite them for violating Section 17-42(a) of the Faribault City Ordinances entitled “Nuisance noise” (See EN 2 for the whole ordinance).
“She had to go get a copy of the above section of the code before she could tell them what they were allegedly doing wrong. Brother Pearson kept preaching and Pastor Cooley explained to the officers that they were engaged in speech protected by the First Amendment to the United States Constitution (which is above a city ordinance and nullifies any ordinance which is in violation of that amendment). The female officer told them that it was illegal for them to preach there and that ‘telling people they’re going to hell is alarming and scaring them.’”
The preachers stayed on for a time, probably a little longer than they would have stayed had the police not interrupted their efforts, then they left. However, the tone of the police was such that they believed that they would be cited, and possibly arrested, the next time they went back to preach in Faribault.
In an attempt to resolve the matter, I called city attorney on June 23, 2014. He suggested that I call the Chief of Police. I have had many dealings with police as a lawyer over the years, including examining them on the witness stand. I knew the “peace officer” mindset. But I decided to honor the request of the city attorney. I left a voicemail for the Chief. Then I sent him an e-mail (See EN 3 for the e-mail). In that e-mail, I told him what had happened and gave him links to the videos above, briefly explained the law, gave him links to materials which explained the law, told him that we were proceeding like this in hopes of settling the matter peaceably with the hope that “this whole matter will glorify God, uplift all involved and bring us closer together in love, strengthen and enforce principles which have made America great, and increase all our knowledge, wisdom and understanding of a vital matter. “etc.
On June 26, the Chief replied by e-mail, since we were playing phone tag. In his e-mail, he explained that the officer who “tapped the preacher on the arm” was a community service officer – not an officer in the Faribault Police Department – that it was not an assault, that a person “has the right to free speech and can preach loudly and exclaim their beliefs in public;” but he went on to explain that “in the City of Faribault we do have an ordinance and a state statute that defines some behavior as public nuisance or disorderly conduct” and that “a citation can be issued.” He expressed his confident belief that “our State Statute” would “comply with the Hierarchy of Law and win challenges.” He went on to explain that correct his officers used correct protocol, were polite and professional, were responding to complaints, etc. It was clear, that citations would be issued for street preaching if citizens complained. He then explained the court process. In other words, he was saying that we could take it up with the trial court judge after the citations were issued. He still did not get it. He ended with, “The City of Faribault will continue to enforce the law and protect all citizen rights, as well as free speech.” Note. I have his e-mail on file, but am not publishing any of his e-mails. I will only do so if someone accuses me of falsely representing what was in the e-mail. Of course, I will not cover everything he said in his e-mails.
Again, while this was going on, my pastor and I were not only discussing what was going on but also what we should do, according to the Bible, should one or more of the men be arrested in violation of the First Amendment. I will explain our conclusions at the end of this article.
I sent Chief Bohlen a rather lengthy e-mail reply to his June 26 e-mail which is reproduced in EN 4. In that e-mail I 1) apologized; (2) gave him a link to a Youtube video of a Minneapolis policeman interacting with the men of OPBC on June 28, 2013 as they preached at a “gay” pride event, a link to a website page which shows what happened in Northfield MN when people complained about the street preaching in downtown Northfield and my credentials to speak on these matters; (3) presented requests for clarification of his position and some other matters; (4) spoke to the assault issue showing him why I thought that the officer actually did assault Brother Paul Pearson; (5) gave him specific law which clearly proves that it is unlawful for a police officer to arrest someone under color of certain types of statutes (disorderly conduct, nuisance, littering, etc.) laws when they are speaking in the public forum; (6) Concluded.
In spite of all this, Chief Bohlen maintained his position which was that our men had a right to speak in the public forum; but that if someone complained the police could still issue a citation for violation of certain statutes. Of course, he would have understood he was wrong had he read and understood the law as laid out in my e-mails. It appeared that the men of OPBC would have to go to court for resolution. However, I knew that I needed to notify the appropriate city officials of what was going on and make sure that they shared his position, as he had asserted. To do so, I sent an e-mail reply to the Mayor of Faribault, the Chief, the City Attorney, and all the Faribault City Council members. The entire e-mail is included in EN 5.
Finally, before I heard from Chief Bohlen again, I sent another e-mail in to all the above mentioned Faribault city officials in which I quoted from and linked to MCCULLEN ET AL. v. COAKLEY, ATTORNEY GENERAL OF MASSACHUSETTS, ET AL. a United States Supreme Court case which was handed down June 26, 2014, and also linked to a recent and relevant Texas case. I ended, in part, “I know that you are all busy, but I would ask you to please let the men of OPBC know as soon as you can as to what your city policy is going to be regarding their First Amendment right to speak in the public forum.” The Chief had indicated that he spoke for the City of Faribault, but I wanted to pin all the above persons and the City of Faribault down in case further legal action were required. See En 6 for the entirety of that e-mail.
The Chief relented. He left a voice mail and we talked over the phone later. I think that he finally understood the law on the matter and the role of the police. I have retained his voice mail. Our conversation was not recorded, but he said the same thing, for the most part in our conversation as he said in his voice mail. Among other things, he said that he saw the videos, stressed that no one was taken into custody or arrested, that he understood our frustration, that they would respect our First Amendment rights, that the police have an obligation to take calls of complaint, that he wants to make sure that they handled appropriately, and that he has issued the appropriate directives to his officers as to how to take these complaints. He said that they “have an obligation to go out and take these calls” and that he “wants to make sure they are handled appropriately.” He also said something which causes me concern as to whether he truly understands the law, but I will leave that out of this article. He, the Faribault police department, and the city of Faribault through her officials now cannot say that they did not know the law should they violate it. In talking with Chief Bohlen, I believe that he is a good man, a man of his word, and that he truly wants to run his police force according to the law of the land. The men of OPBC know that many smaller towns, unlike larger cities like Minneapolis/St. Paul and Austin TX, have never had to deal with the controversy caused by activism in the public forum. Therefore, they usually do not respond appropriately when citizens complain. This is an indictment against many, and especially against believers and pastors of churches who were instructed by our Lord: “Go ye into all the world, and preach the gospel to every creature.” Had they only done their job, everyone in the land would not only see the power of God and hear the Gospel, but also know the law of the land concerning First Amendment freedoms; then, they might even study the history of how Americans got those freedoms. That study would enlighten them on many matters such as religion (Catholicism, Protestantism, the history of true Baptist believers and churches, the blood of the martyrs which led to the First Amendment) the history of America, etc.
Now, as to the results of the studies and discussions between myself and Pastor Jason. My belief is now, as before, that a believer who wishes to speak in the public forum should do all he can, aside from abandoning his calling and duty, to avoid litigation. I know that this is not always possible. Even in this instance, one or more of the men could have been arrested. Since that did not happen, the men of OPBC did all they could to honor God, Chief Bohlen, the Faribault City Officials, and the City of Faribault and avoid litigation. However, had Faribault not relented, we had decided that the next step was to file for federal injunction. Of course, we felt that, through all the correspondence, we had enough to implicate Chief Bohlen, the City Officials, and the City of Faribault. Had we been forced to take that route, we do not believe that a federal judge would have looked kindly on the city’s actions since they had been thoroughly educated as to the law; in one sense, that would not have mattered since there are no damages to be awarded in a successful action for injunction.
On the other hand, had the city not relented and had the city violated or should the city in violate the constitutional rights of one or more of our men while speaking in the public forum, I now believe, as do the men of OPBC, that a civil rights lawsuit would be in order. We believe that it would be appropriate, according to the conscience of the person wronged, for the suit to ask for actual damages to any man who lost income or money as a result of being arrested, having to go to court, going to jail, etc. We believe that this is biblically acceptable for several reasons.
First, God laid out the jurisdiction of civil government. Much of the Old Testament deals with this matter, as do parts of the New Testament. Romans 13.3-4 which gives civil government jurisdiction in a nutshell says:
“For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? do that which is good, and thou shalt have praise of the same: For he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil.”
Ro. 13.8-14 then gives the individual believer’s duty to our fellow citizens. Inherent within that duty is to do God’s bidding and show our love to our neighbors by preaching to them.
When a peace officer seeks to terrorize good, not evil, works, he is misusing his God-ordained power – he is executing wrath on the wrong person(s). He is becoming a lawbreaker.
1 Ti. 1.8-11 says:
“But we know that the law is good, if a man use it lawfully; Knowing this, that the law is not made for a righteous man, but for the lawless and disobedient, for the ungodly and for sinners, for unholy and profane, for murderers of fathers and murderers of mothers, for manslayers, For whoremongers, for them that defile themselves with mankind, for menstealers, for liars, for perjured persons, and if there be any other thing that is contrary to sound doctrine; According to the glorious gospel of the blessed God, which was committed to my trust.”
Second, the verses I cited at the beginning of this article to support my belief that believers should never sue because of violation of their civil rights did not take into consideration justice. The above verses, and many others inherently include the notion of justice. One can do a word search of “justice” to find out that the Bible specifically speaks much of justice. Psalms 82:3 says, “Defend the poor and fatherless: do justice to the afflicted and needy.” Micah 6.8 says, “He hath shewed thee, O man, what is good; and what doth the LORD require of thee, but to do justly, and to love mercy, and to walk humbly with thy God?” If a man’s family suffers because a government has unlawfully terriorzed and/or persecuted him, justice demands that that family receive restitution (actual damages).
Another consideration for the believer who sues for violation of his constitutional rights is his motive – is his primary desire to glorify God by making sure he is not led in any way by covetousness. In Genesis 14, we read that the King of Sodom wished to reward Abraham for saving the good and the people who had been taken forcefully by certain kings and their armies. “And Abram said to the king of Sodom, I have lift up mine hand unto the LORD, the most high God, the possessor of heaven and earth, That I will not take from a thread even to a shoelatchet, and that I will not take any thing that is thine, lest thou shouldest say, I have made Abram rich: Save only that which the young men have eaten, and the portion of the men which went with me, Aner, Eshcol, and Mamre; let them take their portion” (Ge. 14:22-24). “Let your conversation be without covetousness; and be content with such things as ye have: for he hath said, I will never leave thee, nor forsake thee. So that we may boldly say, The Lord is my helper, and I will not fear what man shall do unto me” (He. 13.5-6).
The Bible also teaches that a believer is to walk in the spirit, not in the flesh. All actions and battles for a believer and the church he is a member of are spiritual, not material or temporal (See, e.g., Ro. 7.15-25, 8.1-13; 1 Co. 12-13; Ga. 5; Ep. 2.1-10 and the whole book of Ep.; etc.). A church’s and a believer’s methods and motives in all matters are always to be spiritual and eternal as opposed to fleshly or worldly.
The Bible limits what a child of God should seek in restitution. Never should one seek exemplary damages, damages for mental anguish, damages for emotional distress, or any kind of damages which can be characterized as seeking vengeance. One can study out the meaning of the various types of legal damages to determine which can be characterized as “vengeance” damages. A true believer is to rejoice and be exceeding glad when persecuted for the cause of Christ. He is instructed never to seek vengeance since God makes clear that vengeance is His and that he will repay the offender for his unlawful actions. I refer the reader to the verses at the beginning of this article, most of which are reproduced in EN 1 below, for a study of this matter of vengeance and loving one’s neighbor. A complete serious study of the whole word of God would be even more enlightening.One simply cannot get around the fact that those Scriptures which I rely on to say that Christians are not to seek or take vengeance by making the argument that those Scriptures do not apply to the scenario I am considering. My human emotions, flesh, and reasoning tells me to sue for damages, including vindictive damages but the Bible instructs me not to do so. See how LLDF vindicated Rev. Walter Hoye.
In short, I believe that the course one who wishes to preach the Gospel in the public forum should be as follows:
(1) Do everything possible to avoid having to go to civil (as opposed to criminal) court. If one plans to speak in the public forum within a jurisdiction in which he is unsure if the authorities there are educated as to the law, notify the appropriate official(s) of when and where you will be speaking. If they do not know the law, educate them. Be sure to keep all evidence possible of your communications in case needed in future litigation.
(2) If the jurisdiction threatens citation and/or arrest after having been informed of the law, file for injunction in federal court.
(3) If you are arrested at any time for violation of your Biblical mandate to preach the Gospel in the public forum and in violation of your Constitutional rights, file a civil rights lawsuit. The only acceptable damages, according to God’s word, is actual damages which keeps one from properly keeping his duty to provide for himself and his family, and even those damages may not always be called for – a believer who is suing must honestly determine if such damages are appropriate. Suing for any type of damages which takes vengeance violates God’s principles. Suing for financial loss which compromises your ability to support your family is Biblically acceptable. I can help get an attorney licensed in your state to practice law to help you. If you are in Austin, Texas or in a nearby county in Texas, I may be able to help you depending upon my schedule.
I salute Chief Bohlen for giving his attention to this matter. He is a busy man. He and the officials and citizens of Faribault as well as the men of OPBC are better off for this educational experience. May the education extend to those citizens who have not, to this point, been privy to what has gone on in resolving this matter. May justice prevail now and in the future.
This same procedure has had the same results in Minneapolis, St. Paul, Northfield, and Anoka Minnesota. All glory to God!
Mt. 5.10-12, 38-48; 6.8-15; 18.21-35: “5:10-12 Blessed are they which are persecuted for righteousness’ sake: for theirs is the kingdom of heaven. Blessed are ye, when men shall revile you, and persecute you, and shall say all manner of evil against you falsely, for my sake. Rejoice, and be exceeding glad: for great is your reward in heaven: for so persecuted they the prophets which were before you. 5:38-48 Ye have heard that it hath been said, An eye for an eye, and a tooth for a tooth: But I say unto you, That ye resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also. And if any man will sue thee at the law, and take away thy coat, let him have thy cloke also. And whosoever shall compel thee to go a mile, go with him twain. Give to him that asketh thee, and from him that would borrow of thee turn not thou away. Ye have heard that it hath been said, Thou shalt love thy neighbour, and hate thine enemy. But I say unto you, Love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you; That ye may be the children of your Father which is in heaven: for he maketh his sun to rise on the evil and on the good, and sendeth rain on the just and on the unjust. For if ye love them which love you, what reward have ye? do not even the publicans the same? And if ye salute your brethren only, what do ye more than others? do not even the publicans so? Be ye therefore perfect, even as your Father which is in heaven is perfect. 6.8-15 Be not ye therefore like unto them: for your Father knoweth what things ye have need of, before ye ask him. After this manner therefore pray ye: Our Father which art in heaven, Hallowed be thy name. Thy kingdom come. Thy will be done in earth, as it is in heaven. Give us this day our daily bread. And forgive us our debts, as we forgive our debtors. And lead us not into temptation, but deliver us from evil: For thine is the kingdom, and the power, and the glory, for ever. Amen. For if ye forgive men their trespasses, your heavenly Father will also forgive you: But if ye forgive not men their trespasses, neither will your Father forgive your trespasses. 18.21-35 [Not reproduced here.]”
Lk. 6.27-46; 9.51-56: “6:27-46 But I say unto you which hear, Love your enemies, do good to them which hate you, Bless them that curse you, and pray for them which despitefully use you. And unto him that smiteth thee on the one cheek offer also the other; and him that taketh away thy cloke forbid not to take thy coat also. Give to every man that asketh of thee; and of him that taketh away thy goods ask them not again. And as ye would that men should do to you, do ye also to them likewise. For if ye love them which love you, what thank have ye? for sinners also love those that love them. And if ye do good to them which do good to you, what thank have ye? for sinners also do even the same. And if ye lend to them of whom ye hope to receive, what thank have ye? for sinners also lend to sinners, to receive as much again. But love ye your enemies, and do good, and lend, hoping for nothing again; and your reward shall be great, and ye shall be the children of the Highest: for he is kind unto the unthankful and to the evil. Be ye therefore merciful, as your Father also is merciful. Judge not, and ye shall not be judged: condemn not, and ye shall not be condemned: forgive, and ye shall be forgiven: Give, and it shall be given unto you; good measure, pressed down, and shaken together, and running over, shall men give into your bosom. For with the same measure that ye mete withal it shall be measured to you again. And he spake a parable unto them, Can the blind lead the blind? shall they not both fall into the ditch? The disciple is not above his master: but every one that is perfect shall be as his master. And why beholdest thou the mote that is in thy brother’s eye, but perceivest not the beam that is in thine own eye? Either how canst thou say to thy brother, Brother, let me pull out the mote that is in thine eye, when thou thyself beholdest not the beam that is in thine own eye? Thou hypocrite, cast out first the beam out of thine own eye, and then shalt thou see clearly to pull out the mote that is in thy brother’s eye. For a good tree bringeth not forth corrupt fruit; neither doth a corrupt tree bring forth good fruit. For every tree is known by his own fruit. For of thorns men do not gather figs, nor of a bramble bush gather they grapes. A good man out of the good treasure of his heart bringeth forth that which is good; and an evil man out of the evil treasure of his heart bringeth forth that which is evil: for of the abundance of the heart his mouth speaketh. And why call ye me, Lord, Lord, and do not the things which I say? 9.51-56 And it came to pass, when the time was come that he should be received up, he stedfastly set his face to go to Jerusalem, And sent messengers before his face: and they went, and entered into a village of the Samaritans, to make ready for him. And they did not receive him, because his face was as though he would go to Jerusalem. And when his disciples James and John saw this, they said, Lord, wilt thou that we command fire to come down from heaven, and consume them, even as Elias did? But he turned, and rebuked them, and said, Ye know not what manner of spirit ye are of. For the Son of man is not come to destroy men’s lives, but to save them. And they went to another village.”
Ro. 8.28; 12.9-21; 13.8-14; 14.19: “8:28 And we know that all things work together for good to them that love God, to them who are the called according to his purpose. 12:9-21Let love be without dissimulation. Abhor that which is evil; cleave to that which is good. Be kindly affectioned one to another with brotherly love; in honour preferring one another; Not slothful in business; fervent in spirit; serving the Lord; Rejoicing in hope; patient in tribulation; continuing instant in prayer; Distributing to the necessity of saints; given to hospitality. Bless them which persecute you: bless, and curse not. Rejoice with them that do rejoice, and weep with them that weep. Be of the same mind one toward another. Mind not high things, but condescend to men of low estate. Be not wise in your own conceits. Recompense to no man evil for evil. Provide things honest in the sight of all men. If it be possible, as much as lieth in you, live peaceably with all men. Dearly beloved, avenge not yourselves, but rather give place unto wrath: for it is written, Vengeance is mine; I will repay, saith the Lord. Therefore if thine enemy hunger, feed him; if he thirst, give him drink: for in so doing thou shalt heap coals of fire on his head. Be not overcome of evil, but overcome evil with good. 13.8-14 [God’s command to the believer concerning his acts toward his neighbor in the context of civil government jurisdiction and the believer’s role as a citizen of that civil government. Notice that these verses say nothing about the believer’s relationship to God in that context.]. 14:19 Let us therefore follow after the things which make for peace, and things wherewith one may edify another.”
Ga. 6.10: “As we have therefore opportunity, let us do good unto all men, especially unto them who are of the household of faith.”
1 Thes. 5.15 “See that none render evil for evil unto any man; but ever follow that which is good, both among yourselves, and to all men.”
1 Ti. 3.1-7: “This is a true saying, If a man desire the office of a bishop, he desireth a good work. A bishop then must be blameless, the husband of one wife, vigilant, sober, of good behaviour, given to hospitality, apt to teach; Not given to wine, no striker, not greedy of filthy lucre; but patient, not a brawler, not covetous; One that ruleth well his own house, having his children in subjection with all gravity; (For if a man know not how to rule his own house, how shall he take care of the church of God?) Not a novice, lest being lifted up with pride he fall into the condemnation of the devil. Moreover he must have a good report of them which are without; lest he fall into reproach and the snare of the devil.” [Since pastors should be going into the world preaching the Gospel, and since they may encounter violations of their civil rights, they should be aware that they are held to an even higher standard than other believers. Verses 10-13 then deals with qualifications for deacons.]
2 Ti.1,8; 2.8-12; 3.12: “1:8 Be not thou therefore ashamed of the testimony of our Lord, nor of me his prisoner: but be thou partaker of the afflictions of the gospel according to the power of God;” 2:8-12 Remember that Jesus Christ of the seed of David was raised from the dead according to my gospel: Wherein I suffer trouble, as an evil doer, even unto bonds; but the word of God is not bound. Therefore I endure all things for the elect’s sakes, that they may also obtain the salvation which is in Christ Jesus with eternal glory. It is a faithful saying: For if we be dead with him, we shall also live with him: If we suffer, we shall also reign with him: if we deny him, he also will deny us: 3:12 Yea, and all that will live godly in Christ Jesus shall suffer persecution.”
Note. Contextually, in 2.Ti. 3.12 and other verses, when Paul speaks of believers suffering persecution, he means that they will suffer, not fight, persecution. Of course Paul argued within the legal system when falsely accused of crime. He appealed to Rome as a Roman citizen and argued that the facts showed that he was not guilty. He did not have the civil rights given Americans in the Constitution, so one must go deeper into relevant Biblical doctrine to see God’s limits on one’s methods as he enters the civil (as opposed to criminal) law. That is what this article is about.
Ja. 3.17: “But the wisdom that is from above is first pure, then peaceable, gentle, and easy to be intreated, full of mercy and good fruits, without partiality, and without hypocrisy.”
1 Pe. 2.9-25(esp. 15-16 and 20-25); 3.14-17; 4: “2:15-16 For so is the will of God, that with well doing ye may put to silence the ignorance of foolish men: As free, and not using your liberty for a cloke of maliciousness, but as the servants of God. 2:20-25 For what glory is it, if, when ye be buffeted for your faults, ye shall take it patiently? but if, when ye do well, and suffer for it, ye take it patiently, this is acceptable with God. For even hereunto were ye called: because Christ also suffered for us, leaving us an example, that ye should follow his steps: Who did no sin, neither was guile found in his mouth: Who, when he was reviled, reviled not again; when he suffered, he threatened not; but committed himself to him that judgeth righteously: Who his own self bare our sins in his own body on the tree, that we, being dead to sins, should live unto righteousness: by whose stripes ye were healed. For ye were as sheep going astray; but are now returned unto the Shepherd and Bishop of your souls. 3:14-17 But and if ye suffer for righteousness’ sake, happy are ye: and be not afraid of their terror, neither be troubled; But sanctify the Lord God in your hearts: and be ready always to give an answer to every man that asketh you a reason of the hope that is in you with meekness and fear: Having a good conscience; that, whereas they speak evil of you, as of evildoers, they may be ashamed that falsely accuse your good conversation in Christ. For it is better, if the will of God be so, that ye suffer for well doing, than for evil doing.” [Read chapter 4 in your Bible. If you only have an interpretation – a non-KJB – buy a Bible!]
Ge. 50.16-20; Le. 19.18; De. 32.35: [Not reproduced here]
EN 2 “Sec. 17-42. Nuisance noise.
“(a) No person in the city shall make or assist in or permit the making of any noise tending to unreasonably disturb the peace and quiet of persons in the vicinity thereof, unless the making and continuing of the same cannot be prevented and is necessary for the protection or preservation of property or of the health, safety, life or limb of some person. “… “(d) Permitted noise. Customary sounds from any of the following activities shall not be deemed to violate this section. “(1) Marching and/or playing of music by bands, orchestras, or other musical aggregations in conjunction with an authorized city celebration, festival, or other neighborhood or community event, including band shell concerts; or the practice for or presentation of an event sponsored by a local public or private school; “(2) Church bells, chimes and carillons; “(3) Authorized parades; “(4) Construction work conducted between the hours of 7:00 a.m. and 10:00 p.m.; “(5) School bells; “(6) Emergency vehicles; “(7) Permitted street dances; or “(8) Collection and transportation of garbage or refuse in the city between the hours of 7:00 a.m. and 10:00 p.m. Notwithstanding the preceding sentence, the collection and transportation of garbage or refuse for commercial, industrial or institutional properties may be conducted between the hours of 5:00 a.m. and 10:00 p.m.”
Note. I included subsection (d) above because I believe it is significant that the exceptions do not include the most important and constitutionally mandated exception – free speech in the public forum – while it does include garbage collection and other similarly types of sound causing activities including some Biblically offensive types of “noise.”
EN 3 [First e-mail to the Faribault Chief of Police]
My name is Jerald Finney. I am writing this letter as a member of Old Paths Baptist Church (“OPBC”) in Northfield, Minnesota. I am contacting you regarding a matter which happened on June 21, 2013 in your city. Some of your police officers broke the law by assaulting one member and threatening more than one member of OPBC with arrest and citation for violating Section 17.42(a) of your city ordinances. I have already put the whole story online. You can read it at:
I am a lawyer who specializes in “separation of church and state law” and am licensed in Texas, but not in Minnesota. However, as a member of OPBC and as a representative of that church, I – and the church – wish to attempt to resolve a matter involving your police officers in the most reasonable manner, and in a way which does not waste the money of the taxpayers. This is the best way to handle the matter, in my opinion, since the legal issues have already been decided by the United States Supreme Court. Many lawsuits against municipalities, police departments, and individual police officers have already laid out the parameters of the law and shown that the litigation process ends up with taxpayers spending untold thousands of dollars for not understanding and correctly applying the law. The costs to the city and officers involved have included lawyers fees, court costs, time involved for officers and others who become involved, monetary judgments in favor of those whose legal rights have been violated, etc. OPBC wishes to act in a manner consistent with what the Bible teaches in resolving this matter and avoid further action. We wish to show you our love for you and your city by peaceful resolution. The church has already contacted the Alliance Defense Fund (“ADF”) and an ADF lawyer has told us to call if needed and they will get a lawyer who practices in your jurisdiction on it quickly.
What we would ask from the city is (1) a writing from a city official (Chief Bohlen, City Attorney, Fischer, or the mayor) stating that the Faribault police have been informed of the law regarding free speech in the public forum that can be presented in the future to officers who might attempt to abuse the preachers again and also stating that Faribault police officers have been educated in the law concerning speech in the public forum in America, (2) a written apology from the officer who assaulted the preacher, and (3) an apology from the lady officer who did almost all the talking.
I have thoroughly addressed the law on this matter online. I specifically deal with the issue on the “Old Paths Baptist Church ‘No Small Stir’ (Street Preaching) Ministry” page which you may assess by clicking the following link:
https://opbcbibletrust.wordpress.com/sermons/street-preaching/ There you may find links that will take you to court briefs and other information which spell out the law. I have a 12 page tract which succinctly lays out the law. That tract, “Tract – Street Preaching In America: Is It Legal?” is online at: https://opbcbibletrust.wordpress.com/god-betrayed/books/street-preaching-in-america-is-it-legal-tract/
As you can see from the information on that tract and on the website pages, this matter has already been resolved in Northfield, Minnesota without court action in favor of the street preachers from OPBC.
To understand the importance of protected speech and the bloody history of how it came to be in America, I would suggest reading “The History of the First Amendment,” which is Section IV of the book “God Betrayed/Separation of Church and State: The Biblical Principles and the American Application and which is free in online form at
Please contact me as soon as possible concerning this matter. I talked with Attorney Fischer on the phone a little while ago and he suggested calling Chief Bohlen. I called Chief Bohlen and left a voice mail. Our hope is that this whole matter will glorify God, uplift all involved and bring us closer together in love, strengthen and enforce principles which have made America great, and increase all our knowledge, wisdom and understanding of a vital matter. “And now abideth faith, hope, charity [God’s type of love], these three; but the greatest of these is charity” (1 Corinthians 13.13).
Very truly yours and for His Glory, Jerald Finney Member of Old Paths Baptist Church 512-785-8445 512-385-0761 E-mail: firstname.lastname@example.org
P.S. Should you call and get a voice mail, please leave a message and I will return your call as soon as possible.
EN 4 My reply to Chief Bohlen’s e-mail:
Dear Chief Bohlen,
Thank you for your e-mail reply on June 26, 2014. I have been working on this reply for several days. I believe we are getting closer, although still a long way from, a resolution to this problem. It appears to me that I will not be able to resolve this by communicating with you, but I am making an attempt to do so at the request of your city attorney. Again, let me say that I am acting on behalf of the men who were there street preaching, not as an attorney. We are all members of OPBC, a non-legal entity, a First Amendment church (I will not explain what that means other than to say individual men are involved, and no legal entity). The street preachers of OPBC are doing everything possible to get this matter resolved without taxing the city, the church, and the court system. They are ordered by the Bible to love all men and so they are showing their love to you, your city attorney, your city elected officials, your police force, all your city peace officers, and the citizens of your city by proceeding according to the directives of the word of God. They wish to give all their energy to obedience to the Lord which includes preaching the Gospel in public. They have no desire to bring in an attorney who may ultimately ask for certain damages and attorney’s fees which may burden you all in the form of tax dollars used to pay court ordered judgments. They will do that only as a final resort if all efforts to get this resolved according to the law of the land fail.
Let me say that I contacted you because your city attorney, Kurt Fischer, asked me to do so. I wished to take the matter up with him, but out of courtesy, I decided to comply with his request. I am cc’ing this to the mayor, the city council members, and the city attorney. Since in your last e-mail you stated that your position is that of the police department and the city of Faribault, I am sending this letter with a note (included above this letter the mayor to you, the city council members, and the city attorney. it is included, as you know, in your letter since you saw it before getting to this part of the correspondence.).
In this letter, I will (1) apologize; (2) give you a link to a Youtube video of a policeman interacting with the men of OPBC on June 28, 2013 as they preached at a “gay” pride event, a link to a website page which shows what happened in Northfield MN when people complained about the street preaching in downtown Northfield and my credentials to speak on these matters; (3) present requests for clarification of your position and some other matters; (4) speak to the assault issue; (5) give you specific law which clearly proves that it is unlawful for a police officer to arrest someone under color of certain types of statutes (disorderly conduct, nuisance, littering, etc.) laws when they are speaking in the public forum; (6) Conclude.
(1) My apologies
I wish to apologize to you for what I feel I been wrong in my prior correspondence. I sent you a ton of educational material. I ask you to forgive me for that. The material I sent contained the law concerning the issue we are confronting. I should have specifically given you the important law. Below, I will present what it says and will attach the United States Supreme Court Cases which have laid down the law. You see, I am not the law, the city attorney is not the law, and the police are not the law; nor does any of our opinions have legal effect. The Supreme Court is the law of the American legal system and their opinions are the standard. If their opinion violates the highest law, then they will ultimately pay the price, but that is not our problem. Please forgive me for not being specific.
Let me also apologize for not checking Minnesota law and referring to that when I mentioned what I still feel was an assault by the “officer” in the video. As a citizen of America, I feel the same way the men approached by the Faribault “officials” (I will refer to them all that way, with the understanding that some of them were not “your” officers.). I will clarify below what I meant. I am offended when someone comes up to me and puts their hands, fingers, feet or anything else on me in a negative way, especially if I am doing nothing illegal. I consider that type of action against me to be an assault. I am even more offended when a “peace officer” does so; especially if he says that I can’t do something that is legal, as declared by the U.S. Supreme Court (for example, tells me that a city ordinance trumps the First Amendment which is directly the opposite of the truth – see below for the law), and tells me I am going to jail.
(2) Examples of peace officers who know the law and my credentials to speak on these matters
The men of OPBC have preached in Minneapolis/St. Paul without problem, even in the face of complaints. The police there know the law. They preached at a “gay” pride parade there on June 28, 2014. Go to the video below to see what a police officer who knows and enforces the law (The First Amendment to the United States Constitution) does:
To see what happened in Northfield, Minnesota when citizens vehemently complained to the police of that city in their efforts to try to get the police to cite the preachers from OPBC with violation of city ordinance(s) because of their refusal to quit their protected speech click the following link:
Finally, let me briefly explain that I both led and participated in the street preaching ministry of an Austin TX church for about 20 years. Over that time, many complaints were made to the police – “I am offended,” “I am alarmed,” “You can’t do that,” “The place for this is in the ‘church’ building, not on the street,” “You are making people mad,” “You are in front of my business (where we were closer to the door of the business in busy pedestrian and vehicle traffic than in the incident you mentioned there in Faribault, etc. We were careful not to be so close to his business door that we impeded the progress of pedestrians in any way.). What did the police do to us – they explained the law to the people and protected us. I was assaulted more than once and spit on during those times. One man assaulted me and left to get in a taxi, but some policemen detained him and talked to him. Then the policeman came up to me and said that the man stated that I assaulted him, but that he saw the whole thing and said I could complain and he would arrest the man for assault. I told him that I came to help, not hurt, people and thanked him for protecting us and for all his good work as a peace officer.
Furthermore, I am a constitutional lawyer and have studied free speech. I know the law concerning speech in the public forum (on government sidewalks, parks, etc.) I have successfully represented people who were speaking in the public forum at trial and had to appeal one case which was reversed and acquittal ordered on appeal. Links to my brief and other information on that appeal are linked to at:
My first request involves your position.According to your letter, your position is the position of both the city of Fairbault and also the Fairbault police department. I will try to contact the city officials and the city attorney to verify that. If we need to go further, we wish to include everyone involved in any civil actions that may follow. We do not wish to go that route, but just in case. I will be attempting to discuss this with the city attorney and officials so they will not be surprised; and also to allow them to verify or deny whether they share your position and whether your position is also the policy of the city, the city officials, and the city attorney.
My second request is for your clarification of your position – what will happen if the preachers preach in your town? I will give my interpretation of your e-mail and ask if it is correct. If it is not, may I ask that you clearly state your position? Again, may I ask if your position is the express or understood position of the city of Fairbault? If so, how and where may I verify their position? I will be asking your city attorney and city officials (those who I and get an e-mail address for) their position and policy and the position and/or policy of the city in the next few days.
Let me give you my interpretation of your position. You said that a citation can and will be issued for disorderly conduct just for street preaching. You then want a judge to decide the issue. As I read it, you believe that police can cite and/or arrest a street preacher because people are offended and alarmed in violation of Noribault City Ordinance Section 17-42. I agree with you that police can do so. I disagree that they can do so lawfully because Supreme Court case law (quoted below) makes crystal clear that the First Amendment forbids it – the First Amendment trumps Section 17.42 and all the disorderly conduct and nuisance statutes in America. By explicit law (see below) the Supreme Court has already decided this issue and lower federal courts have already, on many occasions, awarded damages to American citizens who filed civil rights (42 U.S.C.S. § 1983) lawsuits against officials who unlawfully arrested them under various statutes (including disorderly conduct statutes) for speech activity in the public forum. Of course, a street preacher can be cited and arrested for some crimes such as assault or criminal trespass even if he is street preaching (as long as the alleged crime is not just a pretext for arrest). Police have unlawfully (in violation of the First Amendment) arrested and/or cited street preachers and others who were speaking in the public forum and charged them with disorderly conduct, littering (when in fact, as proven in court, others were littering by throwing Gospel tracts given them by street preachers in the street), and other crimes. Ultimately, the results were acquittal, many cases being dismissed without trial, some going to trial and acquitted, some being convicted, but exonerated on appeal. Those processes have resulted in clear definition of what the law is for those who know how to research it.
The law regarding freedom of speech in the public forum has also been developed in other ways. In some cases, those whose constitutional rights have sued police officers (I will not, at this time, explain the law of qualified immunity of government officials) and cities and city officials successfully under the Civil Rights Act (42 U.S.C.S. § 1983). All that because the police and maybe the city and city officials did not know the law and, instead of doing their jobs and protecting the law-abiding preachers or other citizens who were involved in protected speech in the public forum, became a law unto themselves and abused their duty to uphold the law. Ignorance of the law is no excuse. The street preachers of OPBC truly wish to avoid all that. They have no desire to get anything from anyone unless your unlawful actions continue, their freedom of speech rights are violated, and/or you deprive them of their livelihood needed to take care of their families. Just being forced unlawfully to go to court by summons and/or arrest will interfere with these men’s ability to do their secular jobs and provide for their families. They will not seek vengeance, but they will seek justice. Hopefully, justice will be served without court action. They will love you, as ordered by God in his word which means they will do everything in their power to resolve this in the most expeditious manner possible without lawsuit or other court action. In addition, your citizens deserve better than that. What they need to know is the truth. According to the United States Supreme Court, here is no right not to be offended or alarmed in the public forum in America. I will give you some Supreme Court quotes below. Most thinking people, myself included, are offended or alarmed by something they see or hear every time they venture out in public. These men could have been offended by the unlawful actions of your officers and by the unlawful responses of the members of your community who called the police in hopes of arresting their protected speech.
On top of all that, your proposal that the men come preach, get a summons, go to court, and let the court decide leaves some very important questions. The men probably left later than they would have had the officers not interrupted them by violating their civil rights. What would happen if we followed your proposal and after the summons issued, kept preaching another hour? Two more hours? More complaints and more summons? Or would the preacher(s) be arrested? What if they came back to preach on the streets of Noribault before the judge decided the case or before the appeal, if needed, were finished? More citations, summons, possible arrests? Another important question is why should anyone go through this ridiculous exercise for a matter that has already been decided by the United States Supreme Court? Again, I will offer specific law below. I will attempt to get your city attorney to look at this. It is his job. I will also point it out to any city officials for whom I can obtain an e-mail address. In Northfield, the exact same thing happened, a police officer took it on himself to go to the city attorney, and the city attorney explained that the police could do nothing about street preaching under disorderly conduct, nuisance or other similar laws. I do not know exactly how much detail the city attorney gave, but the police in Northfield now abide by and understand their role. No civil suit of any kind with the collateral consequences to the city, to individual officers, to city officials, to the city attorney, and to the citizens of Northfield (of course, the consequences against the citizens would be indirect since it would all be paid for by their tax dollars). Again, the St. Paul/Minneapolis officers also know and act upon the law as shown in the video linked to above.
By the way, as to the incident at the liquor store, you officers were in the wrong there as well, as far as the video indicates. Paul, I do not believe, did not impede or intimidate customers. He may have offended them or scared them by telling them that the Bible teaches that “except ye repent, ye shall all likewise perish,” of by some other constitutionally protected speech. I will have to talk to him more about that. No need to get into great detail about that here. The main thing is that these two incidents (both of which I have on DVD) are establishing a pattern.
My third request is to ask you if you will send me the names, badge numbers (if any), and service or citation addresses of all the personnel who were involved in the incident and the liquor store incident. If similar incidents occur, I will remind the street preachers to get the names and badge numbers of all officers involved, and the names, addresses and phone numbers of any non-peace officers involved. Please instruct your officers to give that information if requested or not in the event of future incidents of the same nature. We would especially like to know the name and contact info. for the person who “tapped the preacher on the arm” ordered him to get down and said “he can’t do that, he’s going to jail,” etc. From whom did he get his authority? I will get the names and e-mail addresses s of the city officials, if possible, off the city website. As you know, I already have all the contact info. for the city attorney. Having all that information will speed up whatever court action(s), if any, takes place regarding this matter. If such action is necessary, OPBC will turn all the info over to the attorney who handles the case(s), thus lowering his billable hours. He will ask for attorney’s fees as well as for certain types of damages should a 1983 action be initiated. If I were licensed in Minnesota, I would handle it all myself pro bono without asking for anything more than out of pocket expenses be awarded by the court. My work on these type matters has always been pro bono. I regret that I cannot save you money in that way.
(4) The assault issue
Although the assault point is moot and although neither Mr. Pearson nor any of the other men will try to proceed on an assault charge, I must give it some attention in answer to your comments. These people are true Christians. If our Lord could suffer as he did at the hands of the religious and political crowds (because they were alarmed and offended because of what he said. We know the real reason for his crucifixion – my sin, your sin and the sins of the whole world put him on the cross), surely we can suffer such a minute affront from the same crowd. In fact, we are told to suffer such tribulation with joy.
One 2012 Webster’s Dictionary definition of “Assault” is “a: a threat or attempt to inflict offensive physical contact or bodily harm on a person (as by lifting a fist in a threatening manner) that puts the person in immediate danger of or in apprehension of such harm or contact.” One 2012 Webster’s Student definition of assault is: “2 : an unlawful attempt or threat to do harm to another.”
As to Minnesota law, I offer the following sections from the 2013 Minnesota Statutes: 609.02 DEFINITIONS. “Subdivision 1.Crime.“Crime” means conduct which is prohibited by statute and for which the actor may be sentenced to imprisonment, with or without a fine…. … “Subd. 4a.Petty misdemeanor.“Petty misdemeanor” means a petty offense which is prohibited by statute, which does not constitute a crime and for which a sentence of a fine of not more than $300 may be imposed…. “Subd. 10.Assault. “Assault” is: “(1) an act done with intent to cause fear in another of immediate bodily harm or death; or “(2) the intentional infliction of or attempt to inflict bodily harm upon another.” 609.2231 ASSAULT IN THE FOURTH DEGREE. “Subdivision 1.Peace officers. “Whoever physically assaults a peace officer licensed under section 626.845, subdivision 1, when that officer is effecting a lawful arrest or executing any other duty imposed by law is guilty of a gross misdemeanor and may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both. If the assault inflicts demonstrable bodily harm or the person intentionally throws or otherwise transfers bodily fluids or feces at or onto the officer, the person is guilty of a felony and may be sentenced to imprisonment for not more than three years or to payment of a fine of not more than $6,000, or both.” [This states that an assault can occur when there is no demonstrable bodily harm.] Given all the officer said and did, I consider it to be an assault. If I had been the preacher, I would have feared that something more physical (additional unlawful physical force against my person and possible unlawful arrest which usually involves at least some force such as handcuffing) was going to occur. That is the way Paul Pearson felt after the assault. He expressed that sentiment to others who were with him. That can be inferred from what the officer did and said and the way he did and said it. Since it was an officer, I would have had more fear of further unlawful action than if a non-peace officer had inflicted the assault. He, unlike a non-officer, was acting under color of law. Actions against a peace officer, even in self-defense against unlawful action, have resulted in harsh retaliation followed by lies about what happened. Most informed Americans now understand that police can become brutal at the drop of a hat and will lie about it if they think they can get away with it. Cameras help the citizen. One case in point involved Rodney King. Should not law-abiding Americans expect their peace officers to treat them with dignity and know the law? Again, since these street preachers are believers who follow the Lord Jesus Christ, and even though they are physically strong, they are very unlikely to exercise force against and physically hurt anyone unless protecting their families against harm.
(5) The law
The cases below are from the United States Supreme Court. These cases, and many others, clearly lay out the law which a peace officer is entrusted to enforce as regarding those who speak in the public forum (this includes those who preach in the public forum).
1. …The freedom of speech and press are among the fundamental personal rights and liberties which are secured to all persons by the Fourteenth Amendment against abridgment by the state. Thornhill v. Alabama, 310 U.S. 88, 95, 60 S.Ct. 736, 740, 84 L.ED. 1093 (1940).
2. Freedom of speech includes not only the spoken word, but also speech-related conduct, such as picketing, the wearing of arm bands and, in some recent highly publicized cases, flag burning as a type of political protest. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756.
3. “Whenever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.’ Hague v. C.I.O., 307 U.S. 496, 515-516, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (opinion of Mr. Justice Roberts, joined by Mr. Justice Black). Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147, 152, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969).”
4. [Government control of access to its property, public forums, littering] The extent to which the government can control access to its property for expressive purposes depends on the nature of the forums. Reed v. State, 762 S.W.2d 640, 643 (Tex. App.—Texarkana 1988, pet. Ref’d) citing Cornelius v. NAACP Legal Defense & Education Fund, 473 U.S. 788, 105 S.Ct. 3489, 87 L.Ed. 567 (1985); Olvera v. State, 806 S.W.2d 546 (Tex. Crim. App. 1991). Public forums are those areas which traditionally have been devoted to assembly and public debate, such as public streets, sidewalks, and parks. Id. “[The] Streets are natural and proper places for the dissemination of information and opinion; and one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.” Thornhill v. Alabama, 310 U.S. 88, 97-98, 102, 105-106, 60 S.Ct. 736, 741-742, 744, 746, 84 L.Ed. 1093 (1940).
Although a municipality may enact regulations in the interest of the public safety, health, welfare, or convenience, these may not abridge the individual liberties secured by the constitution to those who wish to speak, write, print, or circulate information or opinion. Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939). In Schneider, one appellant was charged with violating a law criminalizing the circulation and distribution of handbills designed, the city said, to prevent littering of the streets even though he did not litter himself—those to whom he handed the literature threw it down. The court said that the city could achieve the same thing without violating appellant’s freedom of speech by punishing those who threw the literature into the streets. Thornton v. Alabama, 310 U.S. 88, 97-98, 102, 105-106, 60 S.Ct. 736, 741-742, 744, 746, 84 L.Ed. 1093 (1940):
“A threat … is inherent in a penal statute … which does not aim specifically at evils within the allowable area of State control but, on the contrary, sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech or of the press. The existence of such a statute, which readily lends itself to harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure, results in a continuous and pervasive restraining on all freedom of discussion that might reasonably be regarded as within its purview….
“Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period….
“[The] streets are natural and proper places for the dissemination of information and opinion; and one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.”
5. [Evils within allowable are of state control] Terminiello v. Chicago, 337 U.S. 1; 69 S. Ct. 894; 93 L. Ed. 1131; 1949 U.S. LEXIS 2400 (1949):
“Freedom of speech, though not absolute, is protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. “The vitality of civil and political institutions in our society depends on free discussion. As Chief Justice Hughes wrote in De Jonge v. Oregon, 299 U.S. 353, 365, it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes. “Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire, supra, pp. 571-572, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. See Bridges v. California, 314 U.S. 252, 262; Craig v. Harney, 331 U.S. 367, 373. There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups. “The ordinance as construed by the trial court seriously invaded this province. It permitted conviction of petitioner if his speech stirred people to anger, invited public dispute, or brought about a condition of unrest. A conviction resting on any of those grounds may not stand.”
Substantive evils within the allowable are of state control are obstructing or unreasonable interfering with ingress to and egress for enumerated public places, blocking sidewalks, obstructing traffic, littering streets, committing assaults, and engaging in countless other forms of anti-social conduct. Olvera v. State, 806 S.W.2d 546, 548-549 (Tex. Crim. App. 1991) citing Coates v. Cincinnati, 402 U.S. 611, 91, S.Ct. 1686, 29 L.Ed.2d 214 (1971) and Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1968). Evil within allowable areas of state control include molestation or interference with person and vehicles, obstruction of pedestrians and automobiles, threatening or intimidating or coercing anyone, making loud noises, unpeaceful and disorderly conduct, acts of violence, and breaches of the peace.See, e.g., Carlson v. California, 310 U.S. 106, 60 S.Ct. 746, 84 L.Ed. 1104 (1940), Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736 (1940), Olvera v. State, 806 S.W. 2d 546 (Tex. Crim. App. 1991).
Municipal legislation meant to keep community streets open and available for movement of people and property is constitutional so long as the legislation does not abridge constitutional liberty of one to impart information through speech and distribution of literature. Schneider v. State, 308 U.S. 147, 160, 60 S.Ct. 146, 150, 84 L.Ed. 155 (1939). Crimes may be punished by law, but the freedom of speech and the press may not be abridged in the guise of regulations by the governing entity to prevent littering, fraud, or to promote the public health, welfare, or convenience. Id. While declaring laws unconstitutional which infringe upon first amendment rights, the Court has made clear what a city may do to punish evils within the allowable areas of state control: “[A] city is free to prevent people from blocking sidewalks,obstructing traffic, littering streets, committing assaults, or engaging in countless other forms of anti-social conduct. It can do so through the enactment and enforcement of ordinances directed with reasonable specificity toward the conduct to be prohibited.” Coates v. Cincinnati, 402 U.S. 611, 91, S.Ct. 1686, 29 L.Ed.2d 214 (1971).
7. [Disorderly conduct] In Gooding v. Wilson, 405 U.S. 518, 92 S. Ct. 1103, 31 L. Ed. 2d 408, a defendant was found guilty of using opprobrious words and abusive language in violation of a Georgia statute. The Fifth Circuit Court of Appeals declared the statute unconstitutionally vague and broad and set aside defendant’s conviction. “The constitutional guarantees of freedom of speech forbid the States to punish the use of words or language not within “narrowly limited classes of speech.” Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942). Even as to such a class, however, because “the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn,” Speiser v. Randall, 357 U.S. 513, 525 (1958), “in every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom,” Cantwell v. Connecticut, 310 U.S. 296, 304 (1940).” Government may pass laws which punish “fighting words.” In Chaplinsky, we sustained a conviction under Chapter 378, § 2, of the Public Laws of New Hampshire, which provided: “No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name . . . . ‘Chaplinsky was convicted for addressing to another on a public sidewalk the words, ‘You are a _ _ _ damned racketeer,’ and ‘a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.’ Chaplinsky challenged the constitutionality of the statute as inhibiting freedom of expression because it was vague and indefinite. The Supreme Court of New Hampshire, however, ‘long before [*523] the words for which Chaplinsky was convicted,’ sharply limited the statutory language ‘offensive, derisive or annoying word’ to ‘fighting” words’: “No words were forbidden except such as have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed. . . .
“The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight. . . . Derisive and annoying words can be taken as coming within the purview of the statute . . . only when they have this characteristic of plainly tending to excite the addressee to a breach of the peace….
“The dictionary definitions of ‘opprobrious’ and ‘abusive’ give them greater reach than “fighting” words. Webster’s Third New International Dictionary (1961) defined ‘opprobrious’ as ‘conveying or intended to convey disgrace,’ and ‘abusive’ as including ‘harsh insulting language.’ Georgia appellate decisions have construed § 26-6303 to apply to utterances that, although within these definitions, are not ‘fighting’ words as Chaplinsky defines them.”
8. The state of Louisiana both directly [see Cox v. State of Louisiana, 379 U.S. 559, 574, 85 S.Ct. 476, 486 (1965)] and indirectly [see Cox] attempted unsuccessfully to deny freedom of speech to picketers. The United States Supreme Court ruled against the state in both cases. Louisiana indirectly tried to abridge appellant’s freedom of speech and assembly by charging him with violation of “disturbing the peach” and “obstructing a public passage” penal statutes. 379 U.S. 536, 85 S.Ct. 453 (1965).
As to the “breach of the peace” charge, the Court stated that its independent examination of the record, which it is required to make, shows no conduct which the state had a right to prohibit as a breach of the peace. Id. At 545, 85 S.Ct. at 459. In addressing the “obstructing a public passage” conviction, the Court addressed the issue of the “right of a State or municipality to regulate the use of city streets and other facilities to assure the safety and convenience of the people in their use and concomitant right of the people of free speech and assembly.” Id. At 554, 85 S.Ct. at 464. There was no doubt that the sidewalk was obstructed by the picketers. Id. At 553, 85 S.Ct. at 464. The Court said that the statute, as applied, violated the appellant’s Constitutional guarantees of freedom of speech andassembly. Id. At 558, 85 S.Ct. at 466.
9. [As to when a governmental entity seeks to take away one’s freedom to display signs and banners in conjunction with his protected speech.] A municipality in Carlson v. People of State of California, 310 U.S. 106, 60 S.Ct. 746, 84 L.Ed. 1104 (1940) sought to enforce an ordinance which directly infringed on appellant’s freedom of speech. Carlson declared unconstitutional a municipal ordinance which declared it unlawful for any person, in or upon any public street, highway, sidewalk, alley or other public place … to carry or display any sign or banner in the vicinity of any place of business for the purpose of inducing or attempting to induce an person to refrain from purchasing merchandise or performing services or labor. Id. (emphasis mine).
Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed. 2d. 842 (1974):
[Appellant had displayed an American flag upside down out of his apartment window with a peace symbol attached. at 405-406. The Court noted, and the state conceded, that appellant engaged in a form of communication. at 409, 94 S.Ct. at 2729-2730.
To apply an ordinance to prevent the display of banners or signs in conjunction with protected speech activity violates the speaker’s right to freedom of speech and the rights of the people to whom the speech was directed.
“An assertion that ‘Jesus Saves,’ that ‘Abortion is Murder,’ that every woman has the ‘right to Choose,’ or that ‘Alcohol Kills,’ may have a claim to constitutional exemption from the ordinance [which prohibited certain political campaign signs] that is just as strong as ‘Roland Vincent—City Council.’ To create an exception for … political speech and not these other types of speech might create a risk of engaging in constitutionally forbidden content discrimination.” Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 104 S.Ct. 2118, 80 L.Ed. 772. Under the Equal Protection Clause of the Fourteenth Amendment, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. Police Department of City of Chicago v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 2290, 33 L.Ed. 212 (1972)(Holding a Chicago ordinance unconstitutional under the Equal Protection Clause of the Fourteenth Amendment in a case where the equal protection claim was closely intertwined with First Amendment interests)(p 27 of brief). Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Id. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone. Id. Mr. Justice Black called an attempt by a government to pick and choose among the views it is willing to have discussed in picketing activities “censorship in its most odious form, unconstitutional under both the First and Fourteenth Amendments.” Cox v. Louisiana, 379 U.S. 536, 85 S. Ct. 453, 13 L.Ed. 2d 471 (1965) cited in 408 U.S. 92, 98-99, 92 S.Ct. 2291; Carey v. Brown, 477 U.S. 455, 100 S.Ct. 2286, 65 L.Ed. 263 (1980) reaffirmed Mosley.
Even if the purpose of an ordinance does not specifically aim at protected speech, it may indicectly attempt to deny freedom of speech (See p. 34 of brief in the Steve Drake case which is in PDF form on the website.). Even if the purpose of [an ordinance] is to keep community streets open and available for movement of people and property or to prevent littering, fraud, to promote the public health, welfare, or convenience, to prevent breaches of the peace or other crimes, it is constitutional only so long as it does not abridge constitutional liberty or one to impart information through speech and the distribution of literature. See Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939); Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed. 2d 214 (1971); Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453 (1965).
Again, the men of OPBC salute you. They are endeavoring to do everything possible to resolve this matter quickly in accordance with man’s law and with the law of God. The First Amendment which provides for separation of church and state and freedom to practice one’s religion, freedom of assembly, press, speech, and the right to petition the government for a redress of grievances says that cities, city officers, city attorney’s, and city elected officials are to protect the First Amendment freedoms of all citizens, including those who choose to speak in the public forum. In love, the men of OPBC are trying to treat all the people of Noribault with godly love. Accordingly, we are seeking to avoid further action in the legal arena, an action which will result in expense to your city and also detract our people from their primary duties to their Lord
EN 5 I sent the e-mail below to the Faribault Mayor, City Attorney, City Council members, and Chief Bohlen. In the e-mail was the note. Attached to the e-mail was a link to the online article which described what happened and linked to the Youtube videos which showed what happened [I am omitting that here since one can go directly to the link to see it], some other information, my letter to Chief Bohlen which had replied to his June 26 letter, and a final letter to all the above mentioned Faribault officials.
Note to City Attorney Fischer, Mayor Jasinske, and Faribault City Council members: The letter to Chief Bohlen is below this rather lengthy note. The city attorney asked me to call Chief Bohlen rather than seeking resolution through him. Out of courtesy, I complied with his request even though I did not personally feel that a police officer would have the necessary expertise to delve into the legal issues. I do not mean that as an insult. I can tell from his e-mail, which is copied and pasted at the end and which was very courteous, that Chief Bohlen has the best interests of everyone at heart; but I could also tell that he does not understand the law regarding these matters. He discussed the proper protocols in his letter; I have no quarrel with that when applied to lawbreakers. However, when that protocol is used against law-abiding citizens, it makes the officer who applies it a lawbreaker subject to civil, if not criminal, litigation. I would not know how to do the job of law enforcement because I have no law enforcement training. That is his expertise. Examining, understanding, and litigating the law is mine. That is why the other members of Old Paths Baptist Church (“OPBC”) asked me, a lawyer, to try to resolve this matter as a member of OPBC without bringing in a lawyer. Should legal action come about, an attorney who is licensed in Minnesota (or a pro hoc vice attorney) will represent the men.
Although the Chief understands police protocol, he reveals in his letter that he understands neither (1) the law of free speech in the public forum and the freedom of those who exercise their First Amendment speech rights in that forum nor (2) the role of the police officer when such speech is complained about. Chief Bohlen stated in the letter: “The City of Faribault will continue to enforce the law and protect all citizen rights, as well as free speech.” In that statement, he indicates that he speaks for the City of Faribault. I want to make sure that is so because he also stated, “I am confident that our State Statute would comply with the Hierarchy of Law and win challenges.” That is the first time he mentioned “our state statute.” I do not know which statute he is talking about since the officers who approached the men cited a city statute. He then gave his legal opinion concerning the relationship between the law of free speech in America and the guidelines he follows concerning enforcement of certain state and local ordinances when such ordinances come into conflict with Constitutionally protected speech in the public forum. I take great issue with his legal position; I believe that he is totally off base.
I want to make sure that the Chief speaks for you all before proceeding. I would ask that you all review these matters. I need to know for sure that Chief Bohlen is, in fact, stating the official position of you all so that in the event future action is called for, our attorney will know who to include in any legal litigation. Should an attorney be called in to take legal action on behalf of the street preachers, he will be informed of your actions and responses – common sense would dictate that no response on your part will indicate that your position and the city’s position is that you support Chief Bohlen’s position and actions and that he speaks for you. You speak for your city. Whatever position you take will also implicate the entire city.
To give you relevant facts, I have copied and pasted facts about the matter directly below. I have also posted the story on the page which is available by clicking following link (left click and scroll down to “June 21, 2013 Update” once you access the link):
I am e-mailing this to: Chief of police: Chief Andy Bohlen <email@example.com> City Attorney: Kurt Fischer <firstname.lastname@example.org> Mayor: John Jasinske <email@example.com>
City Council members: David Albers (or Ablers – its 2 ways on website) David Albers <firstname.lastname@example.org >; David Ablers <email@example.com>; Kay Duchene <firstname.lastname@example.org>; John Rowan <email@example.com>; Steve Underdahl <firstname.lastname@example.org >; Joan VanDyke <jvandyke@@ci.faribault.mn.us >; Kevin Voracek <email@example.com >:
I got the e-mail addresses of the mayor and council members off the city website. Council member Albers or Ablers his 2 spellings which differ – one in the spelling of his name and one in the e-mail listing. If the addresses and names are no longer the same, please let me know.
You may read the cases I cite for yourselves to verify that I am not trying to deceive you. If you would like to have a case or cases which is cited below e-mailed to you, let me know. I have most of the cases I quote from below available in Word documents.
Letter To Chief Bohlen:
The letter was included in the e-mail. I am not reproducing it here since it is in EN 3 Above.
EN 6 My June 30, 2014 e-mail to the Faribault Mayor, Chief of Police, City Attorney, and City Council Members:
Dear Chief Bohlen, Honorable Mayor Jasinske, and Faribault City Council members:
The Supreme Court, on June 26, 2014, handed down another First Amendment speech case dealing with speech in the public forum. In a 9-0 decision, the Court struck down a Mass. law which violated long established principles regarding speech in the public forum. The case is linked to below (just click the name to go directly to it). I have included some quotes from the case. I also link to a Texas case which just came down in which police arrested a street preacher and the Texas Court ruled in his favor. Please take note of these cases.
Held: The Massachusetts Act violates the First Amendment. Pp. 8–30. (a) By its very terms, the Act restricts access to “public way[s]” and “sidewalk[s],” places that have traditionally been open for speech activities and that the Court has accordingly labeled “traditional public fora,” Pleasant Grove City v. Summum, 555 U. S. 460, 469. The government’s ability to regulate speech in such locations is “very limited.” United States v. Grace, 461 U. S. 171, 177. “[E]ven in a public forum,” however, “the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions ‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information,’ ” Ward, supra, at 791. Pp. 8–10….
(1) The buffer zones serve the Commonwealth’s legitimate interests in maintaining public safety on streets and sidewalks and in preserving access to adjacent reproductive healthcare facilities. See Schenck v. Pro-Choice Network of Western N. Y., 519 U. S. 357, 376. At the same time, however, they impose serious burdens on petitioners’ speech, depriving them of their two primary methods of communicating with arriving patients: close, personal conversations and distribution of literature. Those forms of expression have historically been closely associated with the transmission of ideas. While the Act may allow petitioners to “protest” outside the buffer zones, petitioners are not protestors; they seek not merely to express their opposition to abortion, but to engage in personal, caring, consensual conversations with women about various alternatives. It is thus no answer to say that petitioners can still be seen and heard by women within the buffer zones. If all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners’ message. Pp. 19–23.
(2) The buffer zones burden substantially more speech than necessary to achieve the Commonwealth’s asserted interests. Subsection (e) of the Act already prohibits deliberate obstruction of clinic entrances. Massachusetts could also enact legislation similar to the federal Freedom of Access to Clinic Entrances Act of 1994, 18 U. S. C. §248(a)(1), which imposes criminal and civil sanctions for obstructing, intimidating, or interfering with persons obtaining or providing reproductive health services. Obstruction of clinic driveways can readily be addressed through existing local traffic ordinances. While the Commonwealth contends that individuals can inadvertently obstruct access to clinics simply by gathering in large numbers, that problem could be addressed through a law requiring crowds blocking a clinic entrance to disperse for a limited period when ordered to do so by the police. In any event, crowding appears to be a problem onlyat the Boston clinic, and even there, only on Saturday mornings.
It is no accident that public streets and sidewalks have developed as venues for the exchange of ideas. Even today, they remain one of the few places where a speaker can be confident that he is not simply preaching to the choir. With respect to other means of communication, an individual confronted with an uncomfortable message can always turn the page, change the channel, or leave the Web site. Not so on public streets and sidewalks. There, a listener often encounters speech he might otherwise tune out. In light of the First Amendment’s purpose “to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail,” FCC v. League of Women Voters of Cal., 468 U. S. 364, 377 (1984) (internal quotation marks omitted), this aspect of traditional public fora is a virtue, not a vice. In short, traditional public fora are areas that have historically been open to the public for speech activities. Thus, even though the Act says nothing about speech on its face, there is no doubt—and respondents do not dispute—that it restricts access to traditional public fora and is therefore subject to First Amendment scrutiny. See Brief for Respondents 26 (although “[b]y its terms, the Act regulates only conduct,” it “incidentally regulates the place and time of protected speech”).
In short, traditional public fora are areas that have historically been open to the public for speech activities. Thus, even though the Act says nothing about speech on its face, there is no doubt—and respondents do not dispute—that it restricts access to traditional public fora and is therefore subject to First Amendment scrutiny. See Brief for Respondents 26 (although “[b]y its terms, the Act regulates only conduct,” it “incidentally regulates the place and time of protected speech”). Consistent with the traditionally open character of public streets and sidewalks, we have held that the government’s ability to restrict speech in such locations is “very limited.” Grace, supra, at 177. In particular, the guiding First Amendment principle that the “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content” applies with full force in a traditional public forum. Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95 (1972). As a general rule, in such a forum the government may not “selectively . . . shield the public from some kinds of speech on the ground that they are more offensive than others.” Erznoznik v. Jacksonville, 422 U. S. 205, 209 (1975).
Links to a couple of articles dealing with the McCullen v. Oakley
I know that you are all busy, but I would ask you to please let the men of OPBC know as soon as you can as to what your city policy is going to be regarding their First Amendment right to speak in the public forum.
Thank you for your courtesies in this matter and for your quick attention to the Constitutional issue.
Very Truly Yours,Jerald Finney
EN 7. Followup discussion of this article.
I received 2 Facebook e-mails on August 8, 2014:
(1) We are not to sue a “Brother”, I do not see anything in GOD’S WORD about suing the Government.
(2) Paul invoked his rights as a Roman citizen several times, including an appeal to Caesar.
My reply (as written with a couple of obvious typos) was:
Dear Brother _____________ and Brother _______________, Thank you both for not labeling me an heretic and cutting off fellowship because of the article. One brother, a longtime friend, did this. I let him know that I still love him and see no reason for breaking fellowship over this matter, to no avail. He has been the only negative response. Others agree with me. Still other, I am guessing, may not agree but have not seen it as an issue to get crossways and break fellowship over. Nor do I. Are we not to sharpen one another as we fight this spiritual warfare we are called to engage in? No one has shown me where I am wrongly interpreting the scriptures I gave in the article, many of the quoted word for word in endnote 1. Those scriptures lay out the principles upon which I rely for my position. Let me address Paul and what he did. Paul invoked his rights as a Roman citizen while he was under arrest, at times incarcerated during that arrest (sometimes, as I understand history, he was under house arrest – the point is, he was being detained.). In other words, Paul was charged with criminal activity. He was falsely accused of a crime for which the religious leaders sought death. He defended himself. I have done the same thing for others on many occasions. I have defended people falsely accused of crime and gone all the way to trial for some. A few of those I have defended at no charge and gone to trial for were falsely accused of criminal activity and arrested in violation of their Constitutional rights. There is nothing in Scripture which would be offended by such action. In fact, seeking justice in such a situation is the right thing to do. However, my article was not concerned with seeking justice in the criminal system. My article addressed seeking vengeance in the civil system. I pointed out that I could not argue against seeking justice and restitution in a suit against the government. The Bible speaks to the issue of restitution, and I believe allows for such in the law. It also speaks of justice and upholds justice. But the Bible is very clear that the believer is not to seek vengeance. Paul did not seek vengeance while incarcerated. Paul did not sue those who falsely accused him. Had he had the opportunity, I do not believe he would have violated principles he knew from the Old Testament and which God inspired him to write on in his epistles. I am convinced that he would never have sued for even restitution, much less for damages for pain and suffering and other exemplary damages, the purpose of which is to exact vengeance.I do not believe that he would have even sued for restitution, a stressful and time consuming process. I believe that he would have used the time and resources in carrying out the Great Commission, a thing which he did even while under arrest. A man who has a family to support in today’s world might find it necessary to seek restitution for lost wages and other costs of being falsely arrested. I would have no problem with that and might even help in the legal arena, if possible. I would certainly help that person find a lawyer in his locality to help if I were unable to do so because of distance and lack of monetary resources. That is my answer. Can either of you show me where I am wrong?
I sent a second reply: Dear Brother _____________, I did not address your concern in the last reply. When one sued government for vengeance, who pays for the judgment – one’s fellow man. Government gets its money from the citizens. The citizens are the ones who pay the vengeance damages.
Churches under Christ Ministry is under the authority of Charity Baptist Tabernacle of Amarillo, Texas, Benjamin Hickam Pastor. Jerald Finney, a Christian Lawyer and member of Charity Baptist Tabernacle explains how a church in America can remain under the Lord Jesus Christ and Him only. "And hath put all things under his feet, and gave him to be the head over all things to the church" (Ephesians 1.22).