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The History and Meaning of “Establishment of Religion” in America

A Publication of Churches Under Christ Ministry


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Jerald Finney
December 18, 2017


This article will succinctly answer several questions:

  1. What did “establishment or religion” mean in the colonies?
  2. What did “establishment or religion” mean at the time of the adoption of the First Amendment?[i]
  3. What happened with the remaining forced religious establishments after the adoption of the First Amendment?
  4. What does “establishment or religion” mean today?

Contents

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”


First Amendment Religion Clause

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.


IV. Conclusion


Every church has a choice – either under God only or under man (civil government).

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]


Endnotes

[i] See, for list of source authorities, List of Scholarly Resources Which Explain and Comprehensively Document the True History of Religious Freedom in America.

[ii] Leonard W. Levy, The Establishment Clause/Religion and the First Amendment (London: MacMillan Publishing Co., 1986), p. xiv.

[iii] Id., p. xvi.

[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.

[v] See, for more information, A Brief History of the First Amendment. That brief article gives links to more resources for the interested student.

[vi] Levy, The Establishment Clause/Religion and the First Amendment, p. 47.

[vii] Levy, p. 26.

[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 Dissent 1630-1833: 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.

[x] Levy, p. 40.

[xi] John Leland, “The Rights of Conscience Inalienable,” in Writings of John Leland, p. 186.

[xii] Levy, p. 50-51.

[xiii] Levy, p. 60-61.

[xiv] See, for a complete understanding of church incorporation and church 26 United States Code §§ 501(c)(3) and 508 status, Separation of Church and State: God’s Churches – Spiritual or Legal Entities?


 

A Call to Anguish: Churches Reject God’s Authority


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


Jerald Finney
Copyright © November 21, 2017


A Call to Anguish: Churches Reject God’s Authority

1God 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.

How far off base would civil government go in the definition of “church” as multitudes of organizations sought and continue to seek non-profit corporation and tax exempt status? Let us look at an illustration. “A New Religion Forms That Will Worship A ‘Godhead’ Based On AI” states in the introduction:

“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 1 gives 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.”

2In 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?

Listen to the powerful clip from sermon A Call to Anguish.

[For complete studies which cover all issues (such as the Ro. 13 issue, the incorporation issue, etc.) see the resources linked to in En 4.]

Endnotes

En 1 Churches Defined

“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 congregations
  • 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.

“Source:  Publication 1828, Tax Guide for Churches and Religious Organizations.”

See DEFINING “CHURCH” – THE CONCEPT OF A CONGREGATION by Robert Louthian and Thomas Miller for a discussion of court application of the above criteria.

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”:

PARSHALL CHRISTIAN ORDER v. BOARD OF REVIEW, COUNTY OF MARION, 315 N.W.2d 798 (1982)(Supreme Court of Iowa)

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.

Ideal Life Church of Lake Elmo v. Washington County, 1981, 304 N.W.2d 308 (Supreme Court of Minnesota)

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.

In re Collection of Delinquent Real Property Taxes, State of MN v. American Fundamentalist Church, 1995, 530 N.W.2d 200 (S.Ct. Minnesota) rehearing denied

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.

FELLOWSHIP OF HUMANITY (a Nonprofit Corporation) v. COUNTY OF ALAMEDA, 153 Cal.App.2d 673 (California Court of Appeals. First Dist., Div. One1957)

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.”

WAUSHARA COUNTY v. Sherri L. GRAF, 166 Wis.2d 442 (1992), 480 N.W.2d 16, Supreme Court of Wisconsin. Submitted on briefs October 4, 1991.Decided February 17, 1992

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:

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

·  The Biblical Doctrine of Government

·  The Biblical Doctrine of the Church

·  The Biblical Doctrine of Separation of Church and State

·  The History of the Religious Freedom in America

·  God Betrayed/Union of Church and State in America (covers church incorporation and 501c3 and 508 status, among other things)

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

· The Trail of Blood of the Martyrs of Jesus/A Case of Premeditated Murder: Christian Revisionists on Trial

Essays, Articles, and Other Resources Related to the Doctrine of the Church, Incorporation, 501c3, Etc.


Post Last Updated on May 20, 2019


Why Understanding and Applying Church and State Law Is Important for Believers and Churches (060312)


Click here to go to page with links to all Essays and Articles by Jerald Finney.


The numbers at the beginning of each essay and article is the number assigned on the “Essays” webpage and indicates the order in which the article was added to that webpage.


These essays and articles will explain how a church in America can face the oncoming onslaught against churches in the matters related to sexual perversion. For example, how a church can prevail against a newly proposed California law, if passed. For more on that law, see California Bill Will Outlaw Churches Helping People Out Of LGBT Lifestyle (062018). See also, for more information, ORDER INFORMATION, FREE PDF, AND FREE ONLINE VERSION PAGE FOR BOOKS BY JERALD FINNEY


Essays, Articles, Sermon Transcripts:


124. Doing God’s Work God’s Way: A Bible Call To Preach Outside The Typical American Church Explained (050919)
122. Remnant Churches under Christ in America (013019)
120. The Indiana Board of Tax Review Determines that Property Held in Trust for the Lord Jesus Christ Must Be Granted Property Tax Exemption (012319)
119. My reply to pastor teaching on Matthew 16.18 and Ephesians 1.22 thereafter questioned by accountant about church non-taxable status and the First Amendment (011419)
116. Letter and reply to a believer who left a church that would not discuss the issue of church corporate 501(c)(3) status (010819)
115. Legal answer to Pastor’s inquiry concerning whether a potential donor of substantial gift an claim a tax deduction under IRC Section 508 even though the church will not give an IRS acknowledgement (123118)
114. The Rose of Sharon (Transcript of a sermon depicting the love relationship between Christ and His local visible church , emphasizing the importance of organization under Christ only as opposed to corporate 501c3 or 508 status or legal status of any kind)(120118)
112. THE HYPOCRISY OF PASTORS WHO ASK THEIR HIGHEST AUTHORITY TO OVERTURN LGBT NONDISCRIMINATION ORDINANCE (101218)
111. What is the history of the First Amendment? (121817)
110. What is the History and Meaning of “Establishment of Religion” in America? (121817)
109. What is an established church? (120417)
108. What is a First Amendment Church? (120117)


Articles 96-107 are short lessons included in the Basic Course which answer questions concerning church corporate 501c3 and 508 status:

107. What is 501c3? (120817)
106. What is 508? (120817)
105. What is a Spiritual entity? (120817)
104. What is a legal entity? (120817)
103. Is a church a Spiritual entity, a legal entity, or a Spiritual/legal entity? (112717)
102. Is it illegal for a church in America not to incorporate? Does a church have to be a 501c3? (112817)
101. Does God Care if our Church is Incorporated? (120117)
100. Should a Church Be a 508 Church? (113017)
99. Does a church in America need an Employer (Tax) ID Number? (112517)
98. What does church, inc. mean? (122217)
97. Who Is the head of an incorporated church? (112817)
96. Did President Trump do away with the Johnson Amendment?(120217)


95. The New Testament of Jesus Christ:  His Executor Named and Empowered (100418)
94. The Bible Answer to the Question, “Is an Incorporated 501(c)(3) or 508 Church a Church of Christ?” (Prepared for a talk given at the September 16-19 Liberty Baptist Church of Albuquerque, NM, Southwest Baptist Heritage Camp Meeting. Click here to go to Part I of the video of that presentation. Click here to go to Part II of that presentation, “Why a Church Is Not a Business.” Part II was removed from Part I. In Part II, Jerald Finney invited Evangelist and Pastor Terry Woodside to tell his story which demonstrates that a church which is a non-legal entity cannot be sued in America. Click here to go to the page which has links to all sermons and presentations at that meeting.)
93. ANSWER TO A BIBLE COLLEGE VICE-PRESIDENT’S ARTICLE ON CHURCH INCORPORATION: “TO INCORPORATE OR NOT TO INCORPORATE?
90. The History and Meaning of “Establishment of Religion” in America (121817)
87. A Call to Anguish: Churches Reject God’s Authority (November 21, 2017)(The real meaning of church 501(c)(3) application and status emphasized in analysis of new article: “A New Religion Forms That Will Worship A ‘Godhead’ Based on AI”)A “Christian” Refuge of Lies: An Expose of “The Church that Birthed America” (113017)

85. What is a Church under Christ (a New Testament Church), and What Upholds Her Integrity? (110217)
81. An Informed Christian Response to the Article, “IRS Again Pressured To Hammer U.S. Churches” (102517)
23. Is Separation Of Church And State Found In The Constitution?
11. Does God and/or Civil Government Require Churches to Get 501(c)(3) Status?
10. Christians Who Call Evil Good and Good Evil
14. First Amendment Protection of New Testament Churches/Federal Laws Protecting State Churches (Religious Organizations) (022610)
19. Spiritual versus Legal Entities
75. Legal Explanation of Incorporation of Churches
30. Corporation: A human being without a soul
27. Church Internal Revenue Code § 508 Tax Exempt Status
66. Romans 13 and Related Verses (020717)
65. The Local Church: A Building or What? (020617)
64. Studies on the Bible Doctrine of the Church (013017)
15. 1,000 Pastors who pledge to defy IRS and preach politics from pulpit ahead of election misunderstand the law and the hierarchy of law (100312)
50. Can a church force a homosexual to turn straight to stay in the church? (090915)
44. The Hierarchy of Law as it relates to sodomy and sodomite marriage
42. Will Churches in America Have a Choice about Sodomite Marriage: A short critique of the Article “Christian schools will have no choice about gay marriage: Column” as it relates to churches (052315)
34. More on Romans 13.1-2: The Governments That God Has Ordained
31. Self-proclaimed Non-501c3 Churches Who Are 501c3 Churches
27. Church Internal Revenue Code § 508 Tax Exempt Status(042814)
6. Preaching on Sodomy in a Hate Crime Atmosphere

Books, webpages:

  1. God Betrayed: Separation of Church and State: The Biblical Principles and the American Application
  2. Study Guide for the book God Betrayed
  3. An Abridged History of the First Amendment
  4. Separation of Church and State: God’s Churches – Spiritual or Legal Entities
  5. Render Unto God the Things that Are His: A Sytematic Study of Romans 13 and Related Verses
  6. The Most Important Thing: Loving God and/or Winning Souls
  7. An analysis of Ecclesiastical Law Center Attacks against the Ordinary Trust Recommended by this Old Paths Baptist Church “Separation of Church and State Law Ministry”
  8. Critique of “Church Freedom and the Corporation Sole” Website
  9. Quick Reference Guide for Churches Seeking to Organize According to New Testament Principles (Pamphlet)

The Bible Trust Relationship: Essays and Other Resources


Updated May 20, 2019


Why Understanding and Applying Church and State Law Is Important for Believers and Churches (060312)


Click here to go to page with links to all Articles by Jerald Finney.

Trust

Essays, webpage, and PowerPoint which look at the Bible trust relationship and its recognition and application by American courts:

The numbers at the beginning of each article is the number assigned on the “Articles” webpage and indicates the order in which the article was added to this website.

Webpages:

Powerpoint:

Short Questions and Answers:

Basic Study Course with very short lessons and lectures

Book (Free online, PDF, audio forms + available in 1st Edition printed form):

Essays and articles:

123. Question and reply concerning setting up a trust for a “ministry” from a “prophetess” dedicated to “the manifestation of prophecies” (020119)
120. The Indiana Board of Tax Review Determines that Property Held in Trust for the Lord Jesus Christ Must Be Granted Property Tax Exemption (012319)
118. The Church Bible Trust Relationship Explained and How a Church Can Nullify Her Efforts to Remain Under Christ Only (011119)
86. What God Has Committed to Man’s Trust: “Ye Cannot Serve God and Mammon”: Steward or Trustee? (110817)

62. How a Church Can Organize to Remain a New Testament Church (Holding Property In Trust For God Is A Scriptural Principle Recognized by American Law) (050616)
40. Comparison of Bible Trust (ordinary trust), Incorporation (Includes corporation sole), and Ecclesiastical Law Center Trust (020815)
38. Is the “trust” recommended by this “Separation of Church and State Law Ministry” a legal entity? (103114)
61. Expose And Reject The Teachings and Methods of Church Organization Con-Artists and Charlatans (050616)
19. Spiritual versus Legal Entities (121512)
76. Exposing or Silently Co-existing with False Teaching Causes Suffering and Persecution from Within and Without a Church (050217)

37. Ecclesiastical Law Center Exposed (Booklet)
40. Comparison of Bible Trust (ordinary trust), Incorporation (Includes corporation sole), and Ecclesiastical Law Center Trust (020815)
39. Critique of Church Freedom and the Corporation Sole Website (Booklet-2015)

WAUSHARA COUNTY v. Sherri L. GRAF, 157 Wis.2d 539 (1990), 461 N.W.2d 143, Court of Appeals of Wisconsin. Submitted on briefs December 8, 1989. Decided August 2, 1990

The complete opinion may be accessed online by clicking here.

This case was appealed to the Wisconsin Supreme Court. To go to my brief of that case click: WAUSHARA COUNTY v. Sherri L. GRAF, 166 Wis.2d 442 (1992), 480 N.W.2d 16, Supreme Court of Wisconsin. Submitted on briefs October 4, 1991.Decided February 17, 1992.

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).

[2]

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.

[3]

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 in In 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 useswhether 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.

[4]

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).

By the Court.—Judgment reversed.

 

 

 

 

An Informed Christian Response to the Article, “IRS Again Pressured To Hammer U.S. Churches”

Jerald Finney
August 25, 2017

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 complete listing of articles is on the Articles tab of Separation of Church and State Law website.

For a short book on this, see Separation of Church and State/God’s Churches: Spiritual or Legal Entitiesor, for more complete analysis, see God Betrayed/The Biblical Principles and the American ApplicationBoth are available online free in both online form (which has the all additions and minor revisions), and PDF, or may be ordered. The second edition of Separation of Church and State is available in PDF only.

Here are some specific writings that explain church 501c3 status:

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.)”

For links to more Law Review Articles, click here.

FELLOWSHIP OF HUMANITY (a Nonprofit Corporation) v. COUNTY OF ALAMEDA, 153 Cal.App.2d 673 (California Court of Appeals. First Dist., Div. One, 1957)

Click here to go to complete case online.

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. [4] 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. [5] 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. [6] 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. [7] 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. [8] 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? [9] 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.)

[10] 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.) [11] 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. [12] 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.

[13] 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. [15] 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. [16] 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. [17] 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? [18] 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. [19] 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. [20] 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. [21] 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.

[22] 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],  …