Constitutional Authority to Define A “Church”
by Gerald R.Thompson
The History of Religious Freedom in America
Establishment Clause Analysis
Free Exercise Clause Analysis
CONGRESS LACKS THE AUTHORITY TO PASS LEGISLATION DEFINING WHAT CONSTITUTES A “CHURCH” BECAUSE IT IS THE EXCLUSIVE RIGHT OF THE PEOPLE, NOT THEIR GOVERNMENT, TO DEFINE THE FORMS OF INSTITUTIONS WHICH ADMINISTER PUBLIC WORSHIP AND OTHER BONA FIDE RELIGIOUS ACTIVITIES.
The role of the church in society is part of the American fabric. It is woven in our history, our religion and our laws, including the U.S. Constitution. In America, the legal protection of religion has been regarded as an essential part of the liberties and unalienable rights secured for the people. Historically, this legal protection has been extended to the church as one of the primary institutions for carrying out
religious activities. Additionally, the right to define the institutional church is part of the broader liberty of religion which is inherent in the people, not their government.
To understand this right of the people to define the institutional church, it is necessary to examine the legal history of religious freedom in America, particularly the struggle leading to the adoption of the First Amendment. An examination of the First Amendment will further reveal that attempts by civil governments to define the institutional church have historically and logically been connected to the
establishment of religion, negating the separation of church and state. Such attempts also inhibit the freedom of religion by limiting its exercise to certain prescribed forms, in contravention of fundamental law.
This is the context in which the current issue must be resolved, that is, whether any given organization is a church for purposes of the Internal Revenue Code. Congress, in enacting the Internal Revenue Code, is duty bound to have acted in favor of religious liberty, not against it. Accordingly, provisions in the tax laws relating to churches must be accorded an interpretation which secures for the people the
liberty the law was intended to respect. This is the high duty of the bodies charged with the responsibility of interpreting and administering the law.
This does not deprive Congress of the power to prevent abuse, but the present case is not one of abuse. A ministry organization is presumed to be a bona fide religious organization whose practices are not illegal or contrary to clearly defined public policy. Accordingly, administrative guidelines and practices which distinguish between legitimate and fraudulent claims of religious freedom do not apply in this
case. Therefore, the legal presumption that the authority to define the institutional church runs in favor of the people, not their government, must be observed in this case.
The applicable rule of law may be summarized as follows: The federal government may, based upon a pretext test, lawfully distinguish between matters which are religious and those which are not. However, once a matter is determined to be religious, it is the exclusive right of the people to choose the form of its exercise and to define the institutions by which it will be administered.
A brief review of history illustrates the significance of the rule that the government has no jurisdiction to define the institutions by which religious activities are administered or carried out. As with many of the rights of the people recognized today, religious liberty in America had its origin in the common law. Although English and American common law carefully excluded what might be called “matters of the
heart” (i.e., hate, lust and covetousness) from the jurisdiction of civil authorities, the common law did not altogether protect men’s minds.
In the centuries preceding the American Revolution, the common law of treason included “imagining and compassing the death of the king.” Moreover, the common law embraced a variety of criminal “offenses against God and religion,” such as apostasy, heresy and blasphemy. Several of these common law offenses appeared in the early colonial statutes such as the Massachusetts Body of Liberties of 1641.
Consequently, where crimes of the mind prevailed under the common law, individual liberty did not.
The freedom of man’s heart and mind from civil constraint was affirmed and strengthened in the American constitutional experience. The approach of Massachusetts in outlawing heresy was not universally adopted elsewhere in the colonies. Drawing on the English experience of religious persecution, most of the states wrote express guarantees of freedom of worship and belief into their constitutions, such as
That all men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences and understanding. . . . And that no authority can or ought to be vested in, or assumed by any power whatever, that shall in any case interfere with, or in any manner controul, the right of conscience in the free exercise of religious worship.1
This statement of religious liberty typifies the approach taken in many early state constitutions. But it did not bar state established institutions of religion. Maryland and New Hampshire, for instance, had equivalent guarantees of freedom of worship, but also provided for voucher-type systems of religious support, whereby the people were taxed to support “recognized” religious teachers, although they could
designate the teacher whom they would support. This approach embodies a “no preference” ideal in which the state could engage in matters of religion, but had to do so on a “neutral” basis.
However, the situation in Virginia was different. There, religious liberty was understood to include many duties owed solely to God which were in the same legal posture as worshiping God. Rather than adopting a “no preference” approach, the Virginia Constitution adopted a “no jurisdiction” approach, reckoning the administration and performance of all religious duties as being free from any lawful civil
jurisdiction. In fact, the Virginia Constitution includes a legal definition of “religion”:
That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practise Christian forbearance, love, and charity towards each other.2
The Virginia Constitution affirmed that the responsibility of the people to worship God as each person’s heart directs, and to discharge that duty in the manner which seems best to him, are both duties owed to their God, not to their government. Therefore, the freedom of worship and belief (“faith”), and freedom to select the manner and form of religion exercise (“practice”), are equally part of the guaranteed
liberty of religion, that is, “the duty which we owe to our Creator, and the manner of discharging it.”
Yet, the Virginia Constitution had no anti-establishment clause. Previously, Virginia had taxed its people for the support of the Anglican clergy, which constituted the state’s established church. Objecting to this practice, Thomas Jefferson drafted a Bill for Establishing Religious Freedom in 1779, basing it not on the “no preference” ideal of other states, but on the “no jurisdiction” approach:
that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical, and even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern, and whose powers he feels most
persuasive to righteousness, and is withdrawing from the ministry those temporary rewards which, proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labors, for the instruction of mankind. . . .
It was not enough that the civil government treat all “recognized” churches or clergymen the same, in a “neutral” fashion. Rather, the people had “the comfortable liberty” of disregarding the clergy altogether, and choosing not to support any church or clergyman. That is, the authority to “recognize” the clergy and the church belonged to the people, not to their government. In other words, it was the exclusive
right of the people to define the institutional church.
Instead of immediately adopting Jefferson’s Bill, the Virginia legislature proposed to implement a voucher-type “neutral” system of church support as an alternative to outright Anglican preference. Jefferson’s Bill was eventually enacted in 1786, but not until James Madison had petitioned the legislature with his Memorial and Remonstrance Against Religious Assessments in 1785. Madison argued that the “no
preference” approach was not enough to satisfy Section 16 of the Virginia Constitution. He also argued that the “no jurisdiction” approach was mandated by what the Declaration of Independence called “the laws of nature and of nature’s God.”
The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable . . . because what is here a right towards men, is a duty towards the Creator. . . . This duty is precedent both in order of time and degree of obligation, to the claims of Civil
society. . . . We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance. . . . The Rulers who are guilty of . . . encroachment, exceed the commission from which they derive their authority, and are Tyrants.
This experience in Virginia set the context for the ratification of the First Amendment to the U.S. Constitution in 1791, which provides that “Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof.” As it was later held by the U.S. Supreme Court, the First Amendment implemented for the national government the understanding of religious liberty which had
been settled in Virginia.
This Court has previously recognized that the provisions of the First Amendment, in the drafting and adoption of which Madison and Jefferson played leading roles, had the same objective and were intended to provide the same protection against governmental intrusion of religious liberty as the Virginia statute.3
The First Amendment is fundamentally a jurisdictional statement, ensuring that the federal government has no jurisdiction over religion, either to aid it, burden it, or regulate it. While it may be said to embody some aspects of “neutrality,” the First Amendment is an explicit rejection of the notion that civil intrusion into religious matters is permissible so long as all recognized faiths are treated equally. There is
no governmental interest, substantial, compelling or otherwise, which is sufficient to overcome the “no jurisdiction” mandate of the First Amendment.
Consequently, Congress cannot prescribe the manner in which the people perform their religious duties, for this would redefine religion as a duty owed to the federal government in contravention of the Establishment Clause. Similarly, Congress cannot inhibit the right of the people to choose how to discharge their religious duties, for this would deny religious liberty in contravention of the Free Exercise Clause.
It is not difficult to apply the “no jurisdiction” approach of the First Amendment to the present case in regards to the Establishment Clause. The experience of the states with established churches and judicial interpretations of the Establishment Clause both confirm the rule that the government has no jurisdiction to define the institutions by which religious activities are administered or carried out. The Supreme
Court has traditionally couched its understanding of the Establishment Clause in the language of “neutrality,” but its approach may be understood in a jurisdictional sense.
The precise establishment issue may be worded as follows: If Congress, in enacting the Internal Revenue Code, intended to distinguish between what it calls a “church” and a “religious missionary order” or other form of organization devoted to religious activities, then it will have preferred one form of religion over another in violation of the prohibition against making any “law respecting an establishment of
It is suggested that Congress could not, and did not, intend for the Internal Revenue Code to deny church status to a bona fide religious organization. Therefore, it is not argued that the Internal Revenue Code is unconstitutional, but that the statute must be interpreted in a way which does not render it unconstitutional as applied.
It has been commonly accepted that the Establishment Clause was intended to erect “a wall of separation between church and state,” at least since 1947.4 Yet, it cannot be pretended that the Establishment Clause protects only church institutions (however defined) and not other institutions and organizations. Everson itself dealt with a school, not a
church, and the legal case reporters are filled with Establishment Clause cases concerned with such non-church groups as public and private schools and colleges, and municipal matters relating to emblems, public religious displays, etc.
Accordingly, it is “religion” and “religious liberty” which are protected by the Constitution, not the narrower concepts of “church” and “church liberty.” The protection of religious liberty has never been a function of a church denominational affiliation, for the freedoms secured under the First Amendment are quintessentially individual freedoms, not corporate. And, it is the freedom of
individuals to combine themselves into any form of organization devoted to religious activities which is protected. A ministry’s lack of denominational affiliation in no way affects its status as a church under the Internal Revenue Code.
It has long been recognized that the federal government is precluded from limiting the forms of religion entitled to legal protection. To paraphrase the doctrine of “the separation of church and state,” Congress is unable to define what a church is, as much as any church is unable to define what Congress is. If Congress can define what a church is, it has effectively established the form religion must assume in
order to be protected, which is exactly what Congress cannot do.
Justice Black observed for the majority of the Court in Everson, that “The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the federal government can set up a church.” It should be self-evident that the exercise of federal power to define a church is equivalent to the federal establishment of a church. This conclusion is easily illustrated from history.
In the first century of our nation’s history, there were a number of attempts to define a church legally. One example is found in the case of South Carolina:
That all persons and religious societies who acknowledge that there is one God, and a future state of rewards and punishments, and that God is publicly to be worshipped, shall be freely tolerated. The Christian Protestant religion shall be deemed, and is hereby constituted and declared to be, the established religion of this State. . . . And that whenever fifteen or more male persons, not under
twenty-one years of age, professing the Christian Protestant religion, and agreeing to unite themselves in a society for the purposes of religious worship, they shall, (on complying with the terms herein after mentioned,) be, and be constituted, a church, and be esteemed and regarded in law as of the established religion of the State, and on a petition to the legislature shall be entitled to be incorporated and to enjoy
According to this Constitution, a church was legally defined as fifteen or more adult men united in association for the purpose of religious worship in accordance with the Christian Protestant religion. The key assumption underlying this provision was that the Christian Protestant religion was the “established religion of this State.” Even though all Protestants were free to form their own church under their own
name, every church so formed legally became part of the state’s established religion. In this there was no choice.
The effect would have been the same had South Carolina defined a church as an organization which conducted public worship services, had a recognized clergy, and performed traditional sacerdotal functions. Under either definition, the state would be wielding power in a matter which is purely religious in nature. In each case, religious liberty would be denied to the people who hold contrary religious beliefs
and observe different religious practices. Hence, any attempt to legally define a church should be as objectionable to us today as it was to Catholics in South Carolina in 1778.
The only reason South Carolina needed to define a church was so that state officials could administer the system of establishment. If religion had not been established, it would have been inconsistent with disestablishment for the state to define a church legally. And in fact, when South Carolina later disestablished religion within its borders, the provision defining a church in its constitution was omitted.6
This result is to be expected. Every attempt to legally define a church implicitly establishes religion by recognizing only certain prescribed forms of religion and treating them differently from the non-recognized forms. The legal definition of a church is but the necessary means to the impermissible end of an established church. Once church establishments are rejected as a matter of law, the necessary means of
establishment must also be rejected. Otherwise, the disestablishment is illusory.
The mode of analysis for Establishment Clause questions is defined by the three-part test that has emerged from the Court’s decisions. In order to pass muster, a statute must have a secular legislative purpose, must have a principal or primary effect that neither advances nor inhibits religion, and must not foster an excessive government entanglement with religion.9
Let us now examine the Internal Revenue Code according to accepted Establishment Clause analysis. In examining the first part of the three-part test, it may be considered as inapplicable in the present case. Since it is not argued that any provision of the Internal Revenue Code relating to churches violates the Establishment Clause on its face, and it is presumed that Congress intended for the tax laws to comply
with constitutional requirements, no claim is made that such statutes lack a secular legislative purpose.
However, in examining the second part of the test, relating to the effect of the Internal Revenue Code on religion, the Supreme Court has held that Congress is prohibited from discriminating among religions as much as it is prohibited from aiding or burdening religion in general.10 Thus, the Internal Revenue Code cannot have a principal effect
which recognizes some forms of religious organizations, but not others.
However, the issue presented under the Establishment Clause in this case need not be resolved in the framework of the Lemon “test” at all. As the Court acknowledged in Lynch v. Donnelly,11 “we have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area.” The Court then cited, as
examples of cases in which the Lemon criteria were not applied, Marsh v. Chambers, 463 U.S. 783 (1983) and Larson, and so regarded the criteria as non-controlling in Lynch.
Of these cases, Larson is most similar to the present case. And, the Court acknowledged in Larson that “the Lemon v. Kurtzman ‘tests’ are intended to apply to laws affording a uniform benefit to all religions, and not to provisions . . . that discriminate among religions.”
Larson involved a state charitable contributions statute which exempted from its registration and reporting requirements only those religious organizations receiving more than 50% of contributions from members. The Court held that the statute violated the Establishment Clause by granting denominational preferences which were not closely fitted to further any compelling state interest in protecting
citizens from abusive practices.
Although the Internal Revenue Code makes no distinction among religions on its face, if it is administered or applied in such a way as to make sectarian discriminations among religions, the application would violate the Establishment Clause. Consequently, the statute must be interpreted so as to avoid an unconstitutional result.
An unlawful application of the Internal Revenue Code is easily illustrated. “Church” is a term usually associated with the Christian religion. Jews worship in “synagogues,” not churches. Muslims worship in “mosques” and Jehovah’s Witnesses worship in “kingdom halls.” Other religious faiths conduct worship in “temples.” If the provisions of the Internal Revenue Code were construed to include only
Christian churches, but to exclude Jewish synagogues, Islamic mosques, etc., then it will have been applied so as to make a distinction among religions which is clearly prohibited by the Establishment Clause.
The term “church” must also include, for statutory purposes, religious organizations and faiths which do not refer to themselves as a church either within the context of their religious doctrine or common usage. “Church” cannot be construed so as to favor some Christian religious organizations over other Christian religious organizations merely on the basis of terminology. The rights and liberties of the people
are not governed by terminology but by certain fundamental rights which guarantee the inability of the federal government to approve or “qualify” certain forms of religious organizations while failing to approve others.
It is in this light that the criteria for establishing the existence of a church for tax purposes must be viewed. Guidelines such as Regs. §1.511-2(a)(3)(ii) and the fourteen criteria promulgated by the IRS National Office are prominent examples. These administrative guidelines, if utilized to achieve a result Congress is prohibited from achieving, would render the Internal Revenue Code unconstitutional as
applied. The legitimate function of these guidelines (related to abusive practices) is simply inapplicable here.
In examining the third part of the Lemon test, if the Internal Revenue Code were construed so as to permit federal regulation of the form a church must take in order to be recognized as such for tax purposes, it would excessively entangle the government with religion’s internal affairs and lead to an impermissible continuing surveillance of religious groups. This view was approved in Larson,
which considered the exemption granted by the charitable contributions statute as falling within the scope of the entanglement test in addition to being subject to the sectarian discrimination test discussed above. The Court found the following quotation from Lemon to be applicable:
This kind of state inspection and evaluation of the religious content of a religious organization is fraught with the sort of entanglement that the Constitution forbids. It is a relationship pregnant with dangers of excessive government direction . . . of churches.
Indeed, that is the precise issue here. If administrative guidelines are used to interpret and apply the Internal Revenue Code so as to exclude an organization admittedly devoted to religious activities from the exemption granted therein, an “excessive government direction . . . of churches” will necessarily result.
Of course, the foregoing analysis does not mean that Congress is entirely precluded from distinguishing religious matters from non-religious matters. It has the power to distinguish between religious matters which it may not regulate at all and non-religious matters which can be regulated. And, Congress may employ a pretext test for this purpose, to determine whether a claim that a matter is religious is really a
sham or fraud. But, the exercise of this power must be kept within constitutional limits.
Larson held that when a law prefers one religious sect over another, our precedents demand that we treat the law as suspect and that we apply strict scrutiny in adjudging its constitutionality [and further] . . . that rule must be invalidated unless it is justified by a compelling governmental interest . . . and it is closely fitted to further that interest.
In a footnote, specific reference was made to the fact that the statute then being reviewed, as applied, made “explicit and deliberate distinctions between different religious organizations.” Consequently, if the Internal Revenue Code is applied in the same way, the same level of scrutiny must be applied in testing its constitutionality.
The only governmental interest argued in Larson, and the only one which can be argued here, is the protection of citizens from abusive practices. However, the present case is not one of abuse. Thus, there is no governmental interest, compelling or otherwise, which can justify further inquiry into the form of organization utilized to carry out religious activities. Once it is determined that any organization
is acting within the sphere of religion, federal jurisdiction ends. To go beyond this line is to engage in excessive entanglement.
Further, although tax and labor laws generally are addressed to preventing abusive practices, that is not enough to satisfy the standard of strict scrutiny applicable here. It must be demonstrated that the law “is closely fitted to further the interest that it assertedly serves.” See Larson. In other words, any distinction drawn between religious organizations for purposes of the Internal Revenue Code must be
directly related to preventing abuse. It is suggested that no such relationship actually exists, thus, such a distinction cannot be made.
The Free Exercise Clause may also be understood as embodying a “no jurisdiction” approach consistent with the preceding analysis. As the Court observed in Larson, the “constitutional prohibition of denominational preferences is inextricably connected with the continuing vitality of the Free Exercise Clause.” The controlling legal principle is that the people, not their government, have the jurisdiction
to define the institutions by which religious activities are administered or carried out. The people do not have authority to alter the definition of “religion,” but they have complete liberty to choose the means of implementing what is legitimately religious.
The exact free exercise claim can be phrased as follows: If Congress, in enacting the Internal Revenue Code, intended to construct an exclusive definition of “church” for the purpose of treating Congressionally approved churches differently from other religious organizations considered to be a church by the people, then it will have usurped the exclusive right of the people to define their institutions of religion
in violation of the provision against making any law prohibiting the free exercise of religion.
It is suggested that Congress could not, and did not, intend for the Internal Revenue Code to deny church status to a religious organization which regards itself as a church. Therefore, it is not argued that the Internal Revenue Code is unconstitutional, but that it must be interpreted in a way which does not render it unconstitutional as applied.
Historically, as discussed earlier, religion is defined as “the duty which we owe to our Creator, and the manner of discharging it” (emphasis added). In other words, religious liberty was understood to include both the duty and the manner of discharge, which in modern parlance is often referred to as faith and practice, or belief and conduct. It is the liberty to choose the form of religious practice, or
conduct, which is at issue here.
According to Madison’s Remonstrance, religion “must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right.” That is, free exercise rights necessarily include freedom to choose the form of religious conduct. Logically, religious conduct is merely faith put into action.
This understanding of the Free Exercise Clause has been confirmed in Cantwell v. Connecticut, 310 U.S. 296 (1940):
The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards
the free exercise of the chosen form of religion. Thus the Amendment embraces two concepts – freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.
The continuing problem, of course, has been to distinguish the actions which may be regulated by governmental interests from the action which may not be regulated. One approach to the problem has been to regard all actions as being regulable to some degree, necessitating a balancing of interests. Another approach has been to regard some actions as being regulable, whereas other actions are entirely
unregulable, making the distinction between them a matter of jurisdiction.
The second, or jurisdictional, approach best provides a framework in which to understand both the views of our nation’s founders and the thread which ties together key Supreme Court opinions. In his response to the Danbury Baptist Association in 1802, Thomas Jefferson stated:
Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of
religion, or prohibiting the free exercise thereof, thus building a way of separation between Church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.
Clearly, Jefferson embraced a jurisdictional understanding of religious belief and conduct. He believed a person had no accountability to civil government “for his faith or his worship,” that is, belief and conduct. By limiting “the legitimate powers of government” to “actions only,” Jefferson did not declare government supreme over every action. Rather, he was convinced that a person “has no natural
right in opposition to his social duties.” What he called a “natural right,” Madison called an “unalienable right.” Those rights were not matters of degree, but were both absolute and nonconflicting with lawful civil regulation. In other words, Jefferson and Madison did not balance interests.
Thus, the Court upheld a federal statute against polygamy, challenged on free exercise grounds by a Mormon, in Reynolds v. U.S., 98 U.S. 145 (1879). That case affirmed the principle that activities which are criminal are not religious at all. As stated earlier, Congress has the power to distinguish between what is religious, and what is not. The power to define what religion is does not vest in the people.
Hence, a “religious” belief about polygamy is no defense to the crime.
This understanding was confirmed in Davis v. Beason, 133 U.S. 333 (1890), when the Court held that to consider the advocacy of polygamy “a tenet of religion is to offend the common sense of mankind.” The Court also noted that “Crime is not the less odious because sanctioned by what any particular sect may designate as religion.” In other words, the people do not possess the power to define what
religion is, and polygamy is not a religious act.
Although it would be impossible to harmonize this understanding with all decisions of the Court regarding free exercise claims (it would be impossible under any analytical framework), it may nonetheless be demonstrated that the jurisdictional framework has continuing vitality. For example, in the recent case of Goldman v. Weinberger, 475 U.S. ___ (1986), an Air Force psychologist was not permitted
to wear a yarmulke in violation of Air Force uniform regulations, because in the military context, the wearing of headgear is not a religious activity.
However, the form and organization of religious institutions and the conduct of public worship are neither criminal, nor otherwise regulable in the public interest. See Cantwell, supra. Rather, they are quintessentially religious in nature, and consequently, beyond the scope of governmental authority. Clearly, the authority to define a “church” is “a matter which lies solely between man and his God [for
which] he owes account to none other.”
Hence, when an organization is admittedly devoted to engaging in bona fide religious activities, its legal status cannot be made a function of its choice of means. Sacerdotal ministrations, formal ordination of clergy and like considerations are all various means employed to effect the single purpose of religious exercise. Congress has no authority to dictate a choice among alternative means, all of which
are equally religious.
Whether a religious organization administers sacraments or holds worship services in a fashion similar to other groups, or whether such things are even done at all, is of no constitutional relevance. The only proper inquiry is one of purpose, that is, whether the organization is formed for the purpose of engaging in bona fide religious exercise. If the purpose test is not satisfied, no regulation of the choice of
means is necessary; if the purpose test is satisfied, then no regulation of the choice of means is permitted.
This conclusion is mandated by the principle that the Free Exercise Clause protects religious practices which are not illegal. Whenever an organization is not an illegal organization, nor does it teach, promote, advocate or engage in any illegal activities, the federal government lacks authority to inhibit or promote any particular means employed in the furtherance of its religious purposes by comparison to
perceived normal church practice. If a religious practice is bona fide, any attempt to regulate it or make legal distinctions based on its use or nonuse is unwarranted, just as governmental distinctions based on the orthodoxy of religious belief are prohibited under the Establishment Clause.
The preceding analysis is supported by principles of equality. According to Madison’s Remonstrance,
If “all men are by nature equally free and independent,” all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights. Above all are they to be considered as retaining an “equal title to the free exercise of Religion according to the dictates of conscience.” Whilst we assert for
ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence against God, not against man: To God, therefore, not to men, must an account of it be rendered.
In Anderson v. Brock, 3 Me. 243 (1825), the issue was whether a provision of the Massachusetts constitution that “every denomination of Christians . . . shall be equally under the protection of the law” applied to a group of Christians known as “Shakers” even though they were not connected with any formal denomination. As Judge Weston put it,
it is contended that the church, of which the plaintiffs are deacons, not being connected with any religious society, having a corporate existence, cannot be considered as embraced within the true intent and meaning of the [law]. . . . But religious toleration, which is the vital principle of protestantism, and which is effectually secured by the constitution and laws of our own State, as well as that from
which we have separated, has produced and is producing many modifications of discipline and doctrine, in bodies associated for spiritual and ecclesiastical purposes. . . . [We] do not perceive any sufficient reason for withholding from the deacons of churches of the religious sect or denomination called shakers, the privileges and immunities granted by [law].
In other words, no state has authority to prescribe the form a church must take to be entitled to the equal protection of the laws. Congress is not under any lesser duty.
1. Section 2 of the Constitution of Pennsylvania dated August 16, 1776.
2. The Virginia Constitution of June 12, 1776, Section 16.
3. Everson v. Board of Ed., 330 U.S. 1 (1947).
4. Everson, supra, which quoted Reynolds v. U.S., 98 U.S. at 164 (1898) relying on the words of Thomas Jefferson penned in 1802.
5. Art. XXXVIII of the South Carolina Constitution of March 19, 1778.
6. See, the Constitution of South Carolina dated June 3, 1790, Art. VIII.
7. 403 U.S. 602 (1971).
8. 433 U.S. 229 (1977).
10. See, Larson v. Valente, 456 U.S. 228, 246 (1982), citing Everson and a number of other cases.
11. 456 U.S. 668 (1984).