The State Cannot Establish What Is a Church

Why the State Cannot Legitimately Establish

What Constitutes a Church

By Roger E. Bissell

[During the mid-to-late 1970s, I was a member of a small, non-theistic church in Nashville, Tennessee. Its minister was challenged on all three levels of government as to the legitimacy of his church and, thus, the legitimacy of its claim to tax-exempt status. I was personally involved in the court action brought in 1979 by the Department of Revenue of the State of Tennessee, and I provided the following statement and replies to questions put to me by the Revenue Adjudicator.]

Comments on the State’s Pre-Hearing Brief Which Attempted to Justify Revocation of the Sales Tax Exemption of the Unitary Mission Church of Nashville

by Roger E. Bissell

The State has claimed that an association of people, to be considered a religious association (i.e., a church) must engage in certain specific activities. Some of these (1) worshipping a deity, by means of certain kinds of actions, such as prayer, song, etc., especially by means of certain rituals, such as communion; (2) carrying out charitable programs to aid the needy; and (3) publicizing one’s existence by general advertisement, such as by the use of newspaper listings, telephone listings, signs, etc.

Each of these activities as specified is far too exclusive and limiting. Using any of them as a legal criterion for what constitutes a church amounts to establishment, in violation of the First Amendment to the United States Constitution. The State cannot exclusively recognize and favor, as religious associations (churches), only those associations which have certain specific objects and forms of worship, kinds of humanitarian service, and manners of soliciting new members.

Worship

In the fullest sense, the concept of “worship” pertains to any action characterized by a certain underlying attitude. Specifically, “worship” is defined as: any action (mental, verbal, or physical) characterized by an attitude of reverent, loyal dedication of oneself to a moral ideal.

There is a sense of the word “worship” which refers only to certain widely recognized or accepted actions (and objects of action) apart from the mental attitude that may underlie those actions. This sense of the word is not only unjustifiably narrow; it is also emptier of factual meaning than (and parasitic for whatever factual meaning it does have upon) the fuller sense of the word. It is this narrower, emptier, linguistically parasitic sense of the term that the State proposes to apply in determining whether the activities of the Unitary Mission Church of Nashville constitute worship. We reject this sense of the word, insisting instead that the fuller, broader, primary sense of the term be applied.

The first important way in which the State’s proposed definition is too narrow is that not all objects of religious worship are supernatural entities such as deities. Some are non-supernatural entities, such as the Golden Calf, money, the entrails of goats, heroic individuals, etc. Still others are abstract entities, such as power, youth, the human potential, etc.

The factor common to all of these, and not just these, is that they all are, or can be, revered and looked up to as the standard and/or symbol of moral perfection. These are all moral ideals, i.e., a supreme (the highest) or ideal (the best) form of Being, as recognized by a particular group of people. The requirement that the supreme form of Being that one worships be a supernatural deity is simply the product of unthinking custom and prejudice.

The same applies to the requirement that one have a set form of worship, that one engage in certain pre-determined actions, especially rituals. Just as some religions and churches do not specify rituals, so too do some leave unspecified what other actions one must engage in in order to worship one’s moral ideal, merely asking that the individual worship his moral ideal in some appropriate form, as he sees fit.

There are religions and churches recognized by the State which even leave unspecified their moral ideal (!), leaving it up to the individual members to “build their own faith.” We do not go so far as this, so it seems even less fair that we should be denied equal protection under the law with such churches.

We maintain that the most the State can legitimately do is take us at face value when we say that we worship a moral ideal and leave the specific nature of the moral ideal and the specific actions by which we worship our moral ideal out of the question. There are both legal and practical reasons why the State cannot require us to specify our moral ideal and the actions by which we worship it:

1. Legally, i.e., Constitutionally, we cannot be compelled to engage in discussions of our religious ideas.

2. More importantly, practically, there is no possible way, not even by requiring us to specify the object and form of our worship, that the State can prove that we do not engage in worship. Nor can we prove that we do!

By the fundamental nature of worship as depending upon the presence of a certain mental phenomenon—an attitude of dedicating oneself to a moral ideal, whatever the moral ideal and act of dedication in their specific forms might be—the State cannot extract the information it needs. In fact, any time the State is genuinely concerned with determining whether a certain group is in fact engaging in worship, it faces an insuperable obstacle:

1. The State cannot know that certain actions or rituals in fact constitute worship, because the State cannot be certain of the mental attitude underlying those actions. At best, the State can merely presume that certain actions or rituals are genuine worship, by noting whether the group involved appears convincing and sincere in their actions, and whether their actions are generally accepted or recognized forms of worship.

2. The State cannot know that someone’s actions do not in fact constitute worship, again because the State cannot know that such action is not based upon an attitude of worship. This is especially the case if that action is non-ritualistic, unorthodox, non-standardized, etc.; and if the object of that action is a moral ideal, a Supreme form of Being, not recognized or accepted by the orthodox, majority religions or churches.

Thus, there is no more justification to the State’s requiring us to specify our object and form of worship, than there is for us to conform to its narrower definitions of what constitute acceptable objects and forms of worship. True, this specification would establish the possibility that we engage in worship; but this possibility is more simply established by our sworn testimony that we do in fact worship some specific moral ideal by some specific actions.

As for the fact (as opposed to the mere possibility) that we worship, we can no more establish this by identifying specifically what and how we worship, than by merely affirming that we do worship. This we did by establishing our church. We should not be required to do more than this.

Humanitarian Service

In the fullest sense, the concept of “humanitarian service” pertains to any action characterized by a certain underlying motivation. Specifically, “humanitarian service” is defined as: an action characterized by a motivation of helping one’s fellow human beings and/or making the world a better place to live.

There is a sense of the word “humanitarian service” which refers only to certain widely recognized or accepted actions apart from the psychological motivation that may lie behind those actions. This sense of the word is not only unjustifiably narrow; it is also emptier of factual meaning than (and parasitic for whatever factual meaning it does have upon) the fuller sense of the word. It is this narrower, emptier, linguistically parasitic sense of the term that the State proposes to apply in determining whether the activities of the Unitary Mission Church of Nashville constitute humanitarian service. We reject this sense of the word, insisting instead that the fuller, broader, primary sense of the term be applied.

Material aid—gifts of one’s time, money, food, clothing, shelter, etc.—is only one, rather more conventional form of service to humanity. Another might be educational or professional self-improvement, to serve as an inspiration or role model for others, and to remove oneself far enough from the ranks of the needy that it will be unlikely that one will be needy oneself someday and thus be a burden to others. Still another might be trying to develop a social system which does not permit the initiation of physical force against anyone, and which does not require the forced sacrifice of anyone to anyone else.

The factor common to all of these, and not just these, is that they all are, or can be, a mode in which one can carry out one’s humanitarian impulses or motives. A given mode of humanitarian service may be essential to a given religion or church, or it may be strictly incidental at most, depending upon the nature of the moral principles held by that religion or church. The requirement that the mode of humanitarian service be material aid is simply the product of unthinking custom and prejudice.

We maintain that the most the State can legitimately do is take us at face value when we say that we serve humanity and leave the specific actions by which we serve humanity out of the question. There are both legal and practical reasons why the State cannot require us to specify the actions by which we serve humanity:

1. Legally, i.e., Constitutionally, we cannot be compelled to engage in discussions of our religious ideas.

2. More importantly, practically, there is no possible way, not even by requiring us to specify the form of our humanitarian service, that the State can prove that we do not engage in humanitarian service. Nor can we prove that we do!

By the fundamental nature of humanitarian service as depending upon the presence of a certain mental phenomenon—a motivation of helping one’s fellow human beings and/or making the world a better place to live—the State cannot extract the information it needs. In fact, any time the State is genuinely concerned with determining whether a certain group is in fact engaging in humanitarian service, it faces an insuperable obstacle:

1. The State cannot know that certain actions in fact constitute humanitarian service, because the State cannot be certain of the psychological motivation lying behind those actions. At best, the State can merely presume that certain actions are genuine humanitarian service, by noting whether the group involved appears convincing and sincere in their actions, and whether their actions are generally accepted or recognized forms of humanitarian service.

2. The State cannot know that someone’s actions do not in fact constitute humanitarian service, again because the State cannot know that such action is not based upon a motivation of humanitarian service. This is especially the case if that action is unorthodox, not recognized or accepted by the orthodox, majority religions or churches.

Thus, there is no more justification to the State’s requiring us to specify our form of humanitarian service, than there is for us to conform to its narrower definitions of what constitute acceptable forms of humanitarian service. True, this specification would establish the possibility that we engage in humanitarian service; but this possibility is more simply established by our sworn testimony that we do in fact serve humanity by some specific actions.

As for the fact (as opposed to the mere possibility) that we serve humanity, we can no more establish this by identifying specifically how we serve humanity, than by merely affirming that we do serve humanity. This we did by establishing our church. We should not be required to do more than this.

Soliciting New Members

In the fullest sense, the concept of “member solicitation” pertains to any action characterized by a certain underlying intention. Specifically, “member solicitation” is defined as: any action characterized by an intention to attract new members by informing them as to one’s nature and existence.

There is a sense of the word “member solicitation” which refers only to certain widely recognized or accepted actions apart from the mental desire that may accompany those actions. This sense of the word is not only unjustifiably narrow; it is emptier of factual meaning than (and parasitic for whatever factual meaning it does have upon) the fuller sense of the word. It is this narrower, emptier, linguistically parasitic sense of the term that the State proposes to apply in determining whether the activities of the Unitary Mission Church of Nashville constitute solicitation of new members. We reject this sense of the word, insisting instead that the fuller, broader, primary sense of the term be applied.

General advertisement, such as by the use of newspaper listings, telephone listings, signs, etc., is only one, rather more conventional form of soliciting new members. Another (and by no means the only other) approach is by word-of-mouth. This approach is sometimes followed in order to escape public harassment (or worse), sometimes merely as a matter of style, i.e., as something one feels more psychologically or aesthetically comfortable with.

The factor common to all of these, and not just these, is that they all are, or can be, a manner in which one can carry out one’s intention to attract new members by informing them as to one’s nature and existence. The requirement that the manner of attracting new members by public advertisement is simply the product of unthinking custom and prejudice.

We maintain that the most the State can legitimately do is take us at face value when we say that we solicit new members and leave the specific actions by which we solicit new members out of the question. There are both legal and practical reasons why the State cannot require us to specify the actions by which we solicit new members:

1. Legally, i.e., Constitutionally, we cannot be compelled to engage in discussions of our religious ideas.

2. More importantly, practically, there is no possible way, not even by requiring us to specify the manner in which we solicit new members, that the State can prove that we do not engage in soliciting new members. Nor can we prove that we do!

By the fundamental nature of solicitation of new members as depending upon the presence of a certain mental phenomenon—an intention to attract new members by informing them as to one’s nature and existence—the State cannot extract the information it needs. In fact, any time the State is genuinely concerned with determining whether a certain group is in fact engaging in solicitation of new members, it faces an insuperable obstacle:

1. The State cannot know that certain actions in fact constitute solicitation of new members, because the State cannot be certain of the psychological desire accompanying those actions. At best, the State can merely presume that certain actions are genuine solicitation of new members, by noting whether the group involved appears convincing and sincere in their actions, and whether their actions are generally accepted or recognized forms of solicitation of new members.

2. The State cannot know that someone’s actions do not in fact constitute solicitation of new members, again because the State cannot know that such action is not based upon an intention to solicit new members. This is especially the case if that action is unorthodox, not recognized or accepted by the orthodox, majority religions or churches.

Thus, there is no more justification to the State’s requiring us to specify our manner of solicitation of new members, than there is for us to conform to its narrower definitions of what constitute acceptable manners of solicitation of new members. True, this specification would establish the possibility that we engage in solicitation of new members; but this possibility is more simply established by our sworn testimony that we do in fact solicit new members by some specific actions.

As for the fact (as opposed to the mere possibility) that we solicit new members, we can no more establish this by identifying specifically how we solicit new members, than by merely affirming that we do solicit new members. This we did by establishing our church. We should not be required to do more than this.

Conclusion

Because of the fundamental impossibility of determining whether we, or anyone, is in fact sincere in their claims that they worship, serve humanity, and solicit new members, the State must take all such claims at face value—or it must reject all such claims, thus ending its favoritism of certain religious groups to the exclusion of all others.

A parallel argument to the preceding three can be made for the State’s claim that a group cannot be a church unless it meets in a certain kind of building, namely, a church, temple, etc.

Addendum: Replies to Questions Asked

by the State of Tennessee’s Revenue Adjudicator

Q: What is wrong with the claim that the building in which the Unitary Mission Church of Nashville meets is not a church? In other words, what possible quarrel do you have with the definition of a church offered by Mr. Moore, to wit: (1) a building or physical structure where (2) a membership or congregation gathers to (3) carry on some religious purpose such as worship, and with the claim that you do not fit this criteria?

A: First of all, the question of whether the building in which we meet is itself a “church,” is irrelevant to whether we are entitled to a Sales and Use Tax exemption. The relevant question is whether our association, the Unitary Mission Church of Nashville, is really a “church.”

There is a basic confusion here, and it totally invalidates the first half of Mr. Moore’s argument. Church buildings do not pay Sales and Use taxes, so church buildings do not receive “institutional exemptions” from such taxes. Church associations do pay such taxes, and they do receive such exemptions.

Thus, Mr. Moore’s suggested definition is simply not pertinent to the issue at hand, in that it places heavy emphasis on the nature of the building in which we meet. His definition, to be of any use whatever, ought instead to say: (1) a membership or congregation which gathers (2) in or at a building or physical structure (3) to carry on some religious purpose such as worship. This is the secondary sense of the term “church” cited in Coonrad 77 N.W. 2d 824—“a religious organization, association, or society”—and is the only relevant sense for the purposes of this hearing. Again, I stress that although a church as an association must necessarily meet somewhere, it may meet anywhere.

Now, it is clear that the real question is whether or not our association is a religious one, i.e., whether in meeting we carry on some “religious purpose.” Each of our members can easily establish that we are a religious association carrying on some religious purpose; but we also maintain that being required by law to prove that our association and purpose is religious is a violation of our First Amendment rights. The very nature of our religious beliefs create a significant likelihood that their religious nature would be denied by all but the most extremely open-minded.

Q: What is it about your religious beliefs that makes them so unacceptable to almost everyone in the orthodox religious associations? If they are so different, why do you still feel that your beliefs qualify to be called “religious”?

A: First, all religions recognize some Supreme Being, whether it be the Judeo-Christian God, Allah, etc. This Supreme Being is the object of worship, i.e., of loyalty and dedication of one’s thoughts, words, and actions to this Being, in order that one can approach the ideal that this Being represents.

The orthodox religions all place this Supreme Being in another realm, the supernatural. For us, however, the Supreme Being, the ideal which we worship and strive to emulate, is man’s highest potential, i.e., the individual human being as he can and ought to be.

Secondly, all religions espouse some code of morality, some set of principles or guidelines by which one should live one’s life. The orthodox religions, with varying degrees of consistency, are all altruist or duty-centered moralities, where one’s highest moral purpose is to sacrifice one’s happiness for the good of others, in hope that one will be rewarded in an afterlife with eternal bliss in repayment for earthly miseries.

For us, however—since we deny the existence of the supernatural, of an afterlife, and of the immortality of the soul—this life and this earth is all there is. We reject the morality of self-sacrifice, not only of ourselves to others, but of others to ourselves. We uphold a morality of rational self-interest, a life-centered morality, where one’s highest moral purpose is one’s own happiness here on earth. If you want to know what is sacred to us, this is it!

We reject the nightmare view of existence and the profound disrespect for others, which comes from the orthodox religious view that mankind is a herd of doomed beggars trapped in a malevolent world where disasters are the constant and primary concern of their lives. Such a view destroys any genuine benevolence and good will people might feel for each other. To us, the proper way to judge when you should help another is to determine whether the time, money or effort you give or the risk you take is proportionate to the value of the person in relation to your own happiness. We are not indifferent to other people in an emergency, but any help we give is an exception, not a rule, an act of generosity, not of moral duty. Our religious purpose is not to roam the world seeking victims to save.

Thirdly, all religions employ some method for arriving at the body of ideas in which their followers believe. The orthodox religions all base their beliefs upon faith, authority, mystic insight, intimidation, and the like.

For us, however, since we are operating totally within this world, the only valid means for arriving at our beliefs and convictions is by reason, guided by logic, and based on the evidence of our senses. There is literally no other way for us to know what we are talking about.

Fourthly, all religions espouse some view of how the individual should relate to society and to the governments that societies set up. Many of the orthodox religions view the collective as the basic unit of reality to which man must subordinate his existence, and the state as the institution which has the right to demand man’s subservience.

We, however, are not collectivists, but individualists, holding that each man is an end in himself, not a means to the ends of others. We are not statists, but libertarians, holding that no man or group or society or government has the right to assume the role of a criminal and initiate the use of physical compulsion against any man. Societies and governments have no greater reality than, and no legitimate rights beyond, those possessed by the individuals that create them. Only rational, productive, independent men in a rational, productive, free society can be of value to one another, and we should relate to society and government on this basis.

It should be clear that our beliefs do in fact constitute a religion, a set of beliefs about morality, a Supreme Being, man, and society, to which we try to adhere religiously, as it were. There should be no remaining question as to whether the purpose of our association, based on these beliefs as it is, is a religious one.

It should be equally clear that the vast majority of mankind would be sufficiently hostile to our beliefs, were we to publicize our church generally, that they would do all they could to deny us equal legal status as a religion, with all the tax benefits such status entails. It is not unreasonable to assume that our religious views will at some point(s) invite the wrath of some outraged judge, legislators, or bureaucrats, especially since we challenge as a matter of doctrine their right to exercise power over the very kinds of things being considered here today.

Q: Your church uses no sign, no telephone listing, or other public indicator of its existence or of the time or date of services. How do you expect to be taken seriously as a religion, if you do not even advertise or solicit for members or contributions?

A: I can best answer this question by using a familiar case as analogy. For years, the Amway Company has operated strictly by word-of-mouth, while its competitors all advertised. In no way did its policy of “non-advertisement” mean that it was not deadly serious about winning adherents to its products and its way of operating. Given the kind of company it was—i.e., the personality and philosophy of its directors—the word-of-mouth approach was the most logical and appropriate method to use. Our church follows the same course for exactly the same reasons.

Q: What about the fact that your church has never held regular meetings until recently?

A: The congregation is more individualistic and individual than most. We operate odd-hour schedules, often coming up with commitments which cannot be broken. This is one of the hazards of leading a free-lance, independent career. The recent influx of certain new members, and the availability of certain study materials, has made regularity of meetings more feasible. What must be noted, however, is that throughout the past existence of the church, Mr. Walker has always been available for services. If we did not manage to adjust our schedules to permit regular meetings of all or most of the group, that is not Mr. Walker’s fault, and in no way diminishes the reality of the association we have formed and sustained throughout the past five years.

Q: What sacerdotal functions has Mr. Walker administered to your knowledge?

A: He performed the wedding service for me and my wife on September 18, 1976, a copy of which is available upon request. He also performed the service for the “humaning” of our baby daughter last November, a copy of which is also available. I know that he has performed other wedding services, which I didn’t attend personally, however. Mr. Walker also guides and directs our meetings.