Law and the Church

by Victoria S. – Approved: 27 July, 2016

1. List nine (9) laws, or as many as possible if less than nine, concerning clergy that you have found by searching your nearest municipality laws. By municipality, we mean on the village or town level. If there are none, then tell us how you found that out.

The City of San Carlos hosts their Codes at http://www.codepublishing.com/CA/SanCarlos/. There are no laws for the City of San Carlos relating to “clergy,” “minister,” or “priest.”

To verify this, I went to the URL listed above, used their “Search Code” feature and searched for keywords of “clergy,” “minister,” and “priest” individually. In the searches, I included the advanced options of stemming (which includes different grammatical variations) and fuzzy logic to increase the potential of getting a result. In each case, the search returned an empty result.

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2. If there is a body of laws between the municipality laws and the state/provincial laws where you live, list nine (9) laws, or as many as possible if less than nine, concerning clergy, that you have found by searching this area.

There are no laws at the county level that discuss clergy.  I searched https://www2.municode.com/library/ca/san_mateo_county/codes/code_of_ordinances to look for any San Mateo County Codes with the words “clergy,” “minister,” or “priest.” To verify the lack of laws at the county level, I went to the URL listed above and used their Search feature. I entered the words “clergy,” “minister,” and “priest” individually in 3 different searches. In the searches, I included the advanced options of Stemming, Fuzzy Search, and Synonym Search.  In each case, there were no laws found.

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3. List nine (9) laws concerning clergy that you have found by searching your state/provincial laws.

I found the California laws below by using the text search feature to search for “clergy” on http://leginfo.legislature.ca.gov/faces/codes.xhtml

California #1:

Family Code 400 allows for pagan clergy to perform weddings within the state of California:

Marriage may be solemnized by any of the following who is of the age of 18 years or older: (CAL Fam. Code § 400)

A priest, minister, or rabbi of any religious denomination. No particular form for the ceremony of marriage is required for solemnization of the marriage, but the parties shall declare, in the presence of the person solemnizing the marriage and necessary witnesses, that they take each other as husband and wife (CAL Fam. Code § 420).

California #2:

Penal Code 11165.7 includes pagan clergy on the list of mandatory reporters.

(a) As used in this article, “mandated reporter” is defined as any of the following:

(32) A clergy member, as specified in subdivision (d) of Section 11166. As used in this article, “clergy member” means a priest, minister, rabbi, religious practitioner, or similar functionary of a church, temple, or recognized denomination or organization.

(33) Any custodian of records of a clergy member, as specified in this section and subdivision (d) of Section 11166 (CAL Pen. Code § 11165.7).

California #3

Penal Code 11166 specifies that pagan clergy are required to report child abuse or neglect using non-privileged evidence.

(a) Except as provided in subdivision (d), and in Section 11166.05, a mandated reporter shall make a report to an agency specified in Section 11165.9 whenever the mandated reporter, in his or her professional capacity or within the scope of his or her employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect. The mandated reporter shall make an initial report by telephone to the agency immediately or as soon as is practicably possible, and shall prepare and send, fax, or electronically transmit a written followup report within 36 hours of receiving the information concerning the incident. The mandated reporter may include with the report any nonprivileged documentary evidence the mandated reporter possesses relating to the incident (CAL Pen. Code § 11166).

(d) (1) A clergy member who acquires knowledge or a reasonable suspicion of child abuse or neglect during a penitential communication is not subject to subdivision (a). For the purposes of this subdivision, “penitential communication” means a communication, intended to be in confidence, including, but not limited to, a sacramental confession, made to a clergy member who, in the course of the discipline or practice of his or her church, denomination, or organization, is authorized or accustomed to hear those communications, and under the discipline, tenets, customs, or practices of his or her church, denomination, or organization, has a duty to keep those communications secret.

(2) Nothing in this subdivision shall be construed to modify or limit a clergy member’s duty to report known or suspected child abuse or neglect when the clergy member is acting in some other capacity that would otherwise make the clergy member a mandated reporter (CAL Pen. Code § 11166).

Any mandated reporter who has knowledge of or who reasonably suspects that a child is suffering serious emotional damage or is at a substantial risk of suffering serious emotional damage, evidenced by states of being or behavior, including, but not limited to, severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, may make a report to an agency specified in Section 11165.9 (CAL Pen. Code § 11166.05).

California #4

Welfare and Institutions Code 15601 requires clergy members to report suspected or known cases of elders and dependent adults.

The purposes of this act are to:

(a) Require health practitioners, care custodians, clergy members, and employees of county adult protective services agencies and local law enforcement agencies to report known or suspected cases of abuse of elders and dependent adults and to encourage community members in general to do so.

(b) Collect information on the numbers of abuse victims, circumstances surrounding the act of abuse, and other data which will aid the state in establishing adequate services to aid all victims of abuse in a timely, compassionate manner.

(c) Provide for protection under the law for all those persons who report suspected cases of abuse, provided that the report is not made with malicious intent (CAL Welf. & Inst. Code § 15601).

California #5

Evidence Code 1032 & 1034 outlines that a member of clergy does not have to disclose evidence given during a penitential communication.

As used in this article, “penitential communication” means a communication made in confidence, in the presence of no third person so far as the penitent is aware, to a member of the clergy who, in the course of the discipline or practice of the clergy member’s church, denomination, or organization, is authorized or accustomed to hear those communications and, under the discipline or tenets of his or her church, denomination, or organization, has a duty to keep those communications secret (CAL Evid. Code § 1032).

Subject to Section 912, a member of the clergy, whether or not a party, has a privilege to refuse to disclose a penitential communication if he or she claims the privilege (CAL Evid. Code § 1034).

California #6

Evidence Code 1030 defines a member of the clergy.

As used in this article, a “member of the clergy” means a priest, minister, religious practitioner, or similar functionary of a church or of a religious denomination or religious organization (CAL Evid. Code § 1030).

California #7

Business and Professions Code 16000 defines that cities may not charge a license fee that is based on income to any nonprofit organization, including clergy.

(b) No license fee levied pursuant to subdivision (a) that is measured by the licensee’s income or gross receipts, whether levied by a charter or general law city, shall apply to any nonprofit organization that is exempted from taxes by Chapter 4 (commencing with Section 23701) of Part 11 of Division 2 of the Revenue and Taxation Code or Subchapter F (commencing with Section 501) of Chapter 1 of Subtitle A of the Internal Revenue Code of 1986, or the successor of either, or to any minister, clergyman, Christian Science practitioner, rabbi, or priest of any religious organization that has been granted an exemption from federal income tax by the United States Commissioner of Internal Revenue as an organization described in Section 501(c)(3) of the Internal Revenue Code or a successor to that section (CAL Bus. & Prof. Code § 16000).

California #8

Health and Safety Code 102135 state that clergy members must provide information on birth, death or marriage upon request of the Registrar, and may not use derogatory descriptors when doing so.

(a) All physicians, informants, funeral directors, clergy, or judges and all other persons having knowledge of the facts, shall supply upon the prescribed forms any information that they possess regarding any birth, fetal death, death, or marriage upon demand of the state or local registrar.

(b) All physicians, informants, funeral directors, clergy, judges, public employees, or other persons who supply upon prescribed forms information that they possess regarding any birth, fetal death, death, or marriage shall in no case use a derogatory, demeaning, or colloquial racial or ethnic descriptor (CAL Health & Safety Code  § 102135).

California #9

Business and Professions Code 4996.13 allows clergy members to do psychosocial work as long as they do not use any terms that would lead people to believe that they were licensed.

Nothing in this article shall prevent qualified members of other professional groups from doing work of a psychosocial nature consistent with the standards and ethics of their respective professions. However, they shall not hold themselves out to the public by any title or description of services incorporating the words psychosocial, or clinical social worker, or that they shall not state or imply that they are licensed to practice clinical social work. These qualified members of other professional groups include, but are not limited to, the following:

(a) A physician and surgeon certified pursuant to Chapter 5 (commencing with Section 2000).

(b) A psychologist licensed pursuant to Chapter 6.6 (commencing with Section 2900).

(c) Members of the State Bar of California.

(d) Marriage and family therapists licensed pursuant to Chapter 13 (commencing with Section 4980).

(e) Licensed professional clinical counselors pursuant to Chapter 16 (commencing with Section 4999.10).

(f) A priest, rabbi, or minister of the gospel of any religious denomination
(CAL Bus. & Prof. Code § 4996.13).

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4. List nine (9) laws concerning clergy that you have found by searching your national laws.

Federal Law #1

The Third Circuit Court upheld the existence of the clergy-communicant relationship and the need to protect privileged conversations.

Following Mullen, a number of federal courts recognized a common law clergy-communicant privilege. The court in In re Verplank, 329 F.Supp. 433, 435 (C.D.Cal.1971), for example, invoked the Mullen concurrence and the Supreme Court’s instruction in Wolfe that the federal courts should develop evidentiary rules “in the light of reason and experience.” The court held that draft counseling services rendered by a clergyman came within the ambit of his religious duties and were privileged. Id. at 436. The court further concluded that the privilege extended to counseling by members of the clergyman’s staff who were not ordained ministers. Id. In United States v. Wells, 446 F.2d 2 (2d Cir.1971), the court, holding that the admission into evidence of a letter from the defendant to a priest did not violate the clergy-communicant privilege, implicitly recognized such a privilege. The Wells court based its holding on the absence of any indication that the defendant had intended the letter to be confidential or that “its purpose was to obtain religious or other counsel, advice, solace, absolution or ministration.” Id. at 4.11
The Supreme Court, albeit in dicta, subsequently acknowledged the existence of a “priest-penitent” privilege. (59 USLW 2343, 31 Fed. R. Evid. Serv. 1352).

Federal Law #2

20 U.S.C. § 4071 denies federally funded schools from limiting access to open forums based on religious, political, philosophical, or other speech content.

(a) Restriction of limited open forum on basis of religious, political, philosophical, or other speech content prohibited.

It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal accessor a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within the limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.

Federal Law #3

42 U.S.C. § 2000bb, The Religious Freedom Restoration act recognizes that we have the right to exercise religion as protected by the First Amendment.  “Religion” is not defined.

(a) Findings

The Congress finds that—

(1) the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution;

(2) laws “neutral” toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;

(3) governments should not substantially burden religious exercise without compelling justification;

(4) in Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and

(5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.

(b) Purposes

The purposes of this chapter are—

(1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and

(2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government.

Federal Law #4

42 U.S.C.A. § 2000cc states that the government may not implement land use regulation that imposes a burden on the exercise of religion.

2000cc. Protection of land use as religious exercise

(a) Substantial burdens

(1) General rule

No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution–

(A)  is in furtherance of a compelling governmental interest; and

(B)  is the least restrictive means of furthering that compelling governmental interest.

(2)  Scope of application

This subsection applies in any case in which–

(A)  the substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a rule of general applicability;

(B)  the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, even if the burden results from a rule of general applicability; or

(C)  the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved.

(b)  Discrimination and exclusion

(1)  Equal terms

No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.

(2)  Nondiscrimination

No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination.

(3)  Exclusions and limits

No government shall impose or implement a land use regulation that-

(A)  totally excludes religious assemblies from a jurisdiction; or

(B)  unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.

Federal Law #5 – Automatic Exemption for Churches

Churches are automatically exempt from taxes and do not need to apply for recognition for tax-exempt status.

Churches that meet the requirements of IRC Section 501(c)(3) are automatically considered tax exempt and are not required to apply for and obtain recognition of tax-exempt status from the IRS. (Internal Revenue Service, 2)

Federal Law #6 – Church Exemption Through a Central/Parent Organization

Subgroups may gain tax exempt status through their parent Church.

A church with a parent organization may wish to contact the parent to see if it has a group ruling. If the parent holds a group ruling, then the IRS may already recognize the church as tax exempt. Under the group exemption process, the parent organization becomes the holder of a group ruling that identifies other affiliated churches or other affiliated organizations. A church is recognized as tax exempt if it is included in a list provided by the parent organization. If the church or other affiliated organization is included on the list, it doesn’t need to take further action to obtain recognition of tax-exempt status (Internal Revenue Service, 2).

Federal Law #7 – Inurement to Insiders

Churches are prohibited from activities that result in inurement of income or assets to church insiders.

Churches and religious organizations, like all exempt organizations under IRC Section 501(c)(3), are prohibited from engaging in activities that result in inurement of the church’s or organization’s income or assets to insiders (such as persons having a personal and private interest in the activities of the organization) (Internal Revenue Service, 5).

An IRC Section 501(c)(3) organization’s activities must be directed exclusively toward charitable, educational, religious or other exempt purposes. The organization’s activities may not serve the private interests of any individual or organization (Internal Revenue Service, 5).

Federal Law #8 – Substantial Lobbying Activity

Churches are prohibited from engaging in lobbying as a substantial part of their activities.

In general, no organization, including a church, may qualify for IRC Section 501(c)(3) status if a substantial part of its activities is attempting to influence legislation (commonly known as lobbying). An IRC Section 501(c)(3) organization may engage in some lobbying, but too much lobbying activity risks loss of tax-exempt status (Internal Revenue Service, 6)

Federal Law #9 – Political Campaign Activity

Chruches cannot participate in political campaigns.

Under the Internal Revenue Code, all IRC Section 501(c)(3) organizations, including churches and religious organizations, are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office. Contributions to political campaign funds or public statements of position (verbal or written) made by or on behalf of the organization in favor of (or in opposition to) any candidate for public office clearly violate the prohibition against political campaign activity. Violation of this prohibition may result in denial or revocation of tax-exempt status and the imposition of excise tax.

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5. How do laws of your nation, state, or local area respond to Paganism and Neo-Pagan clergy? Are there laws that prohibit certain functions our clergy usually serve (such as divination, counseling, or conducting marriages or funerals)? Does your country implicitly or explicitly state that Neo-Pagans cannot have clergy, or that they cannot perform certain functions or receive similar rights as those from other religions?

On the Federal level, there are no laws that differentiate between different religions’ clergy. To do so would be against the First Amendment of the Constitution. 

From my understanding of the laws, Pagan clergy in California can perform counseling, marriages, and funerals. While I know of Pagan clergy who are working in hospitals and hospice, in California Pagan clergy may not be employed in prison ministry.

While our laws on paper do not discriminate against Pagan clergy, we continue to see challenges with gaining recognition as religious Clergy in some of the lower governmental agencies across the United States. For example, recently in Arkansas, there was a report of discrimination by governmental officials against a pagan church (Manley).

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6. Looking at those laws listed in questions 1 – 4 and how they affect you, are there any specific laws that seem out of place, unfair, or unjust? What is the avenue for change to these laws, and do you see change to these particular laws as necessary?

The legislation around mandatory reporting and “penitential communication” affect me the most.  Since we have no established tradition similar to confession or pastoral counseling, it could be difficult to retain confidentiality if my testimony was required by the courts.

From what I understand, we need to build a tradition of expectation where there is the standard expectation of “penitential” protection under certain, established, conditions.  This effort will include setting up a tradition of pastoral counseling and “confession” or similar.  We would also have to ensure that our priests are trained on how to do pastoral counseling and the confidentiality needs for confessions.

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7. How do you see these laws affecting how you serve your Grove, ADF, or the community as a whole?

Until we have paid clergy, the impacts of the IRS rulings on our local groves are limited. The limitations on ADF and the ability of the Church to get involved in politics and lobbying are critical. We must continue to follow the guidelines laid out by the IRS to maintain our not-for-profit status.

The biggest impact on individuals is the lack of ability to provide protection for those who come to me for counseling.  Anything they tell me may have to be reported. Until ADF has a tradition of pastoral counseling and members have the common expectation of confidentiality, we cannot protect “penitential communication.”

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8. What is the difference between pastoral counseling and other kinds of counseling, and does the law differentiate between these types? What sort of license do you require in your state in order to perform counseling of any type? Does divination fall into this sort of counseling?

As an ordained minister of ADF in California, I will be able to provide pastoral counseling without any other kind of license.  I must be clear in any advertisement or description of the services offered that it does not include trained, licensed psychosocial, or clinical social worker services, or any other services that require licensing and training that I do not have. No specific license is required of a clergyperson to provide pastoral counseling; however I would seek out training before doing so.

In regards to divination, California Penal Code 332 says that fortune telling is illegal if money is obtained fraudulently. Given that divination can be used to help define options and as a technique of addressing a person’s perspective on an issue, I would say that divination can fall into pastoral counseling as long as we do not call it “fortune telling.”

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9. Describe the mandatory reporting laws in your area and how they affect you as a clergyperson. Explain the process you would go through to file a report if it were necessary.

Per the California laws quoted above, a clergy person is required to report abuse or neglect to a child, elder or dependent adult. This report should be made to any police or sheriff’s office as per California Penal Code 11165.9.  I will be required to provide as much information as possible – including any information that was shared outside of a “penitential communication.”  Because there is no specific definition in ADF as to what a “penitential communication” is and no tradition of pastoral counseling, it’s not likely that we could get the courts to agree that any conversation is “penitential communication.”

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WORKS CITED

20 U.S.C. § 4071. Department of Justice. Web. 15 June 2016.<https://www.justice.gov/sites/default/files/osg/briefs/1989/01/01/sg890427.txt>

42 U.S.C. § 2000bb. Office of the Law Revision Counsel United States Code. Web. 15 June 2016. <https://www.justice.gov/sites/default/files/osg/briefs/1989/01/01/sg890427.txt>

42 U.S.C.A. § 2000cc. Congress.gov. Web. 15 June. 2016.<https://www.congress.gov/106/plaws/publ274/PLAW-106publ274.pdf>

59 USLW 2343, 31 Fed. R. Evid. Serv. 1352. Law.Resource.org. Public.Resource.org. Web. 15 June 2016. <https://law.resource.org/pub/us/case/reporter/F2/918/918.F2d.374.89-3817.html>

CAL Bus. & Prof. Code § 16000. California Legislative Information. Web. 14 June 2016.

CAL Bus. & Prof. Code § 4996.13.  California Legislative Information. Web.14 June 2016.

CAL Evid. Code § 1030. California Legislative Information. Web. 14 June 2016.

CAL Evid. Code § 1032. California Legislative Information. Web. 14 June 2016.

CAL Evid. Code § 1034. California Legislative Information. Web. 14 June 2016.

CAL Fam. Code § 400 – 420. California Legislative Information. Web. June 14, 2016.

CAL Health & Safety Code  § 102135. California Legislative Information. Web. June 14, 2016.

CAL Pen. Code § 11165.7. California Legislative Information. Web. June 14, 2016.

CAL Pen. Code § 11165.9. California Legislative Information. Web. June 14, 2016.

CAL Pen. Code § 11166. California Legislative Information. Web. June 14, 2016.

CAL Pen. Code § 11166.05. California Legislative Information. Web. June 14, 2016.

CAL Pen. Code § 332. California Legislative Information. Web. June 14, 2016.

CAL Welf. & Inst. Code § 15601. California Legislative Information. Web. June 14, 2016.

Internal Revenue Service. Tax Guide for Churches & Religious Organizations. Publication 1828 (Rev. 8-2015) ed. Washington, DC: Department of the Treasury, 2015). Web. 19 June 2016. <https://www.irs.gov/pub/irs-pdf/p1828.pdf>

Manley, Marci. “Pagan High Priest Alleges Discrimination by Beebe City Officials.” Arkansas Matters. 17 June 2014. Web. 15 June 2016.   <http://www.arkansasmatters.com/news/news/pagan-high-priest-alleges-discrimination-by-beebe-city-officials>