Happy July 4th! Now for an update on Tennesseans arguing about 'online' ministers

Happy July 4th, everybody. This is certainly a day to celebrate the various forms of freedom that Americans cherish — including some that are pretty confusing, when push comes to shove.

I am thinking, in particular, about the First Amendment and the edgy legal battle that is unfolding here in Tennessee about the state’s ability to enforce a law setting some standards about who is an ordained minister and who is not. If you want to catch up on press coverage of this battle, click here for my first post and then here for the podcast discussing this topic: “This is not funny: Does the state have the right to call some faiths 'real' and others 'fakes'?

It’s time for an update, since the status of click-that-mouse ministers with the Universal Life Church ended up in front of a federal judge yesterday. The Nashville Tennessean team produced a story for Gannett newspapers — which now dominate the volunteer state — that ran with this headline: “Judge questions 'rational basis' of state law blocking ministers ordained online from performing marriages.

The bottom line: Gannett is covering this case as a battle about LGBTQ rights, since many same-sex couples choose nontraditional ministers to perform their marriage rites. There is little or no evidence that pros at The Tennessean realize that this case will pivot on the U.S. government’s attempts — think Internal Revenue Service — to establish some guidelines to help officials determine when religious institutions exist primarily for the purpose of profit or fraud. Here’s the overture:

A federal judge on Wednesday repeatedly pressed state lawyers to explain a "rational basis" for a new Tennessee law that bans ministers ordained online from performing marriages — and he didn't seem to get an answer that satisfied him.

Chief District Judge Waverly Crenshaw said a lawsuit challenging the law raised "serious constitutional issues" that should be considered at trial by the end of the year. Until then, Crenshaw said, ministers ordained online could continue to perform legal marriages.

The Universal Life Church Monastery, a ministry that ordains ministers online, sued Tennessee over the law last month, saying it violated religious protections of the First Amendment among other things.

Yes, there certainly are “serious constitutional issues” at stake here. I think any serious church-state activist — left or right — would agree with that statement and with the judge’s decision that fights over this Tennessee law deserve a serious day in court.

So what are Tennessee lawmaker’s worried about? We will get to that.

But first, what are journalists at the Tennessean worried about? Here is a long, but essential summary built on the reactions of a Universal Life Church minister:

Plaintiff Gabriel Biser … said the state was unnecessarily trying to insert itself into private, personalized marriage ceremonies. He said gay and lesbian couples sometimes wanted a special ceremony that wasn't affiliated with a major religious denomination. 

He said he is careful to help couples complete the state paperwork they need to have legal marriages, but he also wants their ceremonies to reflect their personal beliefs.

"The day's about the couple and I don't think the state has any room to say how they spend their day," he said. "At the end of the day that's about two people in love with one another and that's what the focus should remain on. The rest is procedural."

By the way, under Associated Press style, shouldn’t that be “the Rev. Gabriel Biser” at this point in the legal battle? Just asking.

So now, what appear to be the state’s central concerns? I think it’s safe to say that lawyers for the state of Tennessee must have — in their briefs — have discussed previous court cases on these issues, most of which revolve around the IRS guidelines that attempt to draw a careful like between traditional faiths and “new” religious institutions that pop up from time to time.

Once again, here is an important chunk of those IRS guidelines (.pdf here) — which deserve to be in the online files of all religion-beat specialists or those who cover court arguments over these topics:

… “(B)ecause beliefs and practices vary so widely, there is no single definition of the word ‘church‘ for tax purposes.” Rather, the IRS considers the following fourteen factors under a “facts and circumstances” test:

• a distinct legal existence;

• a recognized creed and form of worship;

• a definite and distinct ecclesiastical government;

• a formal code of doctrine and discipline;

• a distinct religious history;

• a membership not associated with another church or denomination;

• an organization of ordained ministers;

• ordained ministers selected after completing prescribed studies;

• a literature of its own;

• established places of worship;

• regular congregations;

• regular worship services;

• Sunday schools for religious instruction of the young; and

• schools for the preparation of ministers.

Although no single factor is controlling, and having all 14 (or even one) is not necessary, the IRS is unlikely to recognize an organization as being a church unless it has a number of these characteristics.

So what is the status of the Universal Life Church? As you would imagine, there have been battles in the past — including in Utah. I am not fond of Wikipedia, but this summary does include some good links to previous court cases and attempts at legislation.

The key appears to be that state officials are concerned about profit and fraud. ULC officials have paid some back taxes in the past.

So what happened here in the Tennessee courtroom? The key word is there — “fraud.”

During the first hearing in the case Wednesday, state lawyers said the law ensured a "paper trail" and protected against fraud. Crenshaw interrupted, saying, "You lost me there."

Then state lawyers said there were concerns online ministries were "not investigating the individuals' integrity enough." Crenshaw again pushed back, saying, "You might learn something" after questioning officials from those online ministries.

State lawyers then cited concerns that fraudulent websites could be set up to ordain people.

"Does the state really believe that the Universal Life Church Monastery is a fake organization?" Crenshaw asked.

Is the state attempting to apply IRS standards linked to “history,” legitimate “schools for the preparation of ministers” and “doctrines and discipline”? In other words, is the ULC a “click here and then send in your church” ordination paper mill?

It’s hard to tell, based on the contents of this story and its lack of crucial info. Did either side reference ( in print or spoken word) past cases involving the IRS?

The word “fraud” is crucial, since governments — when investigating religious groups — are allowed to look for profit, fraud and “clear threat to life and health.” It looks like this case revolves around profit, alleged fraud and how the ULC does or does not train its clergy.

Stay tuned. Will anyone linked to Gannett read any IRS materials on this church-state puzzle?

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