SECTION III: REGULATION VS. RELIGION

The Internal Revenue Service is reported to use a 13-fold description of religion that has never been officially formalized as a regulation. It contains 13 marks, traits or criteria, not all of which, says the Internal Revenue Service generously, need be met to identify a "religion." (Source: Bruce Hopkins, The Law of Tax-Exempt Organizations 134 (3d Ed. l979).)

1. "A distinct legal existence." The Church of Scientology is formally incorporated in many jurisdictions in the United States and elsewhere. (Some acknowledged religions or churches are not, such as the Episcopal Church or the United Methodist Church, at least on a national level.)

2. "A recognized creed and form of worship". The Church of Scientology has a formal creed that can be seen posted in its premises. As indicated above, it does not have, or pretend to have, a form of worship in the Judeo-Christian model.

3. "A definite and distinct ecclesiastical government." As mentioned earlier, the Church of Scientology has an elaborate local, national, and international system of organization and governance, but whether it is "ecclesiastical" depends on whether the organization is "religious."

4. "A formal code of doctrine and discipline."Short of the Roman Catholic code of canon law, there has seldom been a body of "doctrine and discipline" as voluminous as the official directives and manuals of Scientology. Whether it is "doctrine and discipline" in the sense intended by the IRS turns again upon whether the content is "religious."

5. "A distinct religious history."This criterion is also circular. Scientology has a fairly "distinct" history covering its development since inception in the early 1950s, but whether this constitutes a "religious" history depends on whether it is a "religion."

6. "A membership not associated with any other church or denomination."This trait of exclusivity is characteristic of most Western religions in recent times, but not of the "mystery" religions of Rome, c. 200 B.C.-200 A.D.; one could be a devotee of Mithra, of Isis and Osiris, and of Dionysius all at the same time. Mutual exclusivity is also not characteristic of some Eastern religions either. Scientology does not claim to be the "one and only" mode of belief, as most modern Western faiths do, but in actuality it seems to pre-empt the believer's attention, to preclude much interest in other systems of religious belief, and to satisfy or assuage the religious needs and interests of its adherents.

7. "A complete organization of ordained ministers ministering to their congregations and selected after completing prescribed courses of study." If there is anything Scientology abounds in, it is "ordained ministers" who have completed "prescribed courses of study." Its ratio of "staff" or full-time practitioners to "laity (?)" or part-time practitioners is unusually high, with a "mission" having several staff, a "church" dozens, and a major center like Los Angeles or Clearwater, hundreds. The core of Scientology is "prescribed courses of study," including a "minister's course" required of all who seek to qualify as auditors. The phrase "ministering to their congregations" is more difficult to apply, since there is not the one-to-one relationship between a minister and a congregation in Scientology that there is in most Protestant denominations. The pattern is more like a Roman Catholic parish, with several priests and nuns ministering collectively to hundreds or thousands of parishioners. (On the other hand, several acknowledged religions, such as oldline Quakers and the Church of Christ, Scientist, do not have "ministers" at all, and several do not require "prescribed courses of study" for their preachers.)

8. "A literature of its own."Some religions do not have this attribute. Scientology does. It has enough "literature of its own" to supply them all twice over ­ if it is "religious" literature.

9. "Established places of worship." There are many established Scientology facilities or installations through the country. They are not "places of worship" as conventionally understood. Whether they are nevertheless places of religious practice depends upon whether Scientology is a religion.

10. "Regular congregations." Scientology has centers to which fairly stable clientele repairs continually for the ministrations which Scientology affords, mainly courses and counselling. It does not have many collective assemblages to which all or most of the constituents are expected to come for corporate activities. Those who enroll for courses in Scientology sign a form which describes the applicant as "a Church of Scientology International Member," and records are kept of all such applicants/enrollees/members, most of whom progress over longer or shorter periods of time through the seemingly inexhaustible levels of auditing and training called "the Bridge," the higher levels of which can be attained only at Los Angeles and a few other centers, and the highest only at Clearwater, Florida, the Western Hemisphere headquarters of the Church.

Thus it can be said that each Scientology center has a fairly stable and continuing constituency, similar in its accessions, defections, perdurance and decay to the "regular congregations" of more conventional religions. Whether they are the equivalent of conventional congregations depends again on whether Scientology is a religion.

11. "Regular religious services." As indicated earlier, Scientology has fairly regular Sunday services, or so respondents reported. Though they are not characterized as "worship," they might qualify as "regular religious services" ­ if Scientology is a religion. The chapel services and chapels ­ like the clerical garb, the modified symbol of a cross, the ecclesiastical titles and terminology ­ seem like borrowings from the prevalent and conventional forms of Christianity rather than outgrowths of Scientology itself.1 But then, many new religions borrow from older ones to gain "protective coloration." The Baptists and Quakers eventually attained recognition as religions without resorting to the conventional religious symbols of their time and without benefit of clergy, but they endured severe persecution in the process. New religions ought not to have to mimic the trappings of older ones in order to survive and be accepted on their own terms. In any event, these symbolic elements did not play any part in determining my conclusions about whether Scientology is a religion.

12. "Sunday schools for the religious instruction of the young."The evidence on this point is sparse and conflicting. Some informants said Scientology has no such schools for "the religious instruction of the young," while at least one said there are such schools, and he had sent his children to one in Detroit. There are some religions which address themselves exclusively to adults and thus do not have such schools. The criterion is also circular, since whether the instruction given in such schools (if they exist) is "religious instruction" depends on the prior question whether Scientology is a religion.

13. "Schools for the preparation of its ministers." Scientology is itself one vast and infinitely gradated "school for the preparation of its ministers," if the functionaries so produced are conceded to be "ministers," which turns on whether they minister a religion.

Most of the foregoing evidences are not conclusive, but rest on the very question at issue: what is a "religion"? The definition in Fellowship of Humanity has not been embraced by other courts, though the U.S. Supreme Court may have followed its method and borrowed its results in recognizing "religion," not by its content or structure, but by its function. (See U.S. v Seeger, 380 U.S. 163 (1965), Welsh v. U.S., 398 U.S. 333 (1970), Torcaso v. Watkins, 376 U.S. 488 (l961).)

The Internal Revenue Service's criteria are not only circular but highly conventional. They were elaborated for the laudable purpose of sifting out "mail-order ministries" designed as tax shelters, but as one commentator has written of them:

These criteria tend to require an organization to be a developed denomination according to the pattern reflected in the most accepted mainline churches. They do not recognize the substantial departure from this structure among a number of religious organizations which have long been recognized as American churches ... Christ and his band of disciples certainly did not meet these criteria ... It is perhaps never wise to define a religion based on its developed state, since its early state is not only most fluid, but usually its most delicate and important. It is precisely then, in this larval stage, that a particular religion needs to have the benefit of religious protections.

--Worthing, Sharon, "'Religion' and 'Religious Institutions' Under the First amendment" in 7:2 Pepperdine Law Review 344-345
 

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