Mayer, an Associational Definition of Churches

Lloyd Hitoshi Mayer has some interesting commentary in the Chronicle of Philanthropy regarding how tax law defines organized worshippers, groups referred to as “churches” in tax law.  The first reaction to government deciding which groups worship and which do not is to recoil because the First Amendment prohibits government from making and then acting on religious distinctions.  But, well, once we decide to give tax concessions to “churches” we necessarily require a definition.  Even using the word “churches” is problematic but there is no way around a definition (and a shorthand label) except to withdraw religious tax exemption altogether.  That would eliminate the need for otherwise unconstitutional distinctions. So if we still want to give tax breaks to organized worshippers, we need a definition.  The best we can hope for is a neutral one and current law tries.  Mayer and Ellen Aprill, Mayer’s co-author in recent scholarship, seek even more neutrality, particularly in response to the changing way we gather to worship in cyberspace.  Here is part of his commentary:  

Proposed Solutions

Aprill and I recommend that the IRS change its definition for churches to the associational one adopted by some courts in rulings as early as 1980. As the U.S. Court of Federal Claims explained in that 2009 ruling, this test focuses on whether a body of believers assembles regularly to worship. Given technological advances, the IRS should also make it clear that this test can be satisfied through remote participation in religious services using interactive, teleconferencing apps such as Zoom.

This definition would be also better suited for congregations of all faiths because some faiths do not prioritize many of the factors included in the IRS test, such as having a formal code of doctrine or requiring members to not be associated with other houses of worship or faiths. And it would better reflect how some Americans participate in religious services today. We recommend that the IRS revisit its test for being a church and that Congress pass a law that would change the definition of church associations. The new law could limit associations of churches to organizations that represent a single denomination, as Congress likely initially intended.

This latter change would make it harder for religious organizations that are primarily involved in bringing churches from multiple faiths together to engage in advocacy or other activities to obtain this status and the lack of transparency and accountability that come with it. We believe Congress, not the IRS, should make this change because of the potential political tensions that narrowing the definition could create. We don’t think the changes would impinge upon the special role that churches have in our society. Indeed, the revised test for qualifying as a church would better fit with both the increasing variety of faiths in our country and technological advancements.

darryll k. jones