Under the Law: Rights, Choices, and Dangers
Three things must be made clear at the outset of this discussion. First, to the extent it treats specifics, it is concerned with the law of the United States, with which its author has some familiarity. The Troth has members in a number of other countries, including quite a few in Canada. Although there are similarities, particularly among the laws of English-speaking countries, there are enough differences so that the reader outside the U.S. should not place too much reliance on what is written here in dealing with practical exigencies. Second, few statements concerning the law have contained more truth than the line from the film, Mad Max: Beyond Thunderdome, "You take your chances with the law." There are a number of rights, substantive and procedural, that belong to us in theory and on paper. In practise, some of these are difficult or impossible to exercise, and others of them cost a great deal to exercise, in money and in other ways. Everything depends upon the circumstances. And finally, in dealing with the legal system, there is no subsitute for a good lawyer. Sometimes the cost of one is prohibitive, but if it is not, and there is any question in your mind as to the need for "professional help", permit me this word of advice: in most cases, you will not get nearly as far with a brave smile and an honest heart as you will with a brave smile, an honest heart, and a competent attorney.
Organization and Tax Status
The two matters of the organizational structure of local groups and tax-exempt status are often confused. Though they are somewhat related - tax-exempt status often depends upon provisions within the organizational documents - they are, in fact, quite separate, and arranging one in a certain way does not necessarily guarantee results with respect to the other. To deal with organizations first, a group is, by definition, either a corporation or an "unincorporated association." A corporation is a creature of statutory law, and to form one, one must follow exactly the requirements of the statutes governing corporations. These statutes are different in each state. An unincorporated organization is every group that is not a corporation. The law in some states also recognises the "common law church", which in many ways functions as a corporation. This concept works much better with entities already acknowledged by the System as churches, such as the Roman Catholic Church, since recognition as a common law church may depend upon a number of factors that one would not guess without reading case-law on the subject. Do not rely upon your status as an unincorporated "church" without some research on your state's law concerning the subject.
In most states, the principal legal benefit of incorporation lies in the limitation of liability to the assets of the corporation. If your local unincorporated Garth is sued for, say, back rent or someone's broken foot suffered in an unfortunate accident at last Walpurgisnacht's naked fire jump, at least the board of directors, and possibly the entire membership could end up paying out of their own individual pockets. If the Garth were incorporated, only the Garth treasury and the assets of those specifically incurring liability - someone who contractually obligated him/herself individually, or the individual who may have negligently constructed the fire pit too wide - are at risk. Some, but by no means all, states may condition tax exemptions upon incorporation, although other factors, discussed below, limit the state's power to do so. Most, if not all, states distinguish between non-profit and for-profit corporations, and we are talking here about the former, but being a non-profit corporation does not necessarily free a group from its obligations to pay taxes on its income and real property. Some states also limit the rights of unincorporated associations to enter into contracts, own real property (i.e., land), or appear in court under their own names, requiring individual officers or directors individually to perform these functions. Often, unincorporated associations encounter more difficulty in opening bank accounts, as well.
Another, and perhaps more important, benefit of incorporation is the appearance and sense of legitimacy that arises when Runester Garth becomes Runester Garth, Inc. The step of incorporation tells the world - because your Articles of Incorporation will become public record and anyone will be able to look them up - that your group exists as an entity in and of itself, and intends to continue as such. It forces your group to work out its exact organizational structure and, most important, the allocation of responsibility within the group. Incorporation is often a step that infuses a group with a new sense of the seriousness and commitment inherent in what the group is undertaking. It can also help lead to the realization that the group's interests are important and worthy of consideration independent and apart from the interests of the individuals making up the group. This realization is important if the group is to achieve growth and stability in the long term.
Incorporation can be, however, complicated, time consuming, and expensive. Organizational documents must be drafted in accordance with state law, they must be filed with the appropriate agency, periodic reports and updates must often be made, and the documents must sometimes be published in the newspaper or posted somewhere. If the state's requirements are not followed, your corporate status may be void without your knowing it. In addition, if your state imposes continuing requirements, such as periodic directors' meetings with minutes kept, you must adhere to them or risk losing your corporate status. Thus, the decision to incorporate should be made neither blithely nor blindly; your group should have a clear idea what it is and where it wants to go before formalizing its legal status.
U.S. tax law permits a variety of organizational tax exemptions. The ability of a religious group to escape taxation does not, however, depend on the internal revenue code, but rather, the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." The power to tax is also the power to control or even destroy; therefore, the government cannot be given full taxing power over bona fide religious groups and churches, to the extent their activities remain within the scope of the free exercise of religion. The consequence of this state of affairs is that, theoretically, any bona fide religious group is automatically tax exempt, and donations to it are tax deductible. In practise, this is modified by the tax code, which in general provides that, if the Internal Revenue Service says that you owe them taxes, then you owe them taxes unless and until the highest court they choose to drag you through, often the U.S. Supreme Court, says that you do not owe them taxes.
Insofar as tax exemptions for religious groups are concerned, there are two possible courses of action: (1) engage in solely religious activities, and rely on your First Amendment right freely to exercise your religion to keep the I.R.S. off your back, or (2) obtain what is called a "letter ruling" from the I.R.S., stating that you are, indeed, a tax-exempt religious organization. The obvious advantage of a letter ruling is that, as long as your group retains the same organizational structure and does not engage in prohibited activities, such as political lobbying, the organization can rely on its exempt status, and contributors to it can deduct contributions to it from their taxable income, without worrying about whether it is "really" tax-exempt or not. Under some circumstances, a church or religious organization can even engage in some quasi-commercial activities, such as operating a book store, without losing its exempt status, although properly setting up such operations without endangering a group's tax exemption can be tricky, and consulting a good tax accountant of attorney is highly recommended. A tax-exempt religious organization, such as the Troth, can also charter affiliate groups which can then enjoy the parent organization's tax status, although to obtain a letter ruling recognising such affiliates entails a separate procedure, more complicated and costly than simply obtaining a ruling for a single organization.
A group need not be incorporated to apply for federal tax-exempt status, or rather, a letter ruling recognising such status. A state may require that groups seeking exemption from state taxes incorporate, but applying such a requirement to churches would be an unconstitutional infringement on the First Amendment. It may be possible in some states, on the other hand, to obtain an exemption by incorporating as a non-profit corporation, without receiving a letter ruling, and hence the right to rely on a federal exemption without hassles, from the I.R.S. In practise, however, it is safer to both incorporate and obtain a letter ruling. Incorporation makes it easier to convince the I.R.S. that a group is properly organized and does not engage in non-exempt activities, because the group's organizational structure is a matter of public record and legal enforceability. Groups interested in obtaining a letter ruling should contact their local I.R.S. office for detailed instructions. The primary requirements, however, are that the group exist primarily for religious purposes, and that no funds, even in the event the group dissolves, may be used to profit individuals, other than as reasonable wages.
Protection Under the Law
The law, including the "supreme law of the land", the U.S. Constitution and its amendments, contains a number of protections for the sincere practitioner of any religion, including Ásatrú. Often, however, one must assert oneself against the apparent indifference, if not outright hostility, of "the System" to benefit from these protections. It also helps to know that more than one option is generally available to achieve a desired result, and a creative flexibility is often more useful than a berserker rage.
The most basic of these legal protections is the right to go about one's lawful business without being subjected to criminal activity. In situations involving actual or potential confrontations with others, Heathens, like anyone else, may complain if someone does something illegal to injure them in any way. This can include aggressive attempts by others to interfere with your religious activities. Besides arson and murder one, illegal activity encompasses remaining on your private (either owned or rented) property after being asked to leave, disorderly conduct, threatening or intimidating, telephone harassment, assault (which does not necessarily require that one be physically touched, much less punched in the nose), and a host of other relatively petty offences. In most cases, the one and only step that will set the wheels of justice in motion is to call the police. Telling someone that you could call the police, or threatening to call the police, will usually accomplish very little, and may be positively dangerous. If you are covered (see the following paragraph), and someone is breaking the law to your annoyance, then you have the right to the protection of the Polizei, regardless of whether you were just walking down the street or whether you were in the middle of a Thor's blót.
Do remember, on the other hand, that the police are not your buddies. Most police achieve promotion and/or are looked on with favour by their supervisors by, among other things, arresting people. They do not overlook this fact of their professional lives merely because you, rather than someone else, called them. Do not, for example, call the police if you are drinking mead in a public park without the necessary papers, or if your ceremonial spear does not happen to be fully legal in your state. Also remember that if you were disorderly or obnoxious to the point where someone finally took a swipe at you, you may also have violated a stray statute or two, and police can and do arrest or cite both sides to a disagreement. In such cases, if you are involved in a potential confrontation, a strategic retreat is usually the best course of action, since, if you do not summon the gendarmes, someone else might. On the other hand, if you are covered and do make the call, the correct answer to the question, "Do you want to press charges?" or "Will you be willing to testify in court?" is always "Yes!" You can always work something out later, but you will often only have one good chance to get the System to work for you, and that is the first time the situation is brought to its attention.
If you decide that circumstances do not warrant conjuring the thin blue line, there are other possibilities open to you through the civil (as opposed to criminal) wing of the judicial system. Many states have procedures whereby injunctions against harassing behavior can be obtained. An injunction is an order of the court that one or more specified people are prohibited from doing one or more specified things. Disobeying an injunction can lead either to criminal charges or to a finding of contempt of court, which can include jail time. Your state probably has lower-level courts, such as municipal or justice of the peace courts, where this kind of action can be brought without large filing fees, long waits, and complex procedures requiring a lawyer. In addition, if someone has caused you to be out money, say, by damaging your property or causing you to lose your job through slanderous (i.e., untrue and malicious) remarks to your employer, or if someone wrongfully upsets you to the point where your health is affected, you may, and probably do, have a "cause of action", meaning you can sue the bastards. Here again, if your damages are not overly large but you want to make sure the point is made, lower courts often allow you to derive a certain amount of satisfaction on a cost-effective basis.
It sometimes happens, however, that local authorities are not inclined to perform their jobs as they are supposed to when the victim of improper behavior is a member of an unpopular minority, such as, for example, Heathens. You should not, of course, assume that this will be the case before you make a good-faith attempt to enlist their aid, since not fully exhausting your direct remedies will undercut any complaint you might later wish to raise about your treatment at the hands of the locals. Nonetheless, if you have been wronged in the practice of your religion, you have two potent weapons under U.S. civil rights law. First, if two or more people conspire to deprive you of your rights because of your religion (or, for that matter, because of your race or sex), or if only one person does so "under color of law" (i.e., in some official, government capacity, including everyone from the local policeman to the governor), they are in violation of the Civil Rights Act of 1964, and you can file a complaint. Generally, the places to complain are the nearest U.S. Attorney's Office and/or the nearest F.B.I. office. Usually, a visit from the F.B.I. causes a person to think twice about screwing with your constitutional rights. Second, the same conditions that allow you to file a complaint with the F.B.I. also allow you to file a civil lawsuit for damages, including punitive damages, in federal court. Federal judges are appointed for life, and they do not need to concern themselves with the political agendas of pressure groups, such as the Christian right. The federal courts are an important reason why blacks today do not have to drink at separate water fountains and sit in the backs of buses, and they can also be the reason why your Hearth does not have to be held hostage by the local fundie sheriff, or you do not have to put up with employment discrimination because of your religion. If the situation is outrageous enough, the American Civil Liberties Union may even foot the bill for you. Many states also have equivalents of federal civil rights laws, and using them may be less expensive. In the event of discrimination or harassment in connection with your employment, you may also have remedies available through complaining to the federal Equal Employment Opportunity Commission (EEOC) or the state equivalent. Such complaints often involve a long wait, but have the advantage of costing you virtually nothing.
All of the above remedies involve confronting the source of your difficulties head on, and this is usually what the legal system requires. In one area, however, this approach is not universally a good idea, and that area is child custody. As many Heathen and other Pagan parents have discovered, the law places a great, probably an inordinate, amount of arbitrary authority over people's children in the hands of not-overly-educated and sometimes outright bigoted child welfare workers. While you do have a recognised fundamental right to raise your own children, the government also has the right to protect your children from what it regards as your potentially harmful practices, including the practice of your religion. When you realize that some parents have, under the authority of their religions, withheld medical care from their seriously ill children, or instructed their children to handle poisonous snakes, you can understand why this is so. On the other hand, this authority can be, and frequently has been, abused by pious folk hopped up on the pathetic disinformation turned out in enormous quantity by the "satanic ritual abuse" industry, in which the modern equivalent of snake oil salesmen travel the country lecturing police departments, child protective agencies, and whomever else will listen to them on the deadly danger of various practices and symbols, such as the swastika and the Thor's hammer ("an upside-down cross"). In a more prosaic setting, it sometimes occurs that a Pagan parent will lose custody of his or her child in a divorce action, based largely on the dramatic effect of courtroom revelations of his or her secret "cult" practices, or, more often, the threat of such tactics from the more mainstream spouse's lawyer.
In most situations involving a Heathen parent, his or her child, and the System, it will not be enough bravely to statnd on one's constitutional rights in a confrontational manner. It is absolutely essential in any such dealing with the authorities to remain calm, in control, and rational, and to keep your long-term desire to raise your own child in the forefront of your mind, rather than allow emotional impulses to give possible enemies the excuse they need to take your child away from you. Any outbursts, threats, violence, or bizarre behavior will probably make its way into a report or court document, and will never be forgotten in any subsequent proceeding. In such cases, it is helpful to remember Óðinn the Wanderer, who takes whatever shape is necessary to accomplish his purpose. Become absolutely as reasonable, and even main-stream, as you possibly can. Do not confront police, case-workers, social workers, psychologists, commissioners, judges, or even opposing attorneys, but rather, concentrate on making the best case possible for leaving your child with you. Frequently, there will be a stage of the proceedings at which you will have your shot at vindication, but you must wait for it and you must earn it.
Often enough, the law is a battlefield in somewhat different guise and with somewhat less drastic consequences. Although this prospect may seem unfair and intimidating, it is nonetheless the product of our own heritage. Ancient Germanic law was like that, and the tradition has continued without break in the Anglo-Saxon countries. Our faith, more than most, prepares us to face legal struggles and to recognise them for what they are. Our legal system, more than most, recognises the value of the strong and free individual in soceity, and tends, ultimately, toward the protection of that individual. Ásatrú, and each Ásatrúar, can benefit enormously through the informed and judicious use of that legal system, but to obtain those benefits, we must act with the courage and wisdom that our gods have taught us.
William Bainbridge, Elder, Wordsmith of the Troth