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Pastoral Counselor

By DrMarcusDavis
Posted Nov 26, 2008 in
By Richard R. Hammar, J.D., LL.M., CPA
? Copyright 1991, 1997 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference code: m25
The terms pastor, clergyman, and minister often are used interchangeably. Such usage is perfectly appropriate in most instances. Occasionally, however, it is important to distinguish among these terms, since many state and federal laws apply to only one or some of them. For example, the Military Selective Service Act provides that ?[r]egular or duly ordained ministers of religion shall be exempt from training and service.?1 Whether a representative of an organized religion may validly solemnize a marriage depends, in most states, upon his or her being characterized as a ?clergyman,? a ?minister,? or a ?priest.?2 Confidential communications made to ?clergymen,? ?ministers,? and ?priests? are considered privileged from disclosure in many states.3 A few states specifically require ?clergymen,? ?ministers,? ?priests,? or ?rabbis? to report actual or reasonably suspected cases of child abuse to civil authorities.4
?Clergymen? and ?ministers of the gospel? are excused from jury duty in many states.5 The exemption is often conditioned upon the timely filing of an application for exemption. Federal law permits common carriers to grant reduced rates to ?ministers of religion.?6 The Immigration and Naturalization Act confers preferential ?special immigrant? status upon alien ?ministers? who have been engaged continuously in the ministry for two years immediately preceding their application for admission to the United States and whose services are needed by a domestic religious denomination.7
The Internal Revenue Code excludes rental or housing allowances, as well as the fair rental value of church--provided parsonages, from the gross income of a ?minister of the gospel? for federal income tax purposes.8 The Code also exempts ?a duly ordained, commissioned, or licensed minister of a church in the exercise of his ministry? from self--employment taxes (if certain conditions are satisfied)9 as well as from federal income tax withholding.10 It treats such a person as self--employed for social security purposes,11 and as an employee for purposes of the definition of a ?church [retirement] plan.?12 A large number of states have adopted the federal provisions relating to the exemption of clergy from the tax withholding obligations. Accordingly, the term duly ordained, commissioned, or licensed minister of a church in the exercise of his ministry has relevance in the computation of state income taxes in many states.
One court, in interpreting a state law exempting ?buildings . . . actually occupied as a parsonage by the officiating clergymen of any religious corporation,? held that an unordained youth minister was not a ?clergyman? and thus was not entitled to have his residence exempted from state property taxation.13 The court concluded that the term clergyman implies ordination and accordingly does not include an unordained youth minister. Another court drew a distinction between the terms pastor and minister:
[T]here is a difference between a minister and a pastor. Pastor is defined in Webster's New International Dictionary, second edition??the minister or priest in charge of a church or parish?; in Black's Law Dictionary, 4th Edition,??applied to a minister of the Christian religion who has charge of a congregation or parish.?
Ecclesiastically, all pastors are ministers or priests, but all ministers or priests are not pastors. A minister has no authority to speak or act authoritatively for any local church, but its pastor does because he is the designated leader and top official of the local church.14
Many churches use the term minister with reference to any ordained or credentialed person, and reserve the term pastor for those ministers who serve in local churches. Accordingly, a missionary, seminary professor or administrator, or evangelist may be a minister but not a pastor. Some courts have observed that the term minister connotes a Protestant clergyman and not ?a Jewish rabbi, Muslim imam . . . atheist or agnostic or a member of a religious sect which, like some divisions of Quakerism, lacks a formal clergy.?15
Other courts and some legislatures have given the terms clergyman, minister, and pastor a broader interpretation, and have usually thereby obliterated any distinctions among such terms. Rule 505 of the Uniform Rules of Evidence, for example, deals with confidential communications and has been adopted by several states. Its definition of clergyman includes ?a minister, priest, rabbi, accredited Christian Science practitioner, or other similar functionary of a religious organization.? Similarly, a New York law pertaining to solemnization of marriages defined the phrase clergyman or minister of any religion to include pastors, rectors, priests, and rabbis.16 In addition, the United States Tax Court, in interpreting the phrase minister of the gospel as contained in section 107 of the Internal Revenue Code,17 concluded that the term must be construed to include a full--time cantor of the Jewish faith.18
A federal appeals court, in deciding whether a theological seminary is exempt from the reporting requirements of Title VII of the Civil Rights Act of 1964, rejected the seminary's contention that all of its faculty, administrators, and support staff were ?ministers.?19 The court found that the seminary's faculty members were ministers since (1) no course taught at the seminary had a strictly secular purpose, (2) faculty members were chosen largely on the basis of personal religious commitment rather than church allegiance or academic abilities, (3) most faculty members were ordained ministers, and (4) faculty members were expected to teach by example as well as by other means.20 However, it concluded that members of the seminary's support staff were not ?ministers,? even though they all claimed to be ?called? to the seminary's maintenance departments and some were ordained. The court ruled, ?these support personnel are not engaged in activities traditionally considered ecclesiastical or religious.?21 Finally, those administrative staff members who ?equated to or supervised faculty? were considered to be ministers, but those whose functions related exclusively to non--academic departments were not.
A Michigan state appeals court had occasion to define the term clergy in a lawsuit brought by a dismissed church organist against his former church. The organist, a 61--year--old white male, alleged that he had been discharged on account of his gender and race in violation of state and federal civil rights laws banning discrimination in employment. A trial court granted summary judgment in favor of the church, and the organist appealed. The state appeals court affirmed the trial court's ruling in favor of the church. The court relied primarily upon a 1972 federal appeals court decision holding that the constitutional guaranty of religious freedom prohibits civil court review of decisions by religious bodies concerning discipline or employment of ministers, and accordingly that the courts are without authority to resolve complaints by clergy alleging discrimination in employment.
The court also referred to a 1985 federal appeals court decision concluding that the ?ministerial exception? to discrimination laws ?does not depend upon ordination, but upon the function of the position.? The federal court observed: ?As a general rule, if the employee's primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship, he or she should be considered `clergy.' ? The Michigan court concluded that the organist was ?more than just an organist. He was the head of the musical branch of the Catholic liturgy [at his church and] was intimately involved in the propagation of Catholic doctrine and the observance and conduct of Catholic liturgy by the congregation. On the basis of `the function of his position' [he] was, thus, `clergy' . . . [and his] discrimination claim is therefore barred? by the constitutional guaranty of religious freedom. The court rejected the organist's claim that he was merely ?a secular employee who supported [the church's] religious activities but did not engage in the propagation of religious doctrine or faith.? This liberal definition of ?clergy? will have no relevance whatever in federal tax cases (a much narrower definition applies). Nevertheless, attempts by clergy (a term that is interpreted broadly and does ?not depend upon ordination?) to sue churches or religious employers for discrimination will almost invariably fail.22
Are self--ordained ministers, or persons who have obtained ?mail--order? ministerial credentials, ?ministers? for legal purposes? Most courts have said No. Such cases are of interest, because they often involve judicial interpretations of the terms minister and clergyman. To illustrate, the Virginia Supreme Court ruled that ?ministers? of the Universal Life Church (ULC) were not eligible to perform marriages in that state.23 A state law specified that only those ministers who could produce proof of ordination were eligible to perform marriages. In denying the eligibility of ULC ministers (most of whom had obtained ?ordination? in exchange for a donation), the court emphasized the obvious intention of the state law:
To qualify those individuals, who, in accordance with the rules, regulations and discipline of their church, religious sect or organization, had been selected or elected as ministers. In some churches the minister is selected by its ecclesiastical head. The [legislature] assumes that the head of an ecclesiastical order will be a responsible person and will, in turn, act responsibly in the selection of a minister. In other churches ministers are elected or selected by the congregation. Here again, the [legislature] assumes that a congregation, the body corporate, will act responsibly and select a proper person as a minister. . . . Such a selection or election must be a considered, deliberate and responsible act. It must be an authoritative act. Ordination is the ultimate in the selection process.24
The court observed that the ULC claims more than 1 million ministers, and that all who subscribe to its single tenet of ?believing that which is right as one defines it for himself? are encouraged to become ministers. The court concluded:
[A] church which consists of all ministers in fact has no ministers within the contemplation [of state law]. The minister referred to there is the head of a religious congregation, society or order. He is set apart as the leader. He is the person elected or selected in accordance with the ritual, bylaws or discipline of the order. By contrast, in [the ULC] every living person is not only eligible for membership, but eligible for immediate ordination into the ministry, with all the benefits of that profession. We do not believe that the [legislature] ever intended to qualify, for licensing to marry, a minister whose title and status could be so casually and cavalierly acquired.25
Similarly, a New York court has ruled that Universal Life Church ?ministers? are not authorized to perform marriages since they do not satisfy the definition of the term minister as set forth in section 2 of the state religious corporation law, which includes any ?duly authorized pastor, rector, priest, rabbi, and a person having authority from, or in accordance with, the rules and regulations of the governing ecclesiastical body of the denomination or order, if any, to which the church belongs, or otherwise from the church or synagogue to preside over and direct the spiritual affairs of the church or synagogue.?26
A Louisiana state appeals court ruled that a self--ordained minister was not a ?clergyman? within the meaning of a state law specifying that ?no clergyman is permitted, without the consent of the person making the communication, to disclose [in court] any communication made to him in confidence by one seeking his spiritual guidance or consolation . . . .? The minister had taken a correspondence course from a Bible college, and believed that any person ?who takes it upon himself to guide others in religious matters? was a minister. The court disagreed: ?Although [state law] does not define who is a `clergyman,' [a self--ordained person] does not appear to merit that respected professional designation. . . . Simply because [he] studied the Bible and took it upon himself to give religious guidance to others does not make him a clergyman.?27
Such cases indicate that the terms clergyman and minister, when used in a legal context, connote a person who has been recognized as a minister by a church, sect, or denomination through a formal process rooted in ecclesiastical doctrine and practice, and who has been invested thereby with authority to perform some or all of the rites and practices of said church, sect, or denomination. Laws referring to clergy and ministers are enacted for a purpose that assumes the dignity and unique role of the profession. For example, clergy typically are invested by law with authority to solemnize marriages and to maintain the confidences shared with them by those seeking spiritual counsel. It is understandable, then, that the courts have been reluctant to recognize as clergy or ministers those who seek such status through a simple and informal process unconnected with a recognized church or sect, particularly if the status was obtained for ulterior motives (such as tax savings).
For related information on this topic see the following articles:
Who is a minister for Tax Purposes
Clergy Status?Employee or Self-employed
Clergy Status?Ordained, Commisioned, or Licensed