Chapter XXXIII
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Chapter XXXIII
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.
Written by:
William Bainbridge, Elder, Wordsmith of the Troth
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