Laura Fuller (Snow)
CTP Prelim
Church
and the Law
1) List nine (9) laws, or as many as possible if less than nine, concerning
clergy that you have found by searching your nearest municipality laws. By
municipality, we mean on the village or town level. If there are none, then
tell us how you found that out.
There are no laws
for Medford, WI relating to clergy specifically. However, I did find the following which could
come into play in the performance of the duties of clergy or the activities of
a grove. While none of these laws are
specific to the role of clergy, they do have a potential impact of the work of
a Grove as these are all activities small religious groups (especially pagans)
seem to frequently engage in. Medford posts its ordinances online via
American Legal Publishing Corporation.
The first two seem
pertinent in relationship to holding outdoor, public ritual. City parks may require a permit, depending on
the size of the festival we are planning and, more importantly, do not allow
burning. The last might pertain to
issues of fundraising, depending on if we wanted to have a booth at the farmers
market or some other such venue.
Confirmed with
Ginny Brost, the City Clerk, that there were no other ordinances that would
pertain to clergy 9/15/14.
§
9.7.02 PERMITS FOR PARK USE REQUIRED.
This
statute determines who needs a permit for park use. Mostly it relates to commercial sales taking
place in the park, but also for the rental of park property, such as pavilions
§
9.7.06 OPEN BURNING.
This
statute discusses fires in the city parks, which are limited to the provided
outdoor barbeque grills. Again, this
would potentially impact a groves use of the parks for public ritual.
§ 11.1.01 REGISTRATION REQUIRED.
This statute determines what sorts of permits
are required for sales within the city boundaries. Again, this would only apply to if a grove
were hosting an event and wanted to sell things or participate in things such
as the local farmers’ market.
2) If there is a body of laws between the municipality laws and the
state/provincial laws where you live, list nine (9) laws, or as many as
possible if less than nine, concerning clergy, that you have found by searching
this area.
The county has
nothing online that seems relevant either to clergy or to the duties we
perform. I called at spoke with Jacky
Peterson in the County Clerk’s office on September 15, 2014. She said that in the case of marriages, the
Clerk issues the license, which is returned to the Registrar of Deeds for
recording, but that they have no step of verifying the legitimacy of the person
doing the ceremony. I asked if that was
done at the state level, and she said she didn’t know. She’d never dealt with a wedding that wasn’t
performed at one of the churches.
3) List nine (9) laws concerning clergy that you have found by searching
your state/provincial laws.
Over all, the laws
fall into the following categories: the duties of clergy that are impacted by
the law (marriages and mandatory reporting being the ones with the most legal
description) and rule around organized religion (Wisconsin Statutes).
1) 905.06 Communications to members of the clergy.
This law deals
with what constitutes clergy, and also what sorts of communications with clergy
are confidential. For example, it gives
a list of titles for clergy (minister, priest, rabbi, or other similar
functionary of a religious organization).
Interestingly, it also classifies ‘an individual reasonably believed so
to be by the person consulting the individual’ which I take to mean that if
someone THINKS you are clergy and treats you as such, then legally you become
clergy in the eyes of the state. This
has the potential to be problematic, as it opens up what it means to be ordained
legally. I feel that this is here, however,
to protect people who think they are talking to clergy, meaning that if someone
passes themselves off as clergy, consequences fall on the clergy, not the
public who took your claim at face value.
This law also
determines when communication with clergy is confidential, which is anytime it
is privately done, with the exception of if it falls under the clauses for
mandatory reporting of child abuse.
2) 765.002 Definitions.
This section of the Wisconsin Code defines various aspects of being
clergy, which it defines as a ‘spiritual advisor of any religion’. This is important as it again begins to blur
lines as to what the full roles of clergy are, particularly in a pagan context where
many people do their own magic work, their own divination, etc.
This section also defines church as ‘any congregation, parish, or place
of worship at which any member of the clergy is located or assigned and also
any administrative, missionary, welfare, or educational agency, institution, or
organization affiliated with any religious denomination or society in this
state.’ So a Grove would count as a
church, but so would any office we utilized to do outreach work.
This section also defines the marriage certificate as including the part
which contains information concerning the marriage ceremony and the signatures
gathered as part of it. It does NOT
specify that it must be signed by clergy, although in practice I have never
seen one that was not signed by the official.
Perhaps this is because Wisconsin views marriages as legal, civil
contracts, not religious ones.
3) 48.981 Abused or neglected
children and abused unborn children.
This section of the code discusses who are considered mandatory reporters
of child abuse. It lists members of the
clergy as well as members of religious orders.
It includes how documentation regarding this abuse is not confidential
and can be subpoenaed. Further, it defines when someone has to report,
including when one suspects abuse or neglect is occurring, or will occur in the
situation. It is worth noting that
Wisconsin also has a category for abused unborn children. It is unclear in the law, however, what constitutes
abuse to an unborn child, making it seem like a way to prosecute pregnant women
for additional charges if they do something dangerous while pregnant.
4) 58.01 Private institutions for orphans, indigents and delinquent children.
This section of the law states that any member of the clergy in good
standing must have reasonable access to ‘inmates’ of their denomination for
religious education and counselling.
5) 252.06 Isolation and quarantine.
This section
states that clergy are exempt from quarantines for communicable diseases and
are allowed to continue to minister to the sick even when others are forbidden
to have direct contact with the sick. It
does not address whether they will be quarantined as well, leaving that up to
the local health officer.
6) 182.030 Corporations having church
affiliations
This section of the law discusses how businesses that have a church
affiliation as part of its articles of organization is under the supervision of
that church. This includes a statement
to the effect that such a corporation can require its officers or trustees be
members of that church. It does NOT
state that they can require all employees to be members of that church.
7) 187.01 Religious societies.
This section of the law
stipulates the formation of religious societies/churches. It requires having a minimum of three members
over 18 years of age. It states that
they must maintain ‘regular public worship’ which has traditionally been one of
the issues with getting neo-pagan groups recognized as churches. It also lays out how such a church may
determine to organize for charitable or educational purposes. To do so, they must announce their intentions
during a standard, public meeting of the church and have five or more adults
who wish to be part of the organization.
They have to sign a certificate to acknowledge this, name at least three
trustees, and write bylaws that determine the number of trustees, their terms
of office, elections, and qualifications for membership. They have to give notice of their first
official meeting and who can vote.
8) 70.11 4a Educational,
religious and benevolent institutions; women's clubs; historical societies;
fraternities; libraries.
This section of the law discusses the owning of
property. It states that that property
owned by churches is tax exempt so long as it is used for educational or
religious purposes. If the property is
leased to another group, it only remains tax exempt if that group does not
discriminate on the basis of race. The
law specifically says race, not any of the other things that people use to
discriminate.
9) Pastoral Counseling (Chapter 457)
Wisconsin
recognizes Pastoral Counseling as separate from other types of counseling and
does not require any sort of license to call oneself a Pastoral Counselor. The only stipulation for those calling
themselves pastoral counselors is that they do not misrepresent themselves as
social workers or by other terms that denote any sort of licensure. Additionally, Wisconsin law does not define
pastoral counseling or proscribe any particular practices, such as divination,
legally.
4) List nine (9) laws concerning clergy that you have found by searching
your national laws.
1)
§1087vv. States that allowances for housing,
food, and other allowances are untaxed for clergy (and military). (United
States Code).
2)
§1402. (e) states that members of the clergy
may opt out of Social Security and its associated insurance programs if it is
against their religious beliefs by submitting a waiver form to both SSA and the
religious body. However doing this
waives not just Social Security but all insurance. (United States Code).
3)
§551.16 Discusses marriage ceremonies held
in federal prisons. If a Warden approves
a marriage ceremony, then it can be performed by the prison chaplain, a
community clergy member, or a justice of the peace. Should an inmate want a community clergy
member to perform the ceremony, then they would need to work with the chaplain
to make sure that all of the rules of the prison were followed for the safety
and order of the institution. (Electronic
Code of Federal Regulations)
4)
§1645.7 clarifies the circumstances under
which one is considered clergy by the US Department of Defense. It stipulates that being clergy and teaching
the religious practices and texts of ones sect is the person’s primary
duty/job. Having a secular job is okay,
but the religious job must be primary. (Electronic
Code of Federal Regulations)
5)
§404.1023
Ministers of churches and members of religious orders. This section of code does many things
including defining: a) what part of your work is considered ministry and what
is considered self-employment for tax purposes; b) what it means to be ordained
by going through a religious institution’s process so that a person is fully
licensed and equipped to fulfill all duties of a church’s ministry; c) when
work done by a minister is considered ministry and when it is not; d) when work
done by a minister is not considered ministry it is then considered employment
and regular employment laws cover it (such as Social Security); e) what sort of
work is done in the name of a religious order doesn’t matter so long as it was
assigned by a superior member of the religious order to carry out their
mission. (Electronic Code of Federal
Regulations)
6)
§31.3121(b)(8)-2 Services in employ of religious, charitable,
educational, or certain other organizations exempt from income tax. If you choose, your work as clergy can be
exempt from income tax. This also means
it is exempt from the other benefits of being employed (such as unemployment,
etc). (Electronic Code of Federal
Regulations)
7)
§1645.5
Impartiality. Department of
Defense Promotion and Tenure Boards cannot discriminate for promotion based on
the religion/sect of the person seeking promotion (Electronic Code of Federal
Regulations)
8)
First Amendment to the US Constitution
guarantees the rights of citizens that they shall never be forced to join or
practice a specific religion. It is
frequently cited as the separation of church and state, although that phrase
never actually appears in the Constitution or the Bill of Rights (Bill of
Rights).
9)
505 U.S. 577 (1992). Discusses why clergy
may not pray during events hosted by public schools, based on a case where a
petitioner said that prayer at public school violated one’s constitutional
right to freedom of religion. (Justia).
5) How do laws of your nation, state, or local area respond to Paganism and
Neo-Pagan clergy? Are there laws that prohibit certain functions our clergy
usually serve (such as divination, counseling, or conducting marriages or
funerals)? Does your country implicitly or explicitly state that Neo-Pagans
cannot have clergy, or that they cannot perform certain functions or receive
similar rights as those from other religions?
I have found
nothing pertaining to specifically pagan clergy. Quite the opposite, Wisconsin legal code
seems to go out of its way to base its definitions around IRS status and
ordination. The closest I saw to an
issue with it was that the state laws regarding prisoners had been changed to
include Koran’s along with the bible, but nothing about other forms of
religious literature was discussed (Wisconsin Statutes). I suppose that could be a potential problem,
especially for a path like ours that does not have a central dogmatic text.
Wisconsin has no
laws around divination that I could find.
They do not require a license for ‘pastoral counseling’ but they also do
not define it. At this time, Wisconsin
does seem to treat pagan clergy the same as any other, although to my knowledge
that has not yet been tested in court.
6) Looking at those laws listed in questions 1 - 4 and how they affect you,
are there any specific laws that seem out of place, unfair, or unjust? What is
the avenue for change to these laws, and do you see change to these particular
laws as necessary?
None of the laws
seem particularly unjust in the sense that they would apply differently to
pagan clergy than to clergy of mainstream denominations. That said, I think it’s fair to say that
perception of pagan clergy is different in working with other institutions,
such as doing prison ministry, and so working through the laws is very
important.
The only law for
Wisconsin that does not currently agree with ADF dogma, such that it is, has to
do with defining marriage. However,
Wisconsin already has lawsuits in process challenging the current definition of
marriage between one man and one woman (Seventh Circuit Court Cases).
There
are really two ways to go about changing laws
The first is through writing a new one (legislatively) and the second is
through the courts (judicially). The
difficulty in changing laws is that you have to being by changing the attitude
of the people they apply to. It’s only
when people begin to see a law as unjust that they begin working to change
it. First, they must accept that the law
as it stands or is applied, is wrong, unjust, or unfair. Then, an organized campaign to change the law
begins. The easiest way to change a law
is through the courts. If a law is being
broken or carried out unfairly, then you can begin a lawsuit to bring about
change. This strategy also can be used
when the law itself is unconstitutional.
Most religious discrimination cases are taken through the court system
as a violation of the freedom of religion guaranteed to US Citizens under the
first amendment. This is still a matter
of interpretation by the presiding judges, but most of the time blatant
religious discrimination is stopped this way and the law redefined to keep it
from happening again.
The
second route, trying to get legislation drafted, is harder. It requires having someone in office
sympathetic to the law you’re trying to get passed and being able to show them
why it’s important enough for them to stick their neck out about it. In Wisconsin, which is very much a red state
at the moment, that isn’t likely to happen at the state level, and it’s
doubtful that our representatives at the national level would be willing to
work with Pagans.
7) How do you see these laws affecting how you serve your Grove, ADF, or
the community as a whole?
While it doesn’t
pertain to clergy per say, the fact that our grove will likely be in public
parks for public rituals and cannot have a fire (§ 9.7.06, American Legal Publishing Corporation) could be a
problem that other clergy wouldn’t deal with.
The laws around property don’t discriminate and yet the relationship
that pagans tend to have to their organizations is different enough that it
could cause problems for a small grove looking to do public ritual without its
own space. Our grove will be able to
have public rituals on private land, as I have been building a relationship
with a local pagan intentional community that has allowed us to consecrate an
oak grove for druid use. That said, if
we wanted to hold ritual on public land, this is problematic. I have come up against this before dealing
with Pagan Pride Days in public parks.
8) What is the difference between pastoral counseling and other kinds of
counseling, and does the law differentiate between these types? What sort of
license do you require in your state in order to perform counseling of any
type? Does divination fall into this sort of counseling?
Pastoral
Counseling is a unique form of psychotherapy that combines spiritual resources
and traditional psychology (Counseling Center). The main difference between Pastoral
Counseling and other sorts of counseling is that pastoral counseling is done
from within the framework of the patient’s spirituality.
In Wisconsin, Statute
457 defines all matters of counseling, including licensure and
limitations. Pastoral Counseling does not
require a license, unlike pretty much every other sort of counseling
designated. That said, people engaged in
Pastoral Counseling are not allowed to do any of the following (Wisconsin
Statutes, Section 457.04):
·
Use the title "social worker" unless
the person is certified as a social worker under this chapter.
·
Use the title "advanced practice social
worker" unless the person is certified as an advanced practice social
worker under this chapter.
·
Use the title "independent social
worker" unless the person is certified as an independent social worker
under this chapter.
·
Practice clinical social work or designate
himself or herself as a clinical social worker or use or assume the title
"clinical social worker" or any other title or designation that
represents or may tend to represent the person as a clinical social worker
unless the person is licensed as a clinical social worker under this chapter or
unless the person is certified under this chapter as an advanced practice
social worker or independent social worker and the person practices clinical
social work under the supervision of a person who is licensed as a clinical
social worker under this chapter.
·
Practice marriage and family therapy or
designate himself or herself as a marriage and family therapist or use or
assume the title "marriage and family therapist," "marriage and
family counselor," or any other title or designation that represents or
may tend to represent the person as a marriage and family therapist unless the
person is licensed as a marriage and family therapist under this chapter.
·
Practice professional counseling or designate
himself or herself as a professional counselor or use or assume the title
"professional counselor," "professional rehabilitation
counselor," "vocational rehabilitation counselor,"
"rehabilitation counselor," or any other title or designation that
represents or may tend to represent the person as a professional counselor
unless the person is licensed as a professional counselor under this chapter.
·
Practice psychotherapy unless the person is
licensed under this chapter or unless the person is a certificate holder who
may practice psychotherapy under the rules promulgated under ss. 457.03 and
457.035.
·
Practice clinical social work, marriage and
family therapy, or professional counseling without notifying his or her client
in writing of the procedure to follow to resolve a grievance.
Divination is not listed among the prohibited
practices, nor does it show up at all in any of the local codes. The various licensed forms of counseling
obtain their license through completion of an advanced degree program, an exam,
and then submitting paperwork to the various licensing boards that oversee them
(457.06). Wisconsin does not have a
board to oversee clergy (or others) practicing pastoral counseling.
Pastoral
Counseling is not defined legally.
Because of this, it also does not have insurance for malpractice. This is true for all religious counseling,
not just pagan. Therefore, there is no protection
for engaging in pastoral counseling.
Usually, one of the tenants of pastoral counseling is to only counsel
those who are members of your group, as discussed in Kevin Gardner’s The Pagan
Clergy’s Guide.
9)
Describe the mandatory reporting laws in your
area and how they affect you as a clergyperson. Explain the process you would
go through to file a report if it were necessary.
The mandatory
reporting laws focus on Child Abuse, Elder Abuse, and Domestic Violence. Cases of child abuse must be reported if
there is a suspicion. Elder Abuse seems
a bit fuzzier and it seems that reporting would be based to some extent on
their health and cognitive ability.
Domestic violence requires you to report if you are asked to, or if you
witness the abuse. You cannot report on
suspicion or hearsay.
There is no
discussion of mandatory reporting at the local or county level. All mandatory reporting is legislated at the
state level and the national level. In Wisconsin, the law states a member of the clergy shall
report if the member of the
clergy has reasonable cause, based on observations made or information that he
or she receives, to suspect that a member of the clergy has abused a child, threatened
a child with abuse and has cause to think that abuse of the child will likely occur. However, a member of the clergy is not required to report child abuse
information that he or she receives solely through confidential communications
made to him or her privately or in a confessional setting if he or she is
authorized to hear or is accustomed to hearing such communications and, under
the disciplines, tenets, or traditions of his or her religion, has a duty or is
expected to keep those communications secret. Those disciplines, tenets, or
traditions need not be in writing (Wisconsin Statutes).
What this means
is that we are mandatory reporters unless we find out about the abuse in a
counseling session. If we do, then we
are not required to report it IF there is the expectation on the part of the
person making the disclosure that we will not report it (ie in a confessional
setting). However, I do not believe that
in ADF we have the concept of confession such that it would apply in this
setting.
A report of child
abuse can be made to either Children’s Protective Services (CPS) or a local law
enforcement agency. Depending on where
in the state you are, one might be more responsive than another to the
situation at hand. Where I live, CPS is
only staffed 10 hours a week, and so it is significantly easier to contact law
enforcement and let them contact the CPS worker if they feel that it is an
emergency that needs their immediate attention.
In my home county, the Sherriff’s office deals with this, as they are
the only law enforcement that is staffed 24/7.
The steps I would take would be to call the Sherriff’s office and speak
with the deputy, they would take my report over the phone and either dispatch a
unit to investigate if it was an emergency situation where there was immediate
danger, or would pass the information on to CPS. While I could make a report anonymously, they
are taken more seriously if you are willing to sign it and appear in
court. In the past, I have done both
depending on the level of involvement I had with the situation. The closer my involvement, the more likely I
have seen it first hand, the harder it is to make the call but also the more
important to give my contact information for following up.
Works Cited:
American
Legal Publishing Corporation. City of
Medford, WI Code of Ordinances. Current
through 12/31/13. Web. Accessed 11/8/14.
Bill
of Rights. National Archives. Web.
Accessed on 11/8/14.
Counseling
Center. American Association of Pastoral
Counseling. A Definition of Pastoral
Counseling. Web. Accessed 11/8/14.
Electronic
Code of Federal Regulations. U.S.
Government Printing Office. Current
through 11/6/14. Web. Accessed 11/8/14.
Gardner, Kevin.
The Pagan Clergy’s Guide: For
Counseling, Crisis Intervention, and Otherworld Transitions. Temple of Ishtar, 2009. Kindle Edition.
Justia. US Supreme Court: Lee v Weisman: 505 U.S.
577. 1992. Web.
Accessed 11/8/14.
Seventh
Circuit Court Cases. Walker v Wolf: 2014. Current 10/6/14. Web.
Accessed 11/8/14.
United
States Code. Office of the Law Revision
Counsel of the United States House of Representatives. Current through 11/7/14. Web.
Accessed 11/8/14.
Wisconsin
Statutes. 2011-12 Wisconsin Statutes
& Annotations and all Supreme Court Orders entered before November 4,
2014. Updated through 2013 Wisconsin Act
380. Published November 3, 2014. Web.
Accessed 11/8/14.
No comments:
Post a Comment