[QUOTE=OldGuy]
Suppose then I commit a crime and confess it to my brother. My brother and I then both tell the police that in our religion, “The Brotherhood under God” confession to you brother is required fo absolution, an dhe will not testify against me.
If the court insists that my brother testify, haven’t they then established what is a recognized religion, by establishing my, admittedly just made up, religion is not one? They can claim that I just did make it up, but how do they prove it. Don’t you see that one of the religion’s requirements is you not talk about t.
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As Bricker mentioned, the determiniation of what is a religion and what are religious belief is a difficult determination, but one that is made regularly by the courts. The more common determination is what is a church with the related question of who is clergy. For one thing, churches and clergy may receive significant tax benefits.
As one example, the section 2 of the New York Religious Corporation Law (RCL)defines an “unincorporated church” (as opposed to one formally incorporated under the law) as “a congregation, society, or other assemblage of persons who are accustomed to statedly meet for divine worship or other religious observances.” The RCL provides that unincorporated churches of various specified denominations may incorporate under its provisions, and provides for specific terms of such incorporation based on the structure of the denomination (e.g., the RCL provides that an incorporated Roman Catholic Church is governed by the bishop of the diocese, the vicar-general of the diocese, the rector of the parish and two lay persons as its board of trustees). It also provides for the incorporation of “unincorporated churches” of other denominations.
In the RCL, “clergyman” or “minister” is defined to “include a 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.” In short, you are considered clergy if either (1) you are ordained (or otherwise qualified) under the rites and practices of an existing religion or (2) you are the spiritual leader of an actual and regularly meeting congregation.
In other words, if you decide to seek spiritual enlightment by gathering in Central Park at sunrise on Saturday mornings and singing the theme songs to children’s cartoons, and you can get a bunch of people to regularly join you to seek spiritual enlightenment with you, your group could be considered a church (and probably would have to be Consitutionally) and you could be considered clergy. If a member came to you and sought your spiritual guidance because he was having trouble singing the Scooby Doo theme song because of guilt over having worn a mask and haunted an old amusement park to scam it off the rightful owners, that confession would be protected by the clergy privilige. In addition you could incorporate your church, have it be considered a tax exempt entity by the IRS, and be entitled to the tax benefits clergy members are entitled to (but only as to your clergy income, not for whatever you make as your day job–for information on the tax benefits to clergy, see IRS Pub. 517).
One interesting example is the Universal Life Church (ULC) which “ordains” as “ministers” anyone who requests such ordination by mail order or over the internet. Some people try to use such ordination to claim they are ministers of ULC churches and to receive the tax benefits therefrom. The IRS takes a hard line against this, regularly prosecuting offenders. However, the courts have held that ULC churches are valid churches under the tax code if they can demonstrate regular attendence by a congretation at worship meetings, and thrown out prosecutions where that was shown. A more interesting question is posed as to whether such ULC “ministers” are qualified to perform marriages under state laws authorizing minsters to do so. New York, applying the RCL definition quoted above, has held that they are not qualified to perform marriages and any purported marriages they perform are void. Ranieri v. Ranieri, 146 A.D.2d 34, 539 N.Y.S.2d 382 (2d Dep’t 1989). Other states have reached differing conclusions on marriages performed by ULC ministers.
Coming around to your example, to qualify under the clergy privilige, you will probably have to demonstrate that your brother was acting as clergy giving spiritual advice in connection with an established church. You would probably have to demonstrate that you and your brother (and most likely other members) went to regular meetings and that under the established practices of your church, your brother was considered clergy (or its equivalent) and the confession was for the purpose of seeking religious advice. New York courts have held that the privilige does not apply to confessions made to recognized clergy members for purposes other than spiritual advice (for example, asking help to obtain a lawyer). It would be a tough challenge, but if you could show that you had pre-existing religous practices of brotherly confession as a spiritual practice (and preferably written evidence and testimony of disinterested witnesses on the practice), you might qualify for the privilege. If one of the religion’s tenets is “you don’t talk about it”, you may be in trouble, though.
