It is fair to say many non-profit lawyers would prefer not to file Form 990 every year. It is long, complicated, and truth be told, a bit intrusive if you prefer salary confidentiality. But it is the law.
Churches are lucky non-profits because they don’t have to file the form. That’s why the definition of a “church” is so important to non-profit religious organizations. Yet, oddly, neither Congress nor the IRS ever spelled out exactly what a church is. The courts filled the breach by coming up with the crucial characteristic that defines a church. They call it the “associational test.” It means you’re not a church unless you have a congregation that meets regularly–an opportunity for members to form a religious fellowship through communal worship. In other words, people have to be with each other in the same room to pray, cry, touch, sing, rejoice, laugh and engage in other such human interactions.
That test seems reasonable until you consider the social media explosion we are experiencing every day. We speak of virtual communities, friending and unfriending, chatting, texting, interactive wikis, vlogs, instant messaging, and who knows what next? I bet some younger Internet users would say they have formed close associations with others without ever being in the same room with them. A recent episode of the TV series “Modern Family,” for example, featured an 11-year old girl who was hoping to be kissed by a boy with whom she had exchanged only text messages. If that is not an intimate level of connection, I don’t know what is.
The Foundation of Human Understanding, a non-profit religious publisher and broadcaster, argued basically the same thing in a recent case–that its “electronic ministry” connects its members through technology. The foundation claimed that it met the associational test and should be deemed a church because its members participated in sermons by listening together on the radio and the Internet at set times. It claimed their “call-in” shows allowed members to call and interact with the foundation’s clergy by phone. The federal appeals court strongly disagreed, saying the group’s members were not able to interact with each other. The radio, Internet and phone connections did not lead to a “cohesiveness” of the group; there was no evidence the members regarded their listening as a shared experience with others; there was a complete lack of a “communal” experience needed to pass the associational test. As a result the foundation must continue to file the Form 990. It is not a church.
No doubt the associational test will itself be tested because it hinges on present-day understandings of cohesiveness and communal acts. Two things are happening via social media that will force courts to reconsider. First, the sheer number and frequency of virtual connections being made on a daily basis are changing the very concept of community. Second, technology will create more intimate forms of what is now called interactivity. Who is to say such future forms won’t lead to a degree of cohesiveness sufficient to meet the courts’ associational test? For example, a cross-country holographic projection of a distant prayer group to a meeting of another would seem to satisfy the in-person requirement. The degree of intimate interaction could easily be enough to allow bonding, communal worship, cohesiveness, etc. Maybe the wait need not be long. Perhaps if the Foundation of Human Understanding had exploited all the existing forms of social media, the court would have found sufficient cohesiveness and communal experiences. After all, the foundation’s radio and call-in programs were hardly cutting edge technology.
The law always lags behind technology. Someday there will be a case called Church of Facebook v. United States. The facts will be fascinating. No doubt there will be in-court demonstrations. I hope the judges are hip enough to understand them.
is corporate vice president and general counsel of C-SPAN, based in Washington, D.C. E-mail him at collins@ c-span.org