Can someone ordained online claim the clergy exemption from Texas psychologist licensing?

Plain-English summary

The executive director of the Texas State Board of Examiners of Psychologists asked how the Board should decide whether someone claiming to be a "recognized member of the clergy" really qualifies for that exemption from the Psychologists' Licensing Act. The licensing act (chapter 501 of the Occupations Code) requires people who practice psychology to be licensed, but it exempts a recognized member of the clergy acting within his or her ministerial capabilities, as long as that person does not call the work "psychology." The Board's specific worry was people ordained "for a fee" over the internet or by mail who then claim the exemption to avoid the licensing rules.

The Attorney General concluded the Board may treat internet or mail-order ordination as one factor in sizing up an exemption claim, but it may not treat that factor as decisive by itself. In other words, the fact that someone bought an online ministerial certificate is relevant, but it is not automatic proof that the person is a sham minister. The Board should inquire further: does the person have a genuine ministry, an actual relationship and accountability to a religious organization, religious activities beyond counseling that looks like psychology? Only where the person offers nothing more than the mail or internet certificate, with no other evidence of ministry or religious affiliation, would that single fact justify rejecting the exemption.

The opinion pointed the Board to two useful models. The rule used by the Texas State Board of Examiners of Professional Counselors defines a recognized religious practitioner as someone in good standing with, and accountable to, a legally recognized religious organization. And the IRS has long used a list of questions (distinct legal existence, a recognized creed, ordained ministers, regular congregations and services, and the like) to test whether a group is really a church. The opinion also cited a federal court decision striking down, on equal protection grounds, a Utah law that singled out internet and mail-ordained ministers for worse treatment than ministers ordained in person; the lesson the AG drew was that the Board should not draw a line based solely on how a person got ordained.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The Board of Examiners of Psychologists (what the opinion held): The opinion held that when the Board moves to enjoin someone for practicing psychology without a license, and that person claims the clergy exemption, the Board may consider an internet or mail-order ordination obtained for a fee as one factor, but may not conclusively presume the person is not clergy on that factor alone. The opinion told the Board to inquire further into the person's ministerial activities and ties to a religious organization, and said the Board would be justified in seeking an injunction where the person's only "religious" activity is counseling indistinguishable from psychology, or where the counseling is independent of any accountability to a religious organization.

People claiming the clergy exemption (what the opinion held): The opinion held that producing a mail or internet ministerial certificate, by itself, was not enough to establish the exemption; the Board could require more information about the person's ministry and religious affiliation.

Common questions

Did the opinion say online ordination disqualifies you from the clergy exemption?
No. It said internet or mail-order ordination is a factor the Board may weigh, not an automatic disqualifier. The Board has to look at the whole picture before rejecting an exemption claim.

What else would the Board look at?
Whether the person has a genuine ministry and is accountable to a religious organization. The opinion pointed to the professional-counselor board's rule (good standing with and accountability to a recognized denomination or church) and the IRS church-status questions (distinct legal existence, recognized creed, ordained ministers, regular congregations and services) as models.

Why does a Utah court case matter to a Texas board?
The opinion cited a federal court that struck down a Utah law treating internet and mail-ordained ministers worse than those ordained in person, calling that distinction arbitrary. It was not binding in Texas, but the AG used it to warn the Board against denying the exemption based only on the method of ordination.

When could ordination alone defeat the exemption?
Only when the person offers no other evidence at all, no ministerial activities, no religious affiliation, beyond the mail or internet certificate itself.

Background and statutory framework

Chapter 501 of the Occupations Code, the Psychologists' Licensing Act, establishes the Board and requires those who engage in or represent that they engage in the practice of psychology to be licensed unless exempt under section 501.004. Tex. Occ. Code Ann. § 501.251 (Vernon 2002). Section 501.004(4) exempts the activity of a recognized member of the clergy acting within the person's ministerial capabilities, provided the person does not describe the work as psychology. Tex. Occ. Code Ann. § 501.004(4). The Board may seek injunctive relief to prevent a violation of chapter 501, and unlicensed practice is a Class A misdemeanor. Tex. Occ. Code Ann. § 501.501(a), § 501.503.

The opinion looked to a parallel exemption for licensed professional counselors, which exempts a "recognized religious practitioner." Tex. Occ. Code Ann. § 503.054(2) (Vernon 2002). The Texas State Board of Examiners of Professional Counselors defined that term by rule as a member of the clergy in good standing with and accountable to a legally recognized denomination, church, or religious organization recognized under Internal Revenue Code § 501(c)(3), counseling within the scope of regular ministerial duties and not holding out as a professional counselor. 22 Tex. Admin. Code § 681.2(14) (2002). The opinion also noted the Texas Rules of Evidence definition of a member of the clergy for privileged-communication purposes. Tex. R. Evid. 505.

On the internet and mail-order ministry problem, the opinion drew on federal tax cases in which mail-order ordinations were used to evade income taxes, Church of World Peace, Inc. v. Commissioner, 67 T.C.M. (CCH) 2282 (1994); Stephenson v. Commissioner, 79 T.C. 995 (1983); Davis v. Commissioner, 81 T.C. 806 (1983), and on a federal district court decision invalidating, on equal protection grounds, a Utah statute that barred only internet and mail-ordained ministers from solemnizing marriages. Universal Life Church v. Utah, 189 F. Supp. 2d 1302, 1307 (D. Utah 2002). From these, the opinion concluded the Board should not distinguish exemption claimants solely by how they obtained ordination, but may require more than the bare certificate.

Citations

Statutes:

• Tex. Occ. Code Ann. § 501.004(4) (Vernon 2002); § 501.251; § 501.501(a); § 501.503; § 503.054(2)
• 22 Tex. Admin. Code § 681.2(14) (2002)
• Tex. R. Evid. 505
• Internal Revenue Code § 501(c)(3)

Cases:

• Church of World Peace, Inc. v. Commissioner, 67 T.C.M. (CCH) 2282 (1994)
• Stephenson v. Commissioner, 79 T.C. 995 (1983)
• Davis v. Commissioner, 81 T.C. 806 (1983)
• Universal Life Church v. Utah, 189 F. Supp. 2d 1302, 1307 (D. Utah 2002)

Secondary source referenced: Scialabba, Kurtzman, and Steinhart, Mail-Order Ministries Under the Section 170 Charitable Contribution Deduction, 11 Campbell L. Rev. 27 (Winter 1988); IRS Form 1023, Schedule A (revised 1998).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0535
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0535.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS
JOHN CORNYN

August 5, 2002

Ms. Sherry L. Lee, Executive Director Opinion No. JC-0535
Texas State Board of Examiners of
Psychologists Re: What constitutes a "recognized member of
333 Guadalupe, Suite 2-450 the clergy" for purposes of section 501.004(4) of
Austin, Texas 78701 the Occupations Code, which governs exemptions
from the Psychologists Licensing Act
(RQ-0503-JC)

Dear Ms. Lee:

You have asked this office how the Texas State Board of Examiners of Psychologists (the "Board") may determine, for the purpose of section 501.004(4) of the Occupations Code (the "Code"), whether to accept particular claims that an individual is exempt from the licensing requirements of the Code on the ground that he or she is a "recognized member of the clergy" who is acting "within the person's ministerial capabilities."[1] TEX. OCC. CODE ANN. § 501.004(4) (Vernon 2002). You ask what guidelines may exist in Texas law or regulation that would define such recognition. In particular, you ask whether a person who has been ordained "via the Internet or mail for a fee" is a recognized member of the clergy. Request Letter, supra note 1, at 1. We conclude that, in examining the question of whether a person who purports to be exempt from licensing under the Code is a recognized member of the clergy, the Board may take into account, as one factor, the ordination of that person for a fee by Internet or mail. However, the Board should not conclusively presume that a person is not a recognized member of the clergy based on that factor alone, unless the person provides no other evidence of his or her ministerial activities and religious affiliation other than the Internet or mail order certificate.

Chapter 501 of the Occupations Code, the Psychologists' Licensing Act, establishes the Board and requires those who "engage[] in or represent that [they are] engaged in the practice of psychology" to be licensed by the Board unless they are "exempt under Section 501.004." TEX. OCC. CODE ANN. § 501.251 (Vernon 2002). Section 501.004 exempts "the activity or service of a recognized member of the clergy who is acting within the person's ministerial capabilities" if the clergyman does not describe him- or herself as a psychologist or the services as psychological. Id. § 501.004(4). The Board has power to commence an action for injunctive relief to prevent a violation of chapter 501. Id. § 501.501(a). Engaging in the unlicensed practice of psychology is a Class A misdemeanor. Id. § 501.503.

As we understand the situation giving rise to your inquiry, the Board, when seeking to enjoin the unlicensed practice of psychology, is faced with "persons who claim exemption using a ministerial certificate or other ordination procured without training via the mail or Internet." Request Letter, supra note 1, at 1. Recognizing the possibility that such claims may be made for the purpose of evading the strictures of the Code, but mindful of the free exercise rights embodied in the First Amendment to the United States Constitution, you inquire as to the criteria by which the Board can distinguish spurious claims of exemption from legitimate ones.

You ask "[w]hat guidelines exist in the laws or regulations of the State of Texas that define 'recognition' of a member of the clergy?" Id. We note that the statute governing licensed professional counselors also exempts "a recognized religious practitioner." See TEX. OCC. CODE ANN. § 503.054(2) (Vernon 2002). The Texas State Board of Examiners of Professional Counselors has promulgated a rule further defining "[r]ecognized religious practitioner" as "[a] rabbi, member of the clergy, or person of similar status who is a member in good standing of and accountable to a legally recognized denomination, church, sect or religious organization legally recognized under the Internal Revenue Code § 501(c)(3) . . . ." 22 TEX. ADMIN. CODE § 681.2(14) (2002). Such practitioners must be counseling "within the scope . . . of their regular or specialized ministerial duties . . . under the auspices of . . . [their] organization," must be "accountable to [its] established authority," and must not hold themselves out as professional counselors. Id. See also TEX. R. EVID. 505 (defining member of clergy for purposes of privileged communications as "a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar functionary of a religious organization or an individual reasonably believed so to be by the person consulting with such individual.").

In our view, the Texas State Board of Examiners of Professional Counselors' rule offers a model that may be of value to you, given its focus on a member of the clergy as a person who has an acknowledged place within some sort of religious organization. In both your statute and that of the licensed professional counselors, an exemption is in effect being offered for pastoral counseling, an activity that implies a relation within and accountability to a religious organization. Moreover, in both cases, the counseling is limited to the clergy member's ministry, in his or her ministerial capacity.

Determining what constitutes a legitimate claim for a religious exemption from generally applicable law and distinguishing such a claim from those asserted for the purpose of evading the effect of such law is a difficult task. In the necessarily factual investigation of whether a claim for religious exemption such as the one about which you have asked is valid or spurious, the Board may rely on a variety of inquiries. By way of example, and in light of the Board of Examiners of Professional Counselors' rule, we note that the Internal Revenue Service has historically relied in this context on a series of questions developed to investigate whether a religious organization may qualify as a church for tax exemption purposes, including, among other things, whether such an organization has a distinct legal existence, a recognized creed, a distinct ecclesiastical government, a formal code of doctrine and discipline, a distinct religious history, a literature of its own, ordained ministers selected after a prescribed course of study, and regular congregations and services. See Scialabba, Kurtzman, and Steinhart, Mail-Order Ministries Under the Section 170 Charitable Contribution Deduction: The First Amendment Restrictions, the Minister's Burden of Proof, and the Effect of TRA '86, 11 CAMPBELL L. REV. 27 n.31 (Winter 1988) (citing Internal Revenue Manual); see also INTERNAL REVENUE SERVICE, FORM 1023: APPLICATION FOR RECOGNITION OF EXEMPTION, SCHEDULE A (revised 1998) (current Internal Revenue Service questions).

Your particular concern is what once was referred to as "Mail-Order Ministries." See supra, Mail-Order Ministries, 11 CAMPBELL L. REV. 1. Such enterprises permit any person, for a small fee or donation, to receive credentials asserting that they have been ordained as clergy. Some recipients have used such credentials in a variety of schemes to avoid the law, and in particular to attempt to evade payment of income taxes. See, e.g., Church of World Peace, Inc. v. Commissioner, 67 T.C.M. (CCH) 2282 (1994); Stephenson v. Commissioner, 79 T.C. 995 (1983) ("Life Science Church of Allegan"); Davis v. Commissioner, 81 T.C. 806 (1983) ("Universal Life Church"). One such ministry is the Universal Life Church of Modesto, California. As the district court notes in Universal Life Church v. Utah:

            The ULC will ordain anyone free, for life, without questions of faith. Anyone can be ordained a ULC minister in a matter of minutes by clicking onto the ULC's website and by providing a name, address, and e-mail address. Anyone can also be ordained by mailing to the ULC a name and address. There is no oath, ceremony, or particular form required.

            The ULC requires virtually nothing from its ministers: they are not required to perform any religious ceremonies, to oversee a congregation, to provide religious guidance or counseling, to report religious ceremonies to headquarters, to keep in contact with the ULC other than routine address changes, or to attend any worship services.

Universal Life Church v. Utah, 189 F. Supp. 2d 1302, 1307 (D. Utah 2002).

In Universal Life Church, the district court declared unconstitutional on equal protection grounds a Utah statute that distinguished between ministers who applied for their ordination through the Internet or mail from those who had applied "via fax, telephone, or in person." Id. at 1317-18. The statute at issue forbade only ministers who had applied for their credentials through the Internet or mail, but not those who applied in another manner, from solemnizing marriages. See id. at 1307. While the court dismissed the Universal Life Church's substantive due process claim on the ground that the Utah legislature could reasonably decide that "one who so cavalierly becomes a minister might not appreciate the gravity of solemnizing a marriage," id. at 1315-16, it held that a distinction based solely on the method of application for ordination was "a classification whose relationship to a goal is so attenuated as to render the distinction arbitrary and irrational." Id. at 1317-18.

While Universal Life Church is not controlling law in Texas, it demonstrates that the Board is better advised not to distinguish between applicants for exemption from the strictures of chapter 501 solely on the basis of the means by which they obtained ordination. The Board may, however, require more information from a person claiming such exemption than the mere production of a ministerial certificate granted by mail or Internet.

Accordingly, while mere Internet ordination, which would appear to be the cyberspace equivalent of mail-order ministry, is a factor which the Board may consider in seeking to enjoin a purported minister from practicing psychology without a license, that factor alone may not be dispositive in every case. The Board should inquire further in seeking to establish whether the person in question has a legitimate claim for exemption as a member of the clergy. If, for example, the facts show that the sole "religious" activity of the person in question is the provision of counseling otherwise indistinguishable from the practice of psychology, or that such counseling is independent of any relationship or accountability to a religious organization of some sort, we believe that the Board would be justified in seeking to enjoin such activity.

                                  SUMMARY

            In examining whether a person is a "recognized member of the clergy" acting "within the person's ministerial capabilities" for the purpose of exemption from the licensing requirements of chapter 501 of the Occupations Code, the Texas State Board of Examiners of Psychologists may consider, as one factor, the ordination of that person for a fee by Internet or mail. However, the Board should not conclusively presume that the person may not make a claim for exemption based on that factor alone. The Board should inquire further in seeking to establish whether the person in question has a legitimate claim for exemption as a member of the clergy, and may require more information from a person making such a claim for exemption than the mere production of a ministerial certificate granted by mail or Internet.

                                         Very truly yours,

                                         JOHN CORNYN
                                         Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General, Opinion Committee

[1] See Letter from Sherry L. Lee, Executive Director, Texas State Board of Examiners of Psychologists, to Honorable John Cornyn, Texas Attorney General (Jan. 29, 2002) (on file with Opinion Committee) [hereinafter Request Letter].