CREATING SPACE FOR WOMEN &

GIRLS THROUGH CREATIVE

INCORPORATION
CATHY BRENNAN & KATIE WATKINS
RADICAL FEMINISM BY THE SEA
 WHY THIS PRESENTATION?

LEGAL STRATEGIES CAN BE USED TO PROTECT WOMEN’S SPACE. WE WILL DISCUSS HOW TO SET
UP A RELIGIOUS CORPORATION IN YOUR STATE AND HOW TO INCORPORATE AS A 501(C)(3).
THE PURPOSE OF THIS IS TO CREATE A VEHICLE TO HAVE WOMEN-ONLY SPACE IN THE REAL
WORLD AND IN PUBLIC SPACES (HOTELS, SCHOOLS, COLLEGES).
 GUIDING PRINCIPLES

• WOMEN AND GIRLS MATTER

• WOMEN’S SPACE MATTERS
• STRATEGIES FOR PROTECTION WOMEN’S SPACE ARE NECESSARY DUE TO ATTACKS ON
WOMEN’S SPACE
• WE ARE BASED IN THE UNITED STATES AND THUS SPEAK ABOUT U.S.-BASED STRATEGIES
• WE ARE NOT SAYING YOU NEED TO DO THIS; IT IS AN OPTION
 FIRST AMENDMENT

CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT OF RELIGION, OR

PROHIBITING THE FREE EXERCISE THEREOF; OR ABRIDGING THE FREEDOM OF SPEECH, OR OF THE
PRESS; OR THE RIGHT OF THE PEOPLE PEACEABLY TO ASSEMBLE, AND TO PETITION THE
GOVERNMENT FOR A REDRESS OF GRIEVANCES.
 FREE EXERCISE

THE FREE-EXERCISE CLAUSE OF THE FIRST AMENDMENT STATES THAT THE GOVERNMENT “SHALL
MAKE NO LAW … PROHIBITING THE FREE EXERCISE OF RELIGION.” ALTHOUGH THE TEXT
SOUNDS ABSOLUTE, “NO LAW” DOES NOT ALWAYS MEAN “NO LAW.” THE SUPREME COURT HAS
HAD TO PLACE SOME LIMITS ON THE FREEDOM TO PRACTICE RELIGION. THE U.S. SUPREME
COURT HAS HELD THAT, THE FIRST AMENDMENT WOULD NOT PROTECT THE PRACTICE OF
HUMAN SACRIFICE EVEN IF SOME RELIGION REQUIRED IT. ALTHOUGH THE FREEDOM TO BELIEVE
IS ABSOLUTE, THE FREEDOM TO ACT ON THOSE BELIEFS IS NOT.
 WHAT ARE THE LIMITS OF FREE EXERCISE?

• SHERBERT V. VERNER FIRST ARTICULATED A TEST REGARDING HOW THE GOVERNMENT CAN IMPAIR YOUR FREE
EXERCISE.

• THE TEST HAS FOUR PARTS: TWO THAT APPLY TO ANY PERSON WHO CLAIMS THAT HER FREEDOM OF RELIGION HAS
BEEN VIOLATED, AND TWO THAT APPLY TO THE GOVERNMENT AGENCY ACCUSED OF VIOLATING THOSE RIGHTS.

• FOR THE INDIVIDUAL, THE COURT MUST DETERMINE:

• WHETHER THE PERSON HAS A CLAIM INVOLVING A SINCERE RELIGIOUS BELIEF, AND
• WHETHER THE GOVERNMENT ACTION PLACES A SUBSTANTIAL BURDEN ON THE PERSON’S ABILITY TO ACT ON
THAT BELIEF.

• IF THESE TWO ELEMENTS ARE ESTABLISHED, THEN THE GOVERNMENT MUST PROVE:
• THAT IT IS ACTING IN FURTHERANCE OF A “COMPELLING STATE INTEREST,” AND
• THAT IT HAS PURSUED THAT INTEREST IN THE MANNER LEAST RESTRICTIVE, OR LEAST BURDENSOME, TO RELIGION.
 MORE LIMITS ON FREE EXERCISE

• THE SUPREME COURT CURTAILED THE APPLICATION OF THE SHERBERT TEST IN THE 1990 CASE OF
EMPLOYMENT DIVISION V. SMITH. IN THAT CASE, THE COURT HELD THAT A BURDEN ON FREE
EXERCISE NO LONGER HAD TO BE JUSTIFIED BY A COMPELLING STATE INTEREST IF THE BURDEN WAS
AN UNINTENDED RESULT OF LAWS THAT ARE GENERALLY APPLICABLE.
• AFTER SMITH, ONLY LAWS (OR GOVERNMENT ACTIONS) THAT (1) WERE INTENDED TO PROHIBIT THE
FREE EXERCISE OF RELIGION, OR (2) VIOLATED OTHER CONSTITUTIONAL RIGHTS, SUCH AS
FREEDOM OF SPEECH, WERE SUBJECT TO THE COMPELLING-INTEREST TEST. FOR EXAMPLE, A STATE
COULD NOT PASS A LAW STATING THAT NATIVE AMERICANS ARE PROHIBITED FROM USING
PEYOTE, BUT IT COULD ACCOMPLISH THE SAME RESULT BY PROHIBITING THE USE OF PEYOTE BY
EVERYONE.
 SINCERITY OF BELIEF

• THE SINCERE BELIEF REQUIREMENT HAS ITS ROOTS IN A LONG TRADITION OF EXEMPTING
CONSCIENTIOUS OBJECTORS FROM CONSCRIPTED MILITARY SERVICE.
• SINCE THEN, COURTS HAVE QUESTIONED RELIGIOUS SINCERITY IN A VARIETY OF CONTEXTS,
NOTABLY IN CRIMINAL CASES.
• OUTSIDE THE DRUG CONTEXT, COURTS HAVE ALSO REJECTED INSINCERE RFRA CLAIMS IN A VARIETY
OF ANIMAL-RELATED PROSECUTIONS, SUCH AS FOR POSSESSING AND TRADING IN EAGLE
FEATHERS.
• ULTIMATELY, THESE CASES SHOW THAT WHERE THERE IS A FINANCIAL OR OTHERWISE SELF-
INTERESTED MOTIVE TO LIE ABOUT A RELIGIOUS BELIEF, COURTS ARE WILLING AND ABLE TO
EVALUATE SINCERITY.
 FEMINIST BELIEF

• WE ASSUME SINCERITY.
• NO FINANCIAL MOTIVE.
• NO ANIMAL ABUSE.
• NO CRIMES.
 STATE LAW STRATEGY

1. YOU DO NOT NEED TO INCORPORATE IF YOU ARE PLANNING GATHERINGS IN YOUR OWN
HOME OR PRIVATELY OWNED SPACE.
2. YOUR HOME STATE MAY HAVE A RELIGIOUS CORPORATION STATUTE. YOU CAN LIKELY FIND
SUCH INFORMATION ONLINE OR AT YOUR LOCAL LIBRARY.
3. THERE MAY BE OTHER USEFUL STRUCTURES FOR ORGANIZING UNDER STATE LAW SUCH AS A
NON-PROFIT CORPORATION (REMEMBER THE LACK OF FINANCIAL MOTIVE PRONG).
4. FORMS AND REQUIRED DOCUMENTATION WILL VARY BY STATE.
 FEDERAL LAW – 501(C)(3)

1. IF YOU WANT TO ORGANIZE ACROSS STATE LINES OR RECEIVE FEDERAL TAX EXEMPTION, YOU
MAY WISH TO FILE WITH THE IRS UNDER 501(C)(3).
2. I AM NOT A LAWYER AND THIS IS NOT LEGAL ADVICE.
3. GENERAL REQUIREMENTS INCLUDE: BOARD MEMBERS, ARTICLES OF INCORPORATION, BYLAWS,
CONFLICT OF INTEREST POLICY, IRS FORMS (FORM 1023 OR 1023-EZ; SOME SUPPLEMENTAL
FORMS MAY BE REQUIRED).
4. ONCE YOU FILE YOU CAN CHECK YOUR STATUS ON THE IRS WEBSITE EXEMPT ORGANIZATION
CHECK TOOL.
5. THIS IS PROCEDURAL, NOT SUBSTANTIVE.
 FEDERAL LAW – 501(C)(3)
SUPPORT FOR THE LEGAL VALIDITY OF RELIGIOUS ORGANIZATIONS
(POSSIBLY IN ARTICLES OF INCORPORATION OR BYLAWS)

• DISTINCT LEGAL EXISTENCE COMPLETING PRESCRIBED COURSE OF STUDY

• RECOGNIZED CREED AND FORM OF WORSHIP
• DEFINITE AND DISTINCT ECCLESIASTICAL
GOVERNMENT
• DISTINCT RELIGIOUS HISTORY
• MEMBERSHIP NOT ASSOCIATED WITH ANY
OTHER CHURCH OR DENOMINATION
• ORGANIZATION OF ORDAINED MINISTERS
• ORDAINED MINISTERS SELECTED AFTER
• LITERATURE OF ITS OWN
• ESTABLISHED PLACES OF WORSHIP
• REGULAR CONGREGATIONS
• REGULAR RELIGIOUS SERVICES
• SUNDAY SCHOOLS FOR RELIGIOUS
INSTRUCTION OF THE YOUNG
• SCHOOLS FOR THE PREPARATION OF ITS
MEMBERS
 QUESTIONS?

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