United States Postal Service(TM) 


 In the Matter of the Petition by         August 17, 1992

 ZION'S HOPE, INC.
 P. O. BOX 690909
 Orlando, FL  32869-0909

 Denial of Application for Second-
 Class Mail Privileges for "ZION'S
 FIRE"                                    P. S. Docket No. 38/163

 APPEARANCE FOR PETITIONER:               George R. Grange, II, Esq.
 Robert J. Barlow, Esq.
 Gammon & Grange, P.C.
 8280 Greensboro Dr., 7th Floor
 McLean, VA  22102-3807

APPEARANCE FOR RESPONDENT: Kenneth N. Hollies, Esq. Law Department United States Postal Service Rate Application Division Washington, DC 20260-1143

INITIAL DECISION

Pursuant to 39 C.F.R. § 954.8(b), Zion's Hope, Inc. ("Petitioner") has appealed from the denial by the Director, Office of Classification and Rates Administration ("Director") of Petitioner's re-entry application to change the second-class mail authorization of its publication Zion's Fire from that of a requester publication to that of a church pursuant to Domestic Mail Manual (DMM) § 423.212(d) which caused Respondent's denial of Petitioner's application to mail Zion's Fire at special second-class rates.

The parties have submitted the matter for determination without an oral hearing on a written factual record consisting of a stipulation dated May 14, 1992, with the exhibits attached thereto. They have also filed proposed findings of fact, conclusions of law, briefs and reply briefs all of which have been considered in arriving at this decision.

FINDINGS OF FACT

1. On May 14, 1990, Petitioner filed an application to mail Zion's Fire as a second-class publication. In a decision signed on August 30, 1990, effective on June 14, 1990, Zion's Fire was granted second-class status as a requester publication. Petitioner is qualified for special bulk rates pursuant to DMM § 625.131. Since requester publications are not eligible for special second-class rates (DMM § 411.31), and since Petitioner seeks, pursuant to postal regulations, to avail itself of those special second-class rates, Petitioner filed an application on February 4, 1991, with the Postmaster in Orlando, Florida, to re-enter Zion's Fire as the publication of a church pursuant to DMM § 423.212(d). The application was forwarded to the Memphis Rates and Classification Center (RCC), which denied Petitioner's application on March 26, 1991. Thereafter, Petitioner timely effected its appeal which the RCC forwarded to the Director, OCRA, on April 15, 1991.

In a December 30, 1991, decision (Decision), the Director denied Petitioner's appeal, finding that Petitioner was not a "church" within the meaning of 39 C.F.R. Pt. 3001, Subpt. C, App. A (DMCS), § 200.0106(k), and DMM § 423.212(d) (Stipulations 2, 3).

2. For purposes limited to this appeal, the parties agree that: a) Zion's Fire meets the requirements imposed upon all second-class publications by DMM § 422; and b) if Petitioner qualifies as a "church" pursuant to DMM § 423.212(d), it would

3. 39 CFR Pt. 3001, Subpt. C, App. A. § 200.01 provides in pertinent part as follows:

* * * * *

* * * * *

4. DMM 423.212 provides in pertinent part as follows:

* * * * *

5. Petitioner is a Florida corporation duly organized as a tax-exempt religious institution under Florida law and is operated for nonprofit religious purposes as defined by Florida law and Section 501(c)(3) of the Internal Revenue Code.

6. Petitioner conducts regular weekly worship services at ten locations. The combined weekly attendance at these services averages approximately 200 individuals. The services are conducted by ordained ministers or authorized lay ministers. The services are consistent with Petitioner's Doctrinal Statement and include singing of hymns, corporate and individual prayer, readings from the Bible and sermons teaching the word of God. (Affidavit of Kevin L. Howard (Exh. 1 to Stipulation) and Exhibits B, C, D, E & H attached thereto.)

[Ex. H to Affid. of Reverend Kevin L. Howard]

8. According to its application for second-class mail privileges, Petitioner plans to distribute approximately 40,000 monthly copies of Zion's Fire.

DISCUSSION

The parties have stipulated that the sole issue presented for determination in this appeal is whether Petitioner qualifies as a "church" within the meaning of 39 C.F.R. Pt. 3001, Subpt. C, App. A, § 200.0106(b) and DMM § 423.212(d), supra, and that if Petitioner qualifies as a "church," then its applications to re-enter Zion's

Fire as the publication of an institution or society, and to qualify for special second-class rates should be granted (Stips. 5 & 6).

Petitioner says that it is an organization which has, and includes, congregations of worshippers who actually conduct religious services and is therefore a "church" as that term is unambiguously defined in the above-cited regulations. The Postal Service does not deny that Petitioner meets that definition but disputes Petitioner's conclusion that it is, therefore, a "church" on the ground that the conduct of worship services by congregations of worshippers is not the sole test for qualification under DMM § 423.212(d). A summary of Respondent's involved argument for concluding that Petitioner is not a church is set forth at pages 22 and 23 of its Brief as follows:

1) The religion clauses of the United States Constitution require that a statute or regulation have a secular purpose, not favor or disfavor religion, and not foster entanglement of government in religious affairs.

2) DMM § 423.212(d), which on its face favors religious organizations over non-religious ones, to be constitutional must be interpreted so that it does not extend a benefit to religious organizations not also available to atheistic ones and so that it does not foster government entanglement in religion.

3) The legislative history of the statutory forebear of DMM 423.212(d), 39 U.S.C. § 4355(a)(9), shows that it was enacted to meet an administrative problem encountered by local churches, specifically, the need to keep records demonstrating compliance with the paid subscriber rule when compliance with that rule could be assumed from the church's organization and operation. Moreover, all religious organizations do not share this administrative problem, so they do not all qualify under DMM § 423.212(d).

4) Petitioner is neither organized nor operated like a local church. Specifically, its religious leadership is substantially uninvolved with local meetings, or worship services; any church ordinances they have assisted in the ministration of were not co-located with those local meetings; and there is no indication that Petitioner appoints ministers or other staff associated with local churches. Additionally, Petitioner's Articles of Incorporation show it was organized for general religious and evangelical purposes, rather than to operate a local church. Petitioner's Articles of Incorporation are consistent with its operation since Petitioner urges, in its Doctrinal Statement, its supporters also to join local churches that are not part of the organization and operation of Petitioner. Thus, Petitioner's local meetings are so incidental to its overall organization and operation, that without violating the entanglement prong of the Lemon test, the Postal Service would be unable to deny any religious organization from qualifying under DMM § 423.212(d) if Petitioner were found to be qualified. The fact that substantially all of the circulation of Zion's Fire is not distributed to individuals whose support for an interest in receiving that publication can be assumed by reason of Petitioner's organization and operation further supports the conclusion that Petitioner is not organized and operated like a local church.

5) Whether viewed in terms of the organization and operation of candidate organization, or solely in terms of the underlying facts, decisions applying DMM § 423.212(d) and its forebears to other religious organizations support the conclusion that Petitioner does not qualify as a "church" under DMM § 423.212(d).

CONCLUSIONS OF LAW

Domestic Mail Manual 423.212(d) contains a clear, unambiguous definition of the term "church." Respondent concedes that Petitioner meets the literal definition (Initial Brief, p. 13, ¶ 20) but by raising constitutional problems with the application of that definition and implicating the legislative history of a predecessor statute which failed to define "church" would, in effect, amend the definition by requiring an applicant to meet additional tests to demonstrate that it is organized and operated in a manner similar to local churches.

Respondent fails to persuade me to apply its rationale for the following reasons:

1. Petitioner has established that it meets the definition of "church" set forth in the regulation.

2. To reach the point of considering the additional tests Respondent would apply to Petitioner, it is necessary to conclude, as Respondent has, that DMM 423.212(d) is on its face unconstitutional for favoring religious organizations over non-religious ones. However, as Respondent concedes in footnote 5 on page 12 of its Brief, administrative law judges of the Postal Service lack jurisdiction to determine the constitutionality of postal regulations.

3. Respondent's attempted avoidance of a head-on meeting of the constitutional issue by invoking the legislative history of the predecessor statute which did not define the term "church" and reading into the regulation qualifications it does not prescribe would result, effectively, in amendment of the regulation without the required formalities. Administrative law judges of the Postal Service lack authority to accomplish such a result.

4. There appear to have been no Postal Service decisions involving the definition of the term "church" under DMM 423.212(d). The few decisions interpreting the term "church" under its predecessor, 39 U.S.C. § 4355(a)(9), define "church" essentially the same as the current regulation, i.e., "groups of worshippers" or "local congregations of worshippers." Interreligious Foundation for Community Organization, Inc., P.S. 1/10, P.S.D. April 6, 1972 at pages 4, 5, citing Berean Bible Society, P.O.D. 2/250 (Departmental Decision Feb. 21, 1968) and Mission to Mexico, P.O.D. 2/129 (Departmental Decision Apr. 10, 1964); a group holding "regular worship services ***even if only an incident to the primary objective of the group" Mission to Mexico, supra; Kentucky Mountain Mission, Inc., P.O.D. 2/294, I.D. Sept. 12, 1968.

5. Berean Bible Society and Kentucky Mountain Mission, supra, discussed and faulted the application of other considerations, similar to or the same as some of those applied by OCRA here, in determining that Petitioner is not a church. For instance, in Berean Bible Society and Kentucky Mountain Mission, Inc., supra, petitioners were held to be churches even though their articles of incorporation did not refer to them as such. In Interreligious Foundation for Community Organizations, supra, the Judicial Officer rejected interpretations of the word "church" in the Internal Revenue Code to interpret the term as used in the predecessor statute, 39 U.S.C. § 4355(a)(9).

6. As for Respondent's argument that Petitioner is not burdened with the administrative problem which Congress sought to rectify by enacting 39 U.S.C. § 4355(a)(9), Petitioner correctly argues that the degree of such burden was never a test for the applicability of the statute. Save for DMM 423.212(d), Petitioner would have that problem for its 200 congregants. In Berean Bible Society, held to be a "church" under the statute, the congregation involved was only 8 to 15 persons. Interestingly, it mailed out about 15,000 copies, per issue, of its publication, a ratio of mailings per congregant several times that of Zion's Hope.

7. Petitioner qualifies as a church because it has "congregations of worshippers" who actually "conduct religious services" and is, therefore, under DMM § 423.212(d) entitled to the second-class mail privileges for which it has applied. The decision of the Director dated December 30, 1991, is reversed. 

                                        Quentin E. Grant
                                        Chief Administrative Law Judge