Opinion
January 29, 1958
Bertrand D. Gerber for petitioner.
Before me for approval as a membership corporation is a proposed certificate of incorporation of Basilio Scientific Spiritist Cult Association, Inc.
Section 10 of the Membership Corporations Law (which constitutes chapter 35 of the Consolidated Laws) provides for the organization of "a membership corporation for any lawful purpose, or for two or more such purposes of a kindred or incidental nature", but it expressly excepts "a purpose for which a corporation may be created under any general law other than this chapter". The Religious Corporations Law is such a general law. It is chapter 51 of the Consolidated Laws and provides, among other things, for the formation of religious corporations, described simply as "created for religious purposes". (Religious Corporations Law, § 2.)
There is a critical distinction between a membership corporation and a religious corporation under our law, although some of the purposes of the former may be appropriately included as functions of the latter. The reason for the distinction is quite fundamental. There are certain governmental controls over lay corporations that would not be recognized as constitutionally permissible over religious societies (cf. Kedroff v. St. Nicholas Cathedral, 344 U.S. 94). For "[t]he free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all mankind" (N.Y. Const., art. I, § 3; see, also, U.S. Const., 1st Amdt.).
Some of the purposes for which the present corporation is to be formed are stated, in substance, to be the protection of the privileges of American residents, the fostering of a healthy interest in civic affairs, the development of good citizenship, the promotion of friendship, the alleviation of human suffering, and the study of spiritism. I note, however, as I read the other purposes set forth in the certificate, that the association seeks not merely to "study spiritism", but also "to promulgate and promote the spiritist cult of the redemption of God, Jesus, Mary and Joseph * * * and to establish a positive and irrefutable scientific basis of the Cult of Trust and Justice on Earth". That cult — as affirmed in the supplemental data, historical and current, supplied by the petitioners at my request — is basically religious in purpose, and its major function is essentially religious in character.
It is not for me to assume to pass judgment on the religious quality or spiritual probity of the faith here sought to be promulgated and established (cf. Matter of New York Soul Clinic, 208 Misc. 612). It is my judicial responsibility solely to determine whether the proposed association is or is not in its essence truly to be a religious corporation. That, I am convinced it is, and, as such, I have concluded that the application to approve this association as a membership corporation should be (and it is) denied.