We Separate Church and State for a Reason – Romney’s Perspective on Religion and the Presidency

 

On December 6, 2007, candidate Mitt Romney gave this speech at the George H. W. Bush Presidential Library in College Station, Texas in order to reach evangelicals who were concerned about how Romney’s Mormon religion might affect his presidency.  Michael Luo of The New York Times gives some background on the speech. The transcript is reproduced below.

Mitt Romney’s “Faith In America” Address:

It is an honor to be here today. This is an inspiring place because of you and the First Lady and because of the film exhibited across the way in the Presidential library. For those who have not seen it, it shows the President as a young pilot, shot down during the Second World War, being rescued from his life-raft by the crew of an American submarine. It is a moving reminder that when America has faced challenge and peril, Americans rise to the occasion, willing to risk their very lives to defend freedom and preserve our nation. We are in your debt. Thank you, Mr. President.

Mr. President, your generation rose to the occasion, first to defeat Fascism and then to vanquish the Soviet Union. You left us, your children, a free and strong America. It is why we call yours the greatest generation. It is now my generation’s turn. How we respond to today’s challenges will define our generation. And it will determine what kind of America we will leave our children, and theirs.

America faces a new generation of challenges. Radical violent Islam seeks to destroy us. An emerging China endeavors to surpass our economic leadership. And we are troubled at home by government overspending, overuse of foreign oil, and the breakdown of the family.

Over the last year, we have embarked on a national debate on how best to preserve American leadership. Today, I wish to address a topic which I believe is fundamental to America’s greatness: our religious liberty. I will also offer perspectives on how my own faith would inform my Presidency, if I were elected.

There are some who may feel that religion is not a matter to be seriously considered in the context of the weighty threats that face us. If so, they are at odds with the nation’s founders, for they, when our nation faced its greatest peril, sought the blessings of the Creator. And further, they discovered the essential connection between the survival of a free land and the protection of religious freedom. In John Adams, ‘We have no government armed with power capable of contending with human passions unbridled by morality and religion… Our constitution was made for a moral and religious people.’

Freedom requires religion just as religion requires freedom. Freedom opens the windows of the soul so that man can discover his most profound beliefs and commune with God. Freedom and religion endure together, or perish alone.

Given our grand tradition of religious tolerance and liberty, some wonder whether there are any questions regarding an aspiring candidate’s religion that are appropriate. I believe there are. And I will answer them today.

Almost 50 years ago another candidate from Massachusetts explained that he was an American running for president, not a Catholic running for president. Like him, I am an American running for president. I do not define my candidacy by my religion. A person should not be elected because of his faith nor should he be rejected because of his faith.

Let me assure you that no authorities of my church, or of any other church for that matter, will ever exert influence on presidential decisions. Their authority is theirs, within the province of church affairs, and it ends where the affairs of the nation begin.

As governor, I tried to do the right as best I knew it, serving the law and answering to the Constitution. I did not confuse the particular teachings of my church with the obligations of the office and of the Constitution and of course, I would not do so as President. I will put no doctrine of any church above the plain duties of the office and the sovereign authority of the law.

As a young man, Lincoln described what he called America’s ‘political religion’ ? the commitment to defend the rule of law and the Constitution. When I place my hand on the Bible and take the oath of office, that oath becomes my highest promise to God. If I am fortunate to become your president, I will serve no one religion, no one group, no one cause, and no one interest. A President must serve only the common cause of the people of the United States.

There are some for whom these commitments are not enough. They would prefer it if I would simply distance myself from my religion, say that it is more a tradition than my personal conviction, or disavow one or another of its precepts. That I will not do. I believe in my Mormon faith and I endeavor to live by it. My faith is the faith of my fathers. I will be true to them and to my beliefs.

Some believe that such a confession of my faith will sink my candidacy. If they are right, so be it. But I think they underestimate the American people. Americans do not respect believers of convenience.

Americans tire of those who would jettison their beliefs, even to gain the world.

There is one fundamental question about which I often am asked. What do I believe about Jesus Christ? I believe that Jesus Christ is the Son of God and the Savior of mankind. My church’s beliefs about Christ may not all be the same as those of other faiths. Each religion has its own unique doctrines and history. These are not bases for criticism but rather a test of our tolerance. Religious tolerance would be a shallow principle indeed if it were reserved only for faiths with which we agree.

There are some who would have a presidential candidate describe and explain his church’s distinctive doctrines. To do so would enable the very religious test the founders prohibited in the Constitution. No candidate should become the spokesman for his faith. For if he becomes President he will need the prayers of the people of all faiths.

I believe that every faith I have encountered draws its adherents closer to God. And in every faith I have come to know, there are features I wish were in my own: I love the profound ceremony of the Catholic Mass, the approachability of God in the prayers of the Evangelicals, the tenderness of spirit among the Pentecostals, the confident independence of the Lutherans, the ancient traditions of the Jews, unchanged through the ages, and the commitment to frequent prayer of the Muslims. As I travel across the country and see our towns and cities, I am always moved by the many houses of worship with their steeples, all pointing to heaven, reminding us of the source of life’s blessings.

It is important to recognize that while differences in theology exist between the churches in America, we share a common creed of moral convictions. And where the affairs of our nation are concerned, it’s usually a sound rule to focus on the latter on the great moral principles that urge us all on a common course. Whether it was the cause of abolition, or civil rights, or the right to life itself, no movement of conscience can succeed in America that cannot speak to the convictions of religious people.

We separate church and state affairs in this country, and for good reason. No religion should dictate to the state nor should the state interfere with the free practice of religion. But in recent years, the notion of the separation of church and state has been taken by some well beyond its original meaning. They seek to remove from the public domain any acknowledgment of God. Religion is seen as merely a private affair with no place in public life. It is as if they are intent on establishing a new religion in America – the religion of secularism. They are wrong.

The founders proscribed the establishment of a state religion, but they did not countenance the elimination of religion from the public square. We are a nation ‘Under God’ and in God, we do indeed trust.

We should acknowledge the Creator as did the Founders in ceremony and word. He should remain on our currency, in our pledge, in the teaching of our history, and during the holiday season, nativity scenes and menorahs should be welcome in our public places. Our greatness would not long endure without judges who respect the foundation of faith upon which our constitution rests. I will take care to separate the affairs of government from any religion, but I will not separate us from ‘the God who gave us liberty.’

Nor would I separate us from our religious heritage. Perhaps the most important question to ask a person of faith who seeks a political office, is this: does he share these American values: the equality of human kind, the obligation to serve one another, and a steadfast commitment to liberty?

They are not unique to any one denomination. They belong to the great moral inheritance we hold in common. They are the firm ground on which Americans of different faiths meet and stand as a nation, united.

We believe that every single human being is a child of God. We are all part of the human family. The conviction of the inherent and inalienable worth of every life is still the most revolutionary political proposition ever advanced. John Adams put it that we are ‘thrown into the world all equal and alike.’

The consequence of our common humanity is our responsibility to one another, to our fellow Americans foremost, but also to every child of God. It is an obligation which is fulfilled by Americans every day, here and across the globe, without regard to creed or race or nationality.

Americans acknowledge that liberty is a gift of God, not an indulgence of government. No people in the history of the world have sacrificed as much for liberty. The lives of hundreds of thousands of America’s sons and daughters were laid down during the last century to preserve freedom, for us and for freedom loving people throughout the world. America took nothing from that Century’s terrible wars — no land from Germany or Japan or Korea; no treasure; no oath of fealty. America’s resolve in the defense of liberty has been tested time and again. It has not been found wanting, nor must it ever be. America must never falter in holding high the banner of freedom.

These American values, this great moral heritage, is shared and lived in my religion as it is in yours. I was taught in my home to honor God and love my neighbor. I saw my father march with Martin Luther King. I saw my parents provide compassionate care to others, in personal ways to people nearby, and in just as consequential ways in leading national volunteer movements. I am moved by the Lord’s words: ‘For I was an hungered, and ye gave me meat: I was thirsty, and ye gave me drink: I was a stranger, and ye took me in: naked, and ye clothed me…’

My faith is grounded on these truths. You can witness them in Ann and my marriage and in our family. We are a long way from perfect and we have surely stumbled along the way, but our aspirations, our values, are the self-same as those from the other faiths that stand upon this common foundation. And these convictions will indeed inform my presidency.

Today’s generations of Americans have always known religious liberty. Perhaps we forget the long and arduous path our nation’s forbearers took to achieve it. They came here from England to seek freedom of religion. But upon finding it for themselves, they at first denied it to others. Because of their diverse beliefs, Ann Hutchinson was exiled from Massachusetts Bay, a banished Roger Williams founded Rhode Island, and two centuries later, Brigham Young set out for the West. Americans were unable to accommodate their commitment to their own faith with an appreciation for the convictions of others to different faiths. In this, they were very much like those of the European nations they had left.

It was in Philadelphia that our founding fathers defined a revolutionary vision of liberty, grounded on self evident truths about the equality of all, and the inalienable rights with which each is endowed by his Creator.

We cherish these sacred rights, and secure them in our Constitutional order. Foremost do we protect religious liberty, not as a matter of policy but as a matter of right. There will be no established church, and we are guaranteed the free exercise of our religion.

I’m not sure that we fully appreciate the profound implications of our tradition of religious liberty. I have visited many of the magnificent cathedrals in Europe. They are so inspired, so grand , so empty. Raised up over generations, long ago, so many of the cathedrals now stand as the postcard backdrop to societies just too busy or too ‘enlightened’ to venture inside and kneel in prayer. The establishment of state religions in Europe did no favor to Europe’s churches. And though you will find many people of strong faith there, the churches themselves seem to be withering away.

Infinitely worse is the other extreme, the creed of conversion by conquest: violent Jihad, murder as martyrdom. . . killing Christians, Jews, and Muslims with equal indifference. These radical Islamists do their preaching not by reason or example, but in the coercion of minds and the shedding of blood. We face no greater danger today than theocratic tyranny, and the boundless suffering these states and groups could inflict if given the chance.

The diversity of our cultural expression, and the vibrancy of our religious dialogue, has kept America in the forefront of civilized nations even as others regard religious freedom as something to be destroyed.

In such a world, we can be deeply thankful that we live in a land where reason and religion are friends and allies in the cause of liberty, joined against the evils and dangers of the day. And you can be certain of this: Any believer in religious freedom, any person who has knelt in prayer to the Almighty, has a friend and ally in me. And so it is for hundreds of millions of our countrymen: we do not insist on a single strain of religion. Rather, we welcome our nation’s symphony of faith.

Recall the early days of the First Continental Congress in Philadelphia, during the fall of 1774. With Boston occupied by British troops, there were rumors of imminent hostilities and fears of an impending war. In this time of peril, someone suggested that they pray. But there were objections. ‘They were too divided in religious sentiments’, what with Episcopalians and Quakers, Anabaptists and Congregationalists, Presbyterians and Catholics.

Then Sam Adams rose, and said he would hear a prayer from anyone of piety and good character, as long as they were a patriot.

And so together they prayed, and together they fought, and together, by the grace of God …they founded this great nation.

In that spirit, let us give thanks to the divine ‘author of liberty.’ And together, let us pray that this land may always be blessed, ‘with freedom’s holy light.’

God bless the United States of America.”

Burden of Proof: Why Most American Evangelicals Reject Long-Earth Evolution

On May 14, noted philanthropist and neurosurgeon Dr. Ben Carson is scheduled to give the commencement address at Emory University and receive an honorary degree.  But there is a problem. In recent weeks, some Emory faculty and students have expressed concerns that the University invited Dr. Carson because he is a critic of evolutionary theory and advocate of creationism. Faculty and staff have written that Dr. Carson’s “great achievements in medicine allow him to be viewed as someone who ‘understands science.’” This background, they say, poses a direct threat to science that “rests squarely on the shoulders of evolution.”

The anti-Carson letter describes how there is “overwhelming” evidence of “ape-human transitional fossils” and how this evolution process has advanced an ability to develop animal models for disease and that even “the work of Dr. Carson himself is based on scientific advances fostered by an understanding of evolution.” The letter then argues that “the theory of evolution is as strongly supported as the theory of gravity and the theory that infectious diseases are caused by micro-organisms.”

In 2010, Gallup released a poll that found that 40% of Americans believe in strict creationism, the idea that humans were created by God in their present form within the past 10,000 years.  Thirty-eight percent believe that God guided the process of human evolution from lower life forms over millions of years , and only 16% believe that humans evolved without divine intervention. Sixty percent of those who attend church weekly believe that we were created less than 10,000 years ago. Gallup notes that the numbers have remained generally stable for the past 28 years.

That the number of adherents of creationism remains so strong, even though Charles Darwin’s book, “On the Origin of Species” has been around since 1859 and has been taught in most public schools since the 1960s, is a testament to the persistent strength of American religious belief and faith over contradictory concepts. 

Earlier this week, Forbes magazine staff writer Alex Knapp wrote an essay entitled, “Why Some Christians Reject Evolution,” arguing that many Christians reject evolutionary theory because it conflicts with the Protestant view of the doctrines of original sin and salvation.

Original sin is the idea that God created an absolutely perfect “good” world and a single sin against God committed by one person marred the purity of creation and implicated all of humanity in the act. The Christian gospel teaches that the pre-existing penalty for act of separation from God was eternal death. Being that humanity could not save itself from this penalty, Jesus Christ, a member of the Holy Trinity, personally came to earth, lived a pure life, died, and was resurrected, reconciling fallen humanity to God, thus closing the sin-caused gap between humans and God. Human beings who accept this death as substitution for their own prospective penalty will be given eternal life in a new earth.

Perhaps the only way to explain how evolved human beings would end up with a soul is expressed in the hybrid evolution-creation concept advanced by Pope Pius XII in the encyclical Humani generis (1950).  Pius XII writes, “For these reasons the Teaching Authority of the Church does not forbid that, in conformity with the present state of human sciences and sacred theology, research and discussions, on the part of men experienced in both fields, take place with regard to the doctrine of evolution, in as far as it inquires into the origin of the human body as coming from pre-existent and living matter – for the Catholic faith obliges us to hold that souls are immediately created by God.”

In Catholic thought, this has been interpreted to provide room for the concept that the bodies of humans were created over millions of years through evolution, and that God ultimately provided separately-created souls which were infused into humans. These souls reconnect to God through practicing the sacraments. 

In contrast, American evangelicals tend to view Adam and Eve as actual living people, who were literally created by God as clay forms into which God breathed the breath of life.  There was no death before the fall of humanity.  The time frames are important because they rely on the Biblical chronologies Matthew 1 and Luke 3:23-28 to prove that Jesus was in the prophetically-designated ancestral line of David, and draw the genealogical line all the way back to Adam, the first created human being.

Many evangelicals reject the hybrid view of creation and evolution because it would necessarily require them to regard creation, as discussed in the books of Genesis and of a new earth in Revelation, as allegory and submit the pervasive teachings of the Bible referencing Creation and other supernatural activity to the realm of mythology or cultural contextualism. Acceptance of “scientific” views of evolution would then, by necessity, require a major reconfiguration of matters of faith – and that is something that most adherents to strict creationism are unwilling to do.

Knapp, whose own religious beliefs are not indicated, notes that while some churches have found ways to incorporate the idea of change over time into their belief systems, “for many Christians, evolution isn’t a minor fact of science that can be resolved into the mythos of their faith. It is, rather, a fundamental attack on their faith and many things that they believe.”

There have been a number of heated arguments on the campuses of a diverse array of religious universities regarding how issues of origins should be taught. Some have tried to walk the middle line of teaching “intelligent design” as an alternative to creationism and evolution. Critics of those teaching intelligent design point out that trying to split the issue down the middle does no favors to either side and in the end is nothing but a weakened form of creationism, and an explanation that is of no value to secular science.

Within the larger context of American Protestant Christianity the debate continues without resolution. Among Christians, creationists are often asked to consider various forms of evidence of a long-history of the earth, but those advocating for a long-earth have largely ignored discussion of the genealogies of the New Testament and the concepts of original sin and salvation. Christian evolutionists have failed to provide a verse-by-verse rebuttal to the Biblical Creation narrative or to acknowledge the extent to which acceptance of creation would impact theology.

Instead theistic evolutionists operate on the supposition that Creationists will eventually bifurcate their religious beliefs from scientific understanding, because incompatibilities must be resolved in favor of science. This places faith directly in conflict with science and any resultant battle on these issues will take centuries if true academic freedom is to be granted, but can resolve faster if the voices of religious dissent are silenced and those who have openly criticized evolution are denied a seat at the academic table.

The attempt to “purify” academia by silencing the voices of critics such as Dr. Carson would be the first step toward a secular Dark Ages. So far, it appears that despite the controversy, Emory University’s commencement ceremony will go forward as planned.

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In response to the controversy at Emory, as of this writing nearly 2,000 people have signed a Petition to reaffirm “Dr. Ben Carson’s Welcome and Defend His Right to Express His Views.”  Click here to view the Petition. 

Why Do Gingrich and Obama Agree on the Supreme Court?

Last week, after three days of tough argument before the Supreme Court, the President created a stir when he said that it would be “unprecedented” for the Supreme Court to overturn his national healthcare plan. Obama further questioned the legitimacy of “unelected” and “activist” judges.

Conservatives went crazy! How could the President criticize the authority of the Supreme Court?

On December 18, 2011, Republican candidate Newt Gingrich lost significant momentum when he told the nation on Face the Nation that judges, at least in some circumstances, should be called to account for their decisions that ignore the public will, either by being brought before Congress or in some cases by being removed from office. In fact, Gingrich had written a 54-page position paper on the topic, specifically pointing to the 1958 anti-segregation ruling in Cooper v. Aaron. In Cooper, the Supreme Court asserted that the Court’s opinion on the Constitution was more important than the interpretations of Congress or the Executive Branch.

Liberals went crazy! How could an aspiring President criticize the authority of the Supreme Court?

It is a running joke that any decision that the Supreme Court makes that one disagrees with is made by “activist,” “unelected” judges. If your side doesn’t win, blame the Court! And in the past few years, decisions have gone both ways as the Court, comprised of justices presently appointed over the course of 24 years ranging from Antonin Scalia, appointed in 1986 to Elena Kagan, appointed in 2010.

The reality is, if Newt Gingrich is right then Barack Obama is also right. Obama can simply read off Gingrich’s paper and make the same arguments. The sitting President, empowered by a sympathetic Congress can do whatever it wants and the Supreme Court can simply stand by and wring its hands. The Patriot Act can continue to exist without challenge as can ObamaCare.

Perhaps this is one thing that Gingrich and Obama can agree on – that the President and Congress has electable, kingly authority. In reality, the only way either one of them would be happy with the proposed arrangement is if their party is in control. Otherwise, the minority party would have no judicial recourse or appeal.

If anything, when politicians think in two- and four-year increments, the Court has perhaps become too political, with justices appointed who are expected to carry forward particular agendas rather than providing long-term Constitutional interpretations. Electing justices would only make things worse. There is a process for changing the Court, but as with changes to the Constitution itself, they take place slowly.

In times like this, we would do well to remember the words of Lord Acton, that “power tends to corrupt, and absolute power corrupts absolutely,” and seek to preserve the integrity and role of the Supreme Court.

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Timeline: Obama Administration Actions Affecting U.S. Religious Freedom | Christianity Today

Excerpt:

“The past year has marked a shift in religious liberty debates, one that previously centered on hiring rights but became focused on health care requirements. When President Obama first took office, faith-based groups were especially concerned that organizations that discriminate in hiring based on religious beliefs would become ineligible for federal funding. In 2011, the President indicated that he would not rescind an executive order on hiring rights. Just a week later, though, Health and Human Services ruled that religious groups other than churches must provide their employees contraception, triggering lawsuits and petitions. But contraception is not the only religious freedom issue faith-based groups are eyeing. The following timeline shows a number of actions the government took in the past year, setting precedents and priorities on various issues, including sexual orientation, health care, and hiring decisions.”

http://www.christianitytoday.com/ct/2012/marchweb-only/timeline-obama-religious-freedom.html?utm_source=ctdirect-html&utm_medium=eNews&utm_term=9465269&utm_content=122402270&utm_campaign=2012

Hands Off! Religious Liberty Furor Over Birth Control (Liberty Magazine)

Liberty editor Lincoln Steed addresses the controversy over whether Catholic employers should be required to pay for contraception on the Liberty Blog.

EXCERPT:  The Roman Catholic position on contraception takes a thoroughly biblical worldview and tries to make a general mandate that only a minority of Roman Catholics themselves follow. This view has not rallied other religionists the way that the Catholic Church’s anti-abortion stance has. The abortion issue has become a powerful political rallying point. Contraception has not, until now, had anywhere near the political resonance.

…

The real sleeper issue here, as it is with much of the political warfare of the present day, is money. Liberty magazine has consistently warned church organizations against taking state money. We have from the very beginning of the Faith-Based Initiative of the previous administration (an initiative still alive and kicking against the First Amendment establishment prick) warned that it is inimical to church-state separation for public monies to be used to advance any particular faith view. So it would seem a little ungrateful to the public purse for a church to object when the state applies generally applicable regulations to an operation it might tend to see as its pocket money project.

Read More at: http://www.libertymagazine.org/index.php?id=1840

Beren Academy boys hoops coach Chris Cole still hopeful TAPPS reschedules state semifinal to accommodate Sabbath | Dallas Morning News

 

EXCERPT:

HOUSTON (AP) — A Texas agency has turned down a request by an Orthodox Jewish school in Houston to reschedule a championship game potentially involving its boys’ basketball team because the game time falls during the Sabbath.

The Beren Academy advanced to the semifinals in the Texas Association of Private and Parochial Schools’ 2A tournament with a 23-5 record and was scheduled to play Dallas Covenant at 9 p.m. on Friday.

Beren players observe the Sabbath between Friday night and Saturday night and won’t play basketball during those hours.

http://highschoolsportsblog.dallasnews.com/archives/2012/02/beren-boys-hoops-coach-chris-cole-still.html

Santorum’s Martyr Complex (SLATE)

Iran Court Convicts Christian Pastor Convert To Death | Fox News

The final verdict has been handed down. The blood of the martyrs continues to water the seed of the church. Prayers needed for courage and a miracle.

Pastor Nadarkhani is a true hero of the faith and a witness against religious intolerance of all stripes.

http://www.foxnews.com/world/2012/02/22/iran-court-convicts-christian-pastor-convert-to-death/

The U.S. Supreme Court made the Right Decision When It Upheld the Ministerial Exception

Since the U.S. Supreme Court issued its unanimous decision in Hosanna-Tabor v. EEOC on January 11, 2012, there has been a lot of discussion regarding whether the court did the right thing when it upheld the ministerial exception and denied jurisdiction in a case involving the termination of a ministerial employee. For reasons outlined below, I believe the Court made the right, albeit difficult, decision.

This was the case of the parochial school teacher who in addition to teaching on secular subjects also performed religious functions, Cheryl Perich, who was fired for threatening to file a lawsuit under the Americans with Disaiblities Act when she was not given her job back after returning from medical leave.  The religious employer argued that it was against its religious beliefs for a minister to sue the church, and that these things had to be handled within the church structure.

The issue presented before the Court was whether the anti-retaliation prohibition of the Americans with Disabilities Act (ADA) could be constitutionally applied to a religious association’s retaliatory firing of a parochial school teacher who taught secular subjects and also performed religious functions and was designated a commissioned minister.

The Supreme Court found that the Establishment and Free Exercise Clauses of the First Amendment bar ministers from bringing lawsuits against their churches in which the ministers claim violation of employment discrimination laws. In this case, the Court found that Perich was a minister within the meaning of the ministerial exception, and therefore the First Amendment required dismissal of her employment discrimination suit against her religious employer.

The ministerial exception gives religious institutions certain rights to control employment matters without interference from the secular courts. It does not, as the Court decision points out, affect criminal, tort, or contract law. So churches cannot use it to shield themselves from liability for criminal acts, negligent behavior leading to accidents, or breach of contract.  But it does protect churches from being hauled into court for religious decisions that have been made.

Some have tried to advance the theory that Perich had not fully pursued the administrative remedies available to her in the parochial system, but that would not have changed the outcome which hinged on the threshold issue of whether the ministerial exception applied to her. If the exception applied, the Court lacked jurisdiction.

Another misconception is that the Hosanna-Tabor decision somehow establishes the ministerial exception and adds something new. In reality, Congress specifically built an exception for religious organizations into Title VII of the Civil Rights Act of 1964. Title VII was enacted by Congress to prohibit employment discrimination on the basis of race, color, religion, sex, or national origin. (42 U.S. C. §§ 2000e-2(a)). Under the statutory exception, religious employers could prefer members of their own faith in making their hiring decisions.

The actual ministerial exception was born in 1972, when, in McClure v. Salvation Army, the U.S. Court of Appeals for the Fifth Circuit refused to hear a female minister’s gender discrimination claim. The court found that applying the provisions of Title VII to the employment relationship existing between a church and its ministers would therefore “cause the State to intrude upon matters of church administration and government” which would “result in an encroachment by the State into an area of religious freedom.”

The way it works is that courts in most Circuits rely upon a role-based or “primary duties test” to determine whether an employee is a minister within the exception, and whether or he she can bring suit under Title VII. Several circuits have adopted an approach that religious institutions should be able to choose who will perform certain spiritual functions. The first approach focuses on the employment relationship, while the second focuses on the right of churches to exercise their beliefs more freely.

Perich was, in many ways, the perfect “poster child” to challenge the ministerial exception. The case clearly involved a non-religious issue and for all the world, it looked like the church was looking for a way to fire her in a way that would be against public policy as applied to secular organizations and still avoid being hauled into court for violating the Americans with Disabilities Act.

In fact, the EEOC, the ACLU, and Americans United for Separation of Church and State (“AU”) rallied to Perich’s side. In its brief, AU argued that the ministerial exception did not entitle religious entities to discriminate or retaliate for reasons unrelated to religion, and that courts should determine whether an asserted religious justification for an action is pretextual.

In short, a church would therefore need to pass a two-prong test – first, it would have to demonstrate that its discriminatory rule was related to its religious beliefs; second, it would need to demonstrate that its action was not “pretextual.”

The AU brief gave some examples of what it meant to litigate on issues of discrimination that were not particularly related to a church’s doctrine. For instance, a Catholic Church could not be forced to hire a female priest, but an otherwise egalitarian church would not be permitted to fire a Sunday-school teacher when the pastor had a purely personal belief that “women should not work outside the home.”  The examples continued for several pages, permitting organizations to make discriminatory doctrinal rulings but not permitting local churches from acting in contrast to non-discriminatory denominational policies or practice.

Applying an Employment Division v. Smith style argument, AU argued that generally applicable employment laws should apply to churches unless there is a need to safeguard a constitutional right. Why they would appeal to this analysis is particularly curious. The Smith decision created a major problem for free exercise of religion by subjecting religious minorities to the rule of the majority even if it goes against the minority’s religious beliefs. (One can hope that the Court, in the near future, might see the wisdom of applying the Hosanna-Tabor analysis to individual religious liberty rights and re-establishing the Free Exercise Clause that was compromised in Smith.)

The AU brief is helpful in that it provides a concrete example of the depth to which the government and courts would need evaluate in order to determine whether church employment decisions were permissible or not.

Under the approach proposed by AU, church decisions would be open to scrutiny as to whether they were doctrinal or not, and the investigators would then need to go into the minds of the decision makers to see whether such decisions were made in good faith and not merely to achieve a favorable outcome for the institution.

As people often say, bad cases often make bad law and the Supreme Court had just such an opportunity to throw away the ministerial exception in this highly sympathetic case and effectively destroy the wall of separation of church and state by allowing the state entry into the inner workings of the church. Fortunately the Court saw the bigger issues involved and made the right decision.

However by ruling the way it did, the Supreme Court protected the right of a religious organization to select its clergy without government interference and avoided placing church doctrine under government interpretation. Civil magistrates will not be in a position where they are forced to determine which religious view, that of the clergy member or the church, is correct.

Church leaders are free to choose ministers who they believe will carry their message forward.

While most religious organizations sincerely strive to provide fair and equitable treatment to all employees, this does not mean that some religious organizations will not abuse the “ministerial exception” to make poor personnel decisions that could lead to costly litigation if they were secular organizations. But organizational decision makes should realize that they will ultimately answer to a Higher Power even if these cases may not be pursued in the civil courts.

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For more information on the ministerial exception and its history, I would recommend the Charleston Law Review article by Todd Cole, “The Ministerial Exception:  Resolving the Conflict between Title VII and the First Amendment.” The article is available online at http://www.charlestonlawreview.org/archive/vol4num4/Cole.pdf

 

 

Campaigning for Candidates from the Pulpit is a Bad Idea

 

The “Johnson Amendment” prohibits most church pastors from making declarations “in support of or in opposition to candidates for public office.” Is this limitation on freedom of speech constitutional?

One thing is clear – the electioneering ban is not rooted in Jeffersonian views of separation of church and state or the First Amendment which are silent on issues involving the interplay between tax-exempt organizations, including churches and charities, and the Internal Revenue Code. Under section 501(c)(3) of that code, churches and other charitable organizations are exempt from income tax and entitled to receive tax-deductible contributions from donors.

Instead, it is based on an agreement that non-profits make with the IRS. In order to obtain 501(c)(3) status, applying organizations must represent that they will not participate in any political campaign on behalf of, or against, any candidate for political office. A contributor to a church that does not sign up for 501(c)(3) status can still deduct those contributions from his or her income but if that contributor is audited, he or she has the burden of establishing that the church meets the qualifications of a section 501(c)(3) organization.

On October 2, 2011, as part of “Freedom Sunday” which is promoted by the Alliance Defense Fund, 539 ministers throughout the United States defied the IRS rule and identified where candidates stood on the issues and “where followers of Jesus Christ should stand.” ADF claims that before 1954 when the Johnson Amendment was passed, preachers could promote candidates from the pulpit and that the effect since then has been to “silence and chill the pastors.”

So far, it does not appear that the IRS has taken action to revoke the 501(c)(3) status of these churches. In fact, such cases are exceedingly rare. The U.S. Supreme Court has yet to address this issue head-on although a lower court, the District Court for the District of Columbia in Branch Ministries v. Rossotti (http://www.irs.gov/pub/irs-utl/branch_ministries.pdf) did find that the IRS could revoke the tax-exempt status of a religious organization that bought and published a newspaper ad in the New York Times and the Washington Post that specifically and clearly argued against a political candidate. The ad said, “Bill Clinton is promoting policies that are in rebellion to God’s laws.” The ad concluded, “How then can we vote for Bill Clinton?” At the bottom, the church was named along with an invitation for readers to make a “tax-deductible donation” to pay for the advertisement.

A church that loses its tax exempt status will operate like any other corporation for purposes of tax liability. They would be able to speak out freely but some contributors may be less inclined to donate if they cannot take the tax deduction.

If 501(c)(3) organizations were suddenly able to engage in partisan politicking, and donors were able to give on a tax-deductible basis, donors could ostensibly deduct currently non-deductible political donations simply by funneling these monies through churches. Churches would not only pass the collection plate for their religious mission, but churches would also be able to use these tax-deductible donations on behalf of particular candidates.

Large churches could bankroll entire political campaigns and receive favorable treatment from those who support them. Politicians could visit with church pastors and lobby them for their campaign support. The lines of mutual respect between church and state could be erased as churches become nothing more than overt political mouthpieces during campaign season.

Because of the tax advantages, it is not inconceivable that churches would become a primary venue for gathering votes as political goals were interwoven with spiritual teachings. A politician who ignored this new reality would be at a distinct disadvantage.

In response, many congregations might, as a matter of policy, refuse to allow the politicking from their pulpits but may perceive that they lose the favor of politicians who receive their support elsewhere.  In churches that permitted politicking, congregants of different political persuasions than their clergy might feel alienated and leave.

As it now stands, churches and charities are welcome to speak truth to power on the issues that matter – from opposing human trafficking, to lobbying for workplace accommodation for religious employees, to pursuing morality and justice. Religious organizations just cannot support or oppose particular candidates or political parties. This is a good thing.

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