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At ADF, our clients – especially pastors and churches – often question whether it is biblical for Christians to sue the government to protect their constitutional rights. This question stems from passages like Romans 13:1-7, which commands us to “submit [our]selves to the governing authorities,” because those authorities are established by God. Would a lawsuit against the government violate this command?

Perhaps the best way of answering this is to consider who the “government authorities” are. Our system of government features a series of authorities at different levels (e.g. local, state, and federal) and of different types (e.g. executive, legislative, and judicial). Yet one authority in our system stands above all others: the United States Constitution. By using the judicial system to insist that government officials follow the Constitution, a church is not resisting authority. It is simply using the established system of government to appeal to a higher authority.

Apostle Paul, the author of Romans, frequently appealed to higher authorities to protect his rights. For example, he invoked his Roman citizenship and Roman law to force magistrates to personally release him from a Philippi prison after he had been beaten illegally (Acts 16:16-40).  He later invoked his Roman citizenship in Jerusalem to prevent a centurion from flogging him (Acts 22:22-29). Then he defended himself against charges in a Roman court and ultimately appealed to Caesar (Acts 24:10-25:12). Clearly, Paul had no trouble appealing to higher authorities when government officials overstepped their bounds or did not do justice.

So invoking a higher authority is not the same as resisting authority. A lawsuit is neither revolution nor rebellion. It is simply a way to insist that government officials obey a higher legal authority. And by doing so, it helps uphold the rule of law, preserves our Constitution, and ensures that we all can continue to enjoy our first liberty – religious freedom.

If you’re interested in exploring these issues in more depth, ADF attorney Travis Barham has written an excellent essay that I recommend to any Christians who are faced with the possibility of going to court to protect their constitutional rights.

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ADF Legal Counsel - Church Project

Silly question, right? Not to one California church, who was barred from using a public library meeting room, even though the room was open to all other private community groups. The County Librarian even acknowledged that groups like the Ku Klux Klan were free to use the facility. But church services were forbidden.

It may be tempting to dismiss this as one isolated incident. But the sad reality is that these types of policies are prevalent around the country. ADF has successfully represented dozens of churches in similar cases. And we have uncovered hundreds of community centers, libraries, schools, and other public facilities around the country that rent to community groups, but blatantly discriminate against religious groups by refusing to rent to them or by charging them higher rental rates.

These policies make no sense. After all, social science bears out what many of us see as self-evident: churches offer valuable contributions to the community such as social services, education, increased volunteering, and reduced crime. (An Ethics & Religious Liberty Commission’s paper concisely summarizes many of these studies.) And, especially in this time of economic uncertainty, local governments would surely benefit from the additional revenue it would receive by renting otherwise unused facilities to churches.

So why is there so much hostility toward churches? Public officials often seem to have a Pavlovian-like reaction against anything religious, claiming that the so-called “separation of church and state” prevents churches from ever stepping foot in a public facility. But that’s not what the Constitution actually says. In fact, since 1981, the U.S. Supreme Court has ruled in four different cases that the First Amendment gives religious groups the right to have equal access to a public forum that other community groups are allowed to use.

Fortunately for the California church, a federal court recognized this precedent and struck down the library policy as unconstitutional, opening the door for churches to have equal access to its meeting rooms. But it took five years of litigation to get there. Other cases have taken much longer. A school district in New York, for example, has been in court for 15 years doggedly fighting to keep churches from meeting in vacant school buildings on weekends.

ADF, who represents both churches, will continue to stand up for the time-honored principle that the First Amendment protects the right of all religious groups to equal access.


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To learn about your church’s right to meet in public facilities, read Equal Access FAQ.

To understand what’s at stake, download this important summary. Learn what’s at risk and how you can specifically pray for equal access rights for churches.


ADF Legal Counsel - Church Project

Recently, the Roman Catholic Church has come under fire after two of its schools, one in Massachusetts and one in Colorado, declined to enroll students who have same-sex parents. Not surprisingly, these decisions created a firestorm of public criticism and outrage, raising questions about whether churches should have the right to make these types of enrollment decisions.

A similar situation arose in California not too long ago. A Lutheran high school in California was the target of a lawsuit by two former students who were expelled for violating the school’s Christian Conduct policy. The policy prohibited students from engaging in immoral or scandalous conduct, including homosexual behavior, which these two students engaged in. The lawsuit alleged that the school violated California law by discriminating against the students based on their sexual orientation.

Most of the time, non-discrimination laws serve worthy goals that help strengthen our religious freedom. But they can be misused and overextended, especially when religious organizations are involved. When that happens, these laws are put on a collision course with religious freedom. And far too often, it’s religious freedom that is sacrificed for the sake of political correctness.

These situations are perfect examples. One of the most basic and fundamental principles of the First Amendment is that churches should remain autonomous and not have the government interfering with their internal affairs. But churches lose that freedom when the government imposes non-discrimination laws that intrude into religious matters, like operating a private school.

After all, the mission of a church-run school is not just to provide a good education, but to inculcate students with a particular set of values and beliefs. So it’s essential that we give churches wide latitude in deciding how to implement their educational system, including its enrollment criteria, to best carry out that mission.

Archbishop Charles Chaput of Denver, in defending the Colorado school’s enrollment policy, put it this way: “The main purpose of Catholic schools is religious; in other words, to form students in Catholic faith, Catholic morality and Catholic social values. … Our schools are meant to be ‘partners in faith’ with parents. If parents don’t respect the beliefs of the Church, or live in a manner that openly rejects those beliefs, then partnering with those parents becomes very difficult, if not impossible.”

By God’s grace, the Lutheran school in California ultimately prevailed in its lawsuit. ADF and the Christian Legal Society filed briefs in that case supporting the school on behalf of over 830 private religious schools throughout California who would have all been affected by a bad ruling in the case. And we will continue to fight to ensure that churches keep the right to set their policies based on religious conviction, not government mandate.

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ADF Legal Counsel - Church Project

Justice John Paul Stevens recently announced his retirement from the U.S. Supreme Court after serving on the Court for 34 years. Stevens, who turned 90 in April, is a World War II veteran—the only veteran currently on the Court—and by all accounts is a truly warm and gracious man. Appointed by President Ford in 1975, Justice Stevens is known for his collegial nature and his respectful demeanor from the bench, along with his preference for bow ties (it’s hard to picture him without one) and his love for the game of tennis (even at 90, he still reportedly plays on a routine basis).

But, above all else, he will be remembered as the intellectual leader of the Court’s left wing. And in that role, he was consistently a staunch advocate for erecting a “high and impregnable wall between church and state” and has issued numerous opinions that have diminished our religious freedoms.

He repeatedly voted against any public recognition of religion. He wrote dissenting opinions in Van Orden v. Perry and County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, which upheld the constitutionality of certain religious displays on public property. Van Orden considered a Ten Commandments display, while County of Allegheny considered a display that included a nativity scene and a menorah. In Justice Stevens’ view, the First Amendment creates “a strong presumption against the display of religious symbols on public property.” He also dissented in Marsh v. Chambers, which upheld the 200 year old practice of opening sessions of Congress in prayer.

His views were particularly strong in the area of religion and schools. Justice Stevens was the lone dissenter in Westside Community Schools v. Mergens, which upheld the constitutionality of a federal statute that protected the right of public secondary students to form religious student groups on campus.  He wrote the decision in Santa Fe Independent School District v. Doe, striking down the practice of student-led, student-initiated prayer before football games at a Texas high school. And he wrote the decision in Wallace v. Jaffee, striking down an Alabama law that authorized a daily period of silence in public schools for meditation or voluntary prayer. And in Zelman v. Simmons-Harris, he voted to strike down an Ohio school voucher program that parents could use to send their children to private schools, including religious ones.

Perhaps most significantly, however, was Justice Stevens’ deciding vote in Employment Division v. Smith, which concluded that the Free Exercise Clause does not protect against government regulations that are neutral toward religion and are generally applicable—even if the regulations substantially burden religious exercise. Commentators have described this case as a “constitutional bombshell that blew apart the Free Exercise Clause and gutted it of any meaningful protections.”

The last religious freedom case that Justice Stevens will help decide is Christian Legal Society v. Martinez. In that case, ADF attorneys represent a Christian student group that is challenging a public law school’s refusal to recognize simply because it requires its leaders and voting members to share its Christian beliefs. As I discussed in a previous post, this case could have significant ramifications for Christian student groups and churches around the country.

These cases reveal how crucially important Supreme Court nominees are. Please be praying that President Obama will select a replacement for Justice Stevens who will be a strong advocate for our first liberty—religious freedom.

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ADF Legal Counsel - Church Project

Michael Newdow has made quite a name for himself trying to eradicate any mention of God in the public square. He’s brought–and lost–lawsuits challenging the phrases “Under God” in the Pledge of Allegiance (three times), “In God We Trust” on our currency, and “So Help Me God” in the President’s inaugural oath.

Now he is going after pastors and the IRS.

Newdow, along with the Freedom From Religion Foundation, has filed a federal lawsuit challenging the constitutionality of Sections 107 and 265(a)(6) of the Revenue Code, claiming that they violate the Establishment Clause of the First Amendment.

Section 107 allows churches to provide pastors with housing (or a housing allowance) without requiring the pastor to pay additional federal income tax. Section 265(a)(6) allows pastors to deduct home mortgage interest payments and property tax payments from their taxable income–deductions given to all taxpayers. Newdow is also challenging the parallel state tax code provisions.

Such exemptions have been common throughout American history. Congress has always understood the First Amendment to authorize property tax exemption for religious groups. And it was natural for this exemption to extend to parsonages, or church-provided housing. A parsonage has generally been viewed as more than just a pastor’s residence; it is an extension of the church. So it’s no surprise that shortly after the modern federal income tax was established, a federal income tax exemption for parsonages appeared in the Revenue Code. That exemption has now been in place for almost 90 years.

If this exemption is eliminated, as Newdow wants, the financial consequences for churches and pastors would be significant. One past congressional estimate concluded that American clergy would see their taxes increase by $2.3 billion over a five-year period.

Is Newdow’s lawsuit likely to be successful? It’s doubtful. In a 1970 case, Walz v. Tax Commission, the U.S. Supreme Court rejected an Establishment Clause challenge to a New York law granting property tax exemption to religious organizations. It concluded that there “is no genuine nexus between tax exemption and establishment of religion” because the exemption “restricts the fiscal relationship between church and state,” and eliminating it would expand governmental involvement in churches–which the First Amendment is designed to protect churches against. The same reasoning applies equally to this case. So Walz should dictate its outcome.

Further weakening Newdow’s claim is the fact that pastors are not the only ones who receive these types of tax benefits. Employees who receive housing from non-religious employers get similar tax benefits under Section 119 of the Internal Code. So Section 107 simply puts pastors on the same footing. And, as mentioned above, Section 265(a)(6) merely ensures that pastors get to deduct their home mortgage interest and property tax payments from their taxable income the same way that most other taxpayers do.

In short, courts have consistently rebuffed Newdow’s efforts at eradicating religion from the public square, and I expect this case to be no different.

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ADF Legal Counsel - Church Project

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