The long standing tax provision that permits churches to provide pastors with a non-taxable housing allowance was recently challenged in the case Freedom from Religion Foundation v. Geitner in a California federal court. The radical group that filed the lawsuit voluntarily dismissed it after the Supreme Court handed down its decision in ACSTO v. Winn  – an ADF case that severely restricts the ability of anti-religious organizations to challenge government programs that acknowledge the autonomy of religious organizations and the benefits they provide our communities.

But the atheist organization filed another lawsuit challenging the housing allowance in the federal court in Wisconsin on September 17, 2011. We at the ADF Church Project are monitoring that case closely and will move to intervene if the Department of Justice does not vigorously defend this important acknowledgment of the value of churches and pastors. Critics of the housing allowance ignore the unique benefits that churches provide communities. For instance, a Baylor University study found that kids attending church in low income neighborhoods have a better chance of staying in school and succeeding academically.  Another study concludes that “Churches and religious groups offer a vast array of services to their local communities …that sometimes are not being provided elsewhere, such as [a]fter-school programs, refugee resettlement, homeless shelters, [and] food banks….”

ADF has church clients that spend all their money on programs and do not even pay their pastors a salary. The only way the pastor of these  small congregations can afford to minister at the church is by taking advantage the housing allowance. Striking it down would not only be a blow to these pastors, but to our communities at large because it will reduce the ability of churches to continue to help the poor and disadvantaged in ways no one else is doing.

Churches can continue to provide  pastors with non-taxable housing allowances, but they should watch for updates on this case that attempts to limit the effectiveness of churches in our country.

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A recent column in USAToday titled “5 rules for faith and politics 2012” proposes rules the authors say would avoid both theocracy and hostility toward religion. But all they succeed in doing is marginalizing people of faith who have the audacity to think their most cherished beliefs about God and morality should affect all aspects of their lives - including how they vote. A review of their “5 rules” indicates what the authors really want is for people of faith to keep their religious convictions to themselves. Their fear of a theocracy is completely unfounded.  Virtually all of the Founding Fathers had a political philosophy that reflected their Christian beliefs and nobody would argue they set up a government that established a theocracy. I suspect what the authors are really afraid of is people of faith waking up to the fact that we must have moral, God honoring leaders if we expect to have a moral, God honoring country.  Their proposed rules attempt to shame religious voters into closing their eyes to a candidate’s moral convictions (or lack thereof).  Moreover, they ask people of faith and their churches to sacrifice the religious freedom that is the foundation of our country.

Their first rule advocates that the wise constitutional provision prohibiting the government from imposing a religious test for office  should apply to individuals also.  They say, “Voters should evaluate candidates based on their policies, their values and their character but not on whether or how they choose to worship.”  Of course, one’s values and character are heavily influenced by religious beliefs.  Not to consider them would be foolhardy.  And I highly doubt the authors themselves would vote for someone whose religious beliefs include child sacrifice (which recent tragic reports demonstrate is not merely an implausible hypothetical).

The next rule would prohibit the Catholic Church from denying communion to politicians who fail to abide by and uphold the Church’s beliefs.  The authors think churches should not hold their members accountable when members act in a way that is contrary to what they say they believe. This effectively encourages hypocrisy. Under this rule, politicians can say they believe abortion is murder on Sunday but vote to allow it (and force all taxpayers to pay for it) on Monday – and their church is absolutely prohibited from taking any action to correct them.  This asks churches to forfeit a long established right to govern themselves and their members without governmental interference.

“Candidates should refrain from citing religion as the exclusive authority for their position on issues,” is the authors’ next proposal and it also restricts religious freedom.   The rule is really just a restatement of part of the Supreme Court’s Establishment Clause Lemon Test which requires all government actions to have a secular purpose.  Putting aside whether Lemon is a good test or not, it only applies to the government, not a candidate.  Obviously, if they are elected to office, candidates will want to be able to articulate reasons for their policies that aren’t necessarily based on religious conviction in order to persuade their colleagues that don’t share those convictions.  But when a candidate is running for office, there’s absolutely nothing wrong with saying something like, “my deeply held religious beliefs prohibit me from voting for laws imposing the death penalty.”  This creates no constitutional crisis and many voters are interested in what’s underlying a candidate’s views on a particular issue.

The fourth proposed rule, as explained by the authors, appears to be relatively benign.  As I understand it, they believe politicians should avoid alienating anyone who does not share their religious beliefs, but they should be free to express their personal religious beliefs.  They use former President George W. Bush’s reference to Christ as being the most influential political philosopher in his life as being acceptable.  To the extent the authors are saying they think it’s smart for politicians to avoid offending people of different faiths, that makes sense.  But the idea that this can be accomplished by not using references to God, and instead saying “the Creator,” “the Almighty,” or “Divine Providence” is naive.  These terms may offend any number of groups, including atheists and polytheists.

The final proposed rule is fraught with danger and inaccuracy. It reflects the current law (the “Johnson Amendment”) which prohibits pastors from preaching to their congregations about how a candidate’s platform lines up with scripture. The authors claim this law is necessary to avoid election fraud.  But pastors who preach sermons and apply Scripture to political candidates are not making an “end-run” around campaign finance laws.  They are exercising their right to freedom of religion.  The tax code restrictions that prevent churches and pastors from specifically discussing how their faith applies to a particular election and the candidates in that election trample the First Amendment.  (Click here for an excellent article by my colleague Erik Stanley summarizing the constitutional problems with the Johnson Amendment).  Other tax-exempt organizations, such as veterans’ groups, are allowed to endorse or oppose candidates and remain tax-exempt while giving their donors a deduction for contributions.  Why single out churches and religious organizations for discriminatory treatment?Further, whether such endorsements or oppositions are “deeply problematic from a religious perspective” is a great question for churches to debate but not for the government to mandate. Those who believe their faith requires that they apply Scripture and its teachings to specific candidates and elections are prohibited from doing so by the Johnson Amendment.  The government, in effect, has mandated a winner in what is a quintessential theological debate:  namely whether churches should apply Scripture in a way that opposes or endorses a candidate.  The Johnson Amendment allows government to act as a type of “orthodoxy police” to enforce its own view of how religion should apply to candidates and elections. That is not only offensive from a religious perspective, it is blatantly unconstitutional.

Professor Carl Esbeck is fond of saying, “The government does not establish religion by leaving it alone.”  But the authors’ “5 rules for faith and politics” have the opposite effect.  For the most part, they meddle in the religious affairs of churches and individuals, requiring them to check those beliefs at the door whenever the realm of politics is entered.  This misguided attempt to “cleanse” politics of religion is a bad idea because it tramples religious freedom, and would make politics a completely secular, amoral undertaking.  God knows it’s bad enough already!

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The United States Conference of Catholic Bishops is rightly concerned that religious freedom as we’ve known it in this country for hundreds of years is increasingly under assault – by our own government!  In an open letter to his fellow bishops, Bishop Dolan, President of the United State Conference of Catholic Bishops lists numerous examples of government laws, policies, and regulations that have been propounded without any regard for the religious liberty upon which they are trampling.  He notes that the Department of Health and Human Services has recently required religious organizations to provide a broad range of reproductive services (such as abortion) to employees and/or the people being served by the ministry – many of which are in clear violation of the religious teachings of Roman Catholics as well as many Protestant denominations. The Department of Justice has refused to defend laws protecting marriage, and recently argued before the Supreme Court in the EEOC v. Hosanna-Tabor case that the Free Exercise Clause of the First Amendment doesn’t provide any special protection for churches from governmental interference with their decisions to hire ministers.

All church leaders should heed Bishop Dolan’s call for vigilance and action. If we tolerate these intrusions on church freedom and independence from governmental control, we are setting ourselves up for eventual loss of the freedom to worship and live our lives as the Bible dictates.  If your church’s ministry is being restricted in any way, or government officials are requiring your church to govern itself in a manner that violates its religious principles, contact the Alliance Defense Fund at TellAdf.org right away.  We have over 30 attorneys on staff and a department specifically dedicated to defending the Church’s right to hear and speak the Truth on a pro bono basis. We also have over 2,000 allies that have committed to provide legal services to churches free of charge. Please contact us if your church is experiencing the assault Bishop Dolan has clearly identified. We will stand with you to make sure these attacks on religious freedom are not successful.

I’ve reported several times on a case in Maryland where a nurse at a Catholic nursing home sued her employer because it required her to dress in a way that conforms to Catholic teaching.  Last September the Fourth Circuit Court of Appeals agreed to hear this case, which is referred to as Kennedy v. Villa St. Catherine.  The federal appellate court took the case early in the litigation process because the trial court’s ruling resulted in the ironic determination that St. Catherine’s could have fired Ms. Kennedy for not being Catholic, but could not first ask her to simply conform her dress to Catholic teaching in an attempt to save her job. This created a huge loophole in the broad exception Congress made to Title VII that allows religious organizations the freedom to employ only those individuals that believe and act in accordance with the ministry’s teachings.

The great news is the Fourth Circuit issued an order on September 14, 2011 which affirms that St. Catherine and other ministries have the right to employ only those who agree with their religious teachings and apply them to their daily lives.  The Court said a contrary result would be “nonsensical,” reasoning that ”Kennedy admits that St. Catherine could fire her for her religion without any recourse. But, by first asking if she would consider changing her clothing before terminating her—i.e., by giving her the opportunity to keep her job—St. Catherine would suddenly open itself up to the strictures of Title VII. Such an approach cannot be squared with Congress’ desire in the first instance to permit a cooperative, accommodative approach to workplace discrimination.”

This is a fantastic result for religious freedom and church autonomy - the right of churches to operate without interference from the government.

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This bill is currently pending before Congress and could have a detrimental effect on the ability of churches to only hire individuals  that agree with their religious beliefs and live their lives accordingly.  If passed, ENDA would add “sexual orientation” to the list of characteristics upon which an employer cannot discriminate.  This is unlikely to have much direct effect on churches because Title VII allows religious organizations to discriminate on the basis of religion.  See Page 12 of our resource, Business With Conviction: Employer Religious Beliefs. But it could affect them indirectly if they have separate ministries such as schools or day care facilities that are not expressly religious and all employees are not required to subscribe to church doctrine.  A good summary of the potential implications of ENDA for churches written by Richard Hammar can be accessed here.  Well-crafted bylaws and employee handbooks will go a long way toward helping a church defend its ministries against this law, should it pass. Suggestions of what these documents should include can be found in our legal resource, “Job Descriptions & Religious Grounds for Limiting Employment” at speakupmovement.org/church.

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