» church and state

Top Legal Issues That Concern Churches – Issue #9 Housing Allowance

Kevin Theriot ADF Senior Counsel — Tue, 15 Nov 2011 20:21:08 +0000

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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USAToday Column Proposes Cleansing Politics of Religion

Kevin Theriot ADF Senior Counsel — Tue, 08 Nov 2011 16:38:24 +0000

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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Bishop Warns Of Government Assault On Religious Freedom

Kevin Theriot ADF Senior Counsel — Tue, 25 Oct 2011 16:22:37 +0000

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.

Appeals Court Rules for Religious Freedom

Kevin Theriot ADF Senior Counsel — Mon, 19 Sep 2011 16:15:28 +0000

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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Top Legal Issues That Concern Churches – Issue #5 Employment Nondiscrimination Act (“ENDA”)

Kevin Theriot ADF Senior Counsel — Fri, 05 Aug 2011 22:59:52 +0000

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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Top Legal Issues That Concern Churches – Issue #2 Property Taxes

Kevin Theriot ADF Senior Counsel — Mon, 13 Jun 2011 18:34:05 +0000

This is the second installment in a series of blogs about the legal issues we at ADF are most often asked to assist pastors and churches with. They are listed in order of importance, with number one being the area where churches are currently seeing the most restriction of their religious freedom. The first blog focused on legal road blocks to church land use. The second most significant legal threat to churches is property tax.

The economic downturn has made many local government officials so desperate they’re attempting to tax churches to make up budget shortfalls. This often takes the form of the denial of property tax exemption for portions of church property. We’re currently representing three different churches on this very issue, one of which is Christ Church in Nashville, Tennessee. The church was denied tax exemption for its gymnasium, coffee shop, and bookstore even though they operate at a loss and clearly support the mission of the church. The matter is currently on appeal and we’ve presented evidence to the court that similar uses by other non-profits like the YMCA and hospital and university bookstores have been ruled tax exempt. To reduce the risk of their property being taxed, churches should ensure that all uses directly relate to the mission of the church and avoid any use that is an income generator for the church. The church should document the religious purpose of such use, and then have such document approved by a governing board of the church.

Check back soon for the #3 issue - Other Taxes.

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Giving Churches the Business

Kevin Theriot ADF Senior Counsel — Wed, 04 May 2011 17:01:17 +0000

If you’ve ever watched “Leave it to Beaver” re-reruns, you know that Beaver, the young star of the show, was always getting hassled by his older brother’s friend, Eddie Haskell. Eddie was the neighborhood smart-mouth. When the abuse became unbearable, the Beaver would say something like this, “Gee Dad, Eddie’s giving me the business again.”

That’s exactly what the Sixth Circuit did to a church’s religious school in the EEOC v. Hosanna-Tabor case last year. It didn’t just give churches the business, it got the government involved in their business when it ruled the school could not fire one of its teachers for threatening to sue them. The teacher was a commissioned minister in the church and tasked with teaching church doctrine to students, not only by leading daily devotions, but also by infusing every subject with a biblical worldview. When she threatened to sue the religious school over an employment dispute, the church revoked her status as a minister and let her go. The church and its school observe the New Testament admonition that Christians should not bring their disputes before secular judges. (As I demonstrated in a recent blog,such suits among believers are not only unbiblical, they are foolish). More details on the Hosanna-Tabor case and a copy of the Sixth Circuit opinion are available here.

Courts have long kept out of employment decisions made by religious organizations regarding their ministers. The doctrine is called the “ministerial exception” and it’s rooted in the idea that a secular court isn’t equipped to review a spiritual decision by a religious organization regarding individuals charged with communicating theology to others. One of the clear reasons for the First Amendment’s Establishment Clause is to keep the government from entangling itself in church affairs. As Professor Carl Esbeck often says, “the government doesn’t establish religion by leaving it alone.” But the Sixth Circuit ignored these well-established principles when it determined that, even though the teacher was tasked with inculcating religious principles into students throughout the day, she also taught secular subjects like history and science. ”Everyone” knows a biblical worldview is not important in these types of subjects, and there are no religious principles to be learned!

The good news is the U.S. Supreme Court has agreed to review the Sixth Circuit’s decision this year. It will be the first time the Court has directly ruled on the ministerial exception, which is widely recognized by lower courts. This will likely have significant ramifications for all churches so please be in prayer for this case. ADF recently became involved in this case at the trial level, and one of our allies, the Beckett Fund, is representing the school before the U.S. Supreme Court. We will continue to work to help the Court come to a decision that protects religious freedom and keeps the government out of the business of churches.

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No April Fool’s Day for Religious Freedom

Kevin Theriot ADF Senior Counsel — Fri, 08 Apr 2011 16:28:22 +0000

April 1 wasn’t a Fool’s Day for religious freedom in Kentucky. In Nelson v. Baker, the Court of Appeals soundly rejected a claim by former members of First Baptist Church of Jeffersontown, Kentucky who sued for the right to access the church’s financial information. It is foolish for believers to sue one another despite the Bible’s clear admonition not to in I Cor. 6:7. But that’s a different, more fundamental, matter I’ll get to in a second.

The good news is the court wasn’t fooled by an attempt to characterize access to church financial information as a completely secular matter. Courts have long held that the First Amendment protects churches from interference from government officials in the areas of doctrine, membership, policy, and interaction with its pastors. You can find a detailed analysis of this area of the law - often referred to as “Church Autonomy” – on our resource page in a document titled Church Autonomy White Paper – Protecting Churches From Government Interference.

The Kentucky Court of Appeals rightly applied this law and found that determining who gets access to financial documents is one of the things churches can decide for themselves. It held: ”The Church’s financial records and method of presentation to the congregation are clearly matters of internal governance and organization, and are, therefore, not subject to interference by the court.” The court’s refusal to encroach upon church autonomy is a reminder that the best way for the government to avoid establishing a religion in violation of the First Amendment is to leave churches alone.

The court’s decision also reminds us that church members should stop foolishly attempting to drag courts into the realm of religion by filing lawsuits against their own church body. The Apostle Paul wisely advised in I Cor. 6:1-6, “If any of you has a dispute with another, dare he take it before the ungodly for judgment instead of before the saints? …[I]f you have disputes about such matters, appoint as judges even men of little account in the church! I say this to shame you. Is it possible that there is nobody among you wise enough to judge a dispute between believers? But instead, one brother goes to law against another – and this in front of unbelievers!”

Lawsuits like this make the whole Body of Christ look foolish.

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Do We Have Enough Religion?

Kevin Theriot ADF Senior Counsel — Tue, 08 Feb 2011 15:12:35 +0000

A recent Gallup Poll concludes that most in America are satisfied with the current state of religion’s influence in society. This wouldn’t be a big deal if we were trending toward higher moral values as a country. But anyone who watches television or pays attention to the news knows that’s not the case. We are inundated on a weekly basis with news of the immorality of our political leaders, entertainment, and society as a whole. And it’s not just anecdotal evidence. Statistics show white collar crime is on the rise. For instance, a 2009 FBI report found that securities fraud increased 33% in the previous five years, and that corporate fraud goes up in time of financial crisis. This shows our morality is based upon convenience. If money gets tight, our ethics as a nation go out the window, demonstrating they weren’t held with much conviction in the first place.

Our founders recognized that people must have sound religious convictions in order to fulfill their obligations as citizens. As George Washington said in his Farewell Address,“Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports.”

So how can it be that people are currently satisfied with religion’s influence on our morally decadent society? At least part of the answer is the common misconception that religion must be divorced from politics. I’m not saying that political institutions should be able to coerce religious devotion (or attempt to). But churches must teach biblical morality, even on issues that have become political. What’s happening is politics is invading the realm of the church on moral issues, and the church is simply giving ground. That’s a recipe for moral bankruptcy and eventual anarchy in a country that is meant to be governed by the people and for the people.

James Garlow, Senior Pastor of Skyline Church in La Mesa, California, recently observed in an interview: “Pastors who shy away from being ‘political’ – and that is the way it is phrased – develop a casuistry for being silent. …The clergy of years past have thundered truth from the pulpits. Too many pastors are afraid to speak out for those being killed in the womb, or afraid to speak out for something as basic as ‘one man-one woman’ marriage because someone will accuse them of ‘hate-mongering’ or being ‘intolerant.’”

We are doing our best at ADF to make sure church’s have the legal protection they need to fulfill their role as our nation’s moral compass without fear. In fact, we’ve dedicated several attorneys to protecting the church whenever her ability to spread the Gospel is attacked. Go ahead and be bold - we are here to legally assist you if there comes a time when you need it. Contact us at the ADF Church Project if you have any questions, or are in need of legal assistance.

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Church Can Work With County to Provide Affordable Housing

Kevin Theriot ADF Senior Counsel — Wed, 12 Jan 2011 15:26:04 +0000

Just before Christmas, the Fourth Circuit Court of Appeals rejected a claim that Arlington County Virginia violated the Establishment Clause when it worked with a church to develop a building that contained both a church and affordable housing. A link to the court’s opinion in Glassman v. Arlington County can be found here.

First Baptist Church of Clarendon, Virginia had a problem – it needed a new church building and it wanted to provide affordable housing for people in an urban area of Arlington County. The church agreed to raze its existing place of worship, and in its place erect a building that contained church facilities on the first two floors, and apartments on the upper eight floors. The church financed the construction of its portion of the building, and Arlington County and the federal government financed the construction of the apartments. This was a win-win situation for everyone except for a local resident who opposed the project, Peter Glassman.

Mr. Glassman argued that the government cannot work with a church – even if they have mutual goals. And he was particularly concerned that the church and the apartment residents would both share the same lobby and elevator. Even worse, the tenants of the affordable housing would actually be exposed to a church steeple!

The Court of Appeals rejected all these arguments out of hand. Citing well-established Supreme Court precedent (Agostini v. Felton), it properly observed that the Establishment Clause “does not prohibit all interaction between church and state. To the contrary, interaction between church and state is inevitable, and we have always tolerated some level of involvement between the two.”

The court concluded that this was a “legitimate joint effort of the Church and the County to bring about the development of a real estate project, in which the Church funds construction of the portions to be used for sectarian purposes and the County funds construction of the portions to be used for the secular purpose of providing affordable housing.”

The Establishment Clause was meant to prohibit the government from establishing a church as the state religion, not keep churches from working with the government to help provide people with affordable housing.

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