Many of you know by now that ADF’s Pulpit Initiative is a legal challenge to the constitutionality of the Johnson Amendment.  I had the pleasure of speaking recently to some West Virginia attorneys at a CLE presentation where I spoke about the U.S. Supreme Court’s recent decision in Citizens United v. FEC and what impact that case may have on the constitutionality of the Johnson Amendment (more to come on that in later posts).  As part of the presentation, I spoke on the history of the Johnson Amendment and how Lyndon Johnson got his amendment to the tax code passed with no legislative analysis, no committee hearings, and no debate.  After the presentation, a professor at a local university told me that in West Virginia, what Johnson did with his amendment to the tax code would have been called a “fat opossum” because it snuck through under cover of darkness.  That’s a perfect tag line for the Johnson Amendment.

James D. Davidson, a professor at Purdue wrote an article in the Review of Religious Research (excerpt here) that should be required reading for all pastors.  In his article, he explores the political realities of the 1954 U.S. Senate election in Texas that led to the adoption of the Johnson Amendment.  After reviewing the legislative and political history of the Johnson Amendment, Davidson concludes:

The ban on electioneering has nothing to do with the First Amendment or Jeffersonian principles of separation of church and state.

Davidson is right.  He details in the article how Johnson was motivated to propose his amendment to the tax code as a means of silencing two powerful secular non-profit organizations (Facts Forum and the Committee for Constitutional Government) that were opposing his candidacy for the U.S. Senate because they believed he was soft on communism.  Davidson states:

The ban on electioneering is not rooted in constitutional provisions for separation of church and state.  It actually goes back to 1954 when Congress was revising the tax code, anti-communism was in full bloom, and elections were taking place in Texas.  In this highly-charged political environment, Lyndon Johnson introduced an amendment banning section 501(c)(3) tax-exempt orgaizations from participating in “any political campaign on behalf of any candidate for public office.”  . . .  Johnson was not trying to address any constitutional issue related to separation of curch and state; and he did not offer the amendment because of anything that churches had done.  Churches were not banned from endorsing candidates because they are religious organizations; they were banned because they have the same tax-exempt status as Facts Forum and the Committee for Constitutional Government, the right-wing organizations that Johnson was really after.

The Johnson Amendment is a big fat opposum.  It was a bill that got inserted into the tax code through back-room deals made by a powerful Senator who wanted to be able to seek reelection at any cost and, in the process, trampling freedom of speech and the free exercise of religion.  We have grown up with a generation of chuch-goers that believe it is illegal for their pastor to address candidates and elections in light of Scripture or church doctrine when there is no valid justification for believing that.

The Johnson Amendment was unconstutional when it was passed and it is unconstitutional now.  It’s high time that we shined the light of the Constitution on this particular fat opposum.

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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.

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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Government shouldn’t try to tell private Christian educators how to teach Christianity.

                In a decidedly unconstitutional turn of events in April of 2009, the state of Wyoming threatened to shut down a small but well-established Bible school because the school’s Bible classes weren’t state approved.  That the First Amendment prohibits government attempts to control religious education wasn’t enough to stop the state’s actions—at least not initially.  

                The school, Frontier School of the Bible, is a purely religious non-profit technical school that was founded over 40 years ago in LaGrange, Wyoming.  The school’s curriculum is solely aimed at preparing its students for Christian ministry, and the few non-Bible classes taught at the school—like English—are provided only because they aid effective teaching and interpretation of the Bible.  The school has over 1,600 alumni, most serving as missionaries, pastors, and youth ministers throughout the world.  Frontier exists for one purpose: preparing Christian leaders to teach others about God.

                But the state of Wyoming believed that the quality of Frontier’s Christian education might not be good enough for government work, so its education department sent the school a letter last April demanding that it either become approved by the state or close its doors.  And approval by the state didn’t present an attractive choice.  One way to become state-approved would have accreditation.  But for a school that didn’t pay salaries to its faculty or staff (instead, they all have to obtain voluntary financial support, much like missionaries do) in order to keep costs low so ministry-oriented students weren’t crushed by debt at graduation, the sky-high costs of accreditation wasn’t feasible.  Plus, other similar non-accredited Bible schools that have sought accreditation report that it often requires jettisoning the purely Bible-based teaching that was the sole reason for Frontier’s existence.

                The school’s second route to state approval was even worse: getting a state license.  But this would require ceasing to discriminate based on religion both in admitting students to the school and in hiring teachers for its Bible classes.  Nothing could be more destructive to school’s Christian identity and purpose than having its Christian curriculum taught by non-Christians to non-Christians.

                Thankfully, after being challenged on the many constitutional infirmities of demand to the school, the state made the right decisions to protect religious liberty, granting Frontier an interim exemption from the state’s regulations while legislators crafted a fix to the statute.  That fix was signed into law just this month.

                But what if Wyoming hadn’t made the right decision?  It would have set the State up as in authority over the Church to determine the content of theological instruction.  And “setting standards for a religious education is a religious exercise for which the State lacks not only authority but also competence.”  HEB Ministries v. Texas Higher Educ. Coordinating Board, 235 S.W.3d 627, 643 (Tex. 2007).  That is, having a bureaucrat determine the content of a quality Christian curriculum is like having your single neighbor tell you how to raise your children: not only does he not have any right to tell you what to do, he doesn’t know what he’s talking about. 

Christian education is too important to be left in the hands of government.