Religious Liberty in America

by David Adams

The recent seizure of the property of Indianapolis Baptist Temple by agents of the Internal Revenue Service has re-energized the debate on the status of religious liberty in the United States. In reflecting on these issues, Christians need to distinguish the theological and religious issues from the legal issues.

The Legal Issues

What does the Constitution say?

"Congress shall make no law establishing religion, or prohibit the free exercise thereof."
 The First Amendment to the Constitution of the United States.

What does this mean?

Constitutional experts speak of two distinct parts of the religion clauses of the First Amendment. The first clause, " Congress shall make no law establishing religion" is known as the Establishment Clause. The second part "[Congress shall make no law] ... prohibit[ing] the free exercise thereof [i.e. of religion]," is known as the Free Exercise Clause.

How is the Establishment Clause understood?

Originally the Establishment Clause applied only the federal government. It prevented the federal government from creating an official state church. At the time of the adoption of the U. S. Constitution several states officially preferred one religious group over others. The first Amendment was not understood to interfere with the right of a state or municipality to endorse officially or support financially a religious faith. With the passage of the 14th Amendment the First Amendment came to be applied to the states as well, preventing any government entity from showing preference for one religious group over others. This was affirmed by the U. S. Supreme Court in Everson v. Board of Education (1947). 

As suggested above, the original purpose of the establishment clause was to protect minority religious groups from the pressure of the majority to accept religious views contrary to their conscience. The First Amendment was not originally understood to create a "wall of separation" between the state and the churches. That phrase comes from a letter that President Thomas Jefferson (who was not in any case the primary author of the First Amendment) wrote to the Danbury (Conn.) Baptists in 1802 to explain why he was not going to declare a national day of prayer. Until very recently the First Amendment has never been understood to require a governmental preference for non-religion over religion.

How is the Free-Exercise Clause understood?

The interpretation of the Free Exercise Clause has always been more contentious than that of the Establishment Clause. The chief question has been, and remains, the extent to which religious believers are free from the constraints that the law would otherwise impose upon other citizens. In brief, the Free Exercise Clause has never been understood to grant an unqualified or absolute right to religious practice. The following key Supreme Court cases are among those that have helped establish the current jurisprudence.

Reynolds v. U.S. (1879)

In this case the Court evaluated the question of whether the First Amendment excused Mormons, whose religion required polygamy, from obedience to American laws prohibiting the practice. The court held:

Laws are made for the government of actions, and while they cannot interfere
with mere religious belief and opinions, they may with practices.... Can a man 
excuse his practices to the contrary because of his religious belief? To permit this 
would be to make the professed doctrines of religious belief superior to the law
of the land, and in effect to permit every citizen to become a law unto himself.

Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The
mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge.

United States v. Lee (1982) 

In a more recent case, the Court considered whether the Amish could claim an exemption from Social Security tax laws on religious grounds. The Court held that they could not:

The tax system could not function if denominations were allowed to challenge
the tax system because tax payments were spent in a manner that violates
their religious belief.

Evaluating First Amendment religion cases

The courts have long struggled with the question of how to use the First Amendment to evaluate the constitutionality of laws that may affect religious practice. The current standard was developed in a case known as Lemon v. Kurtzman (1971), and is known as the "Lemon Test." Under the Lemon Test, the constitutionality of a law is determined by evaluating it in the light of three questions:

1.  Does the law have a clear secular intent? The courts recognize that some laws that exist for purely secular reasons may have an impact upon religious practice. A law that specifically targets religious practice would be unconstitutional, but a law that exists for as secular purpose may be constitutional even if it impinges upon the free exercise of religion. For example, a law against making idols and bowing down to them would be unconstitutional because it serves not secular purpose; it is clearly targeted at a specific religious practice and nothing else. However, a law that banned drug use because of the threat of drugs to society in general would be constitutional even if it that law hindered the practice of some American Indian religions that use peyote in their religious ceremonies. 

2.  Does the law have the primary effect of advancing or hindering religion? Like the first question, this question is aimed at determining the main purpose of the law. Laws that exist primarily for a legitimate secular purpose are held to be constitutional even if they have the secondary effect of advancing or hindering religion. Laws that have as their primary purpose the advancement or hindrance of religion are unconstitutional. The example given above would fail both the first and second parts of the Lemon Test. 

3.  Does the law create excessive entanglement in religious affairs? Again, the courts understand that many laws bring the church and the state into contact. Not all contact, however, is prohibited by the First Amendment (hence the fallacy of the "wall of separation" argument). A law that causes the government to become excessively involved in religious affairs would be held to be unconstitutional. A law that creates only a small degree of government interference would be held to be constitutional. For example, courts generally decline to become involved in cases that have to do with the hiring or dismissal of clergy on the grounds that for the government to decide what is or is not wrongful dismissal of a clergyman would involve the government excessively in church affairs. The problem, as always in such cases, is for the courts to determine what constitutes an "excessive" degree of entanglement. 

And He said to them, "Render therefore to Caesar the things that are Caesar's, and to God the things that are God's."
Matt. 22:21, Mk.12:17, Lk. 20:25

In the context of a question about the paying of taxes, Jesus instructs his disciples to fulfill the obligations of citizenship. While these obligations differ from country to country and from age to age, the principle is clear: Christians are called to live within the societies to which God sends them, and not to withdraw from those societies. The Christian engagement with the society includes fulfilling whatever obligations of citizenship apply in our circumstances.

Let every person be subject to the governing authorities; for
there is no authority except from God, and those authorities
that exist have been instituted by God. Therefore whoever
resists authority resists what God has appointed, and those
who resist will incur judgment. For rulers are not a terror to
good conduct, but to bad. 

Do you wish to have no fear of the authority? Then do what is
good, and you will receive its approval; for it is God's servant
for your good. But if you do what is wrong, you should be
afraid, for the authority does not bear the sword in vain! It is
the servant of God to execute wrath on the wrongdoer.
Therefore one must be subject, not only because of wrath but
also because of conscience.

For the same reason you also pay taxes, for the authorities are
God's servants, busy with this very thing. Pay to all what is
due them -- taxes to whom taxes are due, revenue to whom
revenue is due, respect to whom respect is due, honor to
whom honor is due. 
Rom.13:1-7

Here God teaches the church that the civil authorities are not the enemies of God's kingdom, but rather they are servants of God. As such they must be supported, respected, and obeyed. In our age many Christians are inclined to view the government as an enemy of the church. This is not a godly attitude! The words of St. Paul, "Therefore whoever resists authority resists what God has appointed, and those who resist will incur judgment," should serve as a sober reminder to Christians not to engage anti-governmental activities lightly.

Live such good lives among the pagans that, though they
accuse you of doing wrong, they may see your good deeds
and glorify God on the day he visits us. Submit yourselves for
the Lord's sake to every authority instituted among men:
whether to the king, as the supreme authority, or to governors,
who are sent by him to punish those who do wrong and to
commend those who do right. For it is God's will that by
doing good you should silence the ignorant talk of foolish men.
Live as free men, but do not use your freedom as a cover-up
for evil; live as servants of God. Show proper respect to
everyone: Love the brotherhood of believers, fear God, honor
the king. Slaves, submit yourselves to your masters with all
respect, not only to those who are good and considerate, but
also to those who are harsh. 
I Pet. 2:11-18

Speaking through St. Peter, God reminds us that our attitude toward civil society is directly connected to our mission to proclaim the Gospel. We submit ourselves to civil authority not out of fear, but "for the Lord's sake." Just as slaves are called to submit even to harsh and cruel masters as well as to good and decent ones, so Christians must remember that we are called to submit even to an unjust government that may be hostile to Christ and the church for the sake of the Gospel.

And when they had brought them, they set them before the
council. And the high priest asked them, saying, "Did we not
strictly command you not to teach in this name? And look,
you have filled Jerusalem with your doctrine, and intend to
bring this Man's blood on us'' But Peter and the other apostles
answered and said: "We ought to obey God rather than men.
Acts5:27-29

In this passage God gives us one and only one cause to disobey the government: when the government attempts to compel us to disobey God's Word and deny Christ and the Gospel. In such circumstances Christians are required to engage in civil disobedience and to bear with patient endurance whatever punishment the civil authorities may hand out.

This is not to say that Christian citizens, acting as citizens, may not oppose other government actions. Citizens may legitimately work within the system of government to bring about change. Christians, acting in the name of Christ, may not engage in acts of civil disobedience for reasons other than obeying God rather than man.

Indianapolis Baptist Temple and the Threat to Religious Liberty in America

Some Christians have suggested that the treatment of Indianapolis Baptist Temple (IBT) by the government amounts to a form of persecution. This claim ignores the facts that IBT initiated the situation by attempting to avoid paying the legitimate social security tax required by the government for the benefit of its employees. Religious groups have three options in their operations. First, they can operate informally, like home Bible study groups, without owning property or retaining the services of employees. In such a case they are not required to register with any governmental entity. Second, they may operate under section 501(c)(3) of the IRS Code, which grants churches and other non-profit organizations exemption from certain tax requirements. Acceptance of this status places some restrictions on what non-profit organizations, including churches, may do in the political arena and imposes limited reporting requirements upon them. Finally, churches may register as any other for-profit business under the laws of the various states. This gives them complete freedom of activity in the political arena but requires they churches pay tax upon their income, which is also not tax-deductible for the members. In the case of IBT, the church claimed to be the first of these while continuing to engage in standard business practices such as owning property and hiring employees which are inconsistent with that claim.

One of the most troubling aspects of the recent Indianapolis Baptist Temple affair is the way in which it has distracted the church's attention from far larger threats to religious liberty. In the case Employment Division v. Smith (1990) the U. S. Supreme Court interpreted the First Amendment in such a way as to make it much easier for the government to restrict religious practice. Responding to widespread concerns raised by Smith, the Congress passed the Religious Freedom Restoration Act (RFRA) to restrict the power of government to impinge upon the free exercise of religion. RFRA was subsequently struck down by the High Court in a case known as Boerne v. Flores (1997). The result of these cases has been to make it virtually impossible for people of faith to win a free exercise case in the courts. It has left them open to all but the most direct attacks upon religious practices.

More recently, in Santa Fe Independent School District v. Doe (2000) the Court moved significantly in the direction of interpreting the First Amendment to prohibit any governmental action that would have even the indirect effect of promoting religion in general. In this case the Court declared unconstitutional not the preference of the government for one faith over another, i.e. the establishment of a state-endorsed religion, but rather any action on the part of the government that would tend to endorse or promote religion in general. In Santa Fe, it is not the proclamation of a specific faith through prayer that is here called a constitutional violation, but the endorsement of prayer in general. Such an interpretation of the First Amendment, if taken to its conclusion, would ban not only proclamations of such events as the National Day of Prayer, but the opening of Congress with prayer, the words "In God We Trust" on coins, and all other such public expressions of religious faith. In other words, it would virtually expel all religious expression from the public arena.

Such a separationist view of the First Amendment is a new development in Supreme Court jurisprudence, as Chief Justice Rehnquist notes in his dissenting opinion:

Finally, the Court seems to demand that a government policy be completely neutral as
to content or be considered one that endorses religion. ... This is undoubtedly a new 
requirement, as our Establishment Clause jurisprudence simply does not mandate 
"content neutrality."

The decision of the majority of the Court in Santa Fe takes this case beyond the narrow realms of the issue of prayer in public school. The decision has significant long-term implications for religious expression on the part of individuals at public events in general. When combined with other court decisions that restrict the free exercise rights of people of faith and their ability to express their faith as they live their lives in civil society, this development is alarming.

We recognize that in the civil realm government must carefully balance the rights of individuals to freely express their religious beliefs, in public as well as in private, with the need to protect minority viewpoints from potential oppression by the majority. Regarding the Court's decision in Santa Fe, however, we cannot but be troubled by the forceful warning sounded by the Chief Justice of the United States Supreme Court in his dissenting opinion:

The Court distorts existing precedent to conclude that the school district' s student-message
program is invalid on its face under the Establishment Clause. But even more disturbing than
its holding is the tone of the Court' s opinion; it bristles with hostility to all things religious in
public life. Neither the holding nor the tone of the opinion is faithful to the meaning of the 
Establishment Clause, when it is recalled that George Washington himself, at the request of
the very Congress which passed the Bill of Rights, proclaimed a day of "public thanksgiving 
and prayer, to be observed by acknowledging with grateful hearts the many and signal favors
of Almighty God." 

That the majority of the Court might be motivated by animus toward religion and, consequently toward the practices of religion, will be a significant concern to all persons of faith. The possibility that this decision, with its presupposition of a separationist interpretation of the First Amendment might become a significant precedent for future decisions of the Court will be a continuing source of concern to all who value the First Amendment's guarantee of the free exercise of religion.

Dr. David Adams  is a of Exegetical Theology, Concordia Seminary, St. Louis, Mo.

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