The First Amendment evinces the framer’s intent to create a “wall of separation” between church and state. The First Amendment provides that “Congress shall make no law respecting an establishment of religion” (United States Constitution, amend, I). While there can be no government establishment of religion, religion and politics have long been closely enmeshed. Since the inception of the nation, prayer has played a prominent role in government ceremonies (Lee v. Weisman 633). Beginning with George Washington, all presidents taking the oath of office conclude with the words, “So help me God” (Jonassen 861). Presidents and politicians alike have frequently invoked god or religion in public addresses and speeches.
In Abraham Lincoln’s famous Second Inaugural address, he stated, “With malice towards none, with charity for all, with firmness in fight as God gives us to see the right left us strive on to finish the work we are in” (President Lincoln). When former President George W. Bush gave remarks about using federal funds for stem cell research, he explicitly referred to the salient role that his religion had in guiding his decision (President Bush). The President remarked in his public address “I also believe human life is a sacred gift from our Creator. I worry about a culture that devalues life, and believe as your President, I have an important obligation to foster and encourage respect for life in America and throughout the world” (President Bush).
Religion is often quite significant in shaping politicians’ views, opinions, and beliefs. It is impossible to completely disentangle religion from politics because religion holds such an important role in the political realm. As politicians are free to resort to religious invocations and rhetoric, religion and religious organizations should also be free to participate in the political sphere. Prohibiting religious organizations from participating in politics violates the right to free expression and free exercise of religion in violation of the US Constitution.
While politicians frequently invoke religious rhetoric, it is not necessarily a two way street. The Internal Revenue Code (“IRC”) § 501(c)(3) prohibits religious organizations from fully participating in politics. A religious organization that chooses to fully participate in politics stands to lose its tax-exempt status under the IRC. There is ongoing debate about whether religious organizations and churches should be able to speak out on political issues. One study performed by the Pew Research Center concluded that, “[u]nlike three decades ago, a majority of Americans now believe that churches should speak out on social and political issues” (Voyles 219). Many believe it violates a church’s First Amendment rights to prohibit them from full participation in politics.
A strong argument for allowing religion in politics is the increasing treatment of organizations as “persons” for purposes of exercising First Amendment rights. The law has created the legal fiction that corporations and nonhuman entities are treated as persons that have corresponding rights and duties. While no one would argue that a corporation or organization is a person in the sense of actual personhood, the law treats these entities as persons for certain purposes. For instance, a nonhuman corporate entity can sue and be sued, enter contracts, and transfer or relinquish rights just as a regular person can. It is therefore logical to extend to religious organizations, which are organizations made up of persons, the same rights accorded to individual persons. The right to participate in politics would be included under this umbrella of rights.
Recently, the issue of political speech has been raised to the forefront in the realm of campaign finance law. In Citizens United v. Federal Election Commission, the US Supreme Court extended full political speech protections to both for-profit and nonprofit corporations (Citizens United v. Federal Election Commission 342). The Court explicitly rejected the argument that because corporations are not “natural persons,” they should receive different treatment under the First Amendment for free speech purposes (Citizens United v. Federal Election Commission 343). The big takeaway from the Citizens United decision was that the Court held that both for-profit and nonprofit organizations have First Amendment political speech rights (Citizens United 365). Under this rationale, it is a constitutional violation to deny religious organizations the right to partake in politics.
Disallowing religious organizations the right to participate in politics also violates the organization’s free exercise of religion. In response to a Supreme Court decision that narrowed the interpretation of religious free exercise, Congress passed the Religious Freedom and Restoration Act (“RFRA”) in 1993. The express purpose of RFRA was to apply strict scrutiny review to any law that was a substantial burden on a person’s free exercise of religion. Subsequent interpretations of RFRA afford expansive protection to religious free exercise.
A recent case illustrating the breadth of RFRA is Burwell v. Hobby Lobby Stores, Inc. In Hobby Lobby, closely held corporations (“CHCs”) brought a RFRA challenge to a contraceptive mandate (Burwell v. Hobby Lobby Stores, Inc. 2759). The contraceptive mandate was a facially neutral, generally applicable law which required all employers who had 50 or more employees to provide “preventive care and screenings” for female employees in the group health plan (Burwell v. Hobby Lobby Stores, Inc. 2762). There was an exemption from this contraceptive mandate for religious employers and certain nonprofit organizations, but not for-profit organizations (Burwell v. Hobby Lobby Stores, Inc. 2762-2763). The CHCs objected for religious reasons to certain portions of the contraceptive mandate that they considered to be abortifacients (Burwell v. Hobby Lobby Stores, Inc. 2765). The CHCs then under RFRA and the Free Exercise Clause to enjoin the application of the contraceptive mandate of the abortifiacients (Burwell v. Hobby Lobby Stores, Inc. 2765).
Piggybacking on the idea that corporations are entitled to First Amendment free speech rights, as articulated in Citizens United, the Court in Burwell v. Hobby Lobby Stores, Inc sustained a RFRA free exercise challenge for the CHCs (Burwell v. Hobby Lobby Stores, Inc. 2751). The Supreme Court upheld the CHC’s challenge and found that although the government’s interest in women’s healthcare was a compelling interest, the government failed to use the least restrictive means to further that compelling interest, and therefore, violated RFRA (Burwell v. Hobby Lobby Stores, Inc. 2781-2782). The Court extended RFRA protection to for-profit CHCs (Burwell v. Hobby Lobby Stores, Inc. 2775). The conclusion to be drawn from Burwell v. Hobby Lobby Stores, Inc is that free exercise of religious should be accorded broad interpretation. The case provides compelling precedent for the presumption that disallowing religious involvement in politics violates the religious organization’s right to free exercise of religion.
Endorsing a political candidate or opposing a candidate could easily be construed as an exercise of religion within RFRA and deserving of protection. Because RFRA has been used to challenge a number of different statutes and regulations on religious grounds, churches may have an argument that the political restrictions of § 501(c)(3) violate RFRA. As noted in the Hobby Lobby decision, it is not for the court to decide the merits of a religion’s organization’s beliefs so long as they are sincerely held. Entanglement issues with religious beliefs arise in the political speech sphere. For some religious organizations, the endorsement of or opposition to a particular political candidate might be one and the same with a sincerely held religious belief. The Supreme Court cases interpreting RFRA challenges seem to proclaim is that courts should refrain from second-guessing the validity of religious beliefs. There is no question that the § 501(c)(3) prohibition is a substantial burden to an organization’s free exercise.
Conclusion
Both the Supreme Court and Congress have evidenced full intentions to continue upholding maximum religious freedom and liberty. Religion has a long-standing and deeply rooted place in politics. Presidents from George Washington to Barack Obama have made references to their religious faith in public speeches and addresses. But as the law currently stands, religion is cut off from involvement in politics. The days of keeping a strict separation between religion and politics should come to an end. It is time to give religious organizations the full right to exercise religious freedom and free speech. Instead of straining the relationship between religion and politics, religious organizations should be permitted to participate fully in the political sphere.
Works Cited
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Lincoln, Abraham. “Second Inaugural Address of Abraham Lincoln.” 4 Mar. 1865. Web.
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