Jewish World Review August 21, 2002 / 13 Elul, 5762


Protecting -- and guaranteeing -- religious institutions' right to political speech

By Marci Hamilton

http://www.JewishWorldReview.com | I had a good laugh the other day. Roll Call, the congressional newspaper, ran a story titled "Bill Would Allow Clergy to Mix Religion and Politics." Where has Roll Call been, in suspended animation?

The bill in question is the House of Worship Political Speech Protection Act (HWPSPA). Current law prohibits houses of worship that take advantage of tax-exempt status from publicly supporting particular political candidates. But the bill would repeal this limitation.

That is as it should be. The current limitation on the speech of one of the most important elements in society is outrageous - and the type of speech limited is that most central to our democracy. Unsurprisingly, the prohibition's origins are as tainted as its logic: It was placed into law at the behest of President Johnson to silence his critics.

The prohibition started as censorship, it continues to be censorship, and repeal through HWPSPA is the fate it deserves. In some contexts, religion and politics can properly be mixed, and this is one of them. Religious institutions deserve to be able to avail themselves of the same free speech rights that other institutions enjoy.

NUMEROUS EXAMPLES SHOW OUR NATION
MIXING POLITICS WITH RELIGION


Of course, religion or rather, pious lobbyists, and politicians, or rather sycophant members of Congress, have been mixing it up for centuries. HWPSPA is merely an innocuous - and indeed, rights-protecting - instance of the longstanding trend. For Roll Call to describe it as an unusual or even remarkable that politics and religion are mixing is ridiculous.

Was Roll Call absent when the Congress exited the Capitol to recite the Pledge of Allegiance en masse, emphasizing "under G-d," only hours after the announcement of the Ninth Circuit Court of Appeals' decision declaring the phrase unconstitutional? Since the decision had no effect beyond the Ninth Circuit, Congress's display was clearly showboating to impress pious constituents - rather than, say, civil disobedience.

Where was Roll Call, too, when Congress feverishly passed the Religious Freedom Restoration Act, which gave religious entities a leg up against every law in the country? Or the International Religious Freedom Act? Or the Religious Land Use and Institutionalized Persons Act, which is causing havoc in residential neighborhoods by giving churches the power to ignore local land use laws? Or when the House recently passed the Mormon "free land" bill?

Did Roll Call think the law giving Catholic University the exclusive option to purchase valuable land belonging to the Old Soldiers Home in Washington, without even having to bid against others for it, came from nowhere? Though the law was later repealed in the face of threatened lawsuits, it's hard to think of a more blatant religion/politics mix.

Where does Roll Call think the push for faith-based funding is coming from? Or the movement to create state-funded vouchers to be used at parochial and religious schools? Or the lobbying for tax-free municipal bonds to underwrite new church buildings, and for a "parsonage" tax exemption?

And why does Roll Call think the states have religion-excepting exemptions to laws that otherwise are generally applicable - exempting, for instance, the clergy from child abuse reporting, or exempting faith-healing parents from neglect prosecutions for refusing their children standard medical care?

THE HOUSE OF WORSHIP POLITICAL SPEECH
PROTECTION ACT AND ITS PROBLEMS


That's right, religious entities are in the thick of it - and many of the result of their lobbying efforts are far more controversial than HWPSPA. In general, I do not think much of the special-privilege-for-religion laws that politicians love so much. But my complaint is almost always with the legislators who don't think about the public interest as they pant for religious votes, not the fact that religious entities participate in the political process in the first place. It is their right to do so.

That is why I support HWPSPA. The Act does not give religion a special privilege to speak; rather, it restores religion's right to speak. And that should not be controversial at all - for the voices of religious entities are crucial to a free society.

The House may vote on the bill in September, with the Senate looking less eager to take it on. This is one of those bills that is unlikely to pass the first time it's introduced, but is likely to appear repeatedly in future sessions until it is finally passed. Given the importance of the free speech considerations at issue, it should be passed sooner rather than later.

RELIGIONS' POLITICAL LOBBYING WILL OCCUR
ANYWAY, AND HWPSPA WILL REVEAL IT


It is not as though LBJ's law conditioning tax-exempt status on renunciation of the right to political speech even truly cut the political ties between powerful church leaders and politicians. Some churches have ignored it by publicly supporting particular candidates, such as Bill Clinton and Al Gore. Others, such as the Catholic Church, have resorted to "issue" flyers, which list the issues the church cares about and "report" where each candidate stands on each issue.

HWPSPA, then, will only drive the churches' covert speech and influence to become overt - which is a good thing. Perhaps, then, the bill should be renamed the Religion and Politics Sunshine Law, to concentrate on this effect and to avoid the misleading impression that Roll Call furthered that the bill somehow allows an improper religion and politics mix.

The close relationship between religious and political leaders has always been there. (Been to a political rally or prayer breakfast lately?) The no-candidate-endorsement law simply shoved that relationship under the table.

By repealing the limitation through HWPSPA - more accurately renamed the Religion and Politics Sunshine Law - church members and, more importantly, members of the press and the public will be able to have proof positive that a church is in cahoots with a particular lawmaker. Reporters could trace political favors for religious institutions to their source.

The effect will be salutary: No more coy remarks from the pulpit; no more "issues" circulars. The churches have a right to speak without fear of penalty, and the people have a right to know what influence the churches' speech may be having.

The hope is that the Sunshine Law would force the media to become more dogged in its coverage of the operation of religious entities in politics. By permitting churches to back particular candidates, and still retain their tax exempt status, the law would make it impossible for reporters to treat special treatment for religious lobbyists as though it has simply appeared out of nowhere. There would be a trail of evidence to show that it had not.

Granted, the tie between religious powers and newspaper editors is second only to the tie between religious powers and politicians. Still, with a Sunshine Law like HWPSPA, reporters might be more willing to expand their coverage. Rather than obsessing only about the Christian right's influence on the Republican Party, they might expand their focus to encompass religion's influence on the national, state, and local agendas.

THE BILL RAISES NO REAL "SEPARATION
OF CHURCH AND STATE" CONCERNS


HWPSA's opponents include a number of groups - such as Americans United for the Separation of Church and State, and the American Jewish Congress - that, ironically, spend a good amount of time on Capitol Hill themselves, yet want to deny religions the same access. These opponents worry aloud that the bill will violate the separation of church and state simply by increasing the partisan political activity of religious groups. They also worry that churches will be sullied by politics.

In the end, though, who are they to decide whether a church should enter the political ring in which they themselves happily contend? The churches that seek purity will retreat from the mud trenches of partisan politics soon enough. Meanwhile, the ones that want to mix it up, ought to have the right to bring it on. Moreover, as I argued above, repealing LBJ's speech-squelching law makes it more likely we will learn which ones are in the mix and why that is the case.

The separation of church and state is strengthened when both church and state can enter the public marketplace of ideas full throttle. To gag churches in the public square is to miss out on important viewpoints, arguments, and insights. Conditioning the tax exemption on the renunciation by churches of the right to political speech was simply wrong - anti-democratic, and unworthy of our system of free debate.

INCREASING STATE SUPPORT FOR CHURCHES
IS A REAL ISSUE, BUT A SEPARATE ONE


That does not mean, of course, that the exemption itself is unproblematic. Quite the contrary. One may wonder, with ever more new programs on the horizon: Where will the government financial benefits package for churches ever end? What with vouchers, faith-based religious handouts, and multiple tax exemptions from property tax to income tax, we are getting dangerously close to needing joint checking accounts for the churches and the government to share.

A measure of separation of church and state could be easily achieved if our society could stop the snowball of governmental largesse from rolling any closer to churches. How can the snowball stop? Again, disclosure is the only remedy our system provides, and legislation like HWPSPA can enable it.

It will never be possible to keep the powerful from mixing with the powerful, especially when the mixing occurs among religious leaders and government leaders. Improving the available information about their relationship, though, is one sound way to empower the people against secret compacts of power.

The passage of HWPSPA is a no-brainer - a recognition of a staple of our democracy, free speech for everyone, that has been too long ignored where religious institutions are concerned. That it is likely to fail, this time around, is a sad commentary. Let us hope that someday, it succeeds as it ought to.

Marci Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University and a columnist for findlaw.com. Comment by clicking here.

© 2002, Marci Hamilton. This column was first published on findlaw.com