Politics in the Pulpit

Let me unburden my heart. I love Cory Heidelberger. He has that special knack for writing something interesting, thoughtful, serious, and wrong. What's not to love!

In a recent post, Cory directs our attention to this story from Keloland, which I otherwise would have missed.

Republican gubernatorial candidate Gordon Howie of Rapid City has urged South Dakota churches and their pastors to defy a federal law and endorse candidates.

Under federal tax law, churches that endorse candidates or parties risk losing their tax-exempt status. Churches can legally discuss politics and take positions on issues. Howie says he believes the U.S. Constitution guarantees that pastors have the right to speak freely about politics and candidates.

Responding to a statement by Pastor Scott Craig that the federal law "involves government telling churches what to do" (Rapid City Journal), Cory has this:

Craig's comment is a mistaken interpretation of separation of church and state. There are all sorts of laws where government tells churches and every other organization what it cannot do. Do Candidate Howie and Pastor Craig want to repeal the laws that block pastors from performing polygamous weddings and human sacrifice as well? And those damnable child abuse laws sure crimp the style of priests who dig altar boys.

Can Government block pastors from performing polygamous weddings, recognized by his or her church? If so, that would be an egregious violation of free exercise. All government can do is refuse to recognize those marriages for all legal purposes. The other examples are generally applicable restrictions on actions, not speech.

Cory goes on:

The free-speech argument is bogus, and Howie and Craig know it. Pastors are still perfectly free to express their political views outside of church. They just don't get to take advantage of their position, their pulpit, their captive audience, and their non-profit status to spread those views. It's the same for teachers: I'm free to endorse Scott Heidepriem and deride Gordon Howie here on the blog, but if I engage in that advocacy on the job, in front of a classroom of voting college students, you will (and should!) freak out.

It is Cory's argument here that is bogus. Public school teachers are public employees, in many cases in charge of students who are legally compelled to be there. Pastors are not (outside the military) public employees and their congregations congregate of their own accord.

Unlike human sacrifice or child abuse, sermons enjoy explicit constitutional protection. For government to tell a pastor what he or she can or cannot say in church is an egregious violation of both the free speech clause and the free exercise clause of the First Amendment. If a pastor believes that voting for or against a candidate or proposition is required by God's law, government should not be able to pressure him to say otherwise. It doesn't matter whether the pressure involves threats of punishment, fines, or loss of tax-exempt status. A government that cannot require that students be exposed to creation science or the Intelligent Design argument ought not to be able to tell pastors what they can say from the pulpit.

None of what I just said is backed up by Court decisions. It rests merely on constitutional common sense. Cory is too smart, too well educated, and too honest to escape that common sense.

This isn't Martin Luther King's advocating civil disobedience to win civil rights for an oppressed minority; this is Gordon Howie's desperate attempt to increase his vote count.

Martin Luther King Jr. used the pulpit in a very political way. He advocated civil disobedience at that same venue. Is Cory saying that MLK enjoyed or should have enjoyed constitutional protection? I would certainly say so, and not just because I emphatically agree with King's ministry on these matters. I think it is also a matter of free speech and free exercise.

Gordon Howie urges pastors to defy Federal law on his behalf. I take no position on the South Dakota gubernatorial primary, but I am guessing that Gordon Howie takes his candidacy seriously. He thinks the issues he is running on are important. Is the standard here that pastors can practice political advocacy from the pulpit only when Cory or I approve of what they advocate? That ain't free speech.

Without in any way endorsing Gordon Howie, he is right to urge pastors to defy the Federal ban on political advocacy from the pulpit. It is patently unconstitutional. For reasons of both free speech and free exercise of religion, pastors should be free to speak, in or out of church, as their conscience should direct.

Comments

[Hrafn]

Howie clearly is no constitutional scholar.

There is no "ban on political advocacy from the pulpit", there is simply a ban on ALL tax-exempt charities, BE THEY RELIGIOUS OR SECULAR, from engaging in political advocacy. If your church doesn't want SPECIAL TREATMENT from the federal government as a tax-exempt charity, then it is free to indulge in as much political advocacy as it wishes. Render unto Caesar -- either in cash, or by accepting restrictions on speech.

[BillW]

The pretzel logic we have accepted as normal in this country...

"If your church doesn't want SPECIAL TREATMENT from the federal government as a tax-exempt charity ..."

This sure sounds as though you are beginning from the assumption that the church owes the government something - and that Uncle Sam is giving the church a break by not collecting its due. Where and how did we get to the point at which it is thought to be normal for a church to have to give up a portion of its revenue to the government?

It seems to me that separation of church and state - perhaps the most misunderstood and incorrectly applied principle in the Constitution - should mean just that. The church is separate from the government, with no obligation to subsidize it. The church and all of its memebrs and employees should not have to forfeit their first ammendment rights to free speech in order to enjoy their first ammendment right to worship as we please - unbeholden to the government.

This convoluted logic has a church paying the government taxes in exchange for its right to exist - which the government will waive so long as the people in the church do not discuss anything the government disapproves of - i.e. the government. It is hardly 'freedom of worship' when the government restricts the speech of the worshipers.

When Hrafn writes "render unto Caesar --- either in cash, or by accepting restrictions on speech" he hits the bent nail on the head. By what logic or reason should anyone have to 'render unto Caesar' in order to enjoy their Constitutional right to free speech?

I say the church should talk about whatever they please, and pay nothing to Caesar, and stand ready to light up the torches and sharpen their pitchforks should anyone in Washington try to stop them from worshiping as they see fit.

[Human Ape]

"A government that cannot require that students be exposed to creation science or the Intelligent Design argument ought not to be able to tell pastors what they can say from the pulpit."

I know this is not important to your article, but I would like to point out that magical-creation and intelligent-design-magical-creation is not science, and you were being dishonest, not to mention stupid, to call it "creation science".

[Hrafn]

The Christian-chauvinist logic we have accepted as normal on this blog...

"Where and how did we get to the point at which it is thought to be normal for a church to have to give up a portion of its revenue to the government?"

Because a church is treated like any other organisation (no establishment of religion = no special treatment for churches), and therefore has to pay taxes like them unless (like some of them) it complies with the terms for tax-exemption.

The ONLY way churches could be rendered tax-exempt, without restriction, is for ALL non-profits to be likewise unrestricted. You are welcome to lobby for such a removal of restrictions on all non-profits.

"By what logic or reason should anyone have to 'render unto Caesar' in order to enjoy their Constitutional right to free speech?"

Article I, Section 8, Clause 1 of the United States Constitution (the Taxing and Spending Clause).

I really don't care how you, Ken Blanchard or Gordon Howie want the Constitution to be interpreted as none of you are constitutional scholars, let alone members of SCOTUS (the only body whose interpretation of the Constitution matters at the end of the day). Please read a book or two on constitutional law, as correcting your quite basic misunderstandings is proving tiresome.

[KB]

HumanApe: pardon me for being testy, but you are in fact being an ass. And stupid. I call Ms. Loren "Sophia" not because I consider her wise, but because that is her name. I call the Christian Science Monitor the Christian Science Monitor because that is the name of that publication. I do not thereby agree that Christian Science is a science. It isn't. I use the term "creation science" because that is what its advocates call it, and to distinguish it from the Biblical Story of creation.

I think creation science is pretty stupid, generally speaking. Intelligent design is not stupid nor, as you want to say, does it necessarily employ a magical element. It is just wrong.

Hrafn: I teach constitutional law. I don't know if that makes me a constitutional scholar. I do know that one needs no such credentials to comment on a matter of constitutional interpretation. You seem to think that only members of the High Court are entitled to such opinions.

I do not question government's power to tax; I just think that that power cannot be legitimately used to control speech or free exercise. "You can be a Jew if you want to, just pay the Jew tax" won't pass, so neither will "you can be a Jew if you want to, just give up your tax exempt status."

Finally, you make a straw man argument. I am certainly not saying that Churches are subject to no restrictions. I just think that government cannot control the speech of a pastor or of the Congregation as a body. I think that logically contradicts both the free speech and free exercise clauses. I think it applies to synagogues and sanghas alike, so this is hardly "Christian chauvinism."

[Hrafn]

KB:

As NOBODY is suggesting that churches pay a tax that other organisations aren't obligated to, or be subject to restrictions in order to be tax-exempt that other organisations aren't subject to, then your "Jew tax"/"you can be a Jew" comparison is a complete non sequitor.

And NO, my argument is NOT A STRAW MAN! You EXPLICITLY demand that churches be exempted from the restrictions (on political campaigning) that all other non-profits are subject to.

"I just think that government cannot control the speech of a pastor or of the Congregation as a body."

YES IT DARN WELL CAN! The government can, and should, "control the speech of a pastor or of the Congregation as a body" TO THE SAME EXTENT that it can and should "control the speech of" any other individual or body -- no more, but certainly no less. As long as the restriction serves a (sufficiently) legitimate purpose, and does not unduly favour any individual, or body, over any other, it will pass constitutional muster.

As I said above: "You are welcome to lobby for such a removal of restrictions on all non-profits" -- but trying to give pastors or congregations privileges not obtaining to secular individuals or bodies is clearly establishment of religion.

If this is not obvious to you, then I pity your Con Law students.

[BillW]

Hrafn,

For all of your pompous lecturing you want to throw churches in with all non-profits without acknowledging a very fundamental distinction. The Constitution expressly grants the right to freedom of religion. To tax a freedom is inherently wrong. The Constitution grants no such freedom or right to save animals, run Boy Scout Troops, raise money for the homeless or do any of a wide range of things non-profits do. Simply because you have little regard for religion does not change the fact. It is the same logic as the government deciding that there will be a tax on assemblies, unless the people assembling abide by government censorship. It flies in the face of the Constitutional right to freedom of assembly. I would think a Constitutional scholar such as you would have picked right up on that none-too-subtle difference between religions and the rest of the non-profits.

You interpret the Constitution as it suits your biases - and declare yourself to be a Constitutional scholar - and then arbitrarily decide that anyone with a different point of view is not intellectually qualified to disagree with you?

A Little full of yourself it seems to me.

[BillW]

Human Ape,

"I know this is not important to your article, but I would like to point out that magical-creation and intelligent-design-magical-creation is not science, and you were being dishonest, not to mention stupid, to call it "creation science"

You ceratinly put a lot of stock in that upon which you can hang the label 'science'.

Of course the principles that the earth is flat, that the universe revoles around the earth, and that flght is physically impossible were once 'scientific facts', as well. In fact there is no shortage of folks - scientists - who once stood at the pinnacle of their profession, and are now on history's scrap heap as idiots. In fact, the only thing certain with science is that every scientific 'fact' will eventually be refuted. It is not a matter of if it will be proven wrong - just when.

Science - especially today - is so riddled with error, dishonesty and hucksterism that the label 'scientist' is virtually meaningless. To proclaim that Creationism is wrong simply because it has no basis in science is the same as saying climate change is real simply because the scientific fraud at Penn State says it is. Few people buys into it any more.

Label your opinion 'science', and contrary thinking 'magic' - pretty thin case you are making if that's the best you can do.

[Hrafn]

KB:

The Constitution ALSO expressly grants the right to freedom of the press. Does that mean that newspaper companies are exempt from taxation? Of course not! Taxing a church that fails to meet tax-exempt restrictions is no more "tax[ing] a freedom" than taxing a newspaper company is. Freedom of association has been held to be part of freedom of speech by SCOTUS, so the right to form a Boy Scout troup is every bit as protected as the right to form a church. In either case it would not be "a tax on assemblies", as the simple act of assembling (e.g. in members homes) would not attract taxation, but rather it is the garnering of revenue that potentially does so.

Instead of whining on about my "pompous lecturing", "little regard for religion" and supposed "biases" I would suggest that you cite SCOTUS precedent disputing my interpretation of the tension between the Establishment and Free Exercise clauses.

If you don't like me pointing out the weaknesses of your arguments, then feel free to mount stronger ones. But if any arguments along these lines had any real teeth to them, I would have thought that some conservative legal-defence-group would have tried it out in front of SCOTUS already (finding a test case would appear to be trivially easy).

I will start caring about your opinion of me when you give me some reason to care about your interpretation of the Constitution.

[BillW]

Hrafn,

The first order of business is to read - I posted the comment, not KB

What the Supreme Court has held can never be changed, I assume? Their position is infallible, I guess? Like the Dred Scott Decision?

You just keep on arguing things the way they fit, and worship at the feet of SCOTUS. An ignorant layman such as me pointing out to you that newspapers are for profit and churches aren't, which seems to me to make your analogy irrelevant, would probably have no impact on a Constitutional scholar such as you.

[Hrafn]

BillW:

I apologise for mixing up your comment with KBs.

I do not consider SCOTUS' positions to be "infallible" (there are at least a few currently controlling decisions that I emphatically disagree with), merely unappealable -- and thus an implacable constraint (until they revisit a question) on what can and cannot be enacted as law and what can and cannot be overturned as law. If you insist on looking beyond SCOTUS, can you point to any credible published legal opinions rejecting my interpretation?

It is trivially easy to deal with your "ignorant layman" point. I simply substitute a non-profit publisher for the newspaper company. Said non-profit would be just as protected by the freedom of the press as the newspaper company, and would not be distinguishable on a "for profit" basis from a church. That non-profit would still be required to abstain from political campaigning in order to be tax exempt. Another way of looking at it is that, as non-profit is not perfectly identical to tax-exempt, you have failed to adequately distinguish between my example (newspaper company) and a church in how First Amendment freedoms should affect taxation.

[Miranda]

Hrafn:

Can we automatically assume that a group that is not taxed is subject to restrictions on its expression? French citizens do not pay us taxes, yet our government has no right to limit their expression. It lacks the authority.

Similarly, I believe the government lacks the authority to limit the free expression of churchgoers, because of the restrictions placed on Congress by the constitution (as Billw suggests). Here's what the constitution says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Nothing here suggests that the right to free-exercise hinges on a group's taxation status. Therefore, I think it is fair to conclude that the right exists, whether or not a church is taxed.

Now, the question of whether or not the church can or should be taxed is another matter. Nothing I see in the constitution seems to prohibit or to grant the power of such taxation, (though, admittedly, I am no constitutional law authority). Although I am a Christian, I confess that I am not sure why churches should be exempt.

Part of me thinks that perhaps, churches that run bookstores and coffee shops and the like ought to be taxed. But some of that is religion bias. When I see bookstores in the front of churches, I think of Jesus turning over the tables of the moneylenders.

On the other hand, it strikes me that there is something wrong about a government charging people for the right to worship. Which is essentially what a tax does. It seems especially wrong to tax tiny churches that meet in homes and people's basements. Why does the government have the right to tax these people to meet and worship with one another? I don't know. So I'll leave these questions for you law scholars:

What criteria do we use to determine which organizations and groups are subject to taxation? Does taxation of churches violate the free exercise clause?
Does the right to free exercise hinge on an organizations taxation status?

[BillW]

Miranda,

The problem - dispute I guess - is over the government (courts) linking taxes to speech. Restrict your speech and you are tax exempt. Talk about the government and pay taxes.

Whether churches should pay taxes or not is one question. Whether they should enjoy freedom of speech is another.

My concern is with the government linking the two

[BillW]

Hrfan,

Let's get out of the realm of the hypothetical and get down to cases.

Perhaps you can explain why an organization such as NORML - the National Organization for the Reform of Marijuana Laws funds the NORML Foundation, which enjoys tax exempt status, even though the stated mission of the group is to "move public opinion sufficiently to achieve the repeal of cannabis prohibition so that the responsible use of this drug by adults is no longer subject to penalty", without fear of losing tax exempt status? In other words, they are tax exempt, non-profit political advocates in favor of something that is currently illegal.

On the other hand, if a local preacher gets up on the pulpit and urges the congregation to vote against Proposition 19 in California - the Prop to legalize marijuana - that preacher could lose his tax exempt status.

Likewise, Planned Parenthood, a 501(c)3 tax exempt, non-profit defines one of its central missions thus: "Anti-choice hardliners erode access to abortion through court battles, ballot measures, and burdensome legislative restrictions on abortion services — some extremists even resort to intimidation, harassment, and violence against women and health care providers. Planned Parenthood fights these anti-choice efforts on every level. From courthouses to statehouses to Capitol Hill to the grassroots, we work to protect access to reproductive health care through education of elected officials, litigation, and mobilization of our more than four million activists, donors, and supporters."

Again we have political action without fear of losing tax-exempt status. And once agin if the preacher advocates voting for or against an abortion referendum, or breathes a word of concern for the Obamacare's implications on abortion, tax exempt status is forfeit.

My point is that the waters are not nearly so clear as you have suggested, and there is ample room for churches to take issue with the particular prohibition against their rights to speech and political advocacy. To church-goers it smacks of the courts having no problem with non-profits engaging in political advocacy, they just don't want the kind of advocacy churches might conjure up. It smacks of hiding behind the very vaguely defined church versus state thing to keep the churches quiet.

[Miranda]

Billw:

I agree with you. These should be separate questions. I will have to do some research to see why and how churches were originally given their tax exempt status. Your point about NORML is a good one. Which, again, makes me wonder how exactly we decide on the question of exemption.

[Hrafn]

Miranda:

"Can we automatically assume that a group that is not taxed is subject to restrictions on its expression?"

No (but then I never claimed that), merely that (per the Establishment Clause) we must assume that the same restrictions apply whether a group is religious or secular.

"French citizens do not pay us taxes, yet our government has no right to limit their expression. It lacks the authority."

(Assuming that the French citizens are not resident in the US), the US government lacks territorial jurisdiction to levy taxes upon them. It clearly does not lack territorial jurisidiction over US churches.

"Similarly, I believe the government lacks the authority to limit the free expression of churchgoers...or prohibiting the free exercise thereof..."

Evenhandedly applying regulation to churches that are applied to their secular equivalents is not considered to be "prohibiting the free exercise thereof" or "freedom of speech". Churches are regulated by the same zoning laws (including on signage) as everybody else, religious broadcasters are subject to the same broadcast and spectrum regulations as everybody else -- both impinging on free speech. It seems perfectly reasonable therefore to subject them to the same federal tax regulation as everybody else.

"Nothing here suggests that the right to free-exercise hinges on a group's taxation status. Therefore, I think it is fair to conclude that the right exists, whether or not a church is taxed.

Now, the question of whether or not the church can or should be taxed is another matter. Nothing I see in the constitution seems to prohibit or to grant the power of such taxation, (though, admittedly, I am no constitutional law authority). Although I am a Christian, I confess that I am not sure why churches should be exempt."

What has happened is that the federal government has agreed to waive taxation to non-profits in return for certain restrictions on free speech (presumably to prevent abuse of the status). As neither the federal government is obliged to offer such a waiver, nor organisations to accept it, I presume this passes constitutional muster. But I would have no particular problem with either blanket withdrawal of the offered waiver or blanket withdrawal of the restrictions.

"What criteria do we use to determine which organizations and groups are subject to taxation? Does taxation of churches violate the free exercise clause?
Does the right to free exercise hinge on an organizations taxation status?"

Not being an expert on the federal tax code (let alone its history and development), I do not no. No, see above. Yes, where the federal government is under no obligation to waive taxes, and chooses to do so in exchange for restrictions.

[KB]

What a great thread! Where's Cory? While Hrafn and BillW duke it out, I will return to Hrafn's ealier points. First: forgive me for being a bit testy. Your arguments are cogent and certainly add to the discussion. You say of me:

"You EXPLICITLY demand that churches be exempted from the restrictions (on political campaigning) that all other non-profits are subject to."

I said nothing about other non-profits. In fact, I am very dubious about such restrictions as applied to all or most non-profit organizations regardless of purpose. I think the Sierra Club (I assume its a non-profit) ought to be free to advocate for candidates in elections. However, Churches do enjoy a special protection that non-religious organizations do not enjoy: it's called the free exercise clause. You say:

"As NOBODY is suggesting that churches pay a tax that other organisations aren't obligated to, or be subject to restrictions in order to be tax-exempt that other organisations aren't subject to, then your "Jew tax"/"you can be a Jew" comparison is a complete non sequitor."

The point of the example was to show that government cannot use its tax power in a way that violates the Constitution, a valid point. However,you are right to point out (I think this was your meaning) that this would be an equal protection matter, something that is not implicated in the present discussion.

So let's fix the example. Suppose an act provides tax exempt status to any organization that does not practice or advocate the practices of Judaism. That law would be generally applicable. It would apply to Christians or Atheists who, for some strange reason were inclined to the Halakha(Seventh-Day Adventists?), as much as to Jews. It would still be blatantly unconstitutional because it violates the free exercise clause.

Government cannot offer a benefit conditional on the surrender of a fundamental right. The Courts have treated political and religious speech as enjoying the highest level of protection under the Constitution. I think they were right to do so.

The Courts have in the past endorsed the kinds of limitations envisioned here in so far as it came to the spending of money. Even on this narrow focus, the Court recently reversed itself in Citizens United. I think that decision was the correct one.

But the restrictions go directly to speech itself. Here is the Wall Street Journal:

"Under the law that governs tax-exempt organizations, churches are allowed to support causes or ballot initiatives such as laws to ban same-sex marriage. They also can hold a candidates' night for all office-seekers in a race. But according to guidance provided on the IRS's Web site, churches are "absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.""

I suspect that one reason that this has generated no great court challenge is that it is frequently violated but almost never enforced. The WSJ points out that Barack Obama probably violated it by a sermon he gave in a Connecticut church.

Here I take my stand: Government has no business telling Obama or any pastor what he or she can talk about from the pulpit. While other non-profits do not enjoy free exercise protection, they do enjoy the same free speech protection. If you are worried about the abuse of tax exempt status, the solution is to control the money not the speech. The First Amendment is not to be trifled with.

[Hrafn]

BillW:

"Perhaps you can explain why an organization such as NORML...Likewise, Planned Parenthood..."

1) Advocacy of political ISSUES does not violate tax-exempt status. Many tax-exempt non-profit organisations, including churches, advocate on them. Many conservative churches advocate against abortion remaining legal, I would suspect that at least some such churches advocate against decriminalising drugs.

It is only campagining for political CANDIDATES that violates this status. I am no sure that the distinction is sensible, but it would appear to be constitutional.

2) There is nothing problematic about advocating for something to be decriminalised. Such issues are a reasonable question for political debate -- e.g. the prohibition and then deprohibition of alcohol in the 20th century.

I am fairly sure that opposing (or supporting) proposed policy or legislation (e.g.Obamacare, whose "implications on abortion" appear to be entirely mythical) does not violate tax-exempt status, I am unsure on referenda. But regardless of any 'muddiness', (i) as long as the same restrictions apply to churches as to secular non-profits, and (ii) as long as participation in the tax-exempt status is voluntary, tax-exemption restrictions would appear to pass constitutional muster.

[Hrafn]

KB:

"I said nothing about other non-profits."

EXACTLY! It is ONLY the restriction on churches that you were complaining about. An interest that ONLY applies to churches implies special treatment for churches.

"Suppose an act provides tax exempt status to any organization that does not practice or advocate the practices of Judaism."

NO! Let us NOT "suppose" this BLATANT AND IRRELEVANT STRAWMAN! Your 'supposed' act proposes (quite unconstitutionally) treating a religious group DIFFERENTLY from all other groups. The current tax code treats all religious non-profits THE SAME as all other non-profits. You 'supposition' is unconstiutional for PRECISELY the reason it differs from the existing code (hence its being an irrelevant strawman). This is a bit like saying that, because the gorvernment cannot pick somebody out of a hat on alternate Tuesdays (clearly arbitrary arrest), they should not be able to arrest anybody (no implication of arbitrary arrest).

"Government cannot offer a benefit conditional on the surrender of a fundamental right."

Yes it most empatically can, and frequently does. For example government employees accept restricitions on their free speech rights when acting as an agent of the government in exchange for the benefit of a paycheck. Indicted suspects surrender the right to a trial in exchange for the benefit of a reduced sentence. I probably could think up dozens of other examples.

Your WSJ quote demonstrates no way in which churches are treated any differently from other tax-exempt organisations, so really has no observable constitutional problems. It does however support my contention to BillW that issue advocacy is already permitted (and would appear to clear up the issue of referenda as well). As Obama was not a "candidate for elective public office" at the time he spoke (unless the speech was well over a year ago), I am unclear as to why the WSJ thinks it violated the church's tax-exempt status.

Here I take my stand: any regulation applied by the federal tax code to tax-exempt organisations should apply to tax-exempt religious organisations. Any regulation that an organisation voluntarily submits to (in order top obtain a benefit) will likely (and should) meet constitutional muster. I don't however claim that the regulations make sense (a disclaimer that I would probably make about the vast majority of regulation, whose history, development, and exact formulation is unknown to me).

[Hrafn]

("cannot pick somebody out of a hat on alternate Tuesdays" should read "cannot pick somebody out of a hat *to arrest* on alternate Tuesdays")

[George Mason]

The first amendments establishment clause states that the government shall not establish a religion nor prohibit the free practice there of. The constitution limits what the government can do to the people to protect the rights of the people. The clause was inserted in the Constitution so that we would not end up with a National Church ala the nations of Europe. People not members of the National church, headed by the monarch, were discriminated against (their rights were violated). Our founding fathers believed churches were vital institutions for maintaining a moral society, and educating people about their God given rights. We live among too many people who have a convoluted interpretation of the Constitution that some how gives rights to the government and takes them away from the people (Obamaland). The government has no rights, only the people have rights.

[Hrafn]

George Mason:

1) Equating "establishment of religion" with 'establishment of a National Church' is "convoluted interpretation". If the Founding Fathers had meant "National Church" then they would have written that.

2) The biggest government right-grab in recent history -- due process, domestic surveillance without probable cause or warrant, widely abused National Security Letters, etc, etc happened under Bush. This makes the Chicken Little Right's pretence that Obama is in some way the second coming of Stalin, Hitler, Lenin, Ghengis Khan, the Maquis de Sade, Gilles de Rais and who knows what else, completely absurd (as well as being massively self-contradictory). The John&Sarah Clownshow lost -- live with it.

[Georege Mason]

Hrafn; My friend I respectfully submit that you may not have read enough about the intent of the founders. The "establishment clause" is all about not establishing a state church. The founders did not want to have something like the Church of England of which the King was the titular head. This gave the monarch power beyond his secular roles as head of state and head of government. Remember that one of the kings titles was "Defender of the Faith."

[KB]

Hrafn: Whoever in this exchange might be a genuine "constitutional scholar", it ain't you. In response to my comment that "Government cannot offer a benefit conditional on the surrender of a fundamental right," you write:

"Yes it most emphatically can, and frequently does. For example government employees accept restrictions on their free speech rights when acting as an agent of the government in exchange for the benefit of a paycheck."

I assume you mean by "when acting as an agent of the government" something like a public school teacher in the classroom. Yes, but the school teacher is free to speak her mind in a public forum or, I might add, IN CHURCH. Are you under the impression that pastors are public employees and that the Church is public property?

The Court has ruled that a Seventh Day Adventist cannot be forced to choose between unemployment benefits and observing a Saturday Sabbath. I happen to think that's going too far, but it emphatically means that one cannot be required to surrender a fundamental right for the sake of a government benefit!

In regard to your exchange with George Mason, George is right. You write:

"Equating "establishment of religion" with 'establishment of a National Church' is "convoluted interpretation". If the Founding Fathers had meant "National Church" then they would have written that."

What, for heaven's sake, do you think "establishment of religion" meant to the founders? It meant, as GM says, something like the Church of England. No constitutional scholar I know of disputes that! But you are partially right, if only by accident. "An establishment of religion" meant any established church, funded and regulated by a government. The language "no law respecting an establishment of religion" was intended both to foreclose the possibility of a Church of the United States, and to prevent Congress from meddling in the established churches in several states.

Today, of course, the Court reads the First Amendment rather more broadly. There can't be a Church of South Dakota, and I for one and glad for that. I note again that the Free Exercise Clause follows immediately after the Establishment Clause. The point of that double blow was to make sure that Government could not force any citizen to participate in any religious activity or institution against his or her conscience, nor interfere with his or her exercise of religion as conscience would direct.

I don't think that government can use tax law to interfere with the speech of any group, nonprofit or otherwise. That's free speech. But churches do get extra protection under the Constitution. So sorry, but the Free Exercise clause is really there.