Sunday, October 5, 2008

The bailout afoul with the free exercise clause?

A few days ago I saw an article by Ruth Moon at that raises an interesting question about the recently enacted financial bailout legislation. Based on a Howard Friedman blog entry, Moon wonders about the government buying back failed church mortgages. Would the government then be entangled with religion? Both Friedman and Moon link an August article in The Deal reporting that "a surprising number of churches are behind in mortgage payments." So the possibility of the government owning church property as a result of the bailout appears to be more than theoretical at this point.

Moon approaches the possible problems created by this scenario from the standpoint of the Establishment Clause and several law professors agree that the legislation is "unlikely" to create problems in connection to that part of the First Amendment. But Moon does not mention the Free Exercise Clause which seems to be more problematic to this legal layperson.

The First Amendment says in part that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ..." Suppose a church that has defaulted on a loan is forced to move out of its building. If the government holds that mortgage then isn't this a law that prohibits the free exercise of religion for that congregation?

Sure, some may say that congregations that fail to pay their debts deserve to get booted from their building, but that's not the point. There is no qualifier on the applicable language of the First Amendment: "Congress shall make no law" that prohibits the "free exercise" of religion. It is one thing for a bank to foreclose on a church and evict the congregation from its place of worship but it is another thing for the government to do so thanks to the Bill of Rights.

At least that's the way it looks on the surface to me. What do you think?

Friday, October 3, 2008

Troubling attitudes on religious freedom

The First Amendment Center released its annual "State of the First Amendment Survey" on September 17, 2008 and some of the results related to religious liberty are troubling.

I was astounded to learn that 29% of those surveyed believe that the "freedom to worship as one chooses ... was never meant to apply to religious groups that the majority of the people consider extreme or on the fringe." To those 29% who answered this way I say, "Wrong!" It was thanks in no small measure to the persecution of a religious group that the majority of the people considered extreme that James Madison presented the First Amendment guarantee of complete religious liberty. His memory of the mistreatment of Baptists in his home state of Virginia (where there was an Anglican majority at that time) was a large part of the inspiration that led Madison to be one of the foremost advocates of religious freedom for all.

This number seems to be heading in the wrong direction in the survey. The First Amendment Center shows the results of this question for three other years: 1997 (24%), 2000 (19%), and 2007 (27%). Now it is up to 29%. What is happening to cause apparently more and more Americans to believe that the right to worship freely should not necessarily be extended to those in the minority?

On another note, 55% of those surveyed believe that "The U.S. Constitution establishes a Christian nation." This is simply not true. Indeed, the language of the First Amendment applies broadly to all religions, not just to the Christian religion. Yet a rather strong majority of those surveyed somehow got the notion that the Constitution establishes this as a Christian nation.

In a question related to the freedom of speech but that has a connection to religion, 42% disagree with this statement: "People should be allowed to say things in public that might be offensive to religious groups." So does that mean that if I decide to preach or write in a blog that the so called "health wealth gospel" is a load of garbage that I should be arrested or what? Why do more than 4 in 10 in this survey believe that our freedom to speak freely should be limited when we are speaking about religious groups?

For the first time the First Amendment Center asked whether respondents agreed or disagree with this statement: "Religious leaders should be allowed to openly endorse political candidates from the pulpit without endangering the tax-exempt status of their organizations." Would you believe that 40% of those surveyed agreed with that statement? Setting aside my perception that, thankfully, most church goers do not want for their pastors to endorse political candidates, the
recently challenged regulation preventing religious leaders from endorsing candidates while their organizations maintain tax exempt status makes sense. Charitable organizations are tax exempt because they do charitable work, not political work. Churches are free to campaign for any political candidate they wish, but they should pay taxes if they take that step.

This year's annual State of the First Amendment Survey reveals ongoing troubling attitudes and beliefs concerning religious liberty. How do we reverse this trend?