The founders of the United States were deeply religious. But they were not narrow-minded or bigoted in their religious thought. They were students of the Enlightenment. And so in writing the 1st Amendment they saw to it that the government would neither pass any law respecting the establishment of religion, thus forcing it on people, nor one prohibiting the free exercise of religion.
As worded, the amendment is all about prohibiting what the government can do. In interpreting the amendment, the courts early on looked to a January 1802 letter written by Thomas Jefferson which stated that the language in the amendment “built a wall of separation between Church and State.” This phrase echoed a statement made by Roger Williams, the founder of the first Baptist church in America who spoke of “a wall of separation between the garden of the church and the wilderness of the world.”
President Trump is correct that the prohibition on election activity by churches is a result of a law pushed by Lyndon Johnson. It impacts all non-profit, 501(c) 3 organizations, not just churches. There is no existing constitutional law/case mandating this prohibition.
However, that is not to say that there exists no basis in the constitution for such prohibition at least as it pertains to churches. Certainly not if we look at the intent of the founders, which is the standard in vogue with conservative jurists, including the current Supreme Court nominee Judge Gorsuch.
A wall is only a solid wall if it is two-sided. The government is restricted regarding what it can do that affects religion and people’s free choice. And churches, which is to say religion, should be restricted from engaging directly in political matters such as campaigns.
Why? Churches should not be sullied by engaging in politics. As Roger Williams eloquently said, the garden of the church needs to be separated from the wilderness of the world. Encroachment of the “wilderness” comes not just through laws that might restrict or command religious practice, which is the literal meaning of the 1st Amendment, but through the church becoming entangled in the wilderness.
I see this reading of the 1st Amendment as being an important part of protecting religious freedom. Churches do have free speech and can speak out on any issue concerning the public or the state. And indeed they use this right very effectively and appropriately. Churches should be a moral authority. But to take that one step further and allow churches to actively support specific candidates or parties, which is what President Trump wants to allow, would lead churches and religious organizations down the proverbial slippery slope and create a problem.
For centuries, churches were not involved in politics both because they thought that the world of politics was sordid and because there was no need to. Freedom of religion was set in the Constitution.
But at some point in the 1980s, Evangelical leaders started getting concerned that their values, what they felt were American values, were being undermined either by liberals or by less religious people. And with the encouragement of Republican operatives, they got involved in politics. To protect the America that they felt was the true America.
And here one sees clearly the problem. This is not about freedom of religion. No one was telling Evangelicals that they couldn’t do or practice what they felt were the standards, the commandments of their religion. This is about one religion wanting to impose its view of morality upon the entire society, not by forcing everyone to join the same religion but through the law. Which is in effect against the establishment clause of the 1st Amendment.
As generally recognized, the establishment clause "not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another. It also prohibits the government from unduly preferring religion over non-religion, or non-religion over religion."
Or more recently, when they offer services to the public through their businesses, they want to be able to discriminate regarding who they serve. But we have a law in this country. It is part of the civil rights laws that if you serve the public you cannot discriminate in who your serve. Period. That doesn’t keep you from practicing your religion and remaining true to your beliefs. That is something private. It just stops you from forcing your morality on others when you put yourself out as a purveyor to the public. Because then it impacts other people.
If churches start campaigning for candidates, which has already happened despite the Johnson Amendment, then when a candidate is elected and recognizes his debt to these churches, the person is likely to propose actions, as has President Trump, which please that group even as it tramples on the rights of others.
His vow to find a conservative jurist committed to overturning Roe v Wade was an effort to win the evangelical vote by getting the organized evangelical church and other organizations to support him and campaign for him. And now he has carried through on that promise, despite the fact that as recently as 1999 he said that he was “very” pro-choice.
Likewise there have been articles written about memos circulating in the White House that would turn back the rights that have been recognized for LGBT people, again despite the fact that as recently as November 13, 2016 he said that he was “fine” with gay marriage and that the matter was “settled.”
The influence of churches in campaigns is bad for our freedoms and ultimately religion. Our system of rights maintains that we all, not just a few, have rights. And the rights guaranteed by the 1st Amendment are indeed the strongest.
But even they are not absolute. No one can exercise a right if in so doing they infringe on the rights of another person. That is the basis of all laws and regulations that impact people’s rights. There is a greater good that is always considered. That is as true for the freedom of religion and for the other rights guaranteed in the Bill of Rights. If one religion does not respect the rights of others of another religion or no religion, that is a sad day for religion in our democracy.
There is one more reason why Trump’s idea is a bad one. America has been blessedly free for most of its history of the open religious antagonism and warfare that plagued Europe for centuries. Yes, there has been anti-semitism in various forms, as well as anti-catholicism. But there has not been open hostility between the various religious establishments.
If churches start being involved in campaigns with those supporting the winner benefiting in some way and having their view be ascendant, there is much more likely to develop the kind of deep-seated animosity that was a feature of European history for so long. These feelings may be below the surface in America, but they are there and it wouldn’t take much to raise them to a different, vocal level.
The Johnson Amendment should not be repealed and churches/religious organizations should voluntarily refrain from campaigning for individual candidates or parties for the reason that it is just not seemly. To quote Roger Williams again, “There should be a wall of separation between the garden of the church and the wilderness of the world.
I urge the President to reconsider his support of churches’ campaigning in support of specific candidates or parties. And I urge Congress to maintain the Johnson Amendment in force.
