Church, State & Trump


The Constitution says Congress has no power to legislate restrictively about religion.  By linking religion with speech, communication (“the press”), assembly and redress, the First Amendment creates what the Supreme Court has come to refer to as “Expressive Association.”

“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.”

Religious organizations have come to rely on the powerful language of the First Amendment to assure their independence from political authority in America. 

The prohibition against Congress making any law prohibiting “free exercise” combined with our first Supreme Court’s admonition that “the power to tax is the power to destroy” is the basis for the tax exemptions of churches. I wrote about this in 1998:

“Yeshua the Nazarite taught his followers to “render unto Caesar the things which are Caesar’s”. He was adroitly avoiding, as the incident in the Bible makes clear, expressing an opinion regarding the Roman Empire’s taxes. Jesus continued, “…and render unto God the things which are God’s”. Ever since, the question of the State’s authority and Religion’s right has been of central concern in Western religious and legal philosophy. We have seen how this conflict has been resolved, at present, in America. The tax (and other laws) we have discussed are part of that resolution, for, as our first Supreme Court said, “the power to tax is the power to destroy,” and Congress has made it the law that the government may never use this power to destroy the independence and capacity to act of American churches. This is the Law of the Land and should be defended by all freedom-loving and religiously oriented people.” [1]

There have been few attempts to restrict religious speech in US history and all but one, the infamous 1954 Johnson Amendment, have fallen away.  That clause, imposed by LBJ while still a member of Congress, attempts to prevent churches from engaging in political speech. That is old law unlikely to be fully enforceable.

Congress adopted the RFRA, the Religious Freedom Restoration Act of 1993 (P.L. 103-141). In this enactment Congress determined that “governments should not substantially burden religious exercise without compelling justification…” and that “laws ‘neutral’ toward religion may burden religious exercise…” Therefore Congress determined to protect the free exercise of religion as follows:

“Sect. 3. Free Exercise of Religion Protected. (a) In General. — Government shall not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability, except as provided in subsection (b). (b) Exception. — Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person — (1) is in the furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. (c) Judicial Relief. — A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government…”

Under that law the courts have allowed churches great leeway. Examples include sponsoring peyote rituals and even asserting exemptions from certain Obamacare insurance requirements.

Recently people have been more strongly asserting their right to have their religious beliefs accommodated in reference to government and employer vaccine mandates. I’ve written about that and helped develop a form Demand for Religious Accommodation. [2]

This trend has been further strengthened by actions taken by the Attorney General and President Trump. [Let it be understood that I am not a particular fan of either, and consider their old-fashioned views regarding the health benefits of Hemp to be particularly egregious.]

Attorney General Jeff Sessions had this to say on October 6, 2017: [3]

“Religious liberty is not merely a right to personal religious beliefs or even to worship in a sacred place. It also encompasses religious observance and practice. Except in the narrowest circumstances, no one should be forced to choose between living out his or her faith and complying with the law.”

The Attorney General Continues, in Point 2 of his Opinion

“2. The free exercise of religion includes the right to act or abstain from action in accordance with one’s religious beliefs.

“The Free Exercise Clause protects not just the right to believe or the right to worship; it protects the right to perform or abstain from performing certain physical acts in accordance with one’s belief. Federal statues, including the Religious Freedom Restoration Act of 1993 (“RFRA”), supports that protection, broadly defining the exercise of religion to encompass all aspects of observance and practice, whether or not central to, or required by, by a particular religious faith.”  [4]

Last May President Trump signed an Executive Order essentially nullifying the Johnson Amendment, except for actually endorsing political candidates.

“The order, which Trump inked during a ceremony in the White House Rose Garden, directs the IRS not to take “adverse action” against churches and other tax-exempt religious organizations participating in political activity that stops short of an endorsement of a candidate for office. But pastors are already free to deliver political speeches, and regularly do. Churches and other tax-exempt organizations are restricted from endorsing or explicitly opposing political candidates under the 1954 Johnson Amendment, but the executive order Trump signed Thursday makes clear that those activities would still not be permitted.” [5]

The wording of the Order states:

“Section 1. Policy. It shall be the policy of the executive branch to vigorously enforce Federal law’s robust protections for religious freedom. The Founders envisioned a Nation in which religious voices and views were integral to a vibrant public square, and in which religious people and institutions were free to practice their faith without fear of discrimination or retaliation by the Federal Government. For that reason, the United States Constitution enshrines and protects the fundamental right to religious liberty as Americans’ first freedom. Federal law protects the freedom of Americans and their organizations to exercise religion and participate fully in civic life without undue interference by the Federal Government. The executive branch will honor and enforce those protections.” [6]

Subsequently, in January 2018, the President created a “Conscience and Religious Freedom Division in HHS:

“Social conservatives and religious liberty leaders have anticipated conscience and religious freedom protections to come out of HHS, and the work of the new division, which will fall under the purview of the Office of Civil Rights, will likely pave the way for health care workers to refuse specific types of care, like birth control or abortion, based on their religious or conscience objections.” [7]

Bottom Line:  restrictions on religious involvement in public affairs, which IMHO always violated the absolutist language of the First Amendment (or as Justice Hugo Black was accused of saying, “No law means no law.”), are becoming unenforceable. Similarly, the right to assert conscientious objections to acting contrary to one’s religious beliefs is becoming more respected by the civil authorities.

This may apply not only to conscientious objection to decorating wedding cakes, but also to submitting to vaccination or other demands of an ever more intrusive bureaucracy. These are highly significant developments.

Rev. Ralph Fucetola JD



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