The First Amendment and Religious Liberty

An Ongoing Debate

by Richard R Hammar Bradley Jacob and Michael Paulsen

Interview with Richard R. Hammar, Bradley Jacob, and Michael Paulsen

First Amendment rights are some of the biggest legal issues facing churches today. The First Amendment states: “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 to peaceably assemble, and to petition the government for a redress of grievances.”

People often use the phrase “separation of church and state” to try to force the church from the public arena. But what rights do Christians and churches have under the First Amendment? Richard L. Schoonover, Enrichment journal associate editor, visited with three lawyers with experience addressing First Amendment rights issues. Richard R. Hammar is the legal counsel for The General Council of the Assemblies of God, Springfield, Missouri; Bradley Jacob is professor at Regent University School of Law, Virginia Beach, Virginia; and Michael Paulsen is distinguished university chair professor of the School of Law at St. Thomas University in Minneapolis, Minnesota. In this Enrichment journal feature interview, these lawyers tackle the First Amendment and its application to religious liberty.

One of the big issues with Christians and society in general has to do with the interpretation of the “establishment of religion” clause. What does this clause actually mean?

Hammar: The First Amendment is a limitation on Congress, which is the federal legislature. The founders of the Bill of Rights had no intention of extending the nonestablishment of religion concept to the 13 colonies. At the time Congress ratified the First Amendment, 11 of the 13 colonies had established churches. So the modern interpretation of the First Amendment where there is a limitation, not just on Congress, our federal legislature, but also on city councils and local school boards, is one of the great errors in the sad saga of constitutional history.

Paulsen: I agree. The original purpose of the establishment clause was to prevent a national religion, and keep the new national government out of the question whether or not a state would have an official religion or articles of faith.

Every second grader loves to learn what they think is the longest word in the English language — antidisestablishmentarianism. But that was a real movement — the movement that opposed the disestablishment of state churches.

The framers originally intended to have a provision that would not only keep the federal government from establishing a national religion, but keep the federal government out of the state debates about whether a state could have an official religion. The amendments adopted to the Constitution after the Civil War, especially the 14th Amendment that prohibits states from denying persons privileges or immunities as citizens of the United States, changed this concept.

Over time the Supreme Court interpreted the 14th Amendment to make it applicable to the states and set limitations on state governments by prohibiting the same things the Bill of Rights prohibits the national government from doing. One of the privileges or immunities protected by the 14th Amendment is the freedom of religion. This meant that states do not have a right to establish an official church or to coerce or pressure someone to exercise religion against his will. What had been meant as a provision to keep government out of interfering with state matters, now also restricts what state governments can do. I think that is a correct interpretation of the Constitution in that the real issue is what is the meaning of no law establishing religion as applied to both levels of government.

Jacob: Today there is not a lot of disagreement that the 14th Amendment intended to change the federalism balance, to give the national government more control over the states, and to protect individual rights from state interference. Although the Supreme Court used the wrong part of the 14th Amendment when they did that.

The establishment clause does not make that transition as nicely as some of the other fundamental rights of the Bill of Rights. As Richard pointed out, initially it was clearly a federalism provision. It is one thing to say, “The Bill of Rights protects free speech, and now after the 14th Amendment it protects free speech from state interference as well as national interference. It is a little different to say, “There was this kind of structural restriction that kept Congress from messing with religious establishments, and now we are going to — the word constitutional lawyers use is incorporate — we are going to incorporate that into the meaning of the 14th Amendment.” It does not work as neatly conceptually as some of the other fundamental rights.

Paulsen: The core meaning of the establishment clause is that the government cannot compel people to engage in religious exercises in which they do not wish to participate. They cannot coerce attendance at religious services; they cannot punish people for not belonging to an official church — any coercion to engage in religion. This is actually the flip side of the protection of freedom of the exercise of religion. Free exercise of religion says government cannot keep you from exercising your religion. The establishment clause says government cannot make you exercise a religion other than what you would voluntarily choose.

A large part of the issue today with the Supreme Court’s far more expansive interpretation of the establishment clause is caused by the Supreme Court’s moving beyond that core meaning of the establishment clause prohibiting government’s coercion to engage in the exercise of religion.

Jacob: I agree. The term establishment of religion is a term of art. In the founding generation when the Bill of Rights was written, people knew what a religious establishment was. Today the Supreme Court makes it a broad philosophical concept that the government cannot have any thought about whether there is or is not a God. And that is not the original meaning of the provision when it was written.

Hammar: To me the most compelling proof of the very narrow meaning of the establishment clause — in other words the prohibition of a nationally established church —is the fact this became a virtually quiet amendment to the Constitution. It was neglected; it was forgotten. For 150 years litigation occurred under the establishment clause because the original intent had never been violated. It was not until the mid-20th century that an activist Supreme Court interpreted this concept of establishment much more broadly, as Mike has pointed out, to mean something different from what the framers intended.

People have taken the establishment of religion clause and twisted it to what the founding fathers had not intended. Why?

Jacob: This has a lot to do with the secularization of our culture over the last 50 years, although there is something of a chicken-and-egg question. You need to ask: To what extent has the understanding of the Constitution become more secularized because the public has become more religiously diverse, than to what extent is the causal relationship the other way. But there has been in the last 50 years much more rejection in our country of not necessarily biblical Christianity, but at least some kind of consensus where there is a God, and God is good, and it’s good for people to try to live for God, and try to figure out what they need to do to live up to God’s standard.

This approach to Christianity was widely accepted in American culture when we were kids. Today it is not. There is this idea advanced by the Supreme Court that we need to be a secular nation. As a political entity — national, state, and local — we need to have no opinion about whether there is a God or not. That has driven a lot of this. This is a pretty recent phenomenon.

Paulsen: I do not know if anyone has had a deliberate motive to twist the establishment clause. I break it down to misunderstanding and hostility. Originally it was misunderstanding about what the establishment clause meant more than hatred toward religion. However, the more this misunderstanding gets built into the Supreme Court’s interpretation, the more it tends to fuel ideas that any acceptance of religious activity is improper. So these misunderstandings generate hostility toward religion, and it becomes a vicious cycle.

Concerning First Amendment rights, what are some practical implications for churches and pastors?

Paulsen: In terms of equal-access issues, one of the biggest misunderstandings of the establishment clause is that it always requires the exclusion of religion. The establishment clause does not ever require discrimination against religion. So we have situations where a public forum for expression is generally available to the citizenry or some subclass like students. You cannot exclude a group from that benefit, privilege, or right to speak because of the religious nature of what they have to say or what they do.

A classic example is meetings at colleges or at public high schools after school, before school, during activity periods, or lunch periods. If a school generally makes its facilities available for a variety of student groups, it cannot exclude a student religious group or a Bible study or fellowship group. Through the 80s and early 90s, this was a much-contested issue. But fortunately, the Supreme Court has recognized the correctness of that principle.

The establishment clause does not authorize discrimination against religion. In fact, the free exercise clause and the free speech clause forbid such discrimination. This is an area where we have seen progress over the past 20 years.

Now other issues are more difficult where you have a situation of government actually sponsoring some form of religious exercises. A classic case would be where the government writes a prayer and sets aside a time, where as part of the government’s school exercises, it expects students to participate in a small, let’s say, worship service. These cases have remained controversial, and in large segments of the population unpopular for 45 years. When government engages in religious exercises, it does not make a meaningful opportunity available to school kids to not participate — where the exit costs, so to speak, are huge. That is a form of coercion. That is going to be a problem that adheres in public school programs in general. And it will extend to many things. But the distinction between government-written, government-sponsored religious exercises and voluntary student groups that meet before school and before and during lunch hour is the line I would draw. Government itself cannot sponsor religion, but government may not prohibit the religious exercise in equal terms.

Jacob: I agree with Mike on the Supreme Court’s decision about devotional exercises in the public schools. But the whole issue of education is so different from just about everything else government does. It is easy to see how the government can be religiously neutral in making traffic laws and in running the sewer system. In most of the things the government does, it is not hard to be religiously neutral.

But education is by its very nature worldview intensive. So if you are going to have a system of universal government-run schools, you need to have something close to a universal community consensus on a value system. Whatever you teach is going to reflect your values — what you choose to discuss and not discuss — as well as your perspective. Again, when those of us on this call were children, there was a consensus in this country — sort of a “God bless America” civil religion. It was not necessarily biblical Christianity, but there was enough Christianity in it that Protestants, most Catholics, and Jews were not offended by it. You could run a school that way, and it was okay. Today the tension level on this is very high.

I have sympathy for public school teachers who try to walk the line. If they are seen as being too friendly toward religion in their classroom, the ACLU will sue them. If they are viewed as being too hostile toward religion, Jay Sekulow and the ACLJ will sue them. We no longer have a culture where this idea of universal government schools works. There is a better way, however, that involves vouchers or tax credits where you try to make sure every family can choose its own preferred worldview of education.

The harder issue is this: Can you stop teachers from being hostile to religious faith in the way they teach? I agree with Mike on the equal access question. This has been a real victory in the last 30 years. It has become pretty much settled law. But there is one cutting-edge issue involving equal access for student groups, particularly at the university level. If the university has a nondiscrimination policy, student groups may not discriminate on the basis of a list of things, which often includes religion and sexual orientation. Colleges acknowledge that they must allow Christian clubs to meet on the same basis as other student groups. But the university will often try to enforce nondiscrimination by forcing groups to allow someone whose sexual conduct is inconsistent with its faith to become president of the group. They would never require an African-American student group to allow a white racist to become president. They allow other groups to retain the integrity of their mission, but they try to apply these nondiscrimination provisions to the religious groups. This issue is not settled because the courts appear to be going in different directions. Significant litigation on this issue is taking place right now. If it ends up being lost, it will represent a significant impediment for the equal access principle.

Hammar: I have one comment regarding the equal access concept. Secular groups are still attacking what I think is settled law. I think that indicates the level of hostility that still exists toward religious speech.

Paulsen: When I was at University of Minnesota Law School, the university at one point prescribed a rule that essentially said that religious groups could not have religious membership requirements that violated the university’s nondiscrimination agreement. Most common sense people would recognize that it is absurd that religious groups have equal rights and equal access at campuses around the nation, but they cannot be religious. The next big-wave issue is the ability of religious groups to have access on an equal basis in the public sphere without being required to secularize and abandon their religiously distinctive identity. The right to maintain a group’s identity comes from the freedom of association that is an aspect of freedom of speech. A group does not have to forfeit its benefits to maintain its distinctive religious identity.

What are some current issues involving the civil court and the church?

Hammar: One issue I deal with almost daily is the civil court manipulation of church polity and civil lawsuits. Civil lawsuits against a church are usually because of injury to someone. It may be a molestation of a child; it may be a vehicle accident where somebody is seriously injured — and yet the church that is sued has inadequate resources and inadequate insurance, so the victim sues the denomination if that church is affiliated with a denomination — typically a state or regional office plus a national office. These cases depend on the polity of that church.

If a church is hierarchical in polity and is part of a framework of religious judicatories that exercise some authority and control over this church, an argument in some cases is made for ascending liability, and the regional or national church entities bear some culpability. But many churches are congregational in polity, meaning the local church owes no fidelity to any ecclesiastical superior body; it is essentially independent, although there may be some association with a denomination because of common doctrine or missionary enterprise. But there is no sense in which the regional or national church body is exercising control. Yet the same kinds of lawsuits are filed against denominational agencies, regardless of polity.

The argument I make in many cases is this: To find a denominational agency in the congregational context liable for the activities occurring in a local church — even when the denomination has no authority under its governing documents to exercise that kind of control or oversight — exposes that denomination to a couple of options. First, contrary to its own governing document, contrary to its understanding of Scripture, contrary to its ecclesiastical and religious history and practice for that denomination is for the denomination to begin exercising that control. Secondly, the denomination can continue to decline to exercise that control and expose itself to absolute liability with no defense. The point I make in these cases is tantamount to a judicial recharacterization — the restructuring of religious denominations. This has been recognized by numerous courts and is fundamentally at odds with the First Amendment religious guarantee.

Are there any other church issues you would like to discuss?

Hammar: I read every case decided in this country in all 50 states and in all federal courts pertaining to religious organizations. Over the last 10 years I have categorized these cases more systematically. I have a list of the top 10 reasons religious organizations are in court for each of these years. A top category of litigation is employment-related disputes. This is a major source of litigation in this country.

Many of these cases deal with wrongful termination or discrimination issues under state and federal law. Of course, these raise the constitutional issues talked about earlier. The courts essentially permit these laws to extend to religious groups, again as long as they can do so in a neutral way without implicating religious doctrine. As a result, you see something like Title 7, the civil rights act of 1964, which is the principal federal civil rights law. Title 7 prohibits discrimination by an employer on the basis of race, color, national origin, gender, or religion by employers engaging in interstate commerce and who also have 15 or more employees. Title 7 applies to religious organizations; they are, however, exempt from the religious discrimination prohibition. So churches can discriminate on the basis of religion, even if they have 15 employees and are subject to Title 7. So if a Baptist church has an opening for a youth pastor, and a rabbi applies for the position, it can deny consideration to the rabbi. Is this discrimination? Yes, but it’s religious discrimination, and religious organizations can discriminate on that ground.

A corollary rule is something called “the ministerial exception.” It is not specified by statute, but rather the courts have created this rule. The First Amendment bars civil court intervention in employment disputes between churches and their clergy. This rule has been applied in countless cases over the last 30 years to deny consideration to disputes or litigation brought by ministers who challenge some decision by their church in the employment context. Most of these involve termination; some involve selection; some involve compensation; some involve fringe benefits. But the courts are applying this rule uniformly.

The interesting thing, however, is how the definition of clergy under that rule is expanding over the years. The definition is not limited to ordained clergy, but applies to anyone — even people without seminary education or ministerial status in a legal sense — whose function is integral to the promotion of the church’s core purposes. For example, a series of cases recognize music ministers or music directors as ministers for purposes of this rule even though they have no seminary education and are not viewed by the IRS as ministers for tax purposes. So the definition of minister for the purpose of the minister exception is dynamic, and it is expanding. In fact, in recent years, a series of federal court rulings apply the ministerial exception to the fair labor standards act, meaning that ministers, or people deemed to be ministers, cannot claim a violation of the minimum wage rule for overtime pay requirements of federal law, because for a court to adjudicate that would offend the First Amendment.

Paulsen: There is one huge genre of issues we need to mention. I put it under the general category of free exercise of religion, exercises of conscience. There are many federal laws and many more state laws that impose requirements on religious persons or religious organizations that are antithetical to their doctrine. Classic examples — and this is a hot issue on the national level right now — are statutes that require employers essentially to provide abortion services as part of health-care benefits. These statutes are being applied to institutions like the Catholic church — not the church per se, but a particular church-related ministry such as Catholic charities. These exist in states and at the national level of government. Some of the statues are limited implicitly by federal civil rights statutes, like the religious freedom restoration act. Some of them might be open to challenge through the free exercise of religion clause of the U.S. Constitution. But that is getting increasingly more difficult as even the conservative U.S. Supreme Court has construed the free exercise of religion narrowly.

Jacob: The nonestablishment clause and the free exercise clause, as they relate to the First Amendment, are very unsettled and confusing today. The Supreme Court has developed various doctrines over time. Some of the doctrines are quite hostile to religion and others are much more accepting. Some of the outcomes are much more accepting of religion in the marketplace and level the playing field. However, there are some cases from the 70s and 80s that buy into the idea that government should sanitize the public arena of God and religion. You end up with what Richard John Neuhausdiscusses in his book, The Naked Public Square, where Christians need to keep their values out of the public arena. So nonestablishment clause cases are scary.

The Supreme Court basically can get any result it wants by lining up cases that justify what they want to do. Free exercise is a much clearer law today. The Supreme Court has decided it very clearly, but they have decided it badly, and left very little protection for free exercise. The Supreme Court in 1990 took away a large chunk of what used to be the protection for religious activities in this country.

What can Christians and pastors do if they believe their First Amendment rights have been violated?

Paulsen: There are excellent religious freedom defending organizations: The American Center for Law and Justice, the Alliance Defense Fund, the Christian Legal Society, and the Beckett Fund for Religious Liberty are some of the leading ones.

Jacob: A few other organizations defending religious freedom are the Liberty Fund, the Christian Law Association in Florida, and the Rutherford Institute.

Hammar: I addressed an American Bar Association institute several years ago. The institute was basically on how to sue churches. That was not the title, but that was the implication. A number of plaintiff’s attorneys spoke. I was one of the two token attorneys representing the other side. The other church attorney was Mark Chopko, general counsel for the U.S. Council of Bishops, representing the Catholic church. His opening comment was, “This has been distressing and somewhat depressing to hear these previous presentations, but we at the Catholic church take a broader perspective. We were here long before the American experiment, the government, and we are going to be here long after its demise.”

So it is important to put in context the issues we are talking about today concerning the rights of Christians and religious liberty. This is unique to the American form of government. The church is going to survive this experiment, and these issues that we are talking about will be of little significance in the broader context.