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Professor Ralph Ketcham, the primary biographer of James Madison the father of the Constitution and Bill of Rights, reflected that, “There is no principle in all of Madison’s wide range of private opinions and long public career to which he held with greater vigor and tenacity than . . . religious liberty.” At a time of religious persecution in Virginia, James Madison wrote his friend, William Bradford, “So I leave you to pity me and pray for Liberty and Conscience to revive among us.” Madison’s words, stated over two centuries ago, are relevant today.

A series of recent studies by the Pew Research Center reveal troubling trends. In 2012, Pew found that:

The number of Americans who do not identify with any religion continues to grow at a rapid pace. One-fifth of the U.S. public – and a third of adults under 30 – are religiously unaffiliated today, the highest percentages ever in Pew Research Center polling. In the last five years alone, the unaffiliated have increased [by 33%].

In 2015, Pew found that the percentage of unaffiliated, known commonly as “Nones,” had risen to 23% of the U.S. population, an increase nearly 50% in a single decade. What may be of more concern is the increase in number of Nones among millennials, individuals born between 1981 and 1996, with 35% considering themselves religiously unaffiliated, a percentage that is twice as high as baby boomers born between 1946 and 1964.

Religiously nonaffiliated individuals often consider themselves spiritual and generally remain positive about the role of religion. Pew, however, reports that 67% of this rapidly growing group of “Nones” believe “that churches are too involved with politics.” Not surprisingly, the marginalization of religious conscience in America is on the rise.

Martin Castro, Chairman of the United States Commission on Civil Right believes that concerns regarding religious liberty are simply “code words for discrimination, intolerance, racism, homophobia or any form of intolerance.” Frank Bruni, writing in the New York Times, adds, “Faith is a serious matter, and an important one, but it’s trivialized when it’s toted too readily and stridently into the political arena. . . . God should be given a rest.”

If past is prologue, God or the voice of religious conscience should not be given a rest. Churches and religious leaders have long been engaged in positive ways in the political arena: as advocates for moral positions, as political candidates and office holders, and as supporters of given candidates. Indeed, voices of religious conscience have been critically important in the four most prominent constitutional moments in our history – the founding era, the civil war and the end of slavery, women’s suffrage, and the civil rights movement.

1. The Birth of the Nation

During the founding, religious leaders were prominent forces for good. Given time limitations, I will focus on only one of the revolutionary voices – Reverend John Witherspoon. Witherspoon was a Presbyterian pastor and a founder. A month before he was elected to the Continental Congress in 1776, Witherspoon gave an influential sermon supporting the revolutionary cause entitled, “The Dominion of Providence Over the Passions of Men.” Witherspoon served as an elected member of the Continental Congress from 1776-1782 and was a signer of the Declaration of Independence. He also served as a delegate to the New Jersey ratifying convention, the third state to ratify the Constitution. Through years of public service, he continued to preach and serve as President of the College of New Jersey, the predecessor to Princeton University.

Overshadowing Witherspoon’s remarkable public service, however, was his influence as a teacher. Professor Gordon Wood referred to Witherspoon as the “most influential teacher in American history.” His classroom teaching and his Sunday sermons influenced Witherspoon’s students, including a president, a vice president, 9 cabinet officers, 21 senators, 39 members of the House, 3 justices of the Supreme Court, 12 state governors, and numerous members of state ratifying conventions. Most noteworthy among his many illustrious pupils was James Madison. After graduating in two years, Madison returned to campus for further tutoring by Witherspoon, whom Madison referred to as “at once strong and gentle.”

In his Lectures on Moral Theory, Witherspoon taught Madison and an influential generation of students, “that the principles of duty and obligation must be drawn from the nature of man. That is to say, if we can discover how his Maker formed him, or for what he intended him, that certainly is what he ought to be.” Witherspoon taught that the right of religious conscience is a God-given right beyond the touch of the government. This teaching profoundly influenced Madison and through Madison the First Amendment. At the time of the ratification, Madison’s views reflected the teachings of Witherspoon. Madison declared that a government “where a man’s religious rights are violated by penalties, or fettered by tests, or taxed by hierarchy” lacked constitutional legitimacy. Madison added, “Conscience is the most sacred of all property; other property depending in part on positive law, the exercise of [religious conscience], being a natural and unalienable right.”

Madison’s life-long commitment to the right of religious conscience earned him the electoral support of Baptists and other dissident religious groups in Virginia. Electioneering by Baptist preachers and other dissident religious leaders provided Madison with the votes necessary to serve in the First Congress, permitting him to draft and secure passage of the Bill of Rights. Reverend Witherspoon’s teaching and public engagement clearly played a critical role in our nation’s founding.

2. Lincoln and the Emancipation Proclamation

Religious leaders also had a profound impact on Lincoln and other political leaders who emancipated the slaves and secured passage of the 13th, 14th and 15th amendments to the United States Constitution. Lincoln referred to Owen Lovejoy, a minister and public servant, as his “most generous friend.” Lovejoy, who assisted Lincoln in organizing the Republican Party in Illinois, was a member of Congress at the time of emancipation. Lovejoy’s primary biographer, Edward Magdol, found that Lovejoy and Lincoln “influenced each other and developed mutual trust and respect over almost ten years of political collaboration.” Lovejoy was influential in persuading Lincoln to emancipate the slaves.

On July 17, 1862, a group of Presbyterian ministers met with Lincoln and vehemently urged him to emancipate the slaves. Lincoln assured them that he did not support slavery, and would not have supported it in the first instance. Lincoln closed the meeting by adding, “Feeling deeply my responsibility, to my country and to that God to whom we all owe allegiance, I assure you I will try to do my best, and so may God help me.”

On September 13, 1862, Lincoln noted that he had been ruminating over the issue of issuing an emancipation proclamation and reflected, “I am approached with the most opposite opinions and advice, and that by religious men, who are equally certain that they represent the Divine will.” He concluded, “I hope it will not be irreverent for me to say that if it is probable that God would reveal his will to others, on a point so connected with my duty, it might be supposed he would reveal it directly to me; for, unless I am more deceived in myself than I often am, it is my earnest desire to know the will of Providence in this matter. And if I can learn what it is I will do it.”

Days later, on September 22, 1862, Lincoln issued the preliminary Emancipation Proclamation. That Proclamation concluded, “And upon this act, sincerely believed to be an act of justice, warranted by the Constitution upon military necessity, I invoke the considerate judgement of mankind and the gracious favor of Almighty God.” Two days later, Lincoln wrote, “What I did, I did after very full deliberation, and under a heavy and solemn sense of responsibility. I can only trust in God that I have made no mistake.”

Lincoln’s decision to issue the emancipation proclamation was an act of religious conscience. His remark that religious leaders on all sides were pressing him is also reflective of the role of religious conscience in the public square, whether it be the fight for independence or efforts to secure rights and equality, advocates of conscience represent all parties. Nevertheless, as was the case with Madison and Lincoln, political engagement by religious leaders was critical to achieving emancipation and passage of the 13th-15th Amendments, securing equal protection.

3. Women’s Suffrage

The same is true of the suffrage movement. Lynn Sherr, a prominent biographer of Susan B. Anthony, reflected that, “Susan B. Anthony’s Quaker faith absolutely shaped her. . . . In her childhood, Susan B. Anthony learned that men and women ought to be equal, as a part of her Quaker beliefs and attendance at Quaker meetings, which took seriously all voices. Her faith, and sense of duty, helped make her a committed and indomitable advocate for a cause she believed deeply in.”

One of the leaders of the suffragist movement was Frances E. Willard, a prominent writer and leader of the Women’s Christian Temperance Union (WCTU) and the International Council of Women. Willard helped persuade the WCTU, which was an influential voice in American politics at the time, to support women’s suffrage. An activist for temperance and women’s issues, Willard reflected, “God is action – let us be like God.”

Suffrage in Utah, and many other states, further illustrates the role of religious conscience and advocacy in securing the vote for women. Wyoming Territory was the first to give women the vote in 1869, quickly followed by Utah Territory (1870) and Washington Territory (1883). Seraph Young, a niece of Brigham Young, was the first woman to vote legally in the United States. Sadly, Congress revoked the right of women in Utah to vote in 1887 as part of the national effort to end polygamy in Utah.

Emmeline Wells, the 5th General Relief Society President of The Church of Jesus Christ, in turn, was a proponent of voting rights for women and a friend of Susan B. Anthony. The Relief Society is a philanthropic and educational women’s organization with millions of members in over 170 countries. It believed by many to be “one of the oldest and largest women’s organizations in the world.”

Voices of religious conscience clearly influenced the suffragist movement. Susan B. Anthony, however, cautioned that she “distrust[ed] those people who know so well what God wants them to do, because I notice it always coincides with their own desires.” It is evident, simply given the number of conflicting worldwide religions, that a decision based on religious conscience is not necessarily right. Nevertheless, conscience influences decision-making and increases motivation in significant ways, as evidenced in the life of Dr. Martin Luther King, Jr., a final example of the role of religious conscience in major moments in our constitutional history.

4. The Civil Rights Movement

Dr. King, an ordained pastor, did much to ensure civil rights and racial equity in America as any single individual. King had a unique capacity to bring attention to the injustice of racial discrimination. Together with President Lyndon B. Johnson, King helped secure support for the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

Nick Kotz, a respected biographer, chronicled the interaction between King and Johnson in securing civil rights, and concluded that it was an “unlikely” but powerful team effort. King put pressure on government, as a “great [preacher and] organizer of people in the streets, something Johnson was quite uncomfortable with.” Kotz adds that the “legacy . . . they accomplished was to abolish government authorized segregation and discrimination in [the United States].”

The following taped conversation between King and Johnson is revealing:

JOHNSON: There is not going to be anything though, Doctor, as effective as all of them voting. That will get you a message that all the eloquence in the world won’t bring because the fellow will be coming to you then instead of you calling him.

KING: And it’s very interesting, Mr. President, to notice that the only states that you did not carry in the South – the five Southern States – had less than 40 percent of the Negroes registered to vote. That was very interesting to note. I think a recent article from the University of Texas brought this out very clearly so it demonstrates that it is so important to get Negroes registered to vote in large numbers and it would be this coalition of the Negro voter and the popular white vote that would make the new South.

JOHNSON: That is exactly right.

Dr. King was an astute politician as well as an influential preacher and protester. King’s preaching had a powerful capacity to engage the public. The power of those words and Dr. King’s actions and the actions of Rosa Parks and others, however, were deeply rooted in religious conscience.

On December 1, 1955, Rosa Parks refused to give up her seat in a bus to a white man on a bus in Montgomery, Alabama, resulting in a 381-day long bus boycott. The boycott ended when the U.S. Supreme Court integrated the Montgomery bus system. Reflecting on her engagement, Ms. Parks stated, “I felt the Lord would give me the strength to endure whatever I had to face. God did away with all my fear. It was time for someone to stand up–or, in my case, sit down. I refused to move.”

Dr. Martin Luther King, Jr. became the voice of the boycott and a leader in the black church. At the time Ms. Parks refused to give up her seat, Martin was a young pastor trying to build a congregation and a young family, when he agreed to serve as the voice of the movement. One evening early in the boycott, a brick with a threatening note shattered Martin’s front window and shook his resolve to continue the boycott. As King tells the story, he went into the kitchen, poured a cup of coffee and reflected on what had just happened. He concluded that, for the sake of his family, he would resign from leading the boycott and spend his energy building his congregation. King then went upstairs and took his infant daughter in his arms to assure her that she would be safe. In that instant, King relates that he knew God had called him to lead the movement for his daughter and generations to come. He accepted the call to political engagement as a duty to God, his family, and our nation.

Today’s Distrust of Religious Involvement

Public engagement by churches and religious leaders influenced the four most significant moments in our constitutional history. Nevertheless, perhaps in part a result of public ignorance regarding the blessings of religious engagement in our history, PEW and others have reported decreased trust in and increased opposition to religious engagement in public affairs.

Some scholars trace that lack of trust to the rise of political engagement by conservative churches and religious leaders. Others attribute it to the decline in faith and decreasing church affiliation in our country. Whatever its cause, it is evident that a trust deficit is increasing, which contributes to efforts to limit engagement by churches and religious leaders in public life, particularly through the withdrawal of tax exempt status for churches.

Churches and religious leaders currently engage in public affairs without any constitutional limitation. The right of free exercise assures that churches and religious leaders may hold public office, may speak out regarding issues of concern, and may even electioneer and support specific candidates. The establishment clause, in turn, prohibits any religion from gaining control of the state. The non-establishment clause precludes churches from creating a theocratic government. For example, Muslims who may be inclined to do so may not impose Sharia law.

Strong disincentives to public engagement by churches and religious leaders may chill political engagement by churches and their leaders. The possibility of revoking Section 501 (c)(3) of the Internal Revenue Code provides government with a tool to pressure churches and their leaders whose political engagement is determined to be harmful to the public good. From the inception of the income tax, churches have held tax-exempt status.

An article appearing in Forbes in 2012 reported that 37 million taxpayers claim charitable deductions. Proponents of revoking the tax exemption for churches and the tax deduction for church members are quick to point out that government annually loses $182-billion in tax revenue, with about $72 of the $182 billion going to churches. The $182 billion is substantially less than the $659 billion lost in health insurance deductions and $484 billion lost because of the deduction for mortgage interest, but it is a possible source of significant additional revenue for a government. Advocates of bigger government have long had their eye on those funds, believing government can spend those dollars more effectively for the public good than the churches and charities receiving those funds. For example, President Obama recommended reduction of the charitable deduction as a means of increasing dollars available for public programs and ostensibly to lower the federal deficit annually for four years of his term in office. The impact of the loss of the exemption for churches and deductions for individuals giving to churches and charities would be dramatic and in some cases debilitating.

Mark Oppenheimer, who writes the Beliefs column for the New York Times, for example, recently argued that:

[T]he logic of gay-marriage rights could lead to a reexamination of conservative churches’ tax exemptions (although, as long as the IRS is afraid of challenging Scientology’s exemption, everyone else is probably safe). But when that day comes, it will be long overdue. I can see keeping some exemptions; hospitals, in particular, are an indispensable, and noncontroversial, public good. And localities could always carve out sensible property-tax exceptions for nonprofits their communities need. But it’s time for most nonprofits, like those of us who faithfully cut checks to them, to pay their fair share.

Tom Flynn, the editor of Free Inquiry, adds that it is unfair to tax all Americans “to subsidize religious institutions that only some Americans utilize.”

Given the number of churches, and the breadth of their appeal, it is currently unlikely that all charitable institutions will lose their tax-exempt status. Too many groups would oppose such efforts and taking away the charitable exemption would constitute political suicide for many public office holders. Limiting the amount of the deduction may be a more viable approach for opponents or religious engagement in public affairs to take. If distrust of religious engagement continues to grow at the pace it has, the threat may become real, particularly as to minority religions that are unable to obtain exemptions from general legislation.

Mark Oppenheimer and others offer us an example of what might happen on this front. They argue that churches and their members who support traditional marriage are engaged in discrimination that violates a compelling government interest in nondiscrimination. In Bob Jones University v. U.S., decided in 1983, a religiously affiliated university that refused to permit its students to engage in interracial dating had its tax-exempt status revoked. The university appealed on First Amendment grounds, but the Supreme Court held that the free exercise and establishment clauses of the First Amendment do not prohibit the Internal Revenue Service from revoking the tax-exempt status of the University because of its racially discriminatory policies. The Court held that the University’s practices regarding racial dating and other forms of integration violated the government’s compelling interest in racial inequity, justifying the revocation of the University’s tax-exempt status.

In 2001, PEW found that 57% of Americans opposed same-sex marriage, with only 35% supporting it. Based on polling in 2016, PEW found that 55% of Americans support same-sex marriage, with only 37% opposing it. In such a rapidly changing world, it is easy to imagine an effort to revoke the tax-exempt status of churches that are theologically committed to traditional marriage or related policies perceived to discriminate against the LGBTQ community.

Our most difficult constitutional issues arise when two constitutionally protected values conflict — this was true in Roe v. Wade, which involved the conflict between a woman’s right to choose and the right to life, or the potentiality of life. The right of churches and their leaders to speak out on issues, such as marriage and abortion, may implicate just such a conflict — discrimination against the LGBTQ community or women on the one hand and the right of free exercise and expression on the part of many religious institutions and leaders on the other hand. The threat of losing their tax-exempt status for churches and the tax deduction for their members may do much to chill political expression and engagement by institutions or churches and their leaders. This threat is real whenever churches and religious leaders speak or act contrary to what the majority views to be a threat to the public good.

Oliver Wendell Holmes, Jr. was right in his dissent in Abrams v. U.S. when he declared:

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition…[W]hen men [and women] have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the best test of truth is the power of the thought to get itself accepted in the competition of the market…

That, at any rate, is the theory of our Constitution…Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

Using the powerful check or threat of tax law to limit the political expression and engagement of churches and their leaders would be regrettable, particularly when viewed in light of past contributions by religious leaders to our constitutional form of government. Churches and their leaders are divided on the issue of marriage, with many supporting same-sex marriage and others supporting traditional marriage. The same is true of churches advocating the right of choice or the right to life on the abortion issue and a host of other issues raised in today’s world. Let religious leaders all engage in public life, without any threat, including the revocation of their tax-exempt status.

Some argue that churches engaged in public affairs may become conduits for large contributions to candidates, converting churches into a special, government-funded class of PACS for deductions by wealthy political activists. Those concerns remain unsubstantiated. Nevertheless, Representatives Hice of Georgia and Scalise of Louisiana have introduced a bill, H.R. 781, entitled the Free Speech Fairness Act. That bill would simultaneously deal with the chill to political engagement for 501(c)(3) organizations and the threat of donors coopting churches for political ends. It would assure continuation of the exemption for churches, nonprofits, and educational institutions, “so long as they are (1) made in the ordinary course of the organization’s regular and customary activities in carrying out its tax-exempt purpose, and (2) any expenditure related to this are de minimis.” Senator James Lankford (R-OK) in the Senate introduced a companion bill, S.264.

Conclusion

Major practical disincentives already exist to limit religious expression and engagement by minority churches and religious leaders. The exercise or expression of religious conscience usually comes at significant cost, the cost of strong public disapproval. This was true for Reverend Witherspoon, Owen Lovejoy, Frances Willard and Susan B. Anthony, and Reverend King. It is equally true today on issues like abortion and the nature of marriage.

My wife taught me an important principle many years ago. When our children acted in ways that I found to be irrational but were important to them, my wife would remind me that my children’s perceptions were real and deserving of respect. Seeing my children through that light facilitated a respectful learning environment for them and me. On many occasions my initial predilections proved to be wrong or in need of refinement. Let us follow my wife’s wise counsel, and think the best, not the worst, of our neighbors and respect their conscience.

Witherspoon, with his influence on Madison, Lovejoy and 17 Presbyterian ministers, with their influence on Lincoln, the Quakers influence on Susan B. Anthony and Frances Willard’s religious roots, and the influence of Martin Luther King, Jr. on Lyndon Johnson, are of great constitutional significance. They stand as solemn reminders to all of us to let the free market of ideas and the right of conscience aid us in the search of truth and wise public policy.

Rodney K. Smith, Director of The Center for Constitutional Studies at Utah Valley University, [email protected]