Constitutional Rights of Religious Organizations, Slides of Religion

Download Constitutional Rights of Religious Organizations and more Slides Religion in PDF only on Docsity! CHAPTER 1 Constitutional Rights of Religious Organizations 3 * The author would like to acknowledge the assistance of Patrick Sternal and Eric Rassbach in preparing this chapter. By Lisa A. Runquist* I. Overview of Constitutional Principles A. Law in the United States: Roles of State and Federal Law In the United States, there are two systems of laws—federal and state. Some laws—federal laws passed by Congress and related regulations promulgated by federal agencies apply to everyone. Other laws—state laws and regulations— apply to those who are residents of or are operating in that particular state. Because most state laws are not uniform, a religious organization will need to verify how an issue is affected by applicable state law. Federal law is commonly referred to as having limited jurisdiction; all of the laws that can be passed by Congress are limited to those areas that are specifically set forth in the United States Constitution; everything else is re- served to the states (see Amendment 10 to the Constitution: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”). B. The Bill of Rights At the time the U.S. Constitution was adopted, there were concerns ex- pressed that certain rights were not adequately addressed. As a result, the Bill of Rights (Amendments 1 through 10) was added to the Constitution setting forth the liberties thought to be essential to a free people. 4 Chapter One 1. At the time of the Revolution in 1776, nine out of the original 13 colonies had their own form of established church, which was given special advantages not available to other religions. The American Revolution caused disestablishment of the Anglican church (Church of England) in four of the colonies, leaving only five with established state churches. This trend continued with the adoption in Virginia of the Virginia Statute of Religious Liberty of 1786, which provided that no man should be required to attend or support any religious ministry and guaranteed freedom of speech on religious matters. 2. The free exercise clause was first held to apply to the states in Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), and the establishment clause in Everson v. Board of Education, 330 U.S. 1, 8 (1947). 1. The First Amendment For religious organizations, the most important part of the Constitution is the First Amendment, which provides that: 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 as- semble . . . (emphasis added) The first clause prohibits the government from establishing a religion (in- cluding preferring one religion over another or over no religion). The second clause guarantees the free exercise of religion. In addition, as noted below, religious organizations have also used both the freedom of speech and freedom of assembly clauses to support and defend their activities. 2. Applicability of Bill of Rights to States The Bill of Rights was not originally designed to apply to the states, which is why the First Amendment states that Congress shall make no law re- garding religion or its free exercise. In fact, when the Constitution was adopted, some states actually had an official religion.1 However, since that time, the Supreme Court has found that much of the Bill of Rights also applies to the states. The application of the First Amendment to the states has been found to have been made clear by the Fourteenth Amendment,2 which provides, in part that: No state shall make or enforce any law which shall abridge the privi- leges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Therefore, no American governmental authority (state or federal) can pre- fer one religion over another, or interfere with one’s right to believe as he or she chooses. Constitutional Rights of Religious Organizations 7 12. City of Boerne v. Flores, 521 U.S. 507 (1997). 13. 80 U.S. (13 Wall.) 679 (1871). 14. Id. at 727. 15. See Mark E. Chopko & Michael F. Moses, Freedom to Be Church: Confronting Chal- lenges to the Right of Church Autonomy, GEO. J. L. & PUB. POL’Y, Vol 3:388 (2005). 16. See, e.g., Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001); Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995); Lamb’s Chaple v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993). which is designed to reinstate the pre-Smith standard. The Court has since held that RFRA can be applied only to the federal government, not the states.12 F. The Church Autonomy Principle Drawn from the Religion Clauses of the First Amendment, together with the Speech Clause and the implicit right of freedom of association, the right of Church Autonomy is the right of churches to be free from government control with regard to their internal affairs. Watson v. Jones was the first in a line of cases articulating the Church Autonomy principle.13 In Watson, the Court held that disputes in churches should be decided by judicial deference to the ecclesiastical hierarchy: [W]henever the questions of discipline, or of faith, or ecclesiastical rule, custom or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final and as binding on them, in their application to the case before them.14 The concept of Church Autonomy has generally been understood as the right of churches to select their ministers, control their doctrine, and determine how the organization is to be governed, without interference from the gov- ernment.15 The right of Church Autonomy is often upheld against the gov- ernment seeking to redefine or control church teaching and governance. G. Other Constitutional Protections for Churches and Other Religious Organizations 1. Federal Constitutional Protections In addition to the religion clauses contained in the First Amendment, the United States Constitution also provides other protections that are frequently relied upon by religious organizations, specifically, equal protection, free- dom of speech, and freedom of assembly. In fact, freedom of speech16 and 8 Chapter One 17. Although it is beyond the scope of this book, it might be noted that the U.S. Constitu- tion also specifically states, in Article VI, Section 3, that: “. . . no religious test shall ever be required as a qualification to any office or public trust under the United States.” 18. Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc et seq. 19. MASS. GEN. LAWS ch. 40A, § 3. 20. Employment Div. v. Smith, 494 U.S. 872 (1990). freedom of assembly arguments have often been better received by the courts than have arguments based on free exercise of religion.17 There are also multiple federal statutory protections, some of which are discussed more fully herein. For example, the Religious Freedom Restora- tion Act mentioned above applies to the federal government, and the Reli- gious Land Use and Institutionalized Persons Act of 2000,18 which is discussed more fully in Chapter 11, applies to both state and federal governments. Multiple federal anti-discrimination statutes provide religious organizations with certain exemptions; see Chapter 5. 2. State Constitutional Protections As we noted above, the United States has a dual system of government, with the federal law, which applies to everyone, and the state law, which applies to the residents of that state. Many state constitutions often have broader protections for religious organizations than the First Amendment. Therefore, it is appropriate to find out what type of constitutional protec- tion might be available on the state level. Some states have other specific protections as well. For example, Massa- chusetts has what is commonly termed the Dover Amendment, which ex- empts agricultural, religious, and educational corporations from many zoning restrictions.19 And a number of states have adopted religious freedom acts, restoring the “compelling interest test,” which was overturned by the 1990 Smith decision.20 As is mentioned above, after the Smith decision, Congress adopted the Religious Freedom Restoration Act; however, this was found to be unconstitutional as it applies to the states. In light of this, a dozen states have enacted similar laws, restoring the “compelling interest test.” In other states, this has been established through decisions of the state courts. It is clear that religious organizations occupy a special place in Ameri- can society. Although they are similar to other charitable entities, because of the First Amendment protections, religious organizations are often less subject to governmental regulations or are otherwise treated differently. However, this does not mean that those operating a religious organization can ignore the law and do whatever they please. Many federal and state laws are applicable, in whole or in part, to religious organizations. Constitutional Rights of Religious Organizations 9 21. Torcaso v. Watkins, 367 U.S. 488 (1961). 22. See also Welsh v. United States, 398 U.S. 333 (1970); Gillette v. United States, 401 U.S. 437 (1971). 23. County of Allegheny v. ACLU, 492 U.S. 573, 649 (July 3, 1989), quoting with ap- proval from Wallace v. Jaffree, 472 U.S. 38, 52 (1985). 24. See, e.g., Anderson v. Brock, 3 Me. (3 Greenl.) 243, 247; McAllister v. Burgess, 37 N.E. 173, 161 Mass. 269, 24 L.R.A. 158, quoting Baker v. Fales, 16 Mass. 488, 495; Scott Co. v. Roman Catholic Archbishop for Diocese of Oregon, 163 P. 88, 91, 83 Or. 97; Pehu v. Kauai, 3 Haw. 50; Wiggins v. Young, 57 S.E.2d 486, 487, 206 Ga. 440, 13 A.L.R.2d 1237. II. Definitions Relating to Churches and Other Religious Organizations The definitions discussed below are relevant to the legal rights of religious organizations—under not only Constitutional law, but also other federal laws (including tax law) and under state law. A. What Is Religion? Initially, the courts and the founders of the country essentially considered “religion” to be any of the various denominations of Christianity, but since the First World War there has been judicial recognition in America that “religion” is not limited to “Christianity.” In 1961, the Supreme Court ac- knowledged that some religions did not even recognize the existence of God.21 By the 1960s, the definition of religion no longer required a belief in God.22 This expansive viewpoint of “religion” has been a part of the move away from being a “Christian” nation to that of a nation hospitable to all religions, until it has become evident that the First Amendment free- dom to believe also includes the freedom not to believe. 23 B. What Is a Church? “Churches” are often treated as a special class of religious organization. Courts use the word “church” to refer both to the body of people gathered together and to the church building, itself.24 It should be noted that “church” is the term used in the Internal Rev- enue Code (Tax Code) probably again a carryover from the idea of reli- gion as referring to Christianity. Because it is used in the Tax Code, we are also using it here; however, the use of this term in this book is intended to include synagogues, mosques, temples, and any other organization with “church-type” characteristics. See following section on the factors used to determine if an entity is a “church” for tax law purposes. 12 Chapter One 31. In addition, SIM, International (Sudan Interior Mission) and Campus Crusade for Christ have both obtained determinations from the Internal Revenue Service that they are religious orders. Religious orders include congregations of Roman Catholic vowed religious men or women. There are many other religious orders, includ- ing some well-established Protestant religious orders (some of which have existed from the time of the Middle Ages) and Buddhist monks.31 Many of these religious orders are made up of individuals who have taken a vow of poverty and devoted their entire lives to communal worship and service to God. Religious orders typically carry on a variety of religious-oriented ac- tivities. However, the “personal” character of religious orders (in that their predominate characteristic is the total, personal commitment of their members) may be the best way of distinguishing a religious order from a church or other type of religious organization. For example, while a church is often regarded as the body of believers, it is regarded by the Internal Revenue Service as an organization that is separate and apart from the people who attend and participate in church services. On the other hand, it may be impossible to define a religious order apart from the role and requirements placed upon the individuals comprising the order (such as vows of poverty, service, etc.). In 1991, the Internal Revenue Service issued Rev. Proc. 91-20 to provide guidelines (including a list of defin- ing characteristics) to be used in determining when an organization may be considered to be a religious order. F. Religious Organizations Other Than Traditional Churches 1. General Although a number of laws and case references apply only to “churches,” “conventions or associations of churches,” or “integral agencies of churches,” there are many other organizations that, being religious in na- ture, have the same First Amendment (and other state and federal constitu- tional and statutory) protections. Some of these entities may exist as a part of a church. Others exist as entities separate and apart from a particular church, but often operate in conjunction with the church. Although much of the law discussed here is applicable to these entities, they also may have other problems and concerns not covered fully in this discussion. Constitutional Rights of Religious Organizations 13 2. Religious Schools and Seminaries A religious school is often operated under the corporate structure of the church. As such, it is not a separate entity, and is considered to be, in the law, privy to all of the same protections as the church itself. However, when a school is separately incorporated, it may either be controlled by a church or churches, or may have an independent board of directors with no church affiliation, even though it is religious in nature. When sepa- rately organized, it is sometimes treated in the same manner as a church, and sometimes as a religious organization other than a church. For ex- ample, a church school may be an “integrated auxiliary of the church,” pastors working with the school may be able to obtain a parsonage allow- ance, and the school may be able to have a church retirement plan that is exempt from ERISA requirements. On the other hand, a separately incor- porated school is not accorded the same safeguards and protections from an IRS audit as are given to a church, and it may be required to pay unem- ployment insurance.32 3. Parachurch Organizations The term, “parachurch” is not a legal term, but has been developed by the religious community to refer to religious organizations that have some of the characteristics of a church, but that are not the typical church with a defined congregation. Some of these “parachurch” organizations are treated as churches for some purposes, and as religious organizations which are not churches for others. These can include evangelistic organizations, and interdenominational organizations. 4. Religious Social Welfare Organizations In addition to the above-mentioned types of entities, there are also reli- gious organizations that are organized to provide some social benefit. Al- though this may be done for religious purposes (such as to fulfill a scriptural directive to take care of widows and orphans), the organization itself is normally not considered to be a church. In addition, such an organization may have to continually justify receiving the benefits of protection of the First Amendment as a religious organization, and may often find itself subject to more intensive governmental regulation than a traditional church, even though it is performing similar activities. These organizations must comply with many of the same regulations and requirements as other nonprofits. 32. See Chapter 2, “Formation and Governance Structures of Religious Organizations,” Section III.H, Operating Sponsored Functions Under Same or Different Entity—Case Study: Church-Sponsored School. See also Chapter 6, “Special Tax and Other Considerations for Ministers and Other Employees of Religious Organizations,” Section II.G, Unemployment Tax. 14 Chapter One 5. Supporting Organizations As with other 501(c)(3) organizations, it is not uncommon to have an or- ganization formed as a supporting organization of a church or convention or association of churches. Such an organization may be formed as an integrated auxiliary. 6. International Operations Some religious organizations, including churches, are international in scope. It should be noted that the freedom of religion guaranteed by the First Amendment to the United States Constitution is peculiarly American. Although freedom of religion is internationally recognized as a funda- mental human rights norm and most countries have constitutional provi- sions protecting religious belief and exercise, other countries provide religious organizations with protections different in both nature and scope as found in the United States.33 Moreover, the Establishment Clause is al- most completely unique to the United States, as many other countries have established or official religions. III. Conclusion The U.S. Constitution accords churches and other religious organizations a special place under U.S. law, and the effect of the First Amendment and Establishment clauses is far reaching. Many generally applicable laws have special provisions relating to churches, and many times laws have been created particularly to respect Constitutional requirements. It is important to be aware of the possibility for unique treatment of churches. On the other hand, the day-to-day operations of a church are very much affected by generally applicable laws and regulations and churches may be sur- prised by how often they are treated the same as a commercial enterprise for regulatory purposes. The following chapters more specifically identify areas of the law in which churches receive special treatment, and areas where they do not. 33. It should be noted, however, that there has been a move toward providing protection of religious exercise as a basic human right; for example, see the European Convention on Human Rights, which has been adopted to protect human rights and fundamental freedoms (Article 9 provides a right to freedom of thought, conscience and religion, but makes it subject to restric- tions “in accordance with law”); the Universal Declaration of Human Rights, which was adopted by the General Assembly of the United Nations on Dec. 10, 1948 (Article 2 states that “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. . . .”); and the International Covenant on Civil and Politi- cal Rights, which is a United Nations treaty based on the Universal Declaration of Human Rights, and is binding on the nations that have signed it.