Religion, Policy and Politics

Should religion shape public policy? Should it play a role in politics? What are some of the legal, ethical, philosophical and religious principles that should guide analysis of these questions?

Constitutional Principles

Religious people and organizations clearly have a constitutional right to participate in the debate of public issues. The Supreme Court said in 1970: "Adherents of particular faiths and individual churches frequently take strong positions on public issues.... Of course, churches as much as secular bodies and private citizens have that right." Moreover, the Court has recognized that religion may inform public policy, as long as advancing religion is not the predominant purpose or primary effect of government action.

The Constitution protects the right of all Americans to hold public office, regardless of their faith or lack thereof. More specifically, the Court has found that a state law disqualifying ministers from holding public office violated the Constitution. In that case, Justice Brennan commented:

[G]overnment may not as a goal promote 'safe thinking' with respect to religion and fence out from political participation those, such as ministers, whom it regards as overinvolved in religion. Religionists no less than members of any other group enjoy the full measure of protection afforded speech, association, and political activity generally.

And, although the Court has not directly addressed this issue, many agree that the Constitution provides political candidates and public officials with a great deal of freedom to talk in personal ways about their religious convictions.

In short, the Constitution protects the right of individuals and organizations to promote religion, but it generally prohibits the government from doing so.

IRS Restrictions on 501(c)(3) Organizations

In addition to the U.S. Constitution, other legal restrictions are relevant to the engagement of religion, policy and politics. The most prominent of these restrictions are the statutory limits on the lobbying and political activities of organizations that are tax-exempt under Section 501(c)(3) of the Internal Revenue Code. Religious organizations, as well all other organizations that are exempt under these provisions, may not attempt to influence legislation as a substantial part of their activities, and they may not participate at all in campaign activity for or against political candidates.

These rules leave room, however, for 501(c)(3) organizations to play an active role in the debate of issues through unlimited public education and an insubstantial amount of lobbying. They also permit such organizations to play valuable, nonpartisan roles in campaigns. Churches are free, for example, to provide voter education through unbiased public forums and voter guides. Similarly, religious organizations may conduct nonpartisan voter registration and get-out-the-vote activities.

Moreover, these restrictions apply only to actions attributable to the 501(c)(3) organization, not to actions attributable to individuals. The Internal Revenue Service has said that partisan comments by leaders of such organizations in official organization publications or at official functions are attributable to the organization and thus forbidden by the rules. But, outside that context, leaders may become involved in campaigns and endorse candidates when they "do not in any way utilize the organization's financial resources, facilities, or personnel, and clearly and unambiguously indicate that the actions taken or the statements made are those of the individuals and not of the organization." [PDF]

It is sometimes suggested that the flat ban on partisan political activity violates the First Amendment rights of churches and other religious institutions. When the IRS revoked a church's tax-exempt status in 1995 for engaging in prohibited political activities, for example, the church raised such arguments. But in 2000 a federal appellate court affirmed a lower court's ruling in favor of the IRS in this case, saying that the revocation did not violate the church's free exercise or free speech rights. A more detailed description of this case, Branch Ministries v. Rossotti, may be found here.

On February 24, 2006, the IRS released a fact sheet providing additional guidance on what 501(c)(3) organizations can and cannot do with regard to elections. The Service described the fact sheet as "the ambitious beginning of additional guidance in this area." Of particular importance are sections of the fact sheet dealing with issue advocacy and political campaign intervention, the sharing of mailing lists or church directories and the use of web sites. With the release of this new guidance and related materials, the IRS has sent a clear signal that it is stepping up its educational and enforcement efforts in anticipation of future election cycles.

For more information on these IRS rules, consult the IRS Tax Guide for Churches and Religious Organizations [PDF].

Ethical, Philosophical and Religious Principles

The legal rules leave much room for the engagement of religion with policy and politics. But that does not necessarily end the analysis. Apart from the legal principles that are applicable in this area, there is a vigorous debate regarding the ethical, philosophical and religious principles that should guide religion's participation in policy and politics.

Should clergy preach on issues that are part of current policy and political debate? Should an elected official cite sacred scripture on the floor of Congress when taking a position on a bill? Should people of faith raise their religious convictions when they advocate for certain public policies? Should religious leaders endorse political candidates in their individual capacities? Should the president of the United States talk about his or her faith? If so, how and when? These questions have often deeply divided Americans.

Professor Kent Greenawalt of Columbia University Law School has described the poles of the debate in this area as the "exclusive" and "inclusive" positions. Those who subscribe to the "exclusive" position "claim that political decisions in democracies should be made on grounds that are shared premises of that form of government and on forms of justification and ways of determining facts that are accessible to all citizens." Greenawalt states that those who hold this position believe religion is not a proper grounds for policy and political decisions because, "[w]hatever the exact mix of the rational, nonrational, and irrational is in religious understandings, no religious perspective is shared by all citizens, no perspective rests on methods of justification and determining facts that are accessible in the required way." This perspective further asserts:

Religious belief and practice is fine for individuals and communities of faith, and religious perspectives may enrich our cultural understandings. But when citizens are coerced, the state acts unfairly unless it has reasons that have force for all citizens. Religion reasons do not qualify. They do not belong in democratic politics. This is a matter of fairness, and also of political stability. Neither citizens nor officials should present religious reasons in public debate; neither group should rely on such reasons to determine their political positions. [Yale Law Professor] Bruce Ackerman has expressed the exclusive position piquantly. Decisions about abortion should not be based on a "conversation with the spirit world."

Professor Greenawalt underscores the fact that those who support this position do not claim that is somehow unlawful for citizens to bring religious arguments into policy debates. Indeed, he notes that both the Free Speech and Free Exercise Clauses protect the right of people to comment on public matters in religious terms. Rather, these "exclusivists" argue that people should refrain from bringing religion into debates over policy and politics because doing otherwise would be inconsistent with liberal democracy.

Greenawalt says the "inclusive" position "is that citizens and officials should be able to rely on whatever sources of understanding seem to them most reliable and illuminating." Michael McConnell, a proponent of this position who currently serves as a federal appellate judge, delivered a lecture on this topic in 1999 entitled, Five Reasons to Reject the Claim That Religious Arguments Should Be Excluded from Democratic Deliberation. 1999 Utah L. Rev. 639. McConnell argued:

In a pluralistic republic, the people will adhere to many different and practically irreconcilable worldviews. Some may be libertarians, some utilitarians, some feminists, some free marketeers. None may share the others' premises. If it were true that the enactment of laws based on premises that one does not share is a degradation of equal citizenship status, then there could be no such thing as a regime of equal citizens, because all political losers would be second class citizens. Fortunately, that is not a valid conclusion. We are equal citizens not because we agree with the premises of the laws that are enacted, or even because those premises are accessible. We are equal citizens because we have an equal right to put forward our ideas in the public arena, and for those ideas to fail or prevail on the basis of whether our fellow citizens agree with them. Such a system is not compatible with the notion that some worldviews must be excluded from the outset.

Professor Greenawalt himself holds what he calls an "intermediate" position, a position falling somewhere between the "exclusive" and "inclusive" positions on these issues. Greenawalt argues that there are significant differences between government officials and citizens that require different approaches. He explains that "[m]aking and applying law is much more the business of officials than of citizens." Professor Greenawalt says that legislators ought to be able to rely on their religious convictions to a certain extent, but he argues that they typically should not make religious arguments to support their policy positions. "I am not suggesting that legislators should deny religious bases that motivate them; only that they should develop public arguments in other terms," Greenawalt says. He summarizes his position in the following way:

At this point in time in the United States, citizens should regard themselves as free to connect their religious convictions to political positions. Judges and similar officials should seek non-religious bases of judgment and grounds of arguments. Legislators should give a kind of priority to justifications that do not depend on religion in arriving at positions, but they need not rule out all such justifications that they or their constituents find persuasive. In public defense of political positions, they should not use religious justifications.

Others focus on the manner in which religious beliefs are brought to bear on policy and politics. For example, in his remarks [PDF] at 2005 Brookings Institution event, Harvard University Professor and Catholic priest, Bryan Hehir said he was "hesitant" about "encouraging direct translation of religious claims into political discourse and public policymaking." Instead, he suggested that "the middle term between religion and politics is the moral factor." Hehir explained:

Many people do draw their moral values from religious traditions, but it is also true that many people with very powerful moral insights have no religious affiliation or conviction whatsoever. So if the moral factor is the mediating term between religion and politics, it immediately opens up the argument on an equal footing to all parties, that they may make their moral claims wherever they derive them from, and then translate them into the political order.

Still others welcome religious voices to the debate yet emphasize concerns about the impact some public roles may have on religion's integrity. For example, in his book, God's Name in Vain: The Wrongs and Rights of Religion in Politics, Yale University Law Professor Stephen Carter argues two interrelated theses: "First, that there is nothing wrong, and much right, with the robust participation of the nation's many religious voices in debates over matters of public moment. Second, that religions - although not democracy - will almost always lose their best, most spiritual selves when they choose to be involved in the partisan, electoral side of American politics." In this same book, Carter writes:

[T]he religious, like everybody else, are tempted by politics. Seduced by its efficiency. By its potential. By the good it can do. And, it must be added, by the sheer delight of being, or believing oneself to be... at the center of things. Who wants to be a voice crying in the wilderness when we can be witnesses testifying before Congress? Who wants to be a prophet without honor in his own land when White House breakfasts are available? Who wants to store up treasures in heaven when there are elections to be won here on earth?

At a time when religion is hard-wired into much of our nation's policymaking and politics, these matters deserve careful thought and deliberation.