Religious Liberty in the United States
by Dennis W. Watkins
T

he most accurate statement one can make about religious liberty in the United States is that it is in a state of flux! This is an unpredictable subject.

Let’s look at some recent developments impacting religious liberty.

President Trump’s Religious Liberty Executive Order

On May 4, President Donald Trump signed an executive order regarding religious liberty. The executive order is called “Promoting Free Speech and Religious Liberty.” Its stated purpose is to provide religious organizations greater freedom in political speech.

In signing the order, President Trump stated: “Faith is deeply embedded into the history of our country, the spirit of our founding, and the soul of our nation.  We will not allow people of faith to be targeted, bullied, or silenced anymore.”

Another stated purpose of the executive order is to express an intention by the Trump Administration to do away with the “Johnson Amendment,” which is a provision in the U.S. tax code that prohibits churches and other tax-exempt organizations from political speech and activities. The language of the executive order supposedly relaxes IRS enforcement of the Johnson Amendment, but officially repealing the amendment would require action by Congress.

The executive order also calls for “regulatory relief” to companies that object to the Obamacare requirement for contraception in health care.

Since the issuance of the executive order, much has been written about its effect. Did the order bring about an immediate change in the government’s position on religious liberty?

If you study the written opinions of four experts on this subject, you will read five different views! One law professor described the executive order as extremely narrow and bringing about little or no change to the present state of the law. Another legal expert believes churches “should have less risk than before if their pastors choose to use their pulpit to apply religious beliefs to current political issues.” Another writer said, “The executive order is pretty much nothing.”

A fourth person, whom I know personally, believes the order is a “welcome development for churches and religious organizations.” While the order “offers nothing concrete in terms of additional religious liberty protections,” he writes there might be an argument that “this executive order is simply laying the foundation for further, more concrete actions.” Other writers have called the executive order “nothing but fanfare.”

In addition to these writers, while I’m not an expert on this subject, I have an opinion. I believe that at a minimum, the executive order signals an intention by the federal government to “lay off” any rigorous enforcement of the IRS provisions restricting political speech by churches and ministers and that it does lay groundwork for potential further action by the federal government.

State and Local Religious Liberty

Beyond the federal-government level, there are religious-liberty issues involving state, county, and local governments around the country. Some of these matters are coming to a head in the U.S. Supreme Court.

In 22 states, there are laws which ban discrimination based on sexual orientation. These laws were seen in conjunction with the 2015 same-sex marriage case, Obergefell v. Hodges. But 28 states have no such laws, and gays and lesbians freed to marry under the Obergefell decision can still face discrimination in certain areas, such as employment, housing, and public accommodations.

In Colorado, the Christian owner of Masterpiece Cakeshop refused to bake a wedding cake for a same-sex couple, citing his religious beliefs. Colorado is one of the 22 states with anti-discrimination laws, and Jack Phillips lost a protracted court battle for refusing to create the cake. Phillips told Denver’s Channel 7 News that he has lost 40 percent of his business as a result of this situation.

In June, to the surprise of Supreme Court observers, the justices agreed to hear the appeal by Phillips. The appeal rests on religious beliefs, First Amendment freedom of expression, and the protection of religious liberty. The Supreme Court is hearing the case this fall, and proponents of both sides cite previous opinions signaling what the court will do.

Is the Supreme Court indicating it will overturn the lower court rulings? Justice Anthony Kennedy, who cast the key vote in the Obergefell decision, wrote in that opinion: “It must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”

Other service providers such as florists have faced similar consequences in those 22 states with same-sex anti-discrimination laws. They have claimed their religious beliefs and objections to same-sex marriage should be the controlling factor.

Earlier this year, the Washington Supreme Court ruled that a florist who refused to provide flowers for a same-sex wedding broke the state’s anti-discrimination law even though the florist, Barronelle Stutzman, said doing so would violate her religious beliefs.

What Should Our Pastors and Constituents Do?

I am frequently asked this question. In light of the recent developments reviewed in this article, I think our pastors should preach the Bible and feel confident to integrate our Biblical beliefs into discussion of current social and political concerns. There is nothing wrong with proclaiming our beliefs and commitments, which are based on our understanding of the Holy Scriptures.

Every position the Church of God has taken on these issues has been based not on political opinions but on our Scriptural doctrines and tenets. Preaching the Word of God is always the safest ground for a minister and church.

Our churches also should consider documenting the religious identity of local-church property and activities. For example, I have circulated a “Facilities Use Policy and Procedures” document for adoption by local churches. This policy statement bolsters the religious use and nature of church properties and establishes that their use is based on our sincerely held Biblical and religious beliefs. http://ourcog.org/church-of-god-facilities-use-policy-and-procedures/

What Should Our Pastors and Constituents Not Do?

This is probably the most difficult subject to cover, but I continue to be of the opinion that our pastors and churches should not endorse specific political candidates. The IRS regulations still contain this prohibition, and I think it simply is not a good idea.

I am aware there are some instances in which qualified and proper candidates (even members of the local church) might be running for office, but the best practice is simply not to endorse specific candidates or parties. It might be possible in the future that this prohibition will be removed, but that is the law for now.

 

Looking Ahead

One thing is certain: There will be much debate over the future of religious liberty in the United States. It is incumbent upon our church members and pastors to pray diligently for our country and to play an active role in the political process by voting for candidates who support Biblical beliefs and Christian principles.

 

Dennis W. Watkins serves as legal counsel for Church of God.