Important to Talk About but Not to Mix: Religion and the Political Process

Introduction

From a very young age most of us are told that two of the topics that we shouldn’t discuss with people are politics and religion. This could be because the various opinions and emotional factors that go into these topics could make the discussions more heated than most others. This could also be because of a lack of understanding of the complex nuances in these fields causes people that may agree on the ultimate issue, to disagree on how something is labeled. But as we grow older, we as Americans seem to love mixing politics and religion, let alone simply discussing them. Some are upset whenever politicians reference religion too infrequently, whereas others would be upset that the politician is referencing another religion. Going to church[1] and hearing the preacher speak about supporting a certain political viewpoint would be joyous to some and horrendous to others. So, what are the rules? What should our politicians and churches really be saying, or not saying?

           The first part of this paper will be focused on politicians officially using religion. Section A will discuss the history and purpose of the law governing such uses. Section B will focus on when elected officials use religion during elections. Section C will focus on when elected officials use religion while in official capacity in office. Section D will look at what should be done moving forward. The Establishment Clause of the U.S. Constitution[2] gives some guidance as to what politicians can do once they are in office, such as whether or not they can pass legislation that does not have a secular purpose[3]; but does not give any guidance on whether or not this type of religious/political mix can be used to get elected.

           The second part of this paper will be focused on tax-exempt churches participating in politics. Section A will discuss the history and purpose of the law governing such participation. Section B will highlight the tax-exempt status of churches and the effect that it has on their participation. Section C will look at how these organizations should be monitored to balance all appropriate rights, and what can be done moving forward. This will raise questions as to which constitutional right is outweighed by the other, religious freedom or freedom of speech[4], when it comes to churches and politics and how administrative rules, such as the Internal Revenue Service (IRS) limiting political advocacy[5], can have a great effect not only on churches themselves, but also on the entire political process.

           Religious freedom is a vague term that should also be defined at the beginning of this paper. Religious freedom is a vague right granted by the First Amendment of the United States Constitution and broken into two specific clauses, the Establishment Clause, which prohibits the government from creating an official religion, and the Free Exercise Clause, which allows the citizens of the United States to openly and freely practice their religion without government interference. Also in this paper, religious freedom is used to strike a balance between one citizen practicing their religion and another avoiding religion altogether or another citizen practicing a different religion. In the end, this paper proposes a definition of religious freedom as all citizens being free to practice their religion without interference by the government so long as the practice of said religion does not interfere with the rights of another citizen.

           With that definition, this paper also adopts a Separationist theory of the Establishment Clause. There are three major theories related to this topic, the first, Accommodationist, presents the idea that “[g]overnment can accommodate and encourage religion in general but the ‘First Amendment was intended merely to prevent the establishment of a national church or religion, or the giving of any religious sect or denomination a preferred status.’”[6] The second, Neutrality, presents the idea that “the government should not treat religion any better or any worse than other kinds of activities protected by the Bill of Rights.”[7] Lastly, Separationism, which presents the idea that “’religion and government function best if each remains independent of the other’ and the ‘advancement of a church [should] come only from the voluntary support [of] its followers and not from the political support of the state.”[8] Religion is important to who we are as Americans, but because of that, it must be separated from the government so that America can continue to grow and function effectively in a modern society.

           Politicians should be elected for their policy considerations, not which religion they support, or don’t support. When passing or endorsing legislation, these politicians should focus on what’s best for the Nation, not what would satisfy a religious (or non-religious) group. These dangerous mixes of politics and religion could cause a great divide not only between religious and non-religious Americans, but also between different religions, and different sects of the same religion. It must come from both sides, however. Churches should focus on the spirituality and faith of their followers, instead of the positions of elected officials. Guiding adherents to which position on a topic most fits within their moral code may be completely acceptable but having a veto power over which laws get passed in their community[9] would be too much of a mix from this side of the issue.

           The United States is a country without an official religion, a melting pot of the wide variety of religious and non-religious views that make up humanity today. Our elected officials, citizens, and churches should not forget this.

1. Politicians Officially Using Religion

           Throughout the history of the United States, there are many examples of politicians using their religion as a reason to pass certain legislation, or even to get themselves elected. This paper begins with a history and reasoning of the laws passed to prevent such behavior. Then, it will highlight examples of using religion in elections and then using religion once elected. Finally, an overview will be given, along with a plan forward.

A. History and Reasoning of the Law

           “To many, the idea of government endorsement of religion is not only acceptable, but also a desirable way to promote public morality and strengthen community bonds.”[10] This quote goes against the very ideas that this country was found upon: religious (or lack thereof) freedom. We the People on occasion ignore this founding principle when it best suits us. Laws are passed preventing non-Christian ideas, and politicians are encouraged or required to profess a belief in a certain deity. Since the founding of this country, the role of religion and how it relates to the government has been a matter of intense debate.[11]

           George Washington, Thomas Jefferson, and James Madison, three of the United States’ first four Presidents, all held different views on what the Establishment Clause of the Constitution meant.[12] However, “even ‘leaders who have drafted and voted for a text are eminently capable of violating their own rules.’”[13] And even today, “many people look to the President as the moral leader and sometimes even the spiritual leader [of the Nation].”[14] This can be seen with the National Day of Prayer,[15] with a short history provided below. 

           This official acknowledgement (and arguable endorsement of Judeo-Christian religions) began back in 1952. Evangelist Billy Graham led a campaign in Washington, D.C. that ended in a speech on the Capitol steps that called for a National Day of Prayer, “What a thrilling, glorious thing it would be to see the leaders of our country today kneeling before Almighty God in prayer,” Graham said.[16] A bill was introduced to the U.S. House of Representatives shortly thereafter, with a Representative stating “I hope that all denominations, Catholics, Jewish, and Protestants, [sic] will join us in this day of prayer.”[17] Congress passed the bill on April 17, 1952.[18] In 1988, the law was changed to a steady date each year.[19] In Section 1C of this paper we will discuss how the Seventh Circuit declared this law constitutional.[20]

           Those Americans that support the above statement that the President is sometimes even the spiritual leader of the Nation, have tried to prevent people that may not share even the most general of religious views from becoming an elected (or appointed) official. In Torcaso v. Watkins,[21] “Torcaso was appointed to the office of Notary Public by the Governor of Maryland but was refused a commission to serve because he would not declare his belief in God.”[22] Although this would not be an elected official using religion to be elected, this would be other elected officials not allowing those that do not believe as they do to become an elected official. The court here stated that the only purpose or effect of this requirement was to “set up a religious test which was designed to and, if valid, does bar every person who refuses to declare a belief in God from holding public office of profit or trust in Maryland.”[23] Even when the U.S. Constitution explicitly states that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States,”[24] we the people and our elected officials still try to ignore this founding principle on occasion to pass laws like this,[25] which are a direct affront to not only the Establishment Clause, by limiting which religion can hold public office, but also to the Free Exercise Clause by punishing those that follow a different religion from the majority by not allowing them to hold public office.  

           The U.S. Supreme Court held that neither the State nor the Federal government could “force a person to profess a belief or disbelief in any religion,” nor could they “impose requirements which aid all religions as against non-believers” or “aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.”[26] In the same line of balancing separation of church and state as Torcaso, the states may not prevent clergy from holding elected office. Seven of the original States[27] as well as Tennessee’s 1796 Constitution disqualified ministers from legislative office.[28] “The purpose of the several States in providing for disqualification was primarily to assure the success of a new political experiment, the separation of church and state.”[29] Over time, the various states removed said restrictions because a fundamental principle of liberty would not be punishing a person in a religious profession by prohibiting them from participation in a civil right. Most states acknowledge the right of adult citizens generally to seek and hold public office and the freedom to pursue employment in a religious field. However, the above restrictions would prevent someone from exercising both rights simultaneously.

           Only two States still disqualified clergy from holding legislative office by the beginning of the 1900s, Maryland and Tennessee.[30] In McDaniel v. Paty, Tennessee claimed the reason for this restriction was that “[ministers,] if elected to public office they will necessarily exercise their powers and influence to promote the interests of one sect or thwart the interests of another, thus pitting one against the others, contrary to the anti-establishment principle with its command of neutrality.”[31] The court stated that this rule was merely similar to the one in Torcaso, and violated the Free Exercise Clause by instead of barring office seekers because of not just their belief in religion, but because of their commitment to persuade or lead others to accept that belief and that “[o]ne’s religious belief surely does not cease to enjoy the protection of the First Amendment when held with such depth of sincerity as to impel one to join the ministry.”[32] Although this rule was ultimately struck down, it raises questions outside the scope of this paper; such as how would a clergy member running for office affect their tax-exempt status?

           As seen above, there have been and still are a variety of restrictions for who can run for public office and what they can do to aid religion (or lack thereof) once they have been elected. However, there are not many restrictions for how one could advertise their religion in order to help them win office. And, as we’ve seen, even with these restrictions there are examples of politicians passing laws in order to advance their beliefs, regardless of what the restrictions say, to the benefit of some and the detriment of others because they are not “bright-line” restrictions and are open to interpretation of the three different theories outlined in the Introduction. These next two sections will go deeper into politicians using religion to get elected and examples of politicians using religion once in office.

B. Politicians Using Religion to Get Elected

           This Nation’s history has provided a large body of jurisprudence related to what the government can do when it relates to religion. One area that is lacking, however, is what political candidates can do relating to religion whenever they are running for public office. As discussed in Section 1A, there have been bright-line rules[33] that have prevented candidates from holding office because of their religious affiliation or lack thereof. In this section, some restrictions open for interpretation are presented.

           At the beginning of this section it is important to note that there is a debate between political theorists as to whether religion should mix with politics. This section is dedicated to only a legal argument about this debate. Legally, our politicians’ statements about religion are protected under Free Exercise and Free Speech. However, this section proposes that laws be made to limit this expression for the betterment of our Nation. Similar to the restrictions placed on churches’ Free Speech related to participation in politics, our politicians should be limited to official statements about religion. Although statements made by politicians during the election cycle are not state action and therefore are not under the ‘jurisdiction’ of the Establishment Clause, if the politician cannot separate their own religion from their campaign, what would make them be able to separate their religion from their time in office? This would require a balance between when the politician is acting in an official capacity of their campaign and whenever they are acting as a private citizen with factors adjusted from the IRS’s Tax Guide for Churches & Religious Organizations.[34] The speeches from campaigns below sheds a better light on this issue.

           As religion seeps into the political realm more, questions unrelated to the official position but related to religious affiliation have become prevalent. In Lloyd v. Birkman,[35] a new constable was being appointed until the next general election. “During the interviews, the candidates received questions on their positions on abortion and same-sex marriage, their political affiliations, the churches that they attended, and their political ideology.”[36] During the interview, the candidate had received disapproving glances after his answer about abortion and was told “he would need to come up with a better answer” after his answer to same-sex marriage.[37] During the trial, the Commissioners conducting the interview stated that “it is very unlikely that a candidate whose answers are not consistent with the Republican platform could be elected in [the county],” and that they had asked those questions to make sure that person would have been able to win had there been an election.[38]

           This raises a dangerous precedent, and not only for temporarily appointed positions. Questions relating to same-sex marriage and/or abortion have nothing to do with the position of constable, so why ask them other than to bring religiously charged questions into an otherwise non-religious interview? A candidate’s religion should not be a topic of discussion for why they should or should not hold a public office. To hold otherwise would be to return to the religious-affirmation requirement we saw in Torcaso or McDaniel, in violation of the Establishment Clause and/or the Free Exercise Clause. The court in Lloyd went further into issues unrelated to this paper, such as employment law, in order to solve the case. The question of whether these questions were acceptable for a position that has no legislative ability went unanswered.[39]

           This is but just one example. A better-known example of a candidate’s faith being used to help or harm them in the election process is John F. Kennedy’s speech on his religion.[40] Then-presidential candidate, he gave a speech to the Greater Houston Ministerial Association, which is a group of Protestant ministers.[41] “At the time, many Protestants questioned whether Kennedy’s Roman Catholic faith would allow him to make important national decisions as [P]resident independent of the church.”[42] This is already reminiscent of the argument Tennessee used against McDaniel,[43] which although came nearly a decade later, was struck down by the U.S. Supreme Court. Although facing this issue, Kennedy embraced an idea of religious freedom that this country (now, as well as then) has forgotten. Kennedy stated that he “believe[s] in an America where the separation of church and state is absolute, where no Catholic prelate would tell the President (should he be Catholic) how to act [. . .] and where no man is denied public office merely because his religion differs from the [P]resident who might appoint him or the people who might elect him.”[44] This appointment argument speaks directly to the questions presented in the above paragraph about Lloyd. Lloyd took place in 2015, fifty-five years after this speech. Kennedy’s words were not heard effectively enough to create change.

           Kennedy stated that “no public official either requests or accepts instructions on public policy from the Pope, the National Council of Churches or any other ecclesiastical source[.]”[45] Although discussed in Section 2 below, this rule[46] had already been in effect in order for churches to keep their tax-exempt status. This did not deter politicians from taking public policy considerations from Billy Graham to support the National Day of Prayer just eight years before this speech took place, however.[47] Near the end of this speech, Kennedy said “[w]hatever issue may come before me as [P]resident- on birth control, divorce, censorship, gambling, or any other subject- I will make my decision in accordance with these views, in accordance with what my conscience tells me to be the national interest, and without regard to outside religious pressures or dictates.”[48] Presently, this may be a fatal quote if said by any state or local politician in the Southern United States.

           Similar speeches were given by both Mitt Romney and Barack Obama. In Romney’s speech,[49] which was focused on how faith would inform his presidency, he openly admitted to being a Mormon and stated that “As governor, [. . .] I did not confuse the particular teachings of my church with the obligations of the office and of the Constitution.”[50] His speech was also riddled with statements where he openly preferred religion, as a whole, to non-religion including “Freedom requires religion just as religion requires freedom” and “No candidate should become the spokesman for his faith. For if he becomes president he will need the prayers of the people of all faiths.”[51]

           Obama’s speech was similar, but he had one major difference; his opponent had used religiously charged advertisements against him. Quoting these advertisements, Obama stated “Jesus Christ would not vote for Barack Obama. Christ would not vote for Barack Obama because Barack Obama has behaved in a way that it is inconceivable for Christ to have behaved. [. . .] I can’t impose my own religious views on another, that I was running to be the U.S. Senator of Illinois and not the Minister of Illinois.”[52] Obama followed the lines of Kennedy in calling for the end of religion as a political tool in stating “Whatever we once were, we are no longer just a Christian nation; we are also a Jewish nation, a Muslim nation, a Buddhist nation, a Hindu nation, and a nation of nonbelievers,” and “No matter how religious they may or may not be, people are tired of seeing faith used as a tool of attack. They don’t want faith used to belittle or to divide.”[53] But Obama also used this speech to gain points with the religious voting bloc in stating “So before we get carried away, let’s read our bibles. Folks haven’t been reading their bibles.”[54]

           The examples could go on and on. But in the same speech where these Presidential hopefuls claim that religion as a political tool should stop, they still use religion as a political tool. The question remains unanswered, why, in a country founded on religious freedom, do some of ‘we the people’ demand candidates answer questions about their religion? Or hold their suspected religion against them? Many will remember President Barack Obama’s election. There were many claims being made against him during the campaign, some of the more prevalent ones were whether President Obama is a Muslim,[55] whether Jesus Christ would have voted for him,[56] or that he was even the Antichrist.[57] The Antichrist theory aside, why should it matter if a candidate was a Muslim, or Hindu, or non-religious?

           This country was founded on the principle of religious freedom and as stated above, any rules or regulations about a candidate’s religion have been declared unconstitutional. This does not dissuade voters from caring greatly about what church (or lack thereof) a candidate adheres to. In fact, in all of United States history, every President has been from some branch of Christianity, even if they (somewhat) left the church later.[58] How much time must go by before the unspoken and unwritten requirement of being Christian is removed from the requirements to become President?

C. Politicians Using Religion While in Office

           If and when a candidate makes it through the election process, with or without their religion becoming a hot discussion topic, what about while they are in office? Can they use their religion to pass legislation, or simply not do part of their job because they claim their religion forbids it? One of the more famous examples appeared after same sex marriage was legalized throughout the entire Nation.[59] In Rowan County, Kentucky, the clerk refused marriage licenses to any couples in an effort for the clerk to not have to issue marriage licenses to same sex couples while also not discriminating.[60] The clerk held a sincere religious objection to same-sex marriage.[61] Before taken to court, a deputy clerk had offered to issue the licenses but the clerk still objected because her name would be affixed to the license.[62] After Obergefell, the Governor of Kentucky issued a directive that “[The clerks] can continue to have [their] own personal beliefs but, you’re also taking an oath to fulfill the duties prescribed by law” and that if their personal convictions told them that they cannot fulfill the duties that they needed to resign and let someone else step-in.[63]

           The court found that the Governor’s directive did not substantially burden Davis’ sincerely held religious beliefs.[64] For one reason, the right to marry as stated in Obergefell was a compelling state interest and Davis was refusing to allow anyone to marry.[65] For another reason, the licensing process “simply asks the county clerk to certify that the information provided is accurate and that the couple is qualified to marry under Kentucky law.”[66] Davis, in her elected position, was not asked to condone same-sex unions on moral or religious grounds nor was she restricted from engaging in any religious activity she wished.[67] Davis was ordered by the court to start issuing marriage licenses to all legally qualified couples.

           The court here did not prevent Davis from living and believing however she wanted to, just that she carries out her job. Although cheered on by some, this could have set a very dangerous precedent in religious freedom. Not a test as to who can hold or run for office but instead a religion forcing their views upon the populace by simply holding the office and instilling their own policy of who can receive benefits (in this case, marriage licenses) from the government. This has raised a very delicate balancing test between an individuals Free Exercise of religion when doing their job, especially a government job, and another individuals freedom from religion.

           Politicians that have legislative ability can take us even further from religious freedom than an elected official just simply not doing a part of their job, as seen above. In Alabama, a law was enacted in 1978 that authorized a 1-minute period of silence in all public schools “for meditation.”[68] This law was then changed twice, once in 1981[69] and once in 1982.[70] The first change in the law added “or voluntary prayer” to the end of “for meditation,” the second change “authorized teachers to lead ‘willing students’ in a prescribed prayer to ‘Almighty God . . . the Creator and Supreme Judge of the world.’”[71] Although the ultimate constitutionality of the statute would be subject to the Lemon test,[72] the actions of the sponsoring politician were wildly inappropriate in the eyes of religious freedom in the United States. The sponsor of the 1981 amendment to the law stated in the legislative record, without dissent, that this change was “an ‘effort to return voluntary prayer’ to the public schools.”[73] After the passing of the bill he was asked to confirm if that was his purpose and he stated “No, I did not have no other [sic] purpose in mind.”[74]

           If the sponsor wanted to merely protect every students’ right to engage in voluntary prayer during a moment of silence, no change needed to be made to the 1978 law. However, by stating in the record the purpose was “to return prayer to the public schools,”[75] this crosses the line of pushing the elected official’s religion on the populace and not maintaining a neutrality towards religion as required by the Establishment Clause of the First Amendment. Because this 1985 decision ruled that specifically adding voluntary prayer into the public schools was unconstitutional, how is the National Day of Prayer[76] still good law?

           The history of the National Day of Prayer has been laid out in Section 1A, supra, the statute itself was challenged by the Freedom from Religion Foundation on the grounds that “the statute is unconstitutional because it endorses prayer and encourages citizens to engage in that particular religious exercise.”[77] Defendants argued that “the statute is simply an ‘acknowledgement of the role of religion in American life.’”[78] As seen above in Wallace though, by codifying prayer, the government officials are no longer neutral towards religion. The District Court agreed with my analysis, arguing that prayer received special status through this statute. “The National Day of Prayer is one of a select few days on the calendar that Congress has officially recognized in a statute. The other days are directly related to patriotism, public health, family, or a celebrated historical figure.”[79]

           The legislative history of this statute may have not been as obvious, with sponsors stating the purpose of the bill was to “protect against ‘the corrosive forces of communism.’”[80] The District Court stated that those comments “contribute to a sense of disparagement by associating communism with people who do not pray” and “if you do not believe in the power of prayer, you are not a true American.”[81]

           This statute is of course different than Presidents praying themselves. The balance of when the President is in their official capacity and when they may practice their religion as a private citizen is outside the scope of this paper. The proclamation that all Americans should join in prayer on a specific day is not the private practice of religion, but a call to join in a religious practice as a Nation. This statute is a direct violation of the Establishment Clause.

           This day has also been hijacked by many areas with events purposefully excluding any who are not Christian. The events are not led by government officials but by local private groups in public buildings. “In Victorville, California, local residents complained that ‘Hindus, Buddhists, Muslims, and Sikhs are being excluded’ from the National Day of Prayer event at the town hall. The organizer responded, ‘this entire nation was founded on Christian faith. The reason we are a great country is because we’re Christian. In the Muslim countries, you can get shot if you’re Christian.”[82] These private organizers are not only being openly hostile towards other religions, but are making claims, under the guise of government approval, that this is a Christian nation. Interactions such as this also take place all over the country on this day.[83]

           Unfortunately, only the District Court saw the similarities between this statute and the statute in Wallace. The Circuit Court of Appeals upheld the statute and stated that “although this proclamation speaks to all citizens, no one is obliged to pray. [. . .] The President has made a request; he has not issued a command.”[84] The Court of Appeals claimed that this statute was analogous to speeches given by Abraham Lincoln or George Washington, hundreds of years ago. However, the similarities between the National Day of Prayer and the addition of voluntary prayer to the Alabama statute are glaring this country’s religious freedom jurisprudence in the face.

           In recent history, another law has been upheld that goes against religious freedom as much as the National Day of Prayer. In Trump v. Hawaii,[85] plaintiffs contended that two Executive Orders[86] implemented by the Trump administration single out and disfavor Muslims in the immigration process.[87] The reason for this claim is statements made by then-candidate Donald Trump “call[ing] for a ‘total and complete shutdown of Muslims entering the United States.’”[88] Immediately after the President’s inauguration, the first Executive Order[89] was issued; President Trump called it a “Muslim Ban.”[90] The majority upheld the order claiming that the statements issued by the President cannot override the national security interest that those orders claim to protect.[91] This decision on national security is immediately put to the side with the Justice Breyer’s dissent. Justice Breyer states that within this “security-ban” there is a waiver system in place that is already discriminatory to Muslims, which makes the term “Muslim ban” significantly stronger than the now-accepted “security-ban.”[92]

           The other dissenting opinion, however, points this decision out for what it is: “a ‘total and complete shutdown of Muslims entering the United States’” masquerading “behind a fa?ade of national-security concerns.”[93] This dissenting opinion recognizes that the majority ignored what was generally considered whenever a government policy or law was challenged under the Establishment Clause, which is “the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by the decision maker.”[94]

           This dissenting opinion then goes through an extensive list of statements made by the then-Presidential candidate throughout the campaign including “if elected [Trump] would ban Muslims from entering the United States,”[95] comparing his ban on Muslims entering the country to what Franklin D. Roosevelt did during the internment of Japanese Americans during World War II,[96] and even telling “an apocryphal story about United States General John J. Pershing killing a large group of Muslim insurgents in the Philippines with bullets dipped in pigs’ blood in the early 1900s,”[97] among many others. The dissent correctly analyzed that all of these statements should have had an effect on the constitutionality of the Executive Orders. “Taking all the relevant evidence together, a reasonable observer would conclude that the Proclamation was driven primarily by anti-Muslim animus, rather than by the Government’s asserted national-security justifications.”[98]

           Trump v. Hawaii raises an interesting Establishment Clause issue. Although this proclamation would not be stating that the government of the United States was specifically a certain religion, it would, however, state that the United States government was not officially Muslim-friendly. In the past, both in Wallace v. Jaffree and Freedom from Religion Found., Inc. v. Obama, the law, on its face, was not a violation of the Establishment Clause but whenever the Court[99] looked into the stated or perceived reasoning for these laws being established, they were struck down. Trump also seems legal on its face under the fa?ade of national security, but whenever all of the statements are taken into account like the precedent says they should, there is no way a reasonable observer[100] would believe that the President’s statements were not in violation of the Establishment Clause.

           All of the cases above are examples of politicians using their position to force their views either for or against a certain religion. Despite the Lemon or any other test adopted by the Supreme Court to strike down statutes that are not neutral towards religion, both Presidents Obama and Trump have had otherwise evidently unconstitutional laws upheld. This sets a very dangerous downhill slope towards a country that was founded on religious freedom becoming officially a Christian Nation.[101]

D. Moving Forward- Politicians

           As shown above, this country has laws in place to have our political process be neutral towards religion. But from the very beginning, these laws have been entirely ignored or interpreted in varying ways. Progress has been made, however. There are no longer the obvious and unconstitutional official religious tests to hold public office as discussed in Torcaso and McDaniel, although those tests never should have been in place originally. We the People founded a Nation on religious freedom. Then as years went by, we instituted religious tests under the guise of moral grounding. Even today, in Lloyd, a constable was asked questions about their religion in an effort to see whether or not they would be able to be elected.

           There may be no more official religious tests, but the voters demand an unofficial religious test. Whenever a constable runs for office, why should it matter their stance on abortion? Their position has nothing to do with legislative power or abortion. Whenever a President runs for office, why is their religion so scrutinized whenever we live in a pluralistic society? As seen above, from JFK to President Obama, and many more, have spoken about their religion on the campaign trail. This is not to say that the constable or the President is not allowed to have a religion or to profess a religion; however, a balance needs to be found. If JFK is called before a meeting of Protestant ministers who worry that he will take his direction from the Pope, how is that any different from Tennessee not allowing a minister to be a representative in their constitutional convention? The Supreme Court made it very clear that discrimination of that sort is unconstitutional, yet we do it during every election. There should not be a problem with Barack Obama writing a book[102] while he was Senator that has religious connotations because it was not a part of his campaign. That same precedent would follow in Miller. Kim Davis was certainly allowed to do whatever she wished outside of her job when it came to her religion. However, opinions on same sex marriage aside, she had to issue licenses as part of her job. Running for political office is part of the job of holding said public office, and just like Davis was not allowed to use her religion in the public work place in Miller, candidates for office should not be allowed to use their religion to further their campaign.

           If candidates have a view on same sex marriage, abortion, or any other topic, that does not have to mean they are associated with one religion or another. In the modern age there are many Christians that support same sex marriage or abortion, yet the term “Christian” is usually used to only describe Republicans, or even more dangerously, the term is used to group together one’s political opponents. Once these candidates make it into office, they need to be held more accountable to our religious freedom laws. In Wallace, there was nothing preventing students from praying during the silent meditation period during the school day. Or, there was nothing preventing the legislature from passing the original statute including the sentence about prayer. The problem became whenever the legislator specifically stated that the purpose was to include religion.

           That precedent was eliminated in favor of politics when it comes to Trump, however. If the statements in Wallace were enough to make the statute unconstitutional, then the statements in Trump were significantly more than enough to strike down the executive order. Open animosity towards a religion or open support of a religion are supposed to be the foundation of the Establishment Clause. As candidates continue to run on religious grounds and laws like the National Day of Prayer or the Muslim Ban are upheld, the foundation of religious freedom in this country wears down. During the Cold War, the argument of national security was used to defeat the “godless communists” whenever religion was added to our daily lives. Now the argument of national security is being used to keep out those who hold a different religious opinion than us. The National Day of Prayer has been used to make those who do not agree religiously from participating in what is, essentially, a national holiday. The ballot box and the public debate are being used to prevent those that are not Christian enough, or those that are too Christian, depending on what side of the aisle, from holding public office.

           New laws need to be enacted to prevent religion as a political weapon. Old laws need to be held for what they are, glaringly unconstitutional or vastly under-applied. Otherwise, We the People, a multicultural pluralistic society, will become a land ruled by one religion, where if you’re not that religion you can’t come in, hold office, or participate in national holidays.

2. Churches Participating in Politics

           Churches in the United States are automatically tax-exempt. This tax-exempt status prevents them from participating in the political realm. As with Section 1, the laws are completely ignored and the balance between religion and politics has been skewed to where churches, just as politicians, operate unchecked. A history and purpose of the law will be given, followed by churches that have been participating in politics, and finally, how these organizations should be monitored moving forward. 

A. History and Purpose of the Law

           Churches have been officially tax-exempt since as early as 1894, provided that they operated for charitable purposes.[103] Currently, churches have their tax exemption codified as part of the 501(c)(3) tax code.[104] The code states: “Corporations, and any [. . .] foundation, organized and operated exclusively for religious, charitable, [. . .] or education purposes, [. . .] no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation [. . .], and which does not participate in, or intervene in, (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.”[105] “The legislative purpose of the [tax-exempt status] is [that] New York, in common with the other States, has determined that certain entities that exist in a harmonious relationship to the community at large, and that foster its ‘moral or mental improvement,’ should not be inhibited in their activities by [. . .] taxation or the hazard of loss of those properties for nonpayment of taxes.”[106]

           “Both the courts and the Internal Revenue Service have long recognized that the statutory requirement of being ‘organized and operated exclusively for religious, charitable, . . . or educational purposes’ was intended to express the basic common law concept of ‘charity’. . . . All charitable trusts, educational or otherwise, are subject to the requirement that the purpose of the trust may not be illegal or contrary to public policy.”[107] Therefore, all churches in order to maintain their tax-exempt status must be charitable and must not influence legislation, propaganda, or political campaigns. “’Charity’ in its legal sense comprises four principal divisions: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community.”[108] The question of whether an institution is charitable is different from whether or not that institution is obeying the rules set out for tax-exempt status in § 501(c)(3).

           The reason for these tax-exemptions is that churches provide social welfare such as family counseling, aid to the elderly, aid to children.[109] “Churches vary substantially in the scope of such services; programs expand or contract according to resources or need.”[110] Churches as a whole have changed greatly since this tax-exemption was created. Mega-churches, churches that are widely known for their political activism, churches that openly attempt to influence legislation as shown above with the history of the National Day of Prayer. How have these laws and restrictions been applied over time to these ever-changing institutions?

B. Churches Openly Engaging in Politics

           The rules about what churches can talk about in order to keep their tax-exempt status[111] seem clear enough. However, the IRS has also published a Tax Guide for Churches & Religious Organizations.[112] In this publication the IRS states that “churches that meet the requirements of [§ 501(c)(3)] are automatically considered tax exempt and are not required to apply for and obtain recognition of tax-exempt status from the IRS.”[113] This publication also defines specifically what activities could jeopardize the churches’ status. Under substantial lobbying activity, it states that “legislation includes action by Congress, any state legislature, any local council, or similar governing body, with respect to acts, bills, resolutions, or similar items, . . . or by the public in a referendum, ballot initiative, constitutional amendment, or similar procedure. . . . A church or religious organization will be regarded as attempting to influence legislation if it contacts, or urges the public to contact, members or employees of a legislative body for the purpose of proposing, supporting or opposing legislation. . . . Churches . . . may, however, involve themselves in issues of public policy with the activity being considered lobbying.”[114]

           The publication lists similar rules for political campaign activity.[115] Churches can invite candidates to speak at functions and even hold voter education drives. The IRS is supposed to determine whether or not a church has crossed the line on a case by case basis and looks at factors such as: whether the statement identifies one or more candidates for a given public office, whether the communication makes reference to candidates or voting in specific elections, whether equal opportunity is given to all candidates to speak at an event, and whether the voter education would be the issues in comparison to the organizations positions on that issue.[116] Congress has specifically outlined examples of when official church communication would cross the line.[117]

           The various courts have struggled to enforce these rules which has resulted in very large churches that are not charitable but keep their tax-exempt status and very politically active churches that also keep their tax-exempt status. A question was raised out of New York, what if the dogma of the church is to be politically active? The Holy Spirit Association for the Unification of World Christianity require their followers to a course of political activism.[118] Specifically, the church “believes that the physical world consisting of science and economics as well as the spiritual world consisting of religion have developed in accordance with ‘God’s providence’ and that ‘religion and economy relate to social life through politics’, that ‘it is petitioner’s religious tenet that the republican form of government is a Satanic principle and that these three governmental branches under the present political system must be brought under a single controlling force as a condition for the second coming of the Messiah.”[119] When starting their analysis the court claimed that “In determining whether a particular ecclesiastical body has been organized and is conducted exclusively for religious purposes, the courts may not inquire into or classify the content of the doctrine, dogmas, and teachings held by that body to be integral to its religion but must accept that body’s characterization of its own beliefs and activities and those of its adherents, so long as that characterization is made in good faith and is not sham.”[120] The court does not state where this test came from and it ultimately held that “religious and nonreligious themes are inextricably intertwined in the doctrine and that therefore, despite the religious content of the doctrine, and the leitmotif of religion with which the eclectic teachings are tinged, the doctrine, to the extent that it analyzes and instructs on politics and economics has substantial secular elements.”[121]

           If the court in New York ruled that the above church’s doctrine is so intertwined with their religious beliefs, where would that leave our test for tax-exempt status? Recently, a court in Kansas heard a very similar argument from a better-known religious organization, the Westboro Baptist Church. The Westboro Baptist Church claimed that the new truck they had bought should be tax-exempt because it was being used for religious activities.[122] Similar to the church in New York, “[Westboro Baptist Church] members believe that they are God’s messengers on earth, and it is their duty to publish the message that God has punished and will continue to punish the United States because of the country’s willingness to condone homosexuality.”[123] The Kansas court ultimately held that the Westboro Baptist Church’s “activities had a significant political component, which made it ineligible for the [tax] exemption.”[124] The reason was that although the Westboro Baptist Church claims that it is a significant and intertwined part of their dogma, that the “members . . . have chosen to do this politically by warning the public about allegedly ungodly public and elected officials and advocating the election of godly officials to office. In advocating the reform of local, state, and national government by their message, the [Westboro Baptist Church]’s members are engaged in a secular activity.”[125]

           Although the New York court did not outline what activities their church was participating in, it did hold that the preaching at the pulpit could be politically motivated if the political motives were intertwined with the religious dogma. Kansas however, focused more on the activities of the church, regardless of the claim for intertwined religious dogma. Westboro Baptist Church’s activities are extremely politically charged.[126] More than 20 years had passed between the New York decision and the Kansas decision, with the ever-changing public view of religion, the New York court would hopefully hold differently today instead of creating a means for churches to claim intertwined dogmas simply to evade tax laws. This inequality however, already shows some problems for whenever the churches dogma is factored into the Free Exercise debate.

           In addition to some churches openly participating in politics, whether or not they are allowed, churches have also been able to influence legislation, sometimes going as far as having a veto power for zoning regulations. In Massachusetts, a statute was in effect that gave “churches and schools the power effectively to veto applications for liquor licenses within a 500-foot radius of the church or school.”[127] The statute stated: “Premises . . . located within a radius of five hundred feet of a church or school shall not be licensed for the sale of alcoholic beverages if the governing body of such church or school files written objection thereto.”[128] The statute was ultimately struck down because “[t]hat power may therefore be used by churches to promote goals beyond insulating the church from undesirable neighbors; it could be employed for explicitly religious goals, for example, favoring liquor licenses for members of that congregation or adherents of that faith.”[129] However, none of the churches, including the one who used this veto power, had their tax-exempt status jeopardized regardless of it being a blatant violation of § 501(c)(3).

           Only one church has ever actually had its tax-exempt status revoked. “On October 30, 1992, four days before the presidential election, the Church placed full-page advertisements in USA Today and the Washington Times. Each bore the headline ‘Christians Beware’ and asserted that then-Governor Clinton’s positions concerning abortion, homosexuality, and the distribution of condoms to teenagers in schools violated Biblical precepts.”[130] At the bottom of the advertisements there was a statement listing the churches sponsoring the advertisement and an address in which to send tax-deductible donations.[131] The IRS requested information from the church, which it did not provide, and began a church tax examination which resulted in “the IRS revok[ing] the Church’s § 501(c)(3) tax-exempt status on January 19, 1995, citing the newspaper advertisements as prohibited intervention in a political campaign.”[132] The church fought the revocation arguing that by removing their tax-exempt status, it would threaten the church’s existence and be an unconstitutional burden on the free exercise of religion.[133] The court ultimately held, however, that the IRS has full rights to revoke tax-exempt status from churches for violating the political intervention rules. This is because “if the [c]hurch does not intervene in future political campaigns, it may hold itself out as a 501(c)(3) organization and receive all the benefits of that status”[134] and “[t]he restrictions imposed by § 501(c)(3) are viewpoint neutral; they prohibit intervention in favor of all candidates for public office by all tax-exempt organizations, regardless of candidate, party, or viewpoint.”[135] This revocation of the tax-exempt status was focused on the free-speech and tax elements of the newspaper advertisements. The political participation prohibition is arguably already an affront to the Free Exercise Clause but in today’s American society, which is a melting pot of various religions big and small, the tax laws are one of the few ways to balance the freedom of religion and the freedom from religion.

           Despite the rules here we have seen examples of churches being allowed to participate in the legislative process with no punishments, and churches involved in politics that have lost their tax-exempt status for the year. So what should the IRS be doing to prevent religion from becoming involved in politics?

C. Moving Forward- Churches

           The IRS has the ability to revoke the tax-exempt status that churches hold. Churches, in order to keep that tax-exempt status, need to not be involved in the legislative process nor in political campaigns. However, neither of these are happening.

           “Over the last eight years or so, the Alliance Defending Freedom has sponsored an annual event it calls Pulpit Freedom Sunday, in which pastors preach a sermon that expressly violates the prohibition, then send a copy of their sermon to the IRS. Of the possibly thousands of churches that participated over the years, none have lost their exemptions.”[136] The IRS should simply start revoking the tax-exempt statuses of these churches.

           If the church wishes to participate, they must pay taxes for the year, like everyone else. If they don’t wish to, as the IRS starts enforcing their own rules, the churches can simply adhere to them. As stated in Rossotti, the tax-exempt status will be reinstated during a time whenever the church does not participate in politics thus allowing churches to have the full flex of their First Amendment rights, but not giving them the added advantage of a tax-exempt status.

           This gives churches the right to choose how to move forward. Rossotti can publish the advertisements, Westboro Baptist can picket, and Unification of World Christianity can preach as they wish at the altar, but on their own dime. The IRS would also have the leeway needed to only enforce the provisions as necessary to maintain the balance between free exercise of religion and free speech. Thus, if the pulpit speeches only discuss certain moral codes, such as in Unification of World Christianity, it would fall within the IRS’s own published guidelines in their Tax Guide for Churches & Religious Organizations.[137]

           “[M]any American churchgoers [are] hearing at least some discussion of social and political issues from the pulpits at their houses of worship.”[138] Some members of those churches believe that their religion requires them to be politically active in the name of the church. In an effort to balance the freedom of speech, the free exercise of religion, and modern politics, the IRS needs to enforce the no political involvement provision of the tax-exempt status, giving all members the right to decide if and how they want to be involved in politics.

Conclusion

           Politics and religion have an interesting relationship. They are two topics that Americans try and avoid discussing to prevent fights, yet they’re also often intertwined whenever policy is introduced. Rules need to be put into place to prevent candidates for public office from using their religion, or their opponent’s religion, to get ahead. It shouldn’t matter what religion, or lack thereof, a candidate is, as long as they’re not using that religion as a reason to pass or reject laws. Once one of those candidates is in office, the laws currently on the books need to be enforced. Religion should not be the motivating factor for passing or rejecting legislation, nor should laws be passed and upheld that favor the ‘popular’ religion.

           On the other side of the religion and political divide, churches should retain their tax-exempt status, provided they follow the rules. If they want to participate, they should pay taxes. Churches should not lobby for laws to be changed in the name of their religion over others, such as what happened in the National Day of Prayer; nor should they openly claim similarities between one candidate and their Supreme Being. A Separationist approach best protects these rights that we as Americans hold so dearly. Our fellow citizens, judges, churches, and politicians should seek to protect the rights of all Americans and not just those that adhere to the same religion as they do.

           This Nation is a Nation of many religions and many people. The laws that are in place, many of which have been for a long time, need to be enforced, and as the makeup of the Nation changes, new laws need to be put in place to protect all of the various religions that now call this country home. Americans should discuss religion and politics; they just shouldn’t mix them.

[1] Throughout this paper the term church will be used to represent any religious equivalent of a church such as a temple, mosque, pagoda, etc. This rule applies to the term preacher, pastor, etc. as well.

[2] U.S. Const. amend. I.

[3] See Lemon v. Kurtzman, 403 U.S. 602 (1971).

[4] U.S. Const. amend. I.

[5] Exemptions from Tax on Corporations, Certain Trusts, Etc., 26 U.S.C.S. § 501(c)(3) (1954).

[6] Kathleen M. Sullivan & Gerald Gunther, First Amendment Law 3rd Edition, 508 (2007).

[7] Id.

[8] Id.

[9] See Larkin v. Grendel’s Den, 459 U.S. 116 (1982).

[10] Freedom from Religion Found., Inc. v. Obama, 705 F. Supp. 2d 1039, 1048-49 (W.D. Wis. 2010).

[11] Id. at 1041.

[12] Freedom from Religion Found., 705 F. Supp 2d at 1041.

[13] Freedom from Religion Found., 705 F. Supp 2d at 1063 (quoting Van Orden v. Perry, 545 U.S. 677, 726 (2005) (Souter, J., dissenting)).

[14] Id. at 1049.

[15] National Day of Prayer, 36 U.S.C.S. § 119 (1998).

[16] Freedom from Religion Found., 705 F. Supp. 2d at 1043.

[17] Id.

[18] National Day of Prayer, Pub. L. No. 82-324, 66 Stat. 64.

[19] Pub. L. No. 100-307, 102 Stat. 456.

[20] Freedom from Religion Found., Inc. v. Obama, 641 F.3d 803 (7th Cir. 2011).

[21] 367 U.S. 488 (1961).

[22] Id. at 489.

[23] Id. at 489-90.

[24] Id. at 491 (quoting U.S. Const. art. VI).

[25] The argument was made that the provision of the Constitution prohibiting a religious test only applies to positions of the United States and not to positions of the states themselves. The Court held that this constitutional provision applies to both federal and state positions. Id. at 489n.1.

[26] Id. at 495.

[27] Maryland, Virginia, North Carolina, South Carolina, Georgia, New York, and Delaware. L. Pfeffer, Church, State, and Freedom 118 (Rev. ed. 1967).

[28] McDaniel v. Paty, 435 U.S. 618, 621 (1978).

[29] Id. at 622.

[30] Id. at 625. Maryland’s rule was struck down as unconstitutional in 1974. See Kirkley v. Maryland, 381 F. Supp. 327 (D. Md. 1974).

[31] McDaniel, 435 U.S. at 628-29.

[32] Id. at 635 (Brennan, J., concurring).

[33] See Torcaso v. Watkins, 367 U.S. 488 (1961) and McDaniel v. Paty, 435 U.S. 618 (1978), supra.

[34] Infra.

[35] 127 F. Supp. 3d 725 (W.D. Tex. 2015).

[36] Id. at 737.

[37] Id.

[38] Id. at 741.

[39] The court did find that the evidence was insufficient to demonstrate that a candidate’s position on the questions at issue would affect their eligibility. Id. The court here also greatly overstepped bounds to compare how conservative one religious service was compared to other Christian denominations. See Id. at 743.

[40] National Public Radio, Transcript: JFK’s Speech on His Religion (Dec. 5, 2007, 12:48 PM), https://www.npr.org/templates/story/story.php?storyId=16920600

[41] Id.

[42] Id.

[43] Supra.

[44] National Public Radio, JFK’s Speech on His Religion, supra.

[45] Id.

[46] See 26 U.S.C.S. § 501(c)(3) (1954), infra.

[47] Freedom from Religion Found., 705 F. Supp. 2d at 1043, supra.

[48] National Public Radio, JFK’s Speech on His Religion, supra.

[49] National Public Radio, Transcript: Mitt Romney’s Faith Speech (Dec. 6, 2007, 12:02 PM), https://www.npr.org/templates/story/story.php?storyId=16969460

[50] Id.

[51] Id.

[52] The New York Times, Obama’s 2006 Speech on Faith and Politics, (June 28, 2006), https://www.nytimes.com/2006/06/28/us/politics/2006obamaspeech.html

[53] Id.

[54] Id.

[55] Andrew Kaczynski, Chris Massie, and Nathan McDermott, Republican congressional candidate called Obama a secret terrorist-supporting Muslim, CNN (Sept. 12, 2018, 10:03 AM), https://www.cnn.com/2018/09/11/politics/kfile-donnelly/index.html

[56] The New York Times, Obama’s 2006 Speech on Faith and Politics, supra.

[57] Paul Harris, One in four Americans think Obama may be the antichrist, survey says, The Guardian (Apr. 2, 2013, 6:10 PM), https://www.theguardian.com/world/2013/apr/02/americans-obama-anti-christ-conspiracy-theories

[58] David Masci, Almost all U.S. presidents, including Trump, have been Christians, Pew Research Center (Jan. 20, 2017), https://www.pewresearch.org/fact-tank/2017/01/20/almost-all-presidents-have-been-christians/

[59] See Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

[60] Miller v. Davis, 123 F. Supp. 3d 924 (E.D. Ky. 2015).

[61] Id. at 929.

[62] Id. at 932.

[63] Id.

[64] Id. at 940.

[65] Id.

[66] Id. at 941.

[67] Id. at 944.

[68] Alabama Code § 16-1-20 (Supp. 1984).

[69] Alabama Code § 16-1-20.1 (Supp. 1984).

[70] Alabama Code § 16-1-20.2 (Supp. 1984).

[71] Wallace v. Jaffree, 472 U.S. 38, 40 (1985).

[72] See Lemon v. Kurtzman, 403 U.S. 602 (1971).

[73] Wallace, 472 U.S. at 57.

[74] Id.

[75] Id. at 59.

[76] 36 U.S.C.S. § 119.

[77] Freedom from Religion Found., 705 F. Supp. 2d at 1041.

[78] Id. at 1042.

[79] Id. at 1051 (original citations removed).

[80] Id. at 1054.

[81] Id.

[82] Id. at 1067.

[83]See Id. at 1066-67. 

[84] Freedom from Religion Found., Inc. v. Obama, 641 F.3d 803, 806 (7th Cir. 2011).

[85] 138 S. Ct. 2392 (2018).

[86] See 82 Fed. Reg. 8977 (2017) and 82 Fed. Reg. 13209 (2017).

[87] Trump, 138 S. Ct. at 2417.

[88] Id.

[89] 82 Fed. Reg. 8977 (2017).

[90] Trump, 138 S. Ct. at 2417.

[91] Id. at 2422-23.

[92] Id. at 2430-31 (Breyer, J., dissenting).

[93] Id. at 2433 (Sotomayor, J., dissenting).

[94] Id. at 2435 (Sotomayor, J., dissenting) (quoting Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)).

[95] Trump, 138 S. Ct. at 2435 (Sotomayor, J., dissenting).

[96] Id.

[97] Id. at 2436.

[98] Id. at 2438.

[99] The District Court specifically in the case of Freedom from Religion Found., Inc. v. Obama. The appellate court disagreed as shown supra.

[100] See County of Allegheny v. ACLU, 492 U.S. 573, 620 (1989).

[101] See Church of the Holy Trinity v. United States, 143 U.S. 457 (1892).

[102] Barack Obama, The Audacity of Hope: Thoughts on Reclaiming the American Dream (2006).

[103] Paul Arnsberger, Melissa Ludlum, Margaret Riley, and Mark Stanton, A History of the Tax-Exempt Sector: An SOI Perspective, Statistics of Income Bulletin, 106 (Winter 2008).

[104] 26 U.S.C.S § 501(c)(3) (1954).

[105] Id.

[106] Walz v. Tax Comm’n. Of New York, 397 U.S. 664, 673 (1970).

[107] Bob Jones Univ. v. United States, 461 U.S. 574, 579 (1983).

[108] Id. at 589 (quoting Commissioners v. Pemsel, [1891] AC 531).

[109] Walz, 397 U.S. at 674.

[110] Id.

[111] § 501(c)(3).

[112] Internal Revenue Service, Tax Guide for Churches & Religious Organizations, Publication 1828 (Rev. 8-2015).

[113] Id. at 2.

[114] Id. at 6.

[115] Id. at 7.

[116] Id. at 9-15.

[117] The Bishops and Single-Issue Politics, 134 Cong. Rec. E 2853 (Sept. 8, 1988).

[118] Holy Spirit Ass’n for the Unification of World Christianity v. Tax Comm’n of New York, 55 N.Y.2d 512, 525 (1982).

[119] Id.

[120] Id. at 518.

[121] Id. at 526 (internal quotation marks excluded).

[122] In re Westboro Baptist Church, 40 Kan. App. 2d 27, 29 (Kan. Ct. App. 2008).

[123] Id. at 30.

[124] Id. at 49.

[125] Id. at 54.

[126] Westboro Baptist Church specifically targets the Democratic and Republican National Conventions. See id. at 32.

[127] Larkin v. Grendel’s Den, 459 U.S. 116, 117 (1982).

[128] Id. (citing Mass. Gen. Laws Ann., ch. 138, § 16C (1974)).

[129] Larkin, 459 U.S. at 125.

[130] Branch Ministries v. Rossotti, 211 F.3d 137, 140 (D.C. Cir. 2000).

[131] Id.

[132] Id.

[133] Id. at 142.

[134] Id.

[135] Id. at 144.

[136] Sam Brunson, Stuck in the Middle With . . . the IRS?!?, The Surly Subgroup (May 3, 2016), https://surlysubgroup.com/2016/05/03/stuck-in-the-middle-with-the-irs/

[137] Supra.

[138] Pew Research Center, Many Americans Hear Politics From the Pulpit (Aug. 8, 2016) https://www.pewforum.org/2016/08/08/many-americans-hear-politics-from-the-pulpit/