Stamp Out Separation of Church and State! But could I be wrong? There's
a neat quote by novelist F. Scott Fitzgerald (you know- The Great Gatsby?) "The test of a first-rate intelligence is
the ability to hold two opposed ideas in the mind at the same time and still retain the ability to function." Esquire
Feb. 1936 "The Crack-up." Some might question if I've retained the ability to function, but please send
your comments, pro or con, and if they're decent I'll publish them.
says Americans United for Sep. of Church & State
Separation of Church and State- It's only a Metaphor!
“Wall of Separation between Church and State”-what’s it mean? We’ve all heard that metaphor so
often that we tend to think, erroneously, that it’s in the Constitution. But let’s take a minute for a brief history.
In 1802 our newly-elected President, Thomas Jefferson, read a letter. It was from the Baptist Association of Danbury, Connecticut, congratulating him and saying “Our
sentiments are uniformly on the side of religious liberty--that religion is at all times and places a matter between God and
individuals--that no man ought to suffer in name, person, or effects on account of his religious opinions.”
The constitution of Connecticut established the Congregationalist church as the official state church and all other denominations
were by law the victims of discrimination. It’s true that the newly passed First Constitutional Amendment prohibited
any “law respecting an establishment of religion, or the free exercise thereof” but this applied only to the federal
government; it was to be generations until the Fourteenth Amendment would be ruled to extend the first Amendment limitations
to State governments as well.
Thus the Baptist letter continued “Sir, we are sensible that the president of the United States is not the national
legislator, and also sensible that the national government cannot destroy the laws of each state…” Jefferson couldn’t
do anything about it – officially. But they knew six years before he had written The Virginia Act For Establishing Religious
Freedom and knew that act had blest the State of Virginia with the religious freedom the Connecticut Baptists could only yearn
for, and they pleaded that “the sentiments of our beloved president …will shine and prevail through all these
states and all the world, till hierarchy and tyranny be destroyed from the earth.”
Jefferson prepared his reply with great care, assuring them he was on their side, and that he held in “sovereign reverence
that act of the whole American people which declared that their legislature should make no law respecting an establishment
of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state.”
Presidents, of course, do not interpret the Constitution; the courts do. Jefferson, of course, did
not write the Constitution or the first ten amendments, often called the Bill of Rights; his fellow Virginian and close friend
James Madison is usually given most of the credit. Jefferson was holding a diplomatic post in France at the time.
But still Jefferson’s metaphor, shortened to “Separation of church and state” has often been quoted by the
U.S. Supreme Court in its deliberations over church-state relations such as prayer in public schools or vouchers for parochial
That metaphor has its detractors, and its proponents such as the Americans United for Separation of Church and State who seem
to believe that people who don’t like the metaphor must be theocrats who want their own church to be running the government.
Not true. This website is to explain why I’m one of the detractors.
So, What'cha got against Metaphors?
Nothing, as long as you don't take them seriously. They might help explain some
esoteric concept, or they might add color and drama to your language. But they're only metaphors.
BTW, The Americans United For Separation of Church and State admit that Jefferson's metaphor
"Wall of sep. between Ch. & St." is not in the Constitution, but they state repeatedly that "the concept is certainly
there." But is it?
When we say that a metaphor means the same thing as a law we could court disaster
for it may be possible to draw conclusions from the metaphor that could not possibly be drawn from the law. And no judicial
review of the former will clarify the latter. And I believe that's the case here.
It was no big deal. In New Jersey a guy named Arch Everson sued the Board of
Education of Ewing Township to prevent them from offering free transportation of children to Catholic parochial schools.
In the U.S. Supreme Court he lost the case; something about the school board having a right to offer this public service to
ALL school children regardless of where they went to school. Justice Black wrote the majortiy opinion. (Click on
In his opinion he said The "establishment of religion" clause of the
First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws
which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to
go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person
can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No
tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be
called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly
or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended
to erect "a wall of separation between church and State."
Well, it seems odd (to this layman at least) for a justice to base a legal opinion
on something written not as a court decision but upon Jefferson's words in a letter, ripped right out of the specific
context in which he wrote it.
But stranger still are Black's words "Vice Versa." They mean you can interchange
the objective and subjective phrases and it still remains true, and thus Black was also saying "No religious organization can, openly or secretly, participate in the affairs of a state or the Federal
Government." This would mean that a church could not oppose a political candidate it believed to
be an evil person, or encourage the public to vote a certain way.
Yet labor unions can, and do, such things. Farm organizations or industries of almost
every kind can, and do, such things. Virtually every legitimate organization is encouraged to take part in their government but
if churches can't, what exactly does "freedom of religion" mean?
But someone might say "Yeah, but if churches did it they'd have to give up tax-exempt
status because they're 501(c) (3) organizations." True, but this has nothing to do with the First Amendment; it's the rule
for all tax-exempt non-profits like the American Cancer Society and Americans United for Ch. & St.
And if one holds that the activities of churches are limited by the
First Amendment, which doesn't say anything resembling that but does prohibit the Congress from interfering with religion,
then the First Amendment is a direct violation of the First Amendment.
OUR STORY TILL NOW:
Spaceship Benedict Arnold journeys to Planet Adonis in a nearby
galaxy. They return with a dozen Adonisians who turn out to be such good workers that the ship returns for more,
and more, and more, all laboring in the fields of silicon valley. And the Supreme Court rules that despite their high
intelligence and their passion for music and art and poetry it's legal since the Adonisians are not human, merely humanoid.
| AN ADONISIAN BEAUTY
"It's slavery!" shouts Rev. Atkins from the pulpit of the Saw Palmetto Baptist church.
"We're going to fight this every way we know how." -
"But we can't!" says the Chair of the Administrative Council -"that's illegal. It's
a violation of Separation of Church and State!"
EVEN IF A CHURCH ISN'T TAX EXEMPT
First, let's realize that if your church wants to give up its tax-exempt status
it can get just as political as anybody else. To people that say the Constitution guarantees separation of church and state,
it just plain doesn't. It mentions religion only two places: Article Six, which prohibits religion from being a test for holding
public office, and Amendment One, which prohibits Congress from passing any law respecting an establishment of religion or
prohibiting the free excercise thereof.
Both of these articles place constraints on Government, not on Religion. So if your
church decides to fight something they deem to be evil, or even viciously cruel, go ahead, but they might have to start
paying taxes and you might not be able to claim your offering plate dollars as tax deductions.
Remember, martyrs of the past have given up far more for their faith than tax exemption.
Churches have the Constitutional First Amendment freedom of political speech, press,
peaceable assembly, and petitioning of government, but to use it they might have to give up their tax-exempt status.
By the rules of the Internal Revenue Service those non-profit organizations classified
as 501(c)(3) - that includes churches and many thousands of other organizations - are tax exempt and voluntary contributions
to them are also tax exempt, but there are a couple of Got'chas:
1. They may not lobby to any "substantial" degree. "Lobbying" doesn't just mean
sending a smooth-talking con man to Washington to wine and dine congresspersons. It also includes a grass roots "Please,
fellow church members. Call or write your Senators and ask them to vote for the 'Free the Adonisians' bill."
2. Also, 501(c)(3)s may not take part in most election campaigns for public office.
This is true for Federal, state, or local contests.
click and scroll down to Prohibitted Activities.
LOOPHOLE: But churches have the right of Issue Advocacy,
speaking out for or against the issues of the day. Senator Harumph (I, OH), currently running for re-election, has made Adonisian
Freedom the only plank in his platform but your church can still lobby for the bill (short of a substantial degree) -
just as long as they don't say "Vote for Sen. Harumph."
But there are still LOOPHOLES!
"We can't push this legislation beyond a substantial degree? What the heck
does 'substantial' mean?" Beats me. Nobody else knows either. This word has been in the IRS regulations since 1934
and the IRS (whom we all love and admire) (click and scroll WAY down to 220.127.116.11.1.3)
says they don't know either.
In 1976 Congress passed the LOOPHOLE, the 501(h) law, allowing 501(c)(3)'s
who elect coverage under the "(h) election" to spend up to a certain percentage of their total expenditures (for example,
20% but a maximum of $1 million) for lobbying.
"Then all our church has to do is sign that (h) election thingy whatever
it is and we can lobby to protect the Adonisians?"
Not so fast. There's a LOOPHOLE to the LOOPHOLE. That (h) election clause applies
to most 501(c)(3)'s but it doesn't apply to churches.
click and move the slider down to 18.104.22.168.4.1 - Note: This section also precludes
supporting organizations claiming tax exemption under 501(c)(4), 501(c)(5), and 501(c)(6) from the "h" election but these
have their own rules pertaining to lobbying and lobbying may even be their primary purpose.
"Then we can't lobby (substantially)?"
Well maybe. The (h) election doesn't apply to churches but it does
apply to Religious Organizations. And if that doesn't make sense remember it's the IRS we're talking about.
Click and scroll to page 2; also "Expenditure test (p.6) The IRS says that (non-church)
"religious organizations typically include non-denominational ministeries, interdenominational and ecumenical organizations,
and other entities whose principal purpose is the study or advancement
LOOPHOLE: Since Interdenominationalism is part of IRS's own definition
of a (non-church) Religious Organization, a church could create a loophole
to the loophole that constrains them from their best loophole by helping organize a religious group made up
of people of all faiths moved with compassion for the enslaved Adonisians. If Pastor Atkins would get the support
of Father O'Brien at St. Mary's and Rabbi Goldman at Beth Shalom it would help. But see why you might need a lawyer?
And wait: though I don't know if any case law backs this up, the above cited click and scroll 22.214.171.124.4.1 begins:
"To establish more precise standards for determining whether an IRC 501(c)(3) exempt organization’s
legislative activities are substantial, Congress enacted IRC 501(h) as part of the Tax Reform Act of 1976." Who
knows what evil lurks in the hearts of the court system? A court might rule that even though "h" doesn't apply directly to
churches, since it was intended "to establish more precise standards" at least it offers "more precise standards" that "substantial" has a rather broad meaning.
Now back to that second rule: that 501(c)(3)s may not take part in most
political campaigns for public office.
But there's still something that might be called a LOOPHOLE. Even during an election
campaign a 501(c)(3) may publically support or oppose particular elements of a candidate's political platform, without
mentioning him or his campaign.
But they may not take part in most election campaigns for public office. They may
not campaign for an individual candidate from the date he announces his candidacy or otherwise becomes officially a candidate
(for example, being certified as a candidate by the Board of Elections). This is true for Federal, state, or local contests.
Let's use a real example.
One way to learn the loopholes is to watch what is being done by "Americans
United for Separation of Church and State" a 501 (c)(3) whose self described mission is to be a "watchdog" for "Separation
of Church and State." They need to keep their own tax-exempt status and have attorneys in house, and you can bet they'll stay
on the sunny side of IRS rules.
(click ) The Internal Revenue Code (IRC)
Intervention in Political Campaigns
1. IRC 501(c)(3) precludes exemption for an organization that participates
in or intervenes in (including the publishing or distributing of statements) any political campaign on behalf of or in opposition
to any candidate for public office. This is an absolute prohibition, with no requirement that the activity be substantial.
| Ted Kennedy
In Jan. 2006 Samuel Alito, nominated by President Bush for Supreme Court
Assoc. Justice, was undergoing Senate Confirmation hearings. Sen. Ted Kennedy insinuated he was a bigot, as having been a
member, while at Princeton, of an organization accused of bigotry. The charge put Mrs. Ann Alito in tears and she
had to leave the room.
The person (arguably) most hated by Americans United is James Dobson, founder of Focus
on the Family (a 501(c)(3) organization). He extended comfort and encouragement to the Alitos. And in the meantime the
Americans United website came down hard on Judge Alito, (click here and here and here ).
| Mrs. Alito in Tears
The very day Alito was confirmed Americans United came down hard again. here.).
But by opposing a candidate, vigorously campaigning for the Senate vote of confirmation,
weren't they endangering their own tax-exempt status?
No. The IRS code states as follows:
Candidate for Public Office
1. Attempting to influence the Senate confirmation of an individual
nominated to serve as a federal judge does not constitute intervention or participation in a political campaign within the
meaning of IRC 501(c)(3), since a federal judgeship is an appointive office, rather than an elective one. Notice 88–76,
1988–27 I.R.B. 34.
LOOPHOLE: Thus 501(c)(3)'s are free to campaign for or against Federal
Judge nominees. This might also hold true of other appointees whose offices require advice and
consent. But the advice of legal council would be called for.
Justice Alito wrote to Dobson to thank him for his support. Was this proper
or no? (Not for me to say.) Americans United answered loudly NO! - but doesn't claim it was illegal. (Click
here.) Americans United says "In
the letter, Alito thanked Dobson for backing his nomination to the Supreme Court." Not
quite true. Confirmation Hearings must be an ordeal for the person going through them; nothing wrong with that, but the Kennedy
incident suggests it was emotional support Alito was thanking Dobson for. AU contiues 'Read
the note, “This is just a short note to express my heartfelt thanks to you and the entire staff of Focus on the Family
for your help and support during the past few challenging months. I would also greatly appreciate it if you would convey my
appreciation to the good people from all parts of the country who wrote to tell me that they were praying for me and for my
family during this period.”
'Alito went on to write, “As long as I serve on the Supreme Court I will keep in mind the trust
that has been placed in me” and expressed his desire for a personal meeting with Dobson.'
1. Prohibited political activities include, but are not limited
to, the publication or distribution of written or printed statements or the making of oral statements on behalf of or in opposition
to a candidate. Reg. 1.501(c)(3)–1(3)(iii).
The key words above are "on behalf
of or in opposition to a candidate." Nothing in the IRC prevents a church or other 501(3)(c) - certainly not Americans United!
- from discussing political issues. They all retain the right of Issue Advocacy - Such hot-button issues as Adonisian slavery
or abortion or homosexual marriage or gun control are fair game for anyone to take a strong stand on, whether based on religious
reasons or any other reasons. It's only the intervention in individual campaigns that could end tax exemption.
In this case of course Alito was a candidate for a Federal judgeship so nothing prevented
Americans United OR Focus on the Family from entering the fray.
Churches are completely free to enter the political arena as long as they don't enter
an individual's political campaign.
Note the above prohibition does not prohibit a church from praising or criticising
a public office holder for taking a particular stand on an issue if he is not currently running for office. Or perhaps even
(and this is to interpret definitions rather tightly) if he is a candidate but that church is not holding his stand on that
issue as a reason for extending or witholding political support.
But Rhymecon is not a lawyer. If a church has any question, check with
a good constitutional attorney.
top of page & navigation links