| For decades, an unresolved tension has smoldered within First Amendment doctrine, a tension that the Supreme Court has seemed to assiduously avoid. | | The problem is grounded in two realities. The first is that religious exercise and speech overlap. There can hardly be any doubt about this. Religious exercise often involves (indeed takes the form of) expression and the communication of messages. Sermons, hymns, prayers, bibles and other scripture, proselytizing, religious rituals (think of a Passover Seder), and religious-school instruction are obvious examples. It makes little sense to argue as a matter of social reality, that these activities must be categorized as either religious exercise or speech. They are both. The two categories overlap tremendously. | | The second undeniable reality is that free exercise entitlements (either constitutionally grounded rights or legislative or administrative exemptions and accommodations for religious practice) and free speech protections can pull in opposite directions. From a free exercise/religious liberty vantage point, Supreme Court doctrine often says it is acceptable to grant religious individuals and institutions special exemptions from laws that burden religious exercise even as their secular counterparts must obey those laws; the Court has held on several occasions that singling out religious individuals and institutions for exemptions unavailable to secular counterparts are not per se unconstitutional. | | The opposite principle applies for free speech purposes. Indeed, the most basic tenet of free speech jurisprudence is the prohibition against viewpoint discrimination: Government cannot exercise its regulatory authority in a way that distorts debate by favoring or disfavoring a particular viewpoint vis-à-vis others. Compounding the problem, the Court has held on several occasions that religion should be considered a viewpoint of speech, such that government regulations that disfavor religious expressive activities constitute viewpoint discrimination in violation of free speech doctrine. But if disfavoring religious expression violates free speech equality norms, so too would favoring religious expression constitute impermissible viewpoint discrimination. And yet, as noted above, free exercise doctrine readily permits, indeed seems to require, favoritism of religious expression over secular analogues. Freedom of speech and religious liberty principles thus seem to be in direct conflict with each other. | | Federal courts have been confronted with several cases that seem to require consideration of this conflict, but they have largely ignored the free speech implications that should be accounted for as the cases are resolved. Schools are certainly expressive institutions whose speech activities ought, under free speech principles, to be regulated in a viewpoint-neutral way, but pursuant to the so-called “ministerial exception,” religious schools need not obey certain civil rights laws regulating the hiring of teachers, such as the Americans with Disabilities Act, that their secular school counterparts must obey. Under Title VII, religious employers can discriminate on the basis of religion and refuse to hire employees of a different faith or who are not religious, but secular institutions cannot similarly discriminate against religious applicants for employment. Under the Religious Land Use and Institutionalized Persons Act, RLUIPA, religious land uses, which may well involve expressive activities, such as creation of a religious school or house of worship, are exempt from burdensome zoning regulations that apply with full force to secular expressive institutions. And we could list other examples here too. | | In ignoring the viewpoint-neutrality dimension of these cases, courts have slighted a principle we think deserves more respect. After all, the theoretical foundation for the requirement of viewpoint neutrality is an eminently appropriate, if not compelling, concern about the mischief created when the state itself distorts the effective operation of democratic self-government. As towering First Amendment scholars such as Harry Kalven and John Hart Ely have amply demonstrated, while viewpoint discrimination is always problematic, its deleterious consequences are particularly acute when the discrimination implicates political decisionmaking or skews political speech in the marketplace of ideas. No case involving religious expressive activities that directly relate to the political arena has to date reached the Supreme Court. But recent actions by President Donald Trump’s administration may make it difficult if not impossible for the Court to avoid considering the issue before long. | | We speak here of a recent change taken by the Internal Revenue Service (IRS) with respect to the so-called Johnson Amendment, a provision that has been in the U.S. tax code since 1954 and that prohibits all non-profit 501(c)(3) organizations from endorsing or opposing political candidates. The IRS has now taken the position in court that clergy, houses of worship, and religious congregations should be permitted to make political endorsements of candidates running for office. All other secular 501(c)(3) nonprofit would remain barred from making such endorsements and would risk losing their tax-exempt status if they did so. The viewpoint discrimination and resulting distortion of the operation of the political system that are reflected in this IRS’s new stance could not be more apparent. As for the obvious facial discrimination, religious nonprofits would now be able to speak out in a political campaign while secular nonprofits are still forbidden from doing so. If religion is a viewpoint of speech, as the Court has repeatedly held, how could this favoritism for religious speech not constitute problematic viewpoint discrimination in the realm—government regulation of elections—where viewpoint neutrality is most required? Further, the likely distortion of the political system seems equally clear. Funds donated to houses of worship for the purpose of promoting a candidate’s campaign can be deducted by the donors from their taxes. No such deductions are available to donors to secular nonprofits for the purpose of supporting a political campaign, because the recipients of their donations are prohibited from using their funds to endorse political candidates. And we need not explain how important money is to American politics in the real world. | | It is true that enforcement of the Johnson Amendment has not always been robust, and that many churches may engage in subtle political activities that may in practice benefit some candidates more than others. Still, churches have until now often exercised caution when their activities approach partisan arenas, and a formal abandonment of viewpoint neutrality in this realm—and a corresponding flood of clergy and houses of worship openly using their resources and voices for partisan campaigning—carries with it significant practical as well as symbolic consequences. | | Another recent action taken by the Trump administration that also raises important free speech/equality concerns involves a memorandum issued last month by the Office of Personnel Management (OPM) declaring that federal employees should be allowed to engage in religious expression at the workplace that was previously proscribed. Under the new policy, federal employees may proselytize their co-workers (including subordinates) unless the persons they are addressing request them to stop doing so (something subordinates may, for obvious reasons, find difficult to do). Federal employees may also, according to the OPM memorandum, display religious materials on their desks and workstations. | | The dissonance between this new rule and the regulation of political speech at the federal workplace could not be more stark. Pursuant to the Hatch Act, covered federal employees, while on duty, while in a federal room or building, or while wearing an official uniform or insignia, are prohibited from engaging in a wide range of political expressive activities. Any activity supporting or opposing a candidate for political office is off limits. Campaign materials may not be displayed or distributed at desks or workstations, nor may employees wear buttons or other items that express partisan political messages. Whether or not one agrees with the tight regulations of political speech reflected in the Hatch Act (and there may be good reasons for them), for present purposes we simply observe that under the new OPM policy, political speech receives nowhere near the protections now afforded to religious speech. | | Things get even dicier if, as is not implausible, federal employees emboldened by this new IRS filing and the OPM memorandum mix religion and politics at the workplace. Is a sign at a federal employee’s desk stating that G-d supports a particular candidate now permitted while other political endorsements remain prohibited? May an employee invite a co-worker or underling to join her church’s upcoming activities endorsing one candidate or opposing another? | | As we observed above, the Supreme Court cannot avoid dealing directly with the tensions that inhere within First Amendment doctrine forever. |
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