The term “civil disobedience” doesn’t typically bring to mind a group of pastors and religious leaders. But hold on to your hats. This Sunday, September 28, will be a big exception to that general rule. On that day, pastors nationwide will preach sermons currently deemed “illegal” under federal law.
An “illegal sermon” should be an oxymoron in a country that practices freedom of religion, but the Internal Revenue Code forces churches to choose between their tax-exempt status and their religious liberty—at least when it comes to religious speech about political campaigns. Many churches thus abstain from any kind of political commentary. The tax burden associated with free speech is simply too high for these institutions, which depend on the charity of their individual members.
After decades of silence, some have decided that enough is enough. About forty pastors from churches of all sizes have answered a call made by the Alliance Defense Fund, a conservative legal group that argues churches should not be taxed merely for acknowledging that religious beliefs sometimes impact political choices. This Sunday, each pastor will deliver a sermon that discusses specific political candidates in the light of the congregation’s religious beliefs.
The pastors face an uphill battle in convincing some voters of their cause. No doubt there are many Americans who believe that such sermons are unconstitutional—even unethical.
These citizens may not realize that their ideas regarding church/state relations were shaped not by the Constitution, but by the shenanigans surrounding two federal elections: the elections of 1800 and 1954.
The Jefferson-Adams election of 1800 was a hard-fought campaign in which preachers and religion played an active role. Many of John Adams’s supporters (including preachers) made the argument that the Democratic-Republican candidate, Thomas Jefferson, should not be elected because he was an atheist or a deist. Jefferson won the election despite this religious opposition, but the experience left him with a pronounced distaste for the Federalist clergy. Unsurprisingly, he took an early opportunity to retaliate. That opportunity arrived in the form of a letter from the Danbury Baptists congratulating him on his victory.
Jefferson’s response to the Danburys was the first to authoritatively suggest that the U.S. Constitution requires a “wall of separation between Church & State.” Despite the language of his letter, Jefferson knew that he was advocating a policy that was not constitutionally required. Indeed, he told his attorney general that he viewed the letter as an opportunity to “sow[ ] useful truths & principles among the people, which might germinate and become rooted among their political tenets.”
In other words, Jefferson was promoting a policy he liked, much as he might have touted a new tax or foreign policy. But his ideas were not well received by early Americans. His letter remained dormant for decades before the Supreme Court brought it back to life, briefly in 1879 but definitively in 1947, thus raising it to the level of constitutional truth in the minds of modern Americans.
Jefferson laid the groundwork for “separation,” but a century and a half later, Lyndon B. Johnson made matters even worse.
LBJ barely won election to the U.S. Senate in 1948. His margin of victory was a mere 87 votes, all of which came from a ballot box that mysteriously appeared and—conveniently enough—soon disappeared in a fire. “Landslide Lyndon,” as he was sarcastically called, was determined not to let his 1954 re-election be that close. He came to view two entities as a potential threat: the Committee for Constitutional Government (CCG) and Facts Forum. Both groups were tax-exempt and at least allegedly nonpartisan, but LBJ became concerned that these two entities were raising money from corporations and then using these funds to attack him. Naturally, their fundraising efforts were helped by the fact that corporations could write off the donations on their taxes.
LBJ moved quickly, proposing legislation to quash this kind of behavior within a matter of weeks. Unfortunately, his politically motivated proposal became a permanent part of the Internal Revenue Code of 1954 without congressional hearing, without debate, and without analysis in the conference report that accompanied the legislation.
Ironically, LBJ’s intent was not to harm religious groups. Neither CCG nor Facts Forum was specifically religious in nature. Indeed, LBJ’s legislation did not specifically mention churches; it merely forbade all 501(c)(3) organizations from participating in certain political activities. Churches got caught in the crosshairs of a political shot that was never aimed at them. Nevertheless, LBJ’s provision, together with Jefferson’s wall of separation, have combined to stifle religious freedom in this country.
It is not remarkable that two politicians—Jefferson and LBJ—reacted defensively when confronted with tough election fights. What is remarkable is that Americans have allowed political happenstance, not constitutional guidance, to control their ideas of what is permissible in the public square.
The rebellious pastors have a long, tough road in front of them. Americans’ skewed notions of church/state matters have been developing for decades, and they’ll probably take many more decades to reverse. But hopefully this Sunday’s act of civil disobedience will draw attention to the fact that Americans have strayed far from their constitutional roots when it comes to matters of religion in civic life.
-Tara Ross is a co-author of Under God: George Washington and the Question of Church and State and a contributing writer for Doublethink Online.