Church & state

What are the laws regarding how churches and religious institutions comply with government guidelines?

Charles Austin is a former religion reporter for The Record, a daily newspaper in Hackensack, N.J., and has been a religion reporter for The New York Times, an editor with Hearst News Service, and director of news for the Lutheran Church in America.

By Charles Austin
The Record*

Because the phrase, “freedom of religion,” is a beloved mantra of American democracy, the relationship between religion and civil authority is one of the most complicated and misunderstood aspects of modern life. In fact, religion in America is not totally “free.”

The institutions of religion-with some exceptions-are subject to the laws of the nation.

While this might seem logical and is easily accepted in some cases-a religion would not be allowed to practice human sacrifice, for example-the interpretation of “freedom of religion” has led to thousands of court decisions and an ever-changing dialogue between faith groups and the courts about what is appropriate.

The body of case law is massive and a brief summary is impossible. But there are some general principles.

The government cannot impinge upon the practice of religious faith unless the state can prove a clear case of public interest usually involving the protection of individuals and society.

For example, the government can insist religious buildings conform to fire safety codes, zoning laws, and other limitations on permitted activities. The government can insist a religious body not be a front for what is essentially a commercial activity, such as the selling of products and services. The state can require clergy to be licensed in some way to perform civic acts such as marriages, so long as the state does not get involved in setting standards for particular denominations.

Churches that may lock horns with local authorities about whether to build or what they may build or do on their property may get some protection from the Religious Land Use and Institutionalized Persons Act, which whisked through Congress in 2000. The bill prohibits local entities such as zoning boards from using local laws to restrict religious institutions unless there is a “compelling governmental interest” and even then local government must use the “least restrictive” means to accomplish its ends. That bill may still face major court challenges, but it may head off some local attempts to restrict what churches do with their land.

In general, religious institutions are exempt from property taxes, provided the property is used for religious purposes. But clergy pay income taxes and “non-religious” income received by faith groups is taxable.

And-as became clear in recent disputes over “faith-based” social service initiatives-the government can require churches or religious organizations that receive public funds follow anti-discrimination laws and conform to other operating procedures, some of which may seem offensive to some religious groups. The issue here is that “freedom of religion” does not mean a religious group has an unrestricted “religious” right to use public funds in unsupervised ways.

The issue of what laws religious institutions must adhere to gets very complex when specific situations arise on the local scene. Is it a “restriction on religion” to forbid a church or synagogue to expand its school? What if a church wants to buy the houses next door and tear them down to build a parking lot? Supposing a pastor sues the congregation in civil court for breach of contract or harassment? Can religious symbols -such as Christmas manger scenes-appear on public property? (Ironically, some of these cases have been decided by the courts declaring the crèche is a “cultural” rather than a “religious” symbol.) Again, the courts generally look for evidence that any restriction is equally applied to all and is not designed to close down a particular religious activity.

Some religious groups, arguing that their allegiance belongs only to God, contend the state has no authority whatsoever to tell them what to do, including paying taxes, meeting zoning codes or seeking permits for certain activities. To maintain that stance, however, the group must be prepared to absorb the civil or criminal penalties that are almost certain to follow their resistance.

The courts and other civil authorities may not enter denominational disputes over religious doctrine or practice. The state, for example, has no compelling interest in setting requirements for who may be considered clergy or whether a congregation may join (or be expelled from) a particular faith group. And laws may not specifically and intentionally aid any particular religious activity or suggest the government give preference to a particular religion.

In practice, these things are not always clear, and it usually takes a particular dispute to clarify an issue for a given community. Sometimes the case makes its way to the U.S. Supreme Court where the decision has far-reaching ramifications. And as the religious makeup of the United States grows more complex- it is certain that many more difficult cases will have to be adjudicated.

*This article was written in 2001, at the time Charles Austin was writing for the Record. Austin has since retired.