RELIGION AND THE

AMERICAN

CONSTITUTIONAL

EXPERIMENT Chapter 11

Religious Organizations and the Law

Religion and the Law

Courts and commentators frequently break the

First Amendment into two parts:

Free exercise

No establishment

Instead, they should be viewing the religion

provisions of the First Amendment as working

together, animated by the underlying six

principles of religious liberty.

Areas of Constitutional

Investigation

The three areas of constitutional investigation

are:

1. The free exercise clause

2. The establishment clause

3. The notion that there must be space between

religious organizations and the civil

government.

Religious Polity and Structures

Religious groups organize themselves in two

important ways simultaneously:

1. Religious groups voluntarily structure

themselves internally in ways that conform to

their religious beliefs.

2. Religious groups are required to structure

themselves in legally sanctioned form to

enjoy the benefits of legal status.

Religious Structures

Polity generally refers to the manner in which

individual believers from a religious body.

Since the 19th century the Supreme Court has

suggested that there are two forms of religious

bodies:

1. Congregational

2. Hierarchical

Legal Structures

A religious organization has a constitutional right

to define itself as a legal entity but the

boundaries of that right are ill defined.

Religious groups need proper legal status:

to enter binding contracts

to sue and be sued

to hold real property

to limit their liability

Religious Property Disputes

The Supreme Court’s earliest cases on religion were based on federal common law, not on the First Amendment directly.

Two themes emerged from church property cases:

1. Religious groups must be treated equally with other legal associations.

2. Religious groups must be treated differently from other organizations.

Equal Treatment (1815-1914)

Terrett v. Taylor (1815)

Goesele v. Bimeler (1852)

Baker v. Nachtrieb (1856)

Speidel v. Henrici (1887)

Schwartz v. Duss (1902)

Order of St. Benedict v. Steinhauser (1914)

Deference (1872-1976)

Watson v. Jones (1872)

Bouldin v. Alexander (1872)

Gonzales v. Roman Catholic Archbishop (1929)

Kedroff v. Saint Nicholas Cathedral (1952)

Presbyterian Church v. Hull Church (1969)

Maryland and Virginia Eldership of Churches of

God v. Church of God at Sharpsburg (1969)

Serbian Orthodox Diocese v. Milivojevich (1976)

Neutral Principles (1979-)

The Court has defined the boundaries in which

civil courts may operate rather than first

defining the scope of the right possessed by

the religious groups themselves.

Jones v. Wolf (1979)

Employment, Taxation, and More

The lack of definition of the rights of religious organizations leads to difficulties in a number of areas besides church property:

1. Disputes within the employment context

2. Questions about how and when religious organizations can partner with the government in providing social services

3. Whether a government may or must grant tax benefits.

Employment

In the previous court cases, the constitutional

principle that religious organizations are

entitled to manage their own internal affairs

without government interference prevailed.

In addition to the constitutional guarantees in

employment cases, legislatures often exempt

religious employers from civil rights laws in

hiring.

Social Services

The question of the extent to which

government may partner with religious

organizations in providing social services has

become increasingly important.

Based on precedents, the legislative and

executive branches have recently been

expanding the collaboration between religious-

based organizations and government.

Taxation

Although plausible to contend that religious

organizations have a constitutional right to be

exempt from taxation, the standard treatment

is that exemptions are permissible but not

required.

Generally, religious organizations are exempt

from taxation, but there are exemptions:

Bob Jones University v. United States (1983)

Frontier Issues

Issues of marriage and divorce raise

fundamental questions about the scope of

authority of religious organizations and the civil

state.

In the past decade, issues of civil and criminal

liability for religious organizations have come

to the fore.