Religion & American Law

Appeal to Religious Voters by Van E

In the 2008 presidential campaign, the Republican party was not the only party trying to use religion and faith to appeal to voters; the Democratic Party also put forth an effort to appeal to "moderate protestant Christians and Catholics." This was accomplished by framing certain mainstream issues in a religious context, in an attempt to make religious voters feel a moral obligation to vote for Barack Obama. For example, Mara Vanderslice, who was employed by the Obama campaign, organized a political action committee called Matthew 25. This committee used this passage in the Bible, a passage which implores Christians to "help the least of these" (i.e. the poor and marginalized) in order to provide Christians with a moral reason to vote for Obama. Vanderslice described how her role in the democratic campaign changed drastically in four years - on the Kerry campaign she had only one staffer, while the Obama campaign gave her six staff members who were devoted entirely to religious issues, and organizing Obama's "Faith and Family Tours." Here's an ad created by the Mathew 25 Network during the 2008 campaign in which they endorsed and defended Obama:



It would seem that religion and faith are playing an increasingly larger and larger role in our public elections. The question then becomes: are campaign tactics like this appropriate? Should we allow are candidates to incorporate religion into their campaigns this way? Do campaign tactics like this constitute violations of the separation between church and state?

My response would be that, from a legal standpoint, there is nothing wrong with these campaign tactics, because there is no violation of either religion clause of our Constitution. The express purpose of both the Establishment Clause and the Free Exercise Clause is to protect citizens from government actions and legislation. The Establishment Clause seeks to prevent laws that would respect an establishment of religion, or laws that show an unfair preference toward one or more religions over others. The Free Exercise Clause exists to prevent laws that would prohibit citizens from fulfilling the duties of their religion and practicing their religion. The important aspect of both clauses that one must recognize is that they are only applicable to laws, or government actions, not to the actions of private citizens. When candidates are campaigning, they are not acting as agents of the state. Thus nothing that they say or do can be construed as the actions of the state, and such actions certainly do not qualify as law. As such, even if the candidates do show a preference toward Christianity, there is nothing legally problematic with such appeals to the Christian faith.

A logical counter argument to these types of campaign tactics would be at a practical level. To be sure, it may be legal and strategic for the candidates to use religious appeals during the campaign. But once a candidate gets elected he or she cannot enact policies that are expressly religious in nature, since he or she would now be acting as an agent of the state. One could make the argument that candidates ought not campaign on religious grounds, since they would implicitly be making promises that they cannot necessarily keep. However, I would respond to this counter argument by once again drawing the argument back into the legal realm. Legally speaking, agents of the state can enact policies that have religious motivations, so long as the effect of the legislation is secular. In order to be appropriate public policy or legislation in terms of the Establishment Clause, it need only pass the Lemon Test, meaning that (1) it must serve a secular purpose, (2) it must not have the primary effect of either advancing or inhibiting religion, and (3) it must not cause excessive government entanglement with religion. There is nothing in this precedent that dictates that the law or policy cannot be motivated by religion. Thus, candidates are not necessarily making promises that they cannot keep; if Barack Obama is elected, he can pursue policies to aid the poor, and so long as they actually help the poor, he can cite whatever motivations he wishes, religious or otherwise.

Simply put, there is nothing legally objectionable with the current campaign tactics that appeal to religious voters.

Office of Faith-Based and Community Initiatives by Van E

This op-ed piece from July 2008 addresses the Faith-Based and Community Initiatives program that the Bush Administration introduced in 2001. The author argues that although President Bush initially "spoke about the 'armies of compassion' that would help address some of the nation's social ills," the results have been "far less impressive." The author blames this on a lack of funding for the program, as well as the program being misused as a political tool to garner support from deeply religious voters. The author does not believe that the program needs to be scrapped entirely, however, just fine-tuned so that it is doing what it is supposed to be doing. The author believes that Barack Obama's plan for the program, one that will "depoliticize it and focus on a few goals, such as summer schools for inner city kids," offers the correct remedy for the program's shortcoming.

(Note: here's President Obama's announcement in February 2009 regarding his plan for faith-based initiatives.)


The problem with the author's argument is that it presumes the fact that the government should be able to give funding to religious organizations. The author asserts, "The key to success is in getting funding beyond politically connected large institutions to the small ones located in areas with the most need." The question that remains is, however, can the government provide funding to these faith-based organizations without violating the Establishment Clause?

There is certainly some legal precedent for the idea, based on Bradfield v. Roberts (1899). In Bradfield, the Supreme Court upheld legislation that provided federal funding to a hospital that was in religious in its origin. The Court advanced the argument that a law respecting a religious establishment is not necessarily one that establishes a religion, and that so long as the federal funding is still being used to fulfill a government function, it is acceptable. However, that argument is much easier to make and defend when one is talking about a hospital, which theoretically administers medical aid to anyone in a medical emergency, regardless of his or her religion or creed. This universal benefit to society that a hospital fulfills may not be the case with some of the programs that Barack Obama's plan wants to provide funding for.

As noted above, Obama's plan would "focus on a few goals, such as summer schools for inner city kids." Who is to say that these schools run by religious groups would necessarily offer the universal benefit to a society in the way that a hospital does? Even if the school is open to anyone of any religion on paper, in practice students of different faiths than the one practiced by the organization running the school may have a much more difficult time feeling welcome and accepted at these types of schools and programs. Many taxpayers would likely not want their taxes being used to support a program that does not fully welcome people of all religions, for they may feel coerced to contributing to such a faith-based organization in this manner. It seems that the precedent set by the Bradfield case is problematic when applied to this scenario and would only work if the religious institution that is receiving the government funding would set aside its religion while fulfilling the government's work.

This brings about another question: do these religious organizations really want that type of funding if it brings those restrictions? As the author of the op-ed writes, "This poses problems for religious organizations, as well, because taking taxpayer money means following secular rules." Quite simply, some of these religious groups may not be willing to give up their rights to preach their religion to those that they help just to receive this government funding. My own personal view on the matter is that government should leave those charities in the private sector in the private sector, and not risk violating the Establishment Clause just to provide those charities with a little more funding.