Religious Privileges in America

Running Head: RELIGIOUS PRIVILEGES 1

Religious Privileges in America

Christopher Kemmett

POL 303: The American Constitution

Instructor: Kathryn Looney

November 15, 2014

RELIGIOUS PRIVILEGES 2


Abstract

This paper reviews the federalism principles instilled within the U.S. Federal and State

governments, specifically, how those principles affect religious freedom. Through this research,

it is concluded that the application of federalism allows the creation and removal of religious

privileges. The civil rights of Americans are also analyzed with pertinent detail relevant to a

person’s religious affiliation and discrimination thereof. Civil liberties, or freedoms to exercise

ones religion of choice, are surveyed by comparing different religious practices. It is discovered,

that the liberties of religious practice may be lawfully restricted by federal, state and local

policies. Religious privileges for the purposes of this paper are defined as extravagant freedoms

unique to an individual or circumstance. The body of research and scope of opinion used in this

paper, is derived from landmark case law precedents and congressional acts; as well as expert

opinion's spawning from the constitutional review of these occurrences.



Introduction

Religious freedom, a core American principle, was drafted into the Bill of Rights as a

highly regarded value of the States in agreement and consensus with the U.S. government. The

establishment and exercise clause of the first amendment provide United States citizens with a

religion free government and the right to a faith filled life. Amendment 14, ratified in 1868,

guaranteed the equal protection of rights for all Americans. Since the founders ratified the first

amendment there have been conflicting opinions surrounding what the Constitution means for

the culture and laws of the United States of America. Lawmakers and judiciaries have faced

each other time and time again, with the task of balancing religious freedom and government

interest, while maintaining the separation of church and state. Considerable amounts of

legislature passed by elected officials, speak for the peoples opinion in regards to legal religious

practice, and how it has changed over the course of 238 years of U.S. and State government.

Through analyzing Internal Revenue Code, Acts of Congress, Supreme Court, Federal District

Court, and State Supreme Court cases it is determined that government interest prefers a

privileged religious society, which is enabled by a federalism government structure redefining

the equal civil rights and liberties of Americans.

Federalism Implications

Distributed powers of government entities such as federal and state agencies hold the

right to levy taxes from the American people. Section 8, Article 1, of the Constitution granted

the power of collecting taxes to Congress, so long as the taxes were quote, "uniform throughout

the United States". Churches have been exempt from taxation for centuries, which contended is


not uniform, but noted, income tax wasn't defined as constitutional until 1913 with the

ratification of Amendment 16. The Revenue Act of 1943 created an income tax exemption for

churches (USGPO, 1944). The states also reserve the right to raise revenue through taxation,

although, "Every state and the District of Columbia provide for tax exemptions for religious

institutions" (Justia US Law, 2014). Both levels of government grant this privilege to religious

entities.

Section 501 (c) (3) of the Revenue Code of 1954 provides churches with the option to

incorporate; privileging religious entities from financial disclosures to the public or filing form

990 (H.R. 8300, 1954). This same section of IRS code limits the capabilities of an incorporated

501 (c) (3) church. The restriction of free speech within the entity applies to the following church

actions: "does not participate in, or intervene in (including publishing or distributing of

statements), any political campaign on behalf of any candidate for public office" (H.R. 8300,

1954). Churches are not required to incorporate, although if they do, the church would be in turn

granted privileges and restrictions. The privileges include 501 (c) (3) status which makes all

donations to the entity tax deductible for its members, and allow the church to participate in

charitable functions (aid programs) requiring a 501(c)(3) exemption for deduction purposes of

business (IRS, 2014). States cannot change the circumstances of these privileges and restrictions,

with Congress reserving the power to levy taxes.

In the contrary situation, States levy property taxes, which is no longer a federal process,

"the 16th amendment....eliminated the need to impose property taxes" (The State of Minnesota,

2007). Privileged exemptions are granted by the States to churches removing the burden of

property tax, although some churches may be required to pay a portion of property tax (The

Supreme Court of New Hampshire, 2012). The Supreme Court of New Hampshire ruled that


portions of churches unused may be taxable. The decision of the court stated, "sixty percent of

the property was not used and occupied for religious training or religious purposes, and was

therefore taxable". This is not the case in all States or cities where churches are granted a

blanket exemption. Geographic inequality, enabled through the federalism effects of

jurisdictional power, allow this type of privilege or burden from the States.

Aside from taxes, the U.S. and State governments may dictate the practice of religion in

accordance with jurisdictional law. Sacrificial ceremonies and polygamy have been either barred

or limited to circumstance. The State of Utah, joined the Union and achieved its status as a State

with the denouncement of polygamy in 1896 (Utah Division of State History, 2014). There has

since been prosecution of several Mormons for continuing this practice and with a recent

landmark case overturning current law which states, "or cohabits with another person" section of

Utah law, being found unconstitutional (Winslow B., Green M., 2014). The family of 5 was

awarded financial compensation as well in the ruling for the persecution. Although, the civil

marriages are not filed with the State they are speculated to exist in personal or religious

ceremony and now protected religious practices. Federal law still prohibits polygamy, and has

since the Morrill Anti-Bigamy Act of 1862 (Utah Division of State History, 2014). Federalism

has allowed this practice to revive its lawful presence, for now.

Religious sacrifice has been limited to animals, with certain restrictions governed by

local policies. In the State of Florida the Church of Lukumi Babalu Aye won a case against the

city of Hialeah, where followers of the Santeria religion were exclusively restricted from animal

sacrifice (Oyez, 1992). The church challenged the city, district, state, and eventually the

Supreme Court where the victory concluded. The Supreme Court included an opinion stating,

"The core failure of the ordinances were that they applied exclusively to the church." (Oyez,


1992). The Santeria church contended the kosher slaughter of animals was permitted and should

be considered a legal parallel, a type of religious practice for their own religious ceremonies.

Federalism, allows the jurisdictional influence of law creating geographical inequality.

The liberties of religious people are limited and restricted and or privileged depending on one's

location. The inequality created by the federal government and the IRS, exempt statuses

relieving financial burden and granting privacy rights, has yet to be overturned. Although, local

laws restricting religious practice have been overturned through the federalism balance of powers

in the process of appeal. The history here shows the power of the people to circumvent religious

oppression through federalism, although when inequality is created by the governments imposing

taxes, the process a current debatable issue and is to be determined constitutional in years to

come.

Civil Right Implications

The civil rights of United States citizens have been fought for numerous times and

granted on several occasions, although a few exceptions to the discrimination of these rights

have remained. Religious groups reserve the right to discriminate against religious beliefs of an

individual upon employment. Several States also have required an oath or affirmation regarding

a higher power for acceptance of public offices. The religious test clause of Article 6, of the U.S.

Constitution, prohibits the requirement of religious belief for public office although several

States have conflicting situations, which some have been overturned by the Supreme Court.

The Civil Rights Act of 1964 required all business, besides churches and schools, to

refrain from discriminating against U.S. citizens for employment. Section 702 of the act states,

"This title shall not apply to an employer with respect to the employment of...a religious


corporation" (100 milestone documents, 1964). Prior to this act, it was commonplace for an

employer to discriminate for several reasons, including religious belief. As a country, the United

States has removed this potential threat to U.S. citizens with the exception of a religiously

focused employment purpose. One could contend disallowing this discrimination to be

unnecessary although several churches hold public service positions in which the religious belief

of its employees are circumstantial (ie. soup kitchens). In the situation of women in the church,

Catholic religion prohibits woman priesthood (Lucas, 2013). Former President Jimmy Carter

weighed in on the topic in an article stating, "The major religions have discriminated against

women in abusive fashions...This is wrong", referring to Christianity and Islam (Lucas, 2013).

In the State of Maryland, the Supreme Court abridged the State's constitution in 1961

(Justia US Supreme Court, 1961). Mr. Torcaso was eventually granted his right to hold office as

a public notary because of this Supreme Court opinion. The State Supreme Court held that a

required oath including affirmation of a belief in a higher power was constitutional, although the

U.S. Constitution does not, and the right to non-belief was upheld by the federal government in

this case.

Several State Constitutions, still include references to God or a god, for example North

Carolina Constitution states, "Grateful to Almighty God", in the preamble (State of North

Carolina, 2014). In 2007, the American Civil Liberties Union sued North Carolina on behalf of a

citizen’s right to affirm an oath on alternative religious texts ([email protected], 2007). The union

won the case and texts such as the Koran are to be provided for oaths in judicial proceedings.

This has not stopped the refusal in all courts, by all judges, to provide the alternate texts but it is

a step in the direction of equality.


In Arkansas, the State Constitution still includes Section 1, Article 19 which reads, "No

person who denies the being of a God shall hold any office in the civil departments of this

State, nor be competent to testify as a witness in any Court" (The State of Arkansas, 2014). The

restricted employment access to non-religious individuals are clearly a violation of civil rights,

which are at the moment unequal in this state.

Civil Liberty Implications

American freedom, religious freedom unambiguously proportioned to U.S. citizen’s

results in oppressing the pursuit of happiness for certain people and privileging others. Most

recently, the Hobby Lobby landmark has redefined the scope of what a corporation is entitled to

by creating the freedom of religious practice within a corporation. This ruling not only

appropriated unforeseen liberties to the corporation but also provided a financial privilege of

escaping mandated contraception fees. Federal recognition, a topic of heated controversy among

Indian tribes, prevents certain Native Americans from freely exercising Native American

religion. The same federal recognition requirements, prevent all other U.S. citizens from

practicing Native American religion. It is conceptualized that the freedom of religion includes

one's free choice of religion, although in the terms of current law only certain tribes can choose

to practice every aspect of Native American religion.

Peyote, is a schedule 1 drug, classified by the Drug Enforcement Agency (DEA) as the

most dangerous type of substance, illegal to possess (U.S. DEA, 2014). Native American

religion considers this plant a sacrament or deity. In Native American Church of New York v.

United States the court ruling decided that the church was unique or "sui generis" because they

regard peyote as a deity and the church gained the right to possess and use peyote for religious


purposes (United States District Court, S.D. New York, 1979). This privilege removes the

burden of unlawfulness from the possessors of peyote who are members of the Native American

Church of New York. The precedent was later further expanded to include all Native American

“churches”, although only a few States recognize the legality of peyote outside of tribal

reservations. If a person not of Native American decent would like to use peyote as a religious

sacrament, they would have to join “The Native American Church”, which costs 200 dollars

(Oklevueha Native American Church, 2014). This is the only recognized religion which

members may legally worship peyote in sacrament.

American Bald Eagles are an endangered species protected by the federal government in

the Eagle Act of 1940 from hunting, capture, possession or transport thereof (USGPO, 2014).

This act was amended in 1962 to include the golden eagle and provide an exemption, "for the

religious purposes of Indian tribes" (USGPO, 2014). The reasoning for this opinion leading to

the exemption is due to Native Americans claim that, "their parts are required for religious

ceremonies" (Kovacs, 2013). This right is different from the use of peyote, that a church

membership does not dictate the liberty of hunting, collecting, and transporting American Bald

Eagle's and their parts (feathers). The current law requires a federally recognized tribal member

to submit identification verifying the legal possession and use of American Bald Eagles.

In Mc Allen Grace Brethren Church v. Salazar, Court of Appeals, 5th Circuit 2014 there

is a case of Mr. Robert Soto, who had his eagle feathers confiscated and powwow (religious

ceremony) interrupted for illegal possession of the feathers. The circuit court remanded further

proceedings back to the district court which denied Soto's suit, "on grounds that enough permits

for all Native Americans are not available" is not sufficient compelling interest. With this ruling

the court issued a statement saying, "Broadening the universe of "believers" who seek eagle


feathers might then seriously endanger the religious practices of real Native Americans" (United

States Court of Appeals, Fifth Circuit, 2014). This infers the government prefers "federally

recognized" Native Americans and the liberties they possess more than Native Americans who

are not "federally recognized" or as quoted "real Native Americans" (United States Court of

Appeals, Fifth Circuit, 2014).

One's pursuance of happiness is another core American value, whether it be through

religious practice or entrepreneurship. In Burwell v. Hobby Lobby, Hobby Lobby a for-profit

corporation was granted the right to a religious exemption (Oyez, 2014). The Affordable Care

Act, in part, mandated certain employers to pay for contraception treatments, a financial burden

to all companies and a religious burden to the owners of Hobby Lobby. Because of this ruling,

religiously affiliated for-profit companies now have the liberty of operating business at lesser

costs than non-religious employers. This again, shows a clear privilege to the religious persons

of America and undoubtedly offsets the free enterprise market in the United States. Government

interest has dictated the economic success of religious groups to be held at a higher standard of

importance than others, both in non-profit and now for-profit corporations.

Conclusion

Tax exemptions through the federal government, such as the 501 (c) (3) exemption, are

only available to religious organizations; the federal government reserves this power. The 501

(c) (3) creates a privileged system of outreach through tax deductible contributions. State

property taxes vary geographically. In the City of Concord, churches may pay portions of

property tax where churches in other cities may have complete exemption. City ordinances such

as Hialeah who enforce animal sacrifice policies, have been found to be federally

unconstitutional, regardless of State laws, allowing religious sacrifice of animals. Polygamy,


outlawed in 1896 when Utah joined the U.S.A., has been since decriminalized in the State of

Utah, creating a privileged practice for those residing in Utah.

Civil rights of women have been disrespected in the Catholic Church, disallowing woman

priesthood. Section 702 of the 1964 Civil Rights Act allows churches to discriminate against an

individual’s civil rights. Non-religious individuals such as Mr. Robert Torcaso have been

disallowed public positions, due to non-participation in religious oaths. The State of Arkansas'

constitution continues to restrict public office positions from atheists, requiring religious

acknowledgment to hold public office.

Across the nation there are Native Americans who cannot practice there indigenous

religious freedoms, without federal recognition. The possession of eagle feathers is a federal

crime for all U.S. citizens not part of a federally recognized tribe. The Native American religion

is oppressed in part by DEA laws against peyote. Only if a person joins “The Native American

Church”, are the rights to possess peyote for religious ceremony legal. The Burwell v. Hobby

Lobby case allowed for a religious exemption to be granted to a for-profit corporation, extending

the boundaries of religious exemptions into the free enterprise market. An entrepreneur looking

to build a company will be mandated to pay contraception fees for employees, if not religiously

exempt.

Federalism has created geographic inequality by allowing states such as Florida, Utah

and New Hampshire to make laws against and for religious parties. The federal government has

also created an unequal income tax law, privileging religious organizations. The federal

government also explicitly allows churches to discriminate against one's civil rights. States have

created religious oaths and some require religious affiliation to hold public office. Civil liberties

in America have been especially discriminative in the case of Native Americans. The free


enterprise market of America has shifted in the direction of privileging religious business

owners. This paper has reviewed congressional acts, state and federal laws, along with several

court cases to find an unequal balance of rights and liberties among U.S. citizens. This study

shows how the culture of America has allowed and fought for religious privileges beyond what is

available to all U.S. citizens. The federalism structure of the U.S.A. governments, partly allows

religious inequality, although it also allows citizens to fight against inequality and change the

course of history. It is finalized here that the United States system of government prefers a

religiously privileged society, promoted through the extravagant exemptions and extracurricular

civil rights and liberties, officially allocated and allowed to religious groups.


References

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Religious Privileges in America

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