The recent subpoena of pastor's sermons by Houston Mayor Annise Parker has had many pastors, churches, and religious liberty advocates concerned about the city’s blatant disregard for the Constitution—and with good reason. The bedrock of our country lies upon the freedom of religious expression; a freedom that has been upheld by the Constitution and case law for the past 230 years.
Pastors, churches, and persons of faith have rights, and those rights are not muzzled when one steps up to the pulpit, any more than when one steps into the voting booth. Yet, those who oppose religious freedom in this country have created a culture of fear in an attempt to stifle expressions of faith. In response, the attorneys at Liberty Institute remind pastors and other church leaders of four critical rights:
1) RIGHT TO PREACH
Pastors have a right to preach. Not only do they have a right to, but many say that they feel a call to. Yet, when it comes to issues of political or social concern, many pastors are reluctant to speak to their congregations, for fear of legal retaliation. Scripture calls pastors to “equip the saints” in all areas of society. This call does not stop in the political arena or the public square. As political adversity toward religion increases—and elections become vital to the basic religious freedom to carry on various types of ministry—it is crucial for pastors to know that they have the right to address issues of public concern from the pulpit.
Many pastors have been given false information about what they can and cannot say to their congregations. The truth of the matter is that the law has been highly supportive of churches’ rights to steward their congregations in their civic duties. Even as a nonprofit, there is very little a church may not do. (To see more on this, please download our FREE guide to pastors' and churches' legal rights—“Church & Government: Know Your Legal Rights”—available in English or in Spanish.) This is an especially important truth in light of the fact that only one out of every four Christians in America is voting.
2) RIGHT TO SERVE
Churches have a right to serve. The Religious Freedom Restoration Act (RFRA) states that a governmental entity “may not substantially burden a person’s free exercise of religion [unless it] demonstrates that the application of the burden to the person . . . is in furtherance of a compelling governmental interest; and . . . is the least restrictive means of furthering that interest.” In other words, the government has an extraordinarily high burden to meet in order to interfere with a church’s service to a community, and may only do say if there is no “less restrictive” alternative.
Liberty Institute has defended this principle on many occasions. For example, Isaiah 61 Ministries is a religious ministry whose mission for the past six years has been serving the homeless and elderly of Harrisburg, Pennsylvania. In 2013, the city of Harrisburg prohibited Isaiah 61 Ministries from providing meals, clothing, and assistance on public property due to city ordinances, and threatened to arrest ministry workers and volunteers if they continued to serve. Liberty Institute stepped in, and demanded the city discontinue its unconstitutional policy. iberty Institute prevailed, and Isaiah 61 was able to continue serving in time for the Christmas season.
3) RIGHT TO MEET
Churches have a right to meet and gather. Churches have First Amendment and rights guaranteed by federal law to gather and worship free from governmental interference. These rights are enumerated in the Religious Land Use and Institutionalized Persons Act (RLUIPA), which states that “No government shall impose or implement a land use regulation in a manner that:
- Imposes substantial burden on the religious exercise of a person,
- Treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution,
- Discriminates against any assembly or institution on the basis of religion or religious denomination,
- Totally excludes religious assemblies from a jurisdiction,
- Or unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.
Recently, Liberty Institute represented a church on these very grounds. Opulent Life Church in Holly Springs, MS sought to rent larger space downtown due to their growing size. However, a city zoning restriction required 60 percent of local property owners to approve of building a new church, even though no other type of business or organization is subject to this requirement. Liberty Institute filed a lawsuit on behalf of the church and its pastor, Telsa DeBerry, arguing that burdening a church simply because it’s a church is unfair, discriminatory, illegal, and unconstitutional. The case advanced all the way to U.S. Court of Appeals for the Fifth Circuit, where Liberty Institute gained a precedent-setting victory. After which, we were able to reach a settlement with city officials, and allow Opulent Life to permanently relocate to downtown Holly Springs.
4) RIGHT TO AUTONOMY
Churches have a right to religious autonomy. Churches are legally protected in establishing and implementing their own systems of governance including areas of:
- Church Membership
The First Amendment’s Establishment and Free Exercise Clauses erect broad constitutional protection for churches to control their internal proceedings. This protection is now protected even more clearly, thanks to the recent landmark Supreme Court case of EEOC v. Hosanna-Tabor Evangelical Lutheran Church in which Liberty Institute filed a friend-of-the-court (amicus) brief on behalf of a large number of religious schools from across the nation. In this decision, the Court ruled that churches and religious organizations have “Ministerial Exception”—the freedom to hire and fire leaders and ministers on the basis of their doctrine and statements of faith, without fear of retaliation of government bodies like the federal Equal Employment Opportunity Commission (EEOC).
CHURCHES HAVE SPECIAL RIGHTS—FOR NOW
Share this list of rights with your churches and pastors, and encourage them to seek legal consultation and contact Liberty Institute if they believe these special protections have been violated. Though opposition scare tactics would have us believe otherwise, our churches and pastors are constitutionally protected.
That is, for now. There is no question that our religious liberties in this country are under attack. Liberty Institute is the largest legal organization in the country devoted solely to the protection of these liberties. We work hard to ensure that our pastors, churches, and all persons of faith are protected from discrimination, but we can’t do it alone.
We depend on the generous contributions of supporters like you to ensure that religious liberty in America remains a reality. Please consider a gift today, and help stand in defense of America’s First Freedom.
About Liberty Institute
Liberty Institute is a nonprofit legal group dedicated to defending and restoring religious liberty across America — in our schools, for our churches, in the military and throughout the public arena. Liberty’s vision is to reestablish religious liberty in accordance with the principles of our nation’s Founders. For information, visit www.LibertyInstitute.org.