One of the central ways that the common good is promoted in society is through the flourishing of religious faith and strong, healthy religious institutions. In the wake of a major federal election and the inauguration of a new president, the fixation on national elections will now calm down. Many religious citizens were understandably concerned about the ramifications for religious practice and liberty if Kamala Harris had become president. Now that she has been defeated, religious folks may be breathing a collective sigh of relief and feeling that their rights to free expression are safe, at least for now. But the administration in DC is not where religious freedom begins and ends. Perhaps now is a good time to remind citizens of the importance of local institutions, as well as the state and local laws that most affect them, in building a healthy society in which those with religious convictions can flourish.

Law is meant to promote the common good; religion promotes the common good; it is good to focus on the local level to bring about positive change in communities. These statements should be uncontroversial. Yet the ways that government and religion intersect for the promotion of the common good generate harder questions. How can government and religion properly work together to promote the common good? This is where it gets difficult, especially in the American tradition.

The United States was founded by various religious dissenters, looking to escape from nationally mandated religious establishments. At the same time, state and local governments in the early republic were not shy about enacting laws motivated by Christian principles and even about overtly supporting Christian institutions by law and through tax dollars. This tension between the religious roots of the nation and the preference for government non-interference with religious institutions remains a part of the American tradition to this day.

If government exists to promote the common good, and thriving religious institutions are necessary for the common good, how can government properly fulfill its role in supporting religion in the US without improper interference with religion? It seems fair to suggest that law, in some way, should support the flourishing of religion in society. But what is the proper way to do that while respecting the limited role of government, especially in the American constitutional tradition? 

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While attempts to return to the early American precedent of state-supported religious institutions are interesting and legally plausible, there is a simpler and less controversial way that government can and should support religion: passing laws at the state level that help rather than hinder individuals from starting and operating religious organizations.

Law Can Foster Religion without Interfering with Religion

One example of this state-led effort to foster religion in society is the Faith and Freedom Index, a comprehensive study of fourteen types of state laws that affect the ability of religious organizations to thrive. From religious freedom laws to regulatory and tax laws, FFI allows readers to look at each state and see where the state’s laws protect the work of religious organizations and where there is room for improvement.

The study shows at least two ways legislatures (and the citizens who elect their members) can improve the landscape for religious organizations. First, even a passing glance at the results will reveal that many conservative states have bad laws on the books. For example, there is no reason Wyoming and Georgia should not each have a state religious freedom restoration act. There is also no reason West Virginia and Tennessee should have “nondiscrimination” laws that prevent religious organizations from offering programming or making employment decisions consistent with their faith. These states (and many others) have the political climate to pass better laws allowing religious organizations to operate in accordance with their religious faith without government interference. 

Second, there is an opportunity for improvement in religious freedom even in “blue” or “purple” states. For example, New York may not have the political appetite to pass a state religious freedom restoration act or broader exemptions to “nondiscrimination” laws for religious organizations. But perhaps it is possible for the legislature to enact broader exemptions to charitable solicitation registration laws or to remove burdensome audit requirements for faith-based nonprofits that fundraise within the state. 

Not all state laws that hinder and complicate the work of religious organizations involve hot-button social issues; regulatory burdens are a real problem as well and there may be opportunities to ease various regulatory restrictions that make it quite difficult for religious organizations to accomplish their missions. 

For example, I am legal counsel at a Catholic nonprofit organization. In order to maintain the ability to fundraise in my home state of Pennsylvania, each year I must submit a renewal application that takes hours to complete. The application must be accompanied by a $250 filing fee. And the application requires our organization to submit a financial statement audited by a third-party accountant (audits cost thousands of dollars). This single regulatory burden distracts from the mission, diverting donor dollars and staff time that should be devoted to accomplishing the organization’s mission.

Whether one’s home state is “red,” “blue,” or “purple,” religious organizations serve a vital purpose.

 

Which Organizations Benefit from Improving These Laws?

Intelligent observers have asked a legitimate question: in advocating greater freedom for the work of nonprofits, isn’t there a danger that those who benefit from this advocacy will be large, secular nonprofits, foundations, and NGOs that do so much work antithetical to the common good? A comprehensive answer to this question would involve a separate essay, but the answer is “no” for at least two reasons.

First, most of the changes advocated in the FFI are particular to religious organizations. State religious freedom restoration acts are specific protections for the free exercise of religion; most of the recommended regulatory exemptions are specific to religious organizations. Large secular organizations and foundations are neither the target nor the main beneficiary of such policy changes.

Second, large organizations tend to be least affected by burdensome laws because they have the resources (particularly the legal and compliance staff) to navigate the laws. Dense regulatory regimes and problematic laws most seriously affect small organizations because they often lack the funds or legal savvy to comply with such laws. For example, if a small nonprofit receives donations from donors in several states and offers programs that cross state lines, it may be required to file several charitable solicitation registrations (including administrative fees and annual renewal forms), pay for a third-party audit to maintain that charitable solicitation registration status in some states, and file several state tax exemption forms. These administrative burdens are quite easy for large organizations with their own in-house attorneys and accountants, but can be a heavy burden for small organizations. 

Therefore, the proposed legal changes to state religious freedom laws and regulatory requirements would primarily benefit small religious organizations doing needed work for the common good, not further empower massive, secular organizations. Small nonprofits would be more free to turn the time and attention of their employees to spreading the Gospel, educating children, feeding the poor, and housing the homeless, rather than spending time filing legal compliance documents.

Religious Freedom across the Political Spectrum

Whether one’s home state is “red,” “blue,” or “purple,” religious organizations serve a vital purpose. Classical schools are filling in the gaps where public education is failing (this trend accelerated during COVID, when parents saw firsthand the low quality of education their children were receiving in the public school systems). Pro-life pregnancy centers offer women a loving alternative to heavily promoted abortion providers. Countless religious charities feed the hungry, house the homeless, and care for the sick with the love, personal touch, and dedication that government programs simply cannot provide.

It should be a priority for state lawmakers and voting citizens to improve the laws that affect these organizations. Religious institutions should be free to evangelize, teach citizens, and care for those in need without being unnecessarily burdened by employment laws, corporate governance laws, burdensome fundraising regulations, inappropriate taxes, and time-consuming paperwork.

The recommendation is not that the government should directly support religious institutions. That is a completely separate argument. Opponents of religion in the public square unfairly combine arguments for explicit state support of religious institutions (via tax dollars) with arguments for legal exemptions, exclusions, and deregulation so that private religious organizations are free to form and operate according to their religious principles. State governments should merely pass laws that move government out of the way and allow religious organizations to do their good and needed work while living according to the principles of their faith. Churches, religious schools, pregnancy centers, soup kitchens, homeless shelters, and numerous other religious organizations contribute to the common good. State laws should encourage, not hinder, them.

The message to state lawmakers should be simple and clear. These organizations do good work for the common good. They are not asking for government money to do this work. They simply ask that their lawmakers pass laws recognizing their right to form, operate, hire, and offer programming in accordance with their religious beliefs. They ask that they not be made to register unnecessarily with government agencies, submit needless paperwork, pay registration fees, and entrench their employees in administrative work that hinders their ability to accomplish their missions. 

Religious organizations should ask for the law to allow them to take their proper place in society and continue their work of pursuing the common good.

Image by Rawf8 and licensed via Adobe Stock.