Can your Rabbi tell you how to vote?

New York Times - Stanley Fish

The story goes that when he was running for re-election to the Senate in 1954, Lyndon Johnson was opposed by a couple of non-profits that urged voters to reject him and his radical communist ideas. (And you thought things were crazy today.) In response, Johnson had new language inserted into the section of the IRS code, which defines a tax exempt entity. His addendum declared that an exempt organization “does not participate in or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.”

Now, in the middle of the 2008 election, several dozen pastors are challenging the amendment by speaking out in the pulpit in favor of a candidate (usually John McCain) and by sending the IRS copies of the sermons in which they openly cross the line the law has drawn since 1954. At the same time, a bill (H.R. 2275) repealing the Johnson amendment has been introduced by Walter Jones, Republican of North Carolina. The bill has been referred to the House Ways and Means Committee where it awaits action.

The debate over Jones’s bill and Johnson’s amendment reveals once again how confusing and confused church-state jurisprudence is and has always been and will always be. Both sides claim that the other is violating the separation of church and state. Barry Lynn, a minister who is executive director of Americans United for Separation of Church and State, argues that “We just can’t have sermons converted into political advertisements for candidates,” and he warns against using “church collection plate money on an ad telling people” to vote for one candidate rather than another.

Lynn here follows in the tradition of John Locke’s Letter Concerning Toleration, a tract in which Locke declares that the civil magistrate has no warrant to meddle in the affairs of the church, and churches, on their part, have no warrant to meddle in the affairs of state. The church, says Locke, tends to men’s souls; the state to men’s worldly needs. (He also says that in the event of a clash between them, the state’s interests must prevail; but that’s another essay.)

But the logic and force of Locke’s arguments depend upon his conceiving of religion as a private matter, as a relationship between one’s soul and one’s God, and therefore as a practice exercised in the church or synagogue or mosque rather than in the arena of political action. If, however, your religious beliefs take a more robust form than Locke’s and require that you labor to bring the world into conformity with God’s word and will, the Johnson amendment, or any other limitation on the free exercise of what you take to be your religious duty, will be seen as an unconstitutional interference by the state in the proper business of the church.

That’s how Erik Stanley, legal counsel and head of the Pulpit Initiative for the Alliance Defense Fund, sees it. In his reply to Lynn he insists that any law “that requires government agents to parse the words of a pastor’s sermon” in order to “determine when a pastor’s speech becomes too ‘political’” constitutes an “excessive …government entanglement with religion” and is on its face a violation of the separation of church and state. In other words, it is a violation of the separation of church and state for the state to inquire into whether a pastor is violating the separation of church and state.

This is not so odd an argument as it might first seem; for everything depends on just how religious activity is defined. If you assume, as Lynn does, a Lockean definition (religious belief is essentially private), separation means hands off in both directions. But if you assume, as Stanley does, a definition that demands corrective action when you see the world departing from godly principles, separation means hands off the church by the state and hands on the state by the church.[...]

The bottom line is that there is no rational or principled or constitutional resolution to this conflict. The resolution, if there is one, will have to be political. Either the Johnson amendment will be repealed or it won’t be. And when one or the other happens, the boundaries between church and state, at least with respect to this issue, will have been settled — for a while.