Defending the "other" First Amendment freedom: state campaign disclosure laws and the free exercise of religion.

• Author: Sweeney, Meghan E.

[T]hose who say that religion has nothing to do with politics do not know what religion means.

Mohandas K. Gandhi (1)

INTRODUCTION

Five church members meet on a Saturday afternoon in their church basement to make fliers for distribution at Sunday services. These fliers speak out against a proposed state bill legalizing same-sex marriage. The group uses its own supplies, including paper, but makes copies on the church's copy machine. Should the church members have to fill out paperwork and register with the state as a political committee for this activity? Would they even know about the state laws requiring them to register? Should the church be required to pay a fine if the group fails to do so? The debate about the proper place of religious organizations in American politics is not a new one. In past court cases, most institutional plaintiffs claim violations of their free speech and free exercise fights, but courts have traditionally examined campaign registration and disclosure laws based only on the institution's right to free speech. (2) But in the recent Ninth Circuit case Canyon Ferry Road Baptist Church of East Helena, Inc. v. Unsworth, (3) Judge Noonan addressed the effect of Montana's campaign disclosure law on the free exercise rights of a Baptist church in his concurrence. (4) Judge Noonan questioned whether the law was actually "neutral and generally applicable" as required by Employment Division v. Smith (5) to avoid strict scrutiny review due to exemptions from the registration and disclosure laws granted to media organizations. (6) Judge Noonan's concurrence suggests that even in a post-Smith world there is room to argue that state campaign laws requiring religious institutions to register with the state before speaking out on a ballot measure or piece of legislation violate the right of free exercise guaranteed by the First Amendment to the U.S. Constitution. (7)

To highlight the problem, this Note begins in Part I by discussing two recent examples of conflict between religious institutions and the government specifically dealing with churches that failed to register as a political committee or lobbyist under their state campaign laws. Part II gives a brief history of the free exercise case law through the Supreme Court's decision in Smith. Part III considers two ways to attack campaign registration and disclosure laws on free exercise grounds even after Smith. This Part both considers whether religious organizations have a right to institutional free exercise protection and examines whether these laws are truly neutral and generally applicable given the exemptions they grant to media organizations. Part IV examines whether these laws serve a compelling state interest that would allow them to survive a strict scrutiny analysis even if brought outside of Smith protection. Finally, this Note concludes that state campaign registration and disclosure laws requiring religious institutions to register as political committees or lobbyists when speaking out on a ballot initiative or piece of legislation and not directly supporting a candidate for office violate the free exercise rights guaranteed by the First Amendment. (8)

1. MODERN EXAMPLES OF CHURCH/STAVE CONFLICT

   The failure to properly abide by state campaign disclosure laws when supporting or opposing a ballot initiative or bill can lead to costly litigation and hefty fines for churches. Even more troubling, however, is the potential for discretionary enforcement and the use of state disclosure laws to punish political adversaries. Due to religious organizations' engagement in hot-button political issues, they are likely targets for this discretionary and politically motivated enforcement. Two recent cases illustrate the potential costs to religious organizations who fail to disclose activities that the states consider political involvement.

   1. Catholic Diocese of Bridgeport, Connecticut

      In January 2009, the Connecticut General Assembly proposed Bill No. 1098 entitled An Act Modifying Corporate Laws Relating to Certain Religious Corporations. (9) The stated purpose of the bill was to "revise the corporate governance provisions applicable to the Roman Catholic Church and provide for the investigation of the misappropriation of funds by religious corporations." (10) The bill, if enacted, would have reorganized the legal, financial, and administrative structure of parishes by requiring lay boards to run parishes "effectively exclud[ing]" pastors and bishops from church governance. (11) According to Bishop William E. Lori of the Diocese of Bridgeport, however, the bill was a "thinly-veiled attempt to silence the Church on the important Catholic issues of the day, such as same-sex marriage." (12) In a diocesan statement, Bishop Lori encouraged Catholics to call and email their state senators and to come to Hartford in March of 2009 to protest at the public hearing on the bill. (13) The diocese succeeded in busing over a thousand people to the state capitol for a rally against the bill, although the legislature withdrew the bill the evening before the rally. (14) The Office of State Ethics notified the diocese six weeks later that it was under investigation for failing to register as a lobbyist before busing Catholics to the rally (15) and before opposing a bill regarding same-sex marriage on the diocesan website. (16) According to the ethics office, the diocese was required to register as a lobbyist if its expenditures "in connection with the Rally and/or the website statements were $2000 or more." (17) The diocese filed suit against Thomas Jones and Carol Carson, ethics enforcement officers for the state of Connecticut, claiming that the registration requirements were "chilling [the Diocese's] constitutional rights" because the Catholic faith "compels [Catholics] to take stands on the moral issues of the day, which, from time to time, are embedded in legislation." (18)

      Although the state Ethics Office eventually dropped the case after the Attorney General resolved not to defend Connecticut in the case due to "serious and significant potential chilling effects on protected First Amendment, free expression rights," (19) the Attorney General failed to discuss the potential free exercise implications of the suit as raised by the diocese in its briefs.

   2. Canyon Ferry Road Baptist Church: East Helena, Montana

      In the spring of 2004, the pastor of a small Montana Baptist church decided to involve his congregation in supporting Constitutional Initiative No. 96 (CI-96) in an attempt to place it on the ballot the following November. (20) CI-96 proposed to amend the Montana Constitution to define marriage "as a union between one man and one woman." (21) Terri Paske, a church member at Canyon Ferry Road Baptist Church, printed out a template petition supporting CI-96 from a website and made less than fifty copies on the Church's copy machine using her own paper. (22) With the pastor's approval, she placed about twenty copies of the petition in the church's foyer. (23) Around the same time, Pastor Stumberg made plans for a simulcast entitled Battle for Marriage to air at a regularly scheduled church service on May 23, 2004. (24) This presentation featured various religious leaders speaking out on the topic of marriage and discussed a possible amendment to the U.S. Constitution defining marriage as between one man and one woman; however, the program did not mention any issue or candidate specific to Montana. (25) The church advertised the screening through unpaid public service announcements on the radio and by passing out flyers that did not specifically mention CI-96. (26) Ninety-three people attended the service on May 23 and after the broadcast, Pastor Stumberg spoke briefly to the congregation about CI-96 and told everyone that they "need[ed] to sign" the petition. (27) A week later, the petitions circulated during Sunday services and they remained in the church foyer until June 13. (28) By June 13, there were ninety-eight signatures on the petitions, and Paske had them notarized and sent to the appropriate county officials. (29)

      On May 26, 2004, an activist group called Montanans for Families and Fairness filed a campaign finance and practices complaint against the church alleging that they had created an "incidental political committee" in connection with the May 23 service and had failed to file disclosure forms for expenditures. (30) Incidental committees are required to follow Montana campaign finance and disclosure laws and rules. (31) According to the complaint, because the simulcast, words from Pastor Stumberg, and petition signings occurred in church facilities during regularly scheduled Church services, and because there were costs involved in running the church service, the church violated the campaign finance laws for failure to disclose these expenses. (32) Failing to abide by Montana disclosure laws may result in the initiation of civil or criminal actions. (33)

      The church and Pastor Stumberg filed suit against the Montana Commissioner of Political Practices under 42 U.S.C. [section] 1983 stating that their rights to free speech, free association, and free exercise were compromised by the state of Montana. (34) The District Court ruled in favor of the State and granted summary judgment, and the plaintiffs appealed. (35) In their appeal, the plaintiffs claimed that the reporting requirements violated their rights to free speech, free association, and free exercise. (36) They also claimed that the campaign statutes are unconstitutionally vague because they have "no clear [monetary] trigger" to warn Montana citizens about when registration is necessary. (37) Although the appellants briefed free exercise challenges to the laws, (38) the Court ruled in their favor based on free speech issues and declined to address the free exercise issues in the majority opinion. (39) Judge Noonan, however, stated that the campaign regulations were...