Exclusion and equality: how exclusion from the political process renders religious liberty unequal.

Author:Hamburger, Philip
Position:Introduction into IV. Exclusion Through Section 501(c - 3


Exclusion from the political process is a central question in American law. Thus far, however, it has not been recognized how religious Americans are excluded from the political process and what this means for religious equality.

Put simply, both administrative lawmaking and [section] 501(c)(3) of the Internal Revenue Code substantially exclude religious Americans from the political process that produces laws. As a result, apparently equal laws are apt, in reality, to be unequal for religious Americans. Political exclusion threatens religious equality.

The primary practical conclusion concerns administrative law. It will be seen that this sort of "law" is made through a process that systematically excludes religious Americans and their concerns and that it therefore is apt to be religiously unequal. Courts should recognize this inequality and so should take different approaches to administrative and statutory burdens on religion.

Conceptually, the implications are even broader. The free exercise of religion tends to be understood in terms of a binary choice between equality or exemption. The equality, however, is undermined by the exclusion of religious Americans from the political process. The conceptual framework for understanding religious liberty should therefore be expanded to recognize how exclusion tilts the entire game, giving even facially equal laws an underlying slant.


When individuals or groups are denied full participation in the political process, the resulting laws, even if formally equal, can easily become unequal and oppressive, and this has become a serious danger for religious liberty. Religious Americans are substantially excluded from the political process that produces laws, and this prompts sobering questions about the reality of religious equality. Put simply, political exclusion threatens religious equality.

The exclusion is two-fold. First, the exclusion arises from the growth of federal administrative power, which leaves Americans, including religious Americans, no opportunity to vote for or against their administrative lawmakers. Second, the exclusion comes from [section] 501(c)(3) of the Internal Revenue Code. (1) As a result of this section, even when law is made in Congress, religious organizations are restricted in their petitioning and campaigning for or against lawmakers. In two ways, therefore, the law broadly excludes religious Americans and their organizations from the political process that shapes lawmaking. Americans thereby have lost essential mechanisms for persuading their lawmakers to avoid burdening their religious beliefs.

Religious liberty thus comes with an unexpected slant. Courts blithely assume that America offers a flat or even legal landscape--a broad and equitable surface on which all Americans can enjoy rights equally, regardless of their religion. The underlying exclusion, however, tilts the entire game, so that many apparently equal laws actually lean against religion.

This exclusion hollows out the religious equality guaranteed by the Free Exercise Clause. Even where the courts protect this equality, the exclusion is apt to render laws unequal and oppressive.

As a practical matter, the exclusion raises questions as to whether even facially equal laws--laws that do not discriminate on the basis of religion--are always really equal. On account of the systematic character of the administrative exclusion, administrative law is particularly apt to be slanted against religious Americans, and this Article therefore suggests that, at the very least, the courts should distinguish between administrative and statutory burdens on religion.

Conceptually, the exclusion points to the need for a more expansive understanding of religious liberty. The central question about the free exercise of religion is usually framed in binary terms of exemption or equality--in terms of one variant or another of either a freedom from equal laws on account of one's religion or a freedom under equal laws regardless of one's religion. (2) The conceptual problem, however, turns out to be more complicated, for the equality is undermined by exclusion. Therefore, in addition to the constitutional choices between exemption and equality, one must also consider the role of exclusion.

General and Focused. The exclusion of religious Americans from the political process comes in administrative power and in federal taxation. Put another way, it is both general and focused.

The general exclusion arises from the inability of Americans to vote for or against their administrative lawmakers. For example, the administrators who adopt rules, interpretations, guidance documents, exemptions, and waivers are unelected by Americans. Of course, this broad exclusion of all Americans may not initially seem especially burdensome on religious Americans, but consider the constitutional and administrative context. On the one hand, the Constitution expressly protects religious liberty. On the other hand, administrative lawmaking is designed to be "rational" and "scientific" rather than responsive to political pressures, and this has religious implications. Although administrative lawmaking is not really very rational or scientific, its self-conscious rationalism and scientism leads administrative lawmakers to be relatively indifferent, if not unsympathetic to religious concerns, and the general exclusion of Americans from choosing their administrative lawmakers therefore comes with a distinctively hard edge for many religious Americans. This is not to say that lawmaking should be antagonistic to science or otherwise irrational, let alone that it should be religious, but rather that administrative lawmakers are not typically as sensitive to religious sensibilities as are representative lawmakers--the sort of lawmakers that Americans have a right to expect in a republic. Administrative lawmaking thus excludes religious Americans from the sort of participation in the political process by which they ordinarily could protect themselves from religiously burdensome laws.

A more focused exclusion comes in [section] 501(c)(3) of the Internal Revenue Code, which bars religious, educational, and charitable organizations from campaigning and from much petitioning of government. (3) This exclusion singles out religious organizations, together with other idealistic organizations, for restrictions on their constitutional rights of political speech and of assembling to petition. Business and labor organizations, which represent particular interests and thus (in the government's view) are not purely idealistic, are not subject to such severe restrictions on their constitutional rights. Section 501(c)(3) thus distinguishes between idealistic and other organizations. And in thereby suppressing the petitioning and political speech of churches, it deprives religious Americans of essential channels for avoiding the religious burdens of statutory and administrative constraints. The cost (it will be seen) is apt to be especially high for religious minorities who are theologically orthodox or who otherwise have beliefs that leave them relatively dependent on their churches for political participation.

Both types of exclusion can be illustrated by the regulations underlying the recent Supreme Court decision in Burwell v. Hobby Lobby Stores, Inc. The Department of Health and Human Services (HHS) issued administrative rules under the Affordable Care Act (ACA) requiring employers to provide their employees with health insurance covering contraception. (4) In response, Hobby Lobby--a closely held business corporation--protested that it had religious objections to providing such insurance. (5) Religious Americans, including those associated with Hobby Lobby, traditionally might have used the political process to avoid a religiously burdensome requirement of this sort. Under administrative power, however, they cannot vote for their administrative lawmakers; under [section] 501(c)(3), moreover, they cannot use their religious organizations to campaign or substantially to lobby against such requirements. Religious Americans thereby are significantly excluded from the political process, and they consequently must live under laws that, although equal in form, are not really equal. (6)

Different Paths for Oppression. The problem becomes even more sobering when one places it in the history of religious oppression. Over the centuries, religious oppression has shifted paths.

The route for oppression used to be through unequal legal constraints. In the seventeenth and eighteenth centuries, England and most American colonies unabashedly preserved their power to impose constraints on the basis of religious dissent. (7) The U.S. Constitution, however, and eventually most state constitutions, barred such discrimination, and these constitutions thereby established freedom under equal laws--meaning that persons could not be constrained on account of their religion. (8)

Religious oppression, however, did not disappear; instead, it took other avenues. Although the laws could not constrain unequally, there remained the question of who would make the laws. Many Protestants increasingly worried about the political participation of Catholics, and repeatedly therefore, from the eighteenth century to the twentieth, many Protestants attempted to prevent Catholics from holding office and even occasionally attempted to prevent them from voting. (9) When these paths were no longer possible, many Protestants (in the early 1920s) sought compulsory education of future voters in public schools or attempted (for example, in 1928 and 1960) to sway voters with systematic appeals to prejudice. (10)

Fortunately, there is now legal equality in suffrage and office holding, and overt appeals to religious prejudice are widely (even if not consistently) viewed as tasteless. But even with legal equality in religious belief, in qualifications for...

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