Religious Leaders: Above Or Under The Law?

Religious leaders have been known to break the law, with some arguing that they are morally obligated to do so when the law conflicts with their religious beliefs. For example, in the US, faith leaders have offered sanctuary to people facing deportation, despite this being a violation of federal law. In another instance, Pope Urban II set the stage for the Crusades, and Imam Al-Ghazali issued a fatwa against science and rationality in 11th-century Persia.

However, it's important to note that the relationship between religious leaders and the law is complex and multifaceted. Religious law itself includes ethical and moral codes taught by religious traditions, such as Christian canon law, Jewish halakha, Islamic sharia, and Hindu law. These laws guide the behaviour and practices of followers and are often based on interpretations of religious texts.

In the context of modern nation-states, the interplay between religious and secular law becomes more intricate. While some countries have a state religion or are governed as a theocracy, others are secular states or multicultural societies that enforce religious tolerance or restrict all religious activity.

Within this landscape, religious leaders can find themselves at odds with secular laws, and their actions can have significant political and social implications. For instance, in Pakistan, the rise of religious leaders to political office has been linked to a deterioration in the rule of law, with religious elites exploiting their legitimacy to subvert the courts.

On the other hand, religious leaders can also play a role in shaping and influencing secular laws. In the US, for example, religious leaders are allowed to speak about political issues, educate their congregations, and even participate in politics in their individual capacities.

Ultimately, the question of whether religious leaders should break the law is a complex and nuanced one, involving the interplay between religious beliefs, ethical obligations, and the legal framework within which they operate.

Religious leaders may break the law by providing sanctuary to people facing deportation

In the United States, the concept of "sanctuary congregations" has a long history, with Reform Movement congregations providing sanctuary to Central Americans facing deportation in the 1980s. Today, hundreds of congregations across various faiths continue to offer sanctuary to those facing deportation. This act of providing sanctuary encompasses various forms of support, including legal assistance, material and financial support, public advocacy, and temporary physical shelter.

While religious leaders and congregations may be motivated by their faith and ethical duties to help those in need, immigration laws and the role of law enforcement create a complex legal landscape that they must navigate. Congregations offering sanctuary should do so in consultation with legal counsel and with awareness of local and state laws regarding immigration.

The legal implications of providing sanctuary can vary depending on the specific circumstances and the jurisdiction involved. In some cases, religious leaders may risk legal consequences for aiding and abetting individuals facing deportation. However, there may also be legal protections for religious organizations providing sanctuary, depending on the country and its laws.

In conclusion, while religious leaders may break the law by providing sanctuary to people facing deportation, the legality of their actions depends on the specific context and the applicable laws in their jurisdiction. It is a complex ethical, legal, and religious issue that requires careful consideration and consultation with legal experts.

Religious leaders may break the law by endorsing a political candidate

The IRS code states that:

> "all IRC section 501(c)(3) organizations, including churches and religious organizations, are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office. Contributions to political campaign funds or public statements of position (verbal or written) made by or on behalf of the organization in favour of or in opposition to any candidate for public office clearly violate the prohibition against political campaign activity."

Violating this rule can result in the IRS revoking the tax-exempt status of the religious organisation and imposing certain excise taxes.

However, it is important to note that this regulation does not restrict the free speech rights of religious leaders as individuals. They can speak out and endorse candidates in their personal capacity, outside of church functions, as long as they do not claim to represent the official position of their religious organisation. When expressing their opinions outside of official church functions, religious leaders are advised to clarify that their views are personal and do not reflect the position of the organisation they represent.

For example, a religious leader may attend a press conference and endorse a candidate, as long as they do not state that they are speaking on behalf of their religious organisation or use the organisation's assets. On the other hand, if a religious leader endorses a candidate during an official church service or in an official publication of the church, it would be considered a violation of the IRS regulation.

The IRS provides guidelines and examples to help religious organisations and their leaders understand the distinction between what is allowed and what constitutes political campaign intervention.

Religious leaders may break the law by donating church funds to a political candidate

In Pakistan, there is evidence that religious leaders have gained political office and subverted the rule of law. In particular, the rise of religious elites to political power has resulted in more rulings in favour of the government and the expropriation of private property from citizens.

Religious leaders may break the law by interfering with court decisions

However, the First Amendment also protects the free exercise of religion. This means that individuals can practice their religion as they choose.

The Supreme Court has held that neutral and generally applicable laws that burden religious practices are constitutional in most cases. But, the federal Religious Freedom Restoration Act and parallel laws in some states require courts to apply strict scrutiny to laws that substantially burden religious practices.

In the U.S., religious courts operate on a routine, everyday basis. For example, the Roman Catholic Church has nearly 200 diocesan tribunals that handle a variety of cases, including an estimated 15,000 to 20,000 marriage annulments each year.

The Supreme Court has consistently ruled that judges and other government officials may not interpret religious doctrine or rule on theological matters. In such cases, civil courts must either defer to the decisions of religious bodies or adjudicate religious disputes based on neutral principles in secular law.

In the case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Supreme Court held that the First Amendment safeguards the right of a religious organization, free from interference from civil authorities, to select those who will "personify its beliefs," "shape its own faith and mission," or "minister to the faithful." This is known as the "ministerial exception."

The Supreme Court has also ruled that it is impermissible for the government to contradict a church's determination of who can act as its ministers.

Any decision by the Sixth Circuit, or any court, which holds that the ministerial exception can in fact be waived to allow a court to review a ministerial employee's discrimination claims against a religious organization would defy long-standing constitutional principles, and would place the important decision of who is best qualified to personify the beliefs of a religious organization in the hands of the state.

Religious leaders may break the law by refusing to comply with COVID-19 guidelines

In California, a pastor and Christian centre sued Governor Newsom, the City of Lodi, and other government officials, alleging that stay-at-home executive orders infringed upon their constitutional right to speak, assemble, and practice religion. However, the United States District Court for the Eastern District of California denied their request for a temporary restraining order, holding that when a state or locality exercises emergency police powers to address public health issues, the measure will be upheld unless there is no real or substantial threat to public health, or the measures are a "plain, palpable invasion of rights secured by fundamental law".

In Kansas, a federal judge blocked religious restrictions, issuing a temporary restraining order preventing the enforcement of a stay-at-home order against various churches. The order restricted a number of secular activities but expressly purported to restrict in-person religious assembly by more than ten congregants. The judge determined that the law was underinclusive and thus not generally applicable.

In Kentucky, a federal judge issued a temporary restraining order enjoining the enforcement of an order prohibiting drive-in church services. The Mayor of Louisville had banned religious services even if congregants remained in their cars, while drive-through restaurants and liquor stores remained open. The judge found that the order violated the Free Exercise Clause because it was not neutral between religious and non-religious conduct.

In Mississippi, the First Pentecostal Church of Holly Springs successfully led a legal battle against its city government over a stay-at-home order after local police broke up an Easter service and a Bible study. The church was burned to the ground a month later.

In Alabama, abortion providers successfully sought to enjoin an order mandating the postponement of all non-emergency medical procedures during the COVID-19 outbreak. The district court found that the restrictions, for at least some women, would operate as a prohibition of abortion, entirely nullifying their right to terminate their pregnancies.

In Ohio, abortion providers were also granted a preliminary injunction, enjoining an order issued by the Director of Ohio Department of Health in response to the pandemic. The district court determined that absent a court order, women in Ohio would face a substantial obstacle that would make accessing abortion care very difficult.

In Tennessee, a federal judge upheld a preliminary injunction, preventing enforcement of an executive order for certain categories of patients, including those who, in the good faith professional judgment of the provider, would lose their ability to obtain an abortion in Tennessee if their procedures were delayed.

However, not all challenges by abortion providers have been successful. A divided Fifth Circuit panel issued a writ of mandamus directing a district court to vacate a temporary restraining order that exempted abortions from enforcement of a Texas executive order. The appellate court concluded that the district court had “clearly abused its discretion by failing to apply the framework governing emergency exercises of state authority during a public health crisis”.

In Wisconsin, a split Supreme Court declared an emergency under “unlawful, invalid, and unenforceable”, determining that the emergency order was a “rule” that was subject to state statutory rulemaking procedures, which had not been followed.

In conclusion, while religious leaders and organisations have been accused of breaking the law by refusing to comply with COVID-19 guidelines, the validity of such accusations has varied depending on the specific circumstances and the relevant jurisdiction.

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