Is it legal for a church to be used as a polling place?

Maybe.

The U. S. Supreme Court has not issued a ruling on this topic, but lower courts which have considered the question have ruled that there is no Establishment Clause violation when churches are used as polling places.1 For instance, in Otero v. State Election Board, the Tenth Circuit Court of Appeals found that using a church as a polling place accomplishes the secular purpose of providing a location to vote, that it does not advance religion, and that no excessive entanglement between government and religion results.2 In a separate case, the Second Circuit Court of Appeals found the ability of a “person whose religious convictions prevent him from entering a church-related building for voting purposes” to register and vote by absentee ballot makes a First Amendment challenge moot (i.e., there is no actual dispute).3

It is important to note that there are few court cases on this topic. Moreover, there are good reasons to believe that the use of churches as polling places violates the fundamental right to vote. The U.S. Supreme Court has upheld a law prohibiting display of campaign literature within 100 feet of a polling place based on its conclusion that “a State has a compelling interest in protecting voters from confusion and undue influence.”4 Since then, extensive studies have revealed that the place where a vote is cast can unduly influence voters’ choices; voting in a church may unconsciously activate “conservative, Christian values.”5 Because the effect is unconscious, the availability of absentee ballot procedures does not adequately protect against undue influence caused by the use of a church as a polling place.

Although polling places should not have religious images or messages,6 churches are not always diligent in providing a neutral voting area. In the Florida case Rabinowitz v. Anderson, the plaintiff encountered an anti-abortion banner, multiple crosses, and religious slogans at his polling place. The danger of churches unduly influencing elections is real.

If your polling place is a church, note any visible religious iconography or other images meant to influence your vote and take photographs if possible. Churches are allegedly chosen as polling places for practical reasons—parking areas, handicap accessibility, the ability to handle high traffic, etc.7 If secular alternatives meeting the requirements of your state’s Election Code exist and are practicable, submit a complaint to local officials suggesting that your polling place be changed. Examples of secular alternatives include schools, libraries, and fire stations.

Be aware that some schools are requesting not to serve as polling places because of security concerns.8 Other secular alternatives may have concerns about lost revenue, inability to accommodate vehicle or pedestrian traffic, or inability to remain open during the hours needed for elections. For these reasons, not all secular alternatives are available to serve as polling places.

1. Otero v. State Election Bd. of Okla., 975 F.2d 738, 740-41 (10th Cir. 1992).
2. Otero v. State Election Bd. of Okla., 975 F.2d 738, 740-41 (10th Cir. 1992).
3. Berman v. Board of Elections, 420 F.2d 684 (2d Cir. N.Y. 1969).
4. Burson v. Freeman, 504 U.S. 191, 199 (1992).
5. Jeremy A. Blumenthal & Terry L. Turnipseed, The Polling Place Priming Effect: Is Voting in Churches (or Anywhere Else) Unconstitutional?, 91 B.U. L. REV 563, 570-73 (2011).
6. See Civil Liberties Groups Decry Church Messaging at Polling Places, AM. INDEP. INST., http://americanindependent.com/217973/civil-liberties-groups-decry-church-messaging-at-polling-places (quoting Americans United for Separation of Church and State Communication Director Rob Boston).
7. Jason DeRusha, Good Question: Why Do We Vote Where We Pray?, CBS MINNESOTA (Oct. 22, 2012, 10:34 PM), http://minnesota.cbslocal.com/2012/10/22/good-question-why-do-we-vote-where-we-pray/
8. E.g., Id.; Elliot Hughes, City Council Member, Pastor Spar Over Churches as Polling Places, GAZETTEXTRA (Aug. 20, 2015), http://www.gazettextra.com/20150820/city_council_member_pastor_spar_over_churches_as_polling_places.

Is it legal for the President, or other politicians, to declare a day of prayer or to participate in the National Prayer Breakfast or similar events?

No, but the courts have never managed to reach a conclusion on the matter.

By statute, the President of the United States is required to proclaim a National Day of Prayer every year, on the first Thursday of May, “on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.”1 The statute is tantamount to an outright establishment of Christianity as the national religion, as well as being entirely pointless and absurd. (The wording, taken at face value, implies that on all other days Americans may not pray.) Nevertheless, the courts have not managed to definitively state whether the president, governors, and other officials have the authority to declare a “day of prayer.” To the contrary, it has actually received implied judicial approval. In 1984, the U.S. Supreme Court’s decision Lynch v. Donnelly took it as a given that a president’s act of proclaiming a national day of prayer would not violate the Establishment Clause of the First Amendment of the U.S. Constitution.2 However, the high court’s decision did not concern the issue directly, and since then the Court has explicitly stated that it has not ruled on the question and that the constitutionality of the National Day of Prayer should not be taken as a given.3

Several suits in other, lower courts have directly addressed the practice. In 2010, the Freedom from Religion Foundation convinced the federal district court for the Western District of Wisconsin that the statute demanding the National Day of Prayer amounted to an unconstitutional establishment of religion.4 Despite the detailed and well-reasoned opinion by U.S. District Judge Crabb, the Seventh Circuit Court of Appeals reversed the lower court’s decision.5 It’s worth pointing out, however, that the Seventh Circuit did not conclude that the National Day of Prayer statute was legal, but rather that the FFRF and its members were not in a position to bring the lawsuit in the first place.6

As to the second part of the question, the courts have never addressed the question of whether or not the president, or any other official, can participate in the National Prayer Breakfast, or a similar event, in an official capacity.

1. 36 U.S.C. § 119.
2. Lynch v. Donnelly, 465 U.S. 668, 677 (1984).
3. Cnty. Of Allegheny v. ACLU, 492 U.S. 573, 603 n.52 (1989).
4. Freedom from Religion Found., Inc. v. Obama, 705 F.Supp. 2d 1039, 1069-70 (W.D. Wis. 2010).
5. Freedom from Religion Found., Inc. v. Obama, 641 F.3d 803, 808 (7th Cir. 2011).
6. Freedom from Religion Found., Inc. v. Obama, 641 F.3d 803, 806-07 (7th Cir. 2011).

Is it legal for a church to advocate for a particular politician or policy on the ballot?

No, but churches and religious nonprofit organization may engage in limited lobbying efforts.

Churches, like many other nonprofit organizations, are categorized under section 501(c)(3) of the Internal Revenue Code.1 A 1954 amendment to the Internal Revenue Code, proposed by then-Senator Lyndon B. Johnson, prohibits 501(c)(3) organizations from participating or intervening in “any political campaign on behalf of (or in opposition to) any candidate for public office.”2 As a result, churches are disallowed from supporting or opposing any specific candidate in any way.

However, the Internal Revenue Code does not prohibit churches from politicking altogether. It specifically allows 501(c)(3) organizations to engage in lobbying so long as “no substantial part of [the organization’s activity] is carrying on propaganda, or otherwise attempting, to influence legislation.”3 When does lobbying amount to a substantial part of a church’s activities? Inferring from two Internal Revenue Service (IRS) cases, churches may spend between 5 to 15 percent of their time engaged in political lobbying, though no bright-line rule exists.4 In general, churches may engage in activity encouraging citizens to vote, conduct forums for debate, and publish non-partisan voter education guides.5 Yet any activities that display an element of bias are not allowed: a church’s voter education initiatives should not indicate that the organization favors any candidate.

A federal circuit court has upheld the revocation of a church’s status as a 501(c)(3) organization as a constitutional exercise of the IRS’ power.6 In Branch Ministries, Inc. v. Rossotti, the Court of Appeals for the District of Columbia ruled that a church could be so penalized after placing a newspaper ad expressing disapproval of a candidate. Nevertheless, at oral argument the IRS conceded that “if the Church does not intervene in future political campaigns, it may hold itself out as a 501(c)(3) organization and receive all the benefits of that status.”7 As a result, Liberty Counsel’s founder, Mathew Staver, can empower pastors by assuring them that “no church has ever lost its tax-exempt status for endorsing or opposing political candidates.”8

Since 2008, “more than 1,600 churches” have made a coordinated effort to break the law by endorsing political candidates as part of an event marketed as “Pulpit Freedom Sunday.”9 Despite this, the IRS has not revoked the tax-exempt status of any of the churches involved.10

The IRS’ inaction aside, there may be state or local laws governing the types of messages that churches are permitted to convey. For instance, many states have instituted bans on electioneering within certain distances of polling places, which oftentimes may include churches.11 Furthermore, organizations concerned about the unconstitutional mixture of religion and government continue to make the IRS aware of violations of the law.12 While federal enforcement of rules against politicking has recently been lax, laws do remain in place making endorsement of a specific candidate illegal and there is hope that the rules could be enforced moving forward.

1. I.R.C. § 501(c)(3).
2. IRS, CHARITIES, CHURCHES AND POLITICS, https://www.irs.gov/uac/Charities,-Churches-and-Politics (last updated Oct. 2, 2015).
3. I.R.C. § 501(c)(3) (emphasis added).
4. Matthew D. Staver, Pastors, Churches, and Politics: What May Pastors and Churches Do?, LIBERTY COUNSEL (2007), available at http://www.saltandlightcouncil.org/downloads/pastorsandpolitics.pdf.
5. IRS, THE RESTRICTION OF POLITICAL CAMPAIGN INTERVENTION BY SECTION 501(C)(3) TAX-EXEMPT ORGANIZATIONS, https://www.irs.gov/Charities-&-Non-Profits/Charitable-Organizations/The-Restriction-of-Political-Campaign-Intervention-by-Section-501%28c%29%283%29-Tax-Exempt-Organizations.
6. Branch Ministries, Inc. v. Rossotti, 211 F.3d 137 (2000).
7. Branch Ministries, Inc. v. Rossotti, 211 F.3d 137, 142 (2000).
8. Branch Ministries, Inc. v. Rossotti, 211 F.3d 137, 142 (2000).
9. Kate Tracy, IRS to Atheists: Okay, We’ll Investigate Pulpit Freedom Sunday, CHRISTIANITY TODAY (July 25, 2014, 11:33 AM), http://www.christianitytoday.com/gleanings/2014/july/irs-to-atheists-okay-well-investigate-pulpit-freedom-sunday.html.
10. See Press Release, Ams. United for Sep. of Church & State, Religious Right’s Prodding of Churches to Violate Federal Law Pays Off Politically, Says Americans United (Nov. 5, 2014).
11. E.g., 10 ILL. COMP. STAT. 5/7-41(c) ; TEX. ELEC. CODE ANN. § 61.003 (2015).
12. E.g. Kate Tracy, IRS to Atheists: Okay, We’ll Investigate Pulpit Freedom Sunday, CHRISTIANITY TODAY (July 25, 2014, 11:33 AM), http://www.christianitytoday.com/gleanings/2014/july/irs-to-atheists-okay-well-investigate-pulpit-freedom-sunday.html; Press Release, Ams. United for Sep. of Church & State, As 2016 Presidential Campaign Gets Under Way, IRS Should Act to Enforce Non-Profit ‘No-Politicking’ Rule, Says Americans United (Mar. 26, 2015).

Is it legal for a local, state, or federal government to open meetings with a prayer?

Yes, but the prayer cannot proselytize or denigrate any religious viewpoint.

In Marsh v. Chambers, decided in 1983, the U.S. Supreme Court upheld the practice of legislative prayer (prayers and invocations and the start of government meetings)1 and clarified the standard for permissible prayers in Town of Greece v. Galloway.2 So long as “there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or disparage any other, faith or belief,” a governmental body may provide a forum for members of the community to offer prayers and invocations.3

In addition to those two restrictions on the prayers and invocations themselves, the governmental body also has to ensure that participation in the event is voluntary, both for the officials and the public at large. If the officials “directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity,” the practice would run afoul of both the Free Exercise and Establishment Clauses of the First Amendment.4

If your city council, county assembly, or board of education engages in legislative prayer which you believe goes beyond these guidelines, please let us know and we will look into the matter.

1. Marsh v. Chambers, 463 U.S. 783 (1983).
2. Town of Greece v. Galloway, ___ U.S. ___, 134 S.Ct. 1811 (2014).
3. Town of Greece v. Galloway, ___ U.S. ___, 134 S.Ct. 1811, 1821-22 (2014).
4. Town of Greece v. Galloway, ___ U.S. ___, 134 S.Ct. 1811, 1826 (2014).

Is it legal to prohibit atheists from holding public office?

No. Even though seven states* still have provisions in their constitutions which explicitly require candidates for public office to profess a belief in a supreme being, the U.S. Supreme Court has declared these provisions unconstitutional and unenforceable. Article VI of the U.S. Constitution expressly states that “no religious test shall ever be required as a qualification to any office or public trust under the United States.”1

Provisions like those in the seven states that purport to block atheists from serving in public office were declared unconstitutional by the U.S. Supreme Court in the 1961 case Torcaso v. Watkins.2 In concluding that the First and Fourteenth Amendments do more than forbid the establishment of a national church, Justice Black wrote for a unanimous court that “neither a State nor the Federal Government can constitutionally force a person ‘to profess a belief or disbelief in any religion.’”3

Nevertheless, attempts to keep atheists out of public office on the basis of these “constitutionally discredited” state laws continue.4 In 2009, controversy erupted after religious activists attempted—unsuccessfully—to unseat an Asheville, North Carolina, city council member because of his atheism, citing the state’s unenforceable constitutional provision as justification.5 Even as recently as 2014, an Austin, Texas, city council candidate’s opponent argued that he should be disqualified from the race because his alleged atheism conflicted with the state’s constitution.6

Although the U.S. Supreme Court was clear that religious tests for public office cannot be enforced, its ruling applies only to de jure (based on law) religious tests. Unofficial, de facto (in practice) religious tests remain firmly entrenched in our national politics. Only one U.S. Congressperson has been an open atheist while serving.7 No current member of Congress identifies as an atheist.8 Perhaps the lack of open atheists in Congress can be attributed to polls like the one conducted by Gallup in June 2015, which found that 42 percent of Americans would be unwilling to support an atheist presidential candidate.9 These numbers persist despite the fact that nearly a quarter of Americans identify as nonreligious.10

* Arkansas, Maryland, Mississippi, North Carolina, South Carolina, Tennessee, and Texas.
1. U.S. CONST. art. VI.
2. Torcaso v. Watkins, 367 U.S. 488 (1961).
3. Torcaso v. Watkins, 367 U.S. 488, 495 (1961) (quoting Everson v. Bd. of Educ. 330 U.S. 1, 15 (1947)).
4. Torcaso v. Watkins, 367 U.S. 488, 494 (1961).
5. David Zucchino, Councilman Under Fire for Atheism, L.A. TIMES (Dec. 20, 2009), http://articles.latimes.com/2009/dec/20/nation/la-na-hometown-asheville20-2009dec20.
6. Dan Solomon, Is It Legal for an Atheist to Hold Public Office in Texas?, THE DAILY POST (Dec. 3, 2014), http://www.texasmonthly.com/the-daily-post/is-it-legal-for-an-atheist-to-hold-public-office-in-texas/.
7. Carlos S. Moreno, An Atheist for Congress?, CNN (Sept. 1, 2014, 8:21 AM), http://www.cnn.com/2014/08/31/opinion/moreno-atheists-unelectable-congress/.
8. PEW RESEARCH CTR., FAITH ON THE HILL: THE RELIGIOUS COMPOSITION OF THE 114TH CONGRESS (Jan. 5, 2015), http://www.pewforum.org/2015/01/05/faith-on-the-hill/.
9. Lydia Saad, Support for Nontraditional Candidates Varies by Religion, GALLUP (June 24, 2015), http://www.gallup.com/poll/183791/support-nontraditional-candidates-varies-religion.aspx?utm_source=Politics&utm_medium=newsfeed&utm_campaign=tiles.
10. PEW RESEARCH CTR., U.S. PUBLIC BECOMING LESS RELIGIOUS (Nov. 3, 2015), http://www.pewforum.org/2015/11/03/u-s-public-becoming-less-religious/.