A group called the Gotham Legal Foundation filed a lawsuit last week to repeal the Blaine Amendment, a little-known law passed in 1894 that, according to the group, was aimed at Catholic immigrants seeking to start parochial schools.
A century later, however, the practical result of the law has been that groups like the New Horizon Church in Harlem have been prevented from opening charter schools that reflected the church's beliefs.
Thanks to Gotham, relief for churches that wish to start charter schools may be on the way, but it may be time to take an even more comprehensive look at laws that restrict the rights of all Americans -- including those who are motivated by religious belief -- to participate fully in American public life.
In 1954 it was future president Lyndon Baines Johnson, then a senator from Texas, who proposed another amendment that would have the consequence, intended or not, of restricting the free-speech rights of religious leaders. The amendment rendered them unable to speak freely from their pulpits so long as they operated as 501c3 charitable organizatons, which entitled them to receive tax-deductible contributions.
Sen. Johnson inserted into the tax code an amendment that disallowed a (non-profit) 501C3 organization from endorsing or opposing a political candidate.
Although it has been speculated that Johnson was targeting various 501c3 groups that were opposing him, the unintended consequence of Johnson's amendment, not unlike Blaine's, has been to keep people of faith out of the public square and limit their rights by preventing clergy from speaking directly and forthrightly from the pulpit about their views -- including endorsing political candidates -- so long as they operated as a non-profit and received tax-deductible contributions.
The most recent case that has pointed out the absurdity of Johnson's amendment involved All Saints Church in Pasadena, Calif., whose pastor George Regas gave a sermon imagining what Jesus Christ might say were he to find himself in a debate with then-presidential candidates George W. Bush and John F. Kerry.
Regas said that Bush's war in Iraq had "led to disaster," then added a line he imagined Jesus saying to the president of the United States:
"Mr. President, your doctrine of preemptive war is a failed doctrine."
Although the IRS gave up the battle against All Saints in September, the underlying questions still haven't been addressed: Why can't a preacher endorse a political candidate from the pulpit on a Sunday morning? Why should the First Amendment not apply to words that emanate from a church pulpit? What right do government bureaucrats have to restrict the speech of any religious leader?
The IRS has curiously overlooked African-American churches, which have for years been hotbeds of political activity, and this is as it should be. African-Americans may not have been led to demonstrate for and win their rights in such a peaceful manner had it not been for the common sense of Dr. Martin Luther King, who effectively used churches to win rights for all African-Americans.
Similarly, Jesse Jackson's 1984 campaign for president was largely a church-based campaign with ministers coming close to and in some cases stepping over the fuzzy lines that courts and government officials had been forced to draw because of Johnson's amendment.
In 1980, conservative white churches became politically active as never before, and the most notable result of such involvement was the famous candidate scorecards that rated candidates based on their willingness to hew to what the creators of the scorecards considered a biblical worldview.
The scorecards produced notoriously low scores for then-President Jimmy Carter, largely because of his support for abortion rights and opposition to an amendment to the constitution restoring school prayer. Ronald Reagan, on the other hand, made high marks on the scorecard and became president of the United States. Still, most religious leaders were careful to avoid direct endorsements, fearful of losing their tax-deductible status.
Today, the practical result of Johnson's amendment remains that religious leaders somehow forfeit their right to free speech when they climb into a pulpit.
The pastor of the liberal All Saints Church in Pasadena should be able to look out at his congregation and urge them to vote for Hillary Clinton in 2008. Conversely, across the country, the pastor of World Harvest Church, Rod Parsley, an outspoken conservative, should be able to endorse the Republican candidate as well.
Contrary to the now-famous assertion by then-Washington Post reporter Michael Weiskopf that people of faith were "poor, uneducated and easy to command," parishioners are perfectly capable of taking into account, without blindly following, endorsements by their religious leaders.
And with churches able to participate widely in American public life by opening charter schools and preachers able to speak freely from the pulpit, all Americans will be freer as they fully exercise their constitutional rights.
Mark Joseph is a media producer, strategist and president of the MJM Group. His books include "Pop Goes Religion" and "Faith, God and Rock 'n Roll." He has written on politics, pop culture and religion for Beliefnet, NRO and The Huffington Post.
Mark Joseph is a film producer and marketing expert who has worked on the development and marketing of 25 films. His most recent book is The Lion, The Professor & The Movies: Narnia's Journey To The Big Screen.