Thursday, October 6, 2016

Muzzled and Not Liking It

It’s hard to think of anything more obvious than the notion that the free citizens of a democracy such as our own should be free to act in accordance with their own consciences and to do as they wish…other than when those wishes impinge on the rights of other citizens to live their own lives as they wish and see fit. In other words, the goal of law in a free society should be to create a peaceful setting for free people to flourish according to their own lights and to prevent others from impacting negatively on their right to do so. That much seems simple enough!

And yet there is—and probably always has been—a certain paternalism built so deeply into our American culture that it feels natural for it to be there.  I could make that observation from a lot of different vantage points, but today I’m thinking primarily of the way it impacts the electoral process…and particularly the election of our presidents.

The glory of our republic may be the unfettered electoral system according to which the citizenry chooses its leaders…but there are many rules and regulations that prevent citizens from voting for whomever they feel would make their nation’s best leader. We are, for example, prohibited by law for voting for such a candidate if he or she has already served as president for two terms. We all know that…but we rarely think about it and ask the obvious question: why is it specifically not a curtailment of citizens’ civil rights to prevent them from voting for the candidate of their choice simply because of that individual’s past success in the very electoral process under consideration? I am familiar with all the reasons invariably put forward to argue in favor of term limits. But, their cogency notwithstanding, I’m asking a different question: why should the basic civil right to vote for the candidate of one’s choice not override the perceived danger in electing some specific person to an office that individual has already held twice?  Or, to approach the matter from the opposite direction: why don’t term limits constitute an unlawful curtailment of such a former president’s civil right to run for office and to serve if elected? The question is not whether term limits are a good idea. The question is how it can be lawful to prevent the citizenry from choosing their leaders freely?

You could ask the same set of questions about naturalized citizens being prohibited from serving as president: why should a whole class of citizens be prohibited from serving in any office at all to which they are elected by the citizenry in a free election merely because of the circumstances of their births?  Or the age restriction: why should the winner of a presidential election under the age of thirty-five not be permitted to assume office? Or the residency requirement: to serve as president, a successful candidate has to have lived in the United States for more than fourteen years, but that effectively curtails the rights of the citizenry to elect someone who hasn’t lived here for that long.  I get it that there are all sorts of reasons to feel that these are thoughtful, wise restrictions intended for our own good. But, with all respect to our legislators, I really am a grown-up man capable of deciding for whom I wish to vote without being told that I may not vote for the individual I wish to support for president because of how old that person is or how exactly he or she became a citizen.

You’ll all be relieved to know that I personally could serve as president: I was born here, I’m old enough, I’ve lived here long enough, and I haven’t served as president even once (let alone twice). So I’m good! But I wish to write today not about restrictions that don’t apply to me (I’m not actually running for president), but about one—and, at that, a huge one—that does. Indeed, I write today as someone legally muzzled, as a citizen whose right to free speech has legally been curtailed by a government motivated by the same overprotective impetus I sense behind the rules mentioned above with respect to the presidency. And I am not enjoying it much. I comply. (I’d better—see below!) But I am not a happy camper…and I resent the rules that make me less free to speak my mind than almost everybody reading these words is to speak his or hers.

I am referring to the so-called Johnson Amendment, named for the future president (Lyndon, not Andrew) who was a senator from Texas in 1954 when he proposed the amendment to the U.S. Tax Code that now bears his name and which formally prohibits tax-exempt organizations or their leadership from publicly supporting or opposing candidates for office. Technically speaking, my First Amendment right to speak out in public as I wish is not being curtailed; I am as free as any of us is to say what I wish to whomever I wish to say it. However, the Johnson Amendment empowers the IRS to deny the congregation I serve its tax-exempt status were I to avail myself of that right with respect to candidates vying for public office. Since that would be a true catastrophe for any tax-exempt entity, most definitely including houses of worship like the one I serve, I hold my tongue. I’m just not much enjoying it, that’s all.  (Just for the record, the statute is interpreted broadly enough to include speech that encourages or discourages voting for a particular candidate even if his or her name is not used and the language of endorsement is avoided; even speaking negatively or positively about an issue that is unambiguously identified with a specific candidate—for example the they’ll-pay-for-it wall along the U.S.-Mexican border—is covered: if the speech in question could be construed by the average listener as implying support for, or opposition to, a specific candidate then a church or a shul could lose its tax-exempt status if its spiritual leader is caught indulging in it.

There are so many reasons that this is unreasonable that I have to think carefully before deciding how to list them all.

First, the Johnson Amendment strikes me as an imperious violation of the principle that the government should not intrude into the religious lives of the citizenry…and it’s hard to think of a better example than empowering the IRS to inhibit the natural inclination of clergypersons like myself to speak out forcefully on issues facing our nation merely because the candidates for some specific office have also expressed themselves strongly in that same regard. Should I not speak out about matters concerning the status of Jerusalem merely because all important politicians have public stances in that regard? What about talking about the question of immigration, and particularly with respect to refugees from Syria? Both candidates for president have opinions on that as well, and forcefully put ones. The bottom line is that the important issues our nation is facing are all things I’d like to express myself about and all things regarding which both candidates for president have expressed themselves…and my own opinion is more similar to one on some and the other on others. Am I really supposed not to speak about issues that go to the heart of the future of the Jewish community or of the State of Israel from the pulpit because I might inadvertently express myself more along the policy statement of one candidate than the other? It’s absurd. But it’s the law: I may speak about what I wish, but not if my opinion coincides too identifiably with either candidate’s position.

Second, to argue that my free speech is not being curtailed because there is no possibility of me personally being arrested or charged with a crime no matter what I say about any issue or any candidate is to miss the point almost entirely: by imposing a potentially devastating punishment on the institution I serve if I avail myself of my First Amendment right to speak out openly and freely on something that strikes me as relevant and important to speak about, the government is inhibiting my right to speak out at all. To argue otherwise is not to understand why people who work for a living are eager not to see the institutions the serve collapse…and are, generally speaking, prepared to do what it takes to keep that from happening.

Third, in addition to guaranteeing citizens the right to free speech, the First Amendment also obliged Congress to “make no law respecting the establishment of religion, or prohibiting the free exercise thereof.” That last part is called “the free exercise clause.” But I am specifically not free to exercise my natural prerogative to speak about issues of crucial importance to the Jewish community if my own stance mirrors the stance of one of the candidates for president closely enough for my remarks to be construe-able as a kind of veiled endorsement of that candidate. And that is how it works even if I have no specific intent to endorse, even obliquely, one candidate. How that squares with the obligation for the government not to inhibit the free exercise of religion, I can’t even begin to say.

Finally, I don’t just work for Shelter Rock, I live here too. Shelter Rock is my congregation spiritually as well as professionally, and I think of it, not just as where I work, but where I live as well. (And I am a member of Shelter Rock too, albeit an honorary one.) Incredibly, the Johnson Amendment covers private speech as well as formal preaching or teaching from the pulpit; if I run into a congregant in the parking lot of a supermarket and chat for a few minutes before we each go our separate ways, that speech too is covered by the Johnson Amendment because, even if we are also friends and neighbors, the clergyperson/congregant bond is deemed ever-present and, in terms of the Tax Code, decisive.

I do my best. I certainly haven’t ever endorsed a candidate from the bimah nor will I. I obey the law because I must, because the consequences of getting caught violating it would be truly ruinous for my congregation. But I feel muzzled and uncertain about speaking about anything at all current from the pulpit: since the candidates all have positions on every conceivable issue facing the nation, how can anything at all that I say not be closer to one side than the other?

I can see the rationale in clergy not taking sides in an election lest people in the congregation who support the other candidate feel excluded and marginalized. (I’m still not sure, however, why that needs to be enshrined in law.) But, at least in my opinion, the Johnson Amendment should be amended to permit people such as myself to speak out about any issues at all that seem crucial to the public weal and the future of their own communities.  The natural right of clergypeople to add the voice of spiritual leadership to the ongoing national debate about crucial issues facing our nation precisely as we prepare to choose a new national leader should be restored.

I’m even going out on a limb just by writing this out at all for anyone to read: the repeal of the Johnson Amendment is part of the platform of one party and not the other. So let me conclude by saying categorically that I am not recommending voting for that party for that reason, or any party for any reason. I am certainly not recommending voting for any specific candidate because of his or her stance on this issue. I just want my right to free speech restored so that I can speak out forcefully and, I hope, persuasively, about issues facing the American Jewish Community that I try faithfully to serve. No more than that! But also no less.

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