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Financial contribution by church to oppose ballot proposal

Financial contributions made by churches to oppose a ballot proposal do not violate the Establishment Clause of US Const, Am I and the comparable provisions of Const 1963, art 1,  4.

Opinion No. 7044

February 24, 2000

Honorable Judith L. Scranton
State Representative
The Capitol
Lansing, MI

You have asked if financial contributions made by churches to oppose a ballot proposal violate the Establishment Clause of US Const, Am I or the comparable provisions of Const 1963, art 1,  4.

Information supplied with your request indicates that in 1998, churches donated money to help defeat Proposal B. This ballot proposal was a legislative initiative which, if passed, would have legalized and regulated physician-assisted suicide. Proposal B was defeated.

Under the religion clauses of the First Amendment to the United States Constitution, freedom of religion is guaranteed and Congress is prohibited from establishing religion. The First Amendment applies to the states under US Const, Am XIV. Murdock v Pennsylvania, 319 US 105, 108; 63 S Ct 870; 87 L Ed 1292 (1943).

Similarly, in art 1,  4 of Michigan's 1963 Constitution, the people have addressed the relationship between government and religion as follows:

Every person shall be at liberty to worship God according to the dictates of his own conscience. No person shall be compelled to attend, or, against his consent, to contribute to the erection or support of any place of religious worship, or to pay tithes, taxes or other rates for the support of any minister of the gospel or teacher of religion. No money shall be appropriated or drawn from the treasury for the benefit of any religious sect or society, theological or religious seminary; nor shall property belonging to the state be appropriated for any such purpose. The civil and political rights, privileges and capacities of no person shall be diminished or enlarged on account of his religious belief.

Michigan's appellate courts have concluded that the first and fourth sentences of Const 1963, art 1,  4, protect the free exercise of religion while the second and third sentences prohibit the state from establishing religion. The constitutional prohibition against the state establishing religion is commonly referred to as the establishment clause. These provisions are subject to similar interpretation as the religion clauses in US Const, Am I. Alexander v Bartlett, 14 Mich App 177, 182; 165 NW2d 445 (1968); Advisory Opinion Re Constitutionality of 1970 PA 100, 384 Mich 82, 105; 180 NW2d 265 (1970); Woodland v Michigan Citizens Lobby, 423 Mich 188, 206; 378 NW2d 337 (1985).

Since the conduct in question is private, church conduct, not state action, the first issue is whether the federal and state constitution establishment clauses limit private conduct. In Woodland, supra, 384 Mich at pp 203-212, the Michigan Supreme Court addressed whether Const 1963, art 1,  3 and 5, limit private conduct as well as state action. Const 1963, art 1,  3, addresses the right to assemble and to petition the government for redress of grievances. Const 1963, art 1,  5, addresses freedom of speech. The court in Woodland concluded that neither of these provisions applied to private conduct. Id., p 212. In reaching that result, the court defined the scope of constitutionally guaranteed individual rights as follows:

The firmly established doctrine that constitutionally guaranteed individual rights are drawn to restrict governmental conduct and to provide protection from governmental infringement and excesses is not unique to the federal Bill of Rights [which includes the religion clauses of US Const, Am I]. This has generally been the view with respect to state bills of rights as well. This fundamental concept concerning the reach of constitutionally guaranteed individual rights is deeply rooted in constitutional tradition and is consistent with the very nature of our constitutional democracy. The Michigan Constitution's Declaration of Rights provisions have never been interpreted as extending to purely private conduct; these provisions have consistently been interpreted as limited to protection against state action.

Id., pp 204-205. (Emphasis added; citations omitted; footnote omitted.)

In light of traditionally accepted notions of the limited reach of constitutionally guaranteed individual rights, the past decisions of this Court, the documented history of Michigan's most recent constitutional convention, and the underlying rationale of the state action limitation, it may not be presumed that the constitutional provisions here in question are intended to apply against private individuals or entities. If any presumption is to be raised it is to the contrary: that unless otherwise expressed, constitutionally guaranteed protections are applicable only against government. We find no indication or warrant that the people of this state, in adopting our constitution, intended either of these provisions to apply against private parties. Accordingly, we interpret Const. 1963, art. 1,  3 and 5 as implicitly limited to protection against state action.

Id., p 212. (Emphasis added.)

Under the authority of Woodland and other authorities, it must be concluded that the First Amendment imposes limitations upon Congress, not upon the conduct of private parties. Likewise, Const 1963, art 1,  4, contains no language imposing limitations upon the conduct of private individuals or entities. Thus, under the presumption adopted in Woodland, it must be concluded that Const 1963, art 1,  4, limits only state action, not private conduct. A church's contribution of funds for purposes of opposing a ballot proposal is private conduct. Since the U.S. and Michigan constitutions' establishment clauses limit only government conduct, these provisions do not limit a church's contribution of funds to support or oppose a ballot proposal.

Another constitutional provision that validates a church's financial contribution for or against a ballot proposal is freedom of speech. The courts have held that the constitutionally protected freedom of speech applies to churches. In Walz v New York Tax Comm, 397 US 664, 670, 680; 90 S Ct 1409; 25 L Ed 2d 697 (1970), the U.S. Supreme Court ruled that a New York statute granting a tax exemption to churches did not violate the religion clauses of US Const, Am I. In reaching this result, the Court upheld the right of churches to participate in the debate on public issues. It observed:

Adherents of particular faiths and individual churches frequently take strong positions on public issues including, as this case reveals in the several briefs amici, vigorous advocacy of legal or constitutional positions. Of course, churches as much as secular bodies and private citizens have that right.

The Legislature has regulated the financing of ballot proposals through enactment of the Michigan Campaign Finance Act (MCFA), 1976 PA 388, MCL 169.201 et seq; MSA 4.1703(1) et seq. This act requires the formation of a ballot question committee, the filing of a statement of organization (section 24), and the filing of a campaign statement including names and addresses of persons making contributions of more than $20.00. Sections 25 and 26. The MCFA, however, contains no limitations on contributions made by churches to a ballot question committee.1

It is my opinion, therefore, that financial contributions made by churches to oppose a ballot proposal do not violate the Establishment Clause of US Const, Am I and the comparable provisions of Const 1963, art 1,  4.

Attorney General

1 Churches and church organizations that permit proponents of a ballot question to gather petition signatures or solicit contributions in support of or in opposition to a ballot question from persons attending church services or at scheduled meetings of church members are not subject to the filing and reporting requirements of the MCFA. OAG, 1987-1988, No 6541, p 400 (September 28, 1988). That opinion relied upon Pletz v Secretary of State, 125 Mich App 335, 373-374; 336 NW2d 789, lv den 417 Mich 1100.20 (1983). In that case, the court interpreted the lobbying statute, 1975 PA 227, MCL 4.411 et seq; MSA 4.1704(1) et seq, as excepting churches and religious institutions from its coverage.