LWVCO's response to the Religious Liberty Commission's Draft Report

The draft report by the Religious Liberty Commission can be found here.

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LWVCO's public comment submitted to the Religious Liberty Commission

Public Comments on the Religious Liberty Commission’s Report Draft

From the Religious Freedom Task Force, League of Women Voters of Colorado

Jeffrey Oster, DPM, Chair

Submitted to the Presidential Religious Liberty Commission

July 13, 2026

Executive Summary

The League of Women Voters of Colorado (LWVCO) appreciates the opportunity to comment on the draft report of the Presidential Religious Liberty Commission.

The Colorado League shares the Commission's conviction that religious liberty is among the most fundamental rights guaranteed by the Constitution. The free exercise of religion has enriched American civic life since the nation's founding and continues to protect the rights of individuals and communities to live according to their deepest convictions.

Our agreement, however, ends where the Commission proposes that religious liberty is best preserved by narrowing the constitutional meaning of the Establishment Clause and redefining the relationship between religion and government.

The First Amendment contains two complementary protections: the Free Exercise Clause and the Establishment Clause. Neither exists independently of the other. Religious liberty is secured not simply because government protects religious exercise, but because government is constitutionally prohibited from favoring one religion over another, religion over nonreligion, or one interpretation of faith over competing interpretations.

The League of Women Voters of Colorado recently completed a multi-year study of religious freedom culminating in the adoption of the Colorado Religious Freedom Position, which was subsequently adopted by the League of Women Voters of the United States (LWVUS) through the concurrence process. That position reflects broad consensus that government best protects religious liberty by remaining neutral toward matters of religion while vigorously defending every person's right to worship, not worship, change beliefs, express conscience, and participate equally in public life.

The Commission's report correctly recognizes that Americans of many faiths have experienced discrimination and that government should vigorously protect their constitutional rights. The League strongly supports robust enforcement of the Free Exercise Clause, protection against religious discrimination, reasonable religious accommodations, and equal treatment of religious organizations under the law.

However, the report repeatedly characterizes the constitutional principle of separation of church and state as a historical mistake and recommends replacing it with what it describes as a "bridge between church and state." It proposes significant changes in federal policy intended to reshape Establishment Clause jurisprudence, expand governmental partnerships with religion, repeal the Johnson Amendment, and direct federal agencies to adopt a particular constitutional understanding of religion in public life.

LWVCO respectfully disagrees.

Our nation's remarkable religious diversity—including Christians of many traditions, Jews, Muslims, Hindus, Buddhists, Sikhs, Native American religions, Humanists, atheists, agnostics, and countless others—has flourished because government has generally refrained from deciding which religious beliefs deserve official preference. The constitutional promise of religious liberty belongs equally to those who profess faith and to those who profess none.  This is a fundamental truth of our democracy.

LWVCO is also concerned that the composition of the Commission and the testimony emphasized throughout the report do not adequately reflect the breadth of America's religious and philosophical diversity. Although the report states that religious liberty exists for all Americans, most of its examples, witnesses, and policy recommendations focus on issues affecting particular Christian communities. Future commissions addressing religious liberty would benefit from broader participation by representatives of minority faiths, Indigenous religions, secular organizations, constitutional scholars representing multiple perspectives, and organizations dedicated to protecting civil liberties for all Americans.

Finally, LWVCO questions whether an advisory commission charged with recommending significant reinterpretations of constitutional law is most appropriately situated within the Department of Justice, the nation's chief law-enforcement agency. Public confidence in the impartial administration of justice depends upon the Department's demonstrated neutrality toward religion. 

LWVCO submits these comments in the belief that America's religious liberty has endured not because government has promoted religion, nor because government has excluded religion from public life, but because our Constitution protects every person's freedom of conscience equally. That constitutional balance remains one of the nation's greatest achievements and deserves careful preservation for future generations.

II. The Colorado League's Constitutional Understanding of Religious Liberty

The League of Women Voters of Colorado believes that religious liberty is not merely a protection for religion. It is a protection for human freedom of conscience.

The First Amendment recognizes that every individual possesses the inherent right to determine the deepest questions of belief according to conscience. For many Americans, those convictions are expressed through religious faith. For others, they are expressed through nonreligious moral or philosophical beliefs. The Constitution protects both.

The Religion Clauses of the First Amendment establish two complementary guarantees:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

Neither guarantee is complete without the other.

The Free Exercise Clause protects individuals and religious communities from governmental interference with sincerely held religious beliefs and practices. It affirms that faith may be lived openly, individually and collectively, without fear of governmental punishment or discrimination.

The Establishment Clause protects that same freedom by preventing government from exercising religious authority or favoring particular religious beliefs, institutions, or traditions. It ensures that government remains the protector of religious liberty rather than its arbiter.

These two clauses are not competing constitutional commands. They are mutually reinforcing safeguards that together preserve freedom of conscience for every American.

For more than two centuries, this constitutional balance has allowed an extraordinary diversity of religious communities to flourish. The United States today is home to Christians representing hundreds of denominations, Jews, Muslims, Hindus, Buddhists, Sikhs, Baha'is, Native American religious traditions, Humanists, atheists, agnostics, and many others. Americans regularly change religious affiliations, embrace new faith traditions, or choose no religious affiliation at all. This remarkable pluralism is itself evidence that government neutrality has strengthened, rather than weakened, religious liberty.

LWVCO therefore rejects the premise that protecting religious liberty requires government to elevate religion generally or particular religious traditions specifically. Government lacks both constitutional authority and institutional competence to determine which religious beliefs are true, which theological understandings best promote civic virtue, or whether religious belief is superior to nonreligious systems of moral conviction.

Those questions belong to individuals, families, religious communities, and voluntary associations—not to the state.

The Commission correctly observes that religious organizations have made extraordinary contributions to American society through education, healthcare, disaster relief, charitable service, refugee assistance, civil rights advocacy, and countless other endeavors. LWVCO readily acknowledges these contributions and supports the right of religious organizations to continue serving their communities consistent with their sincerely held beliefs.

At the same time, American history also demonstrates that many of our nation's greatest advances have resulted from cooperation among people holding widely differing religious and philosophical convictions. The abolition of slavery, the movement for women's suffrage, labor reform, civil rights, scientific advancement, public education, and countless humanitarian efforts have drawn support from people motivated by diverse religious traditions as well as secular ethical commitments. The Constitution wisely protects this diversity by ensuring that government neither privileges nor disadvantages any particular source of moral conviction.

The Colorado League's Religious Freedom Position reflects this constitutional understanding. Religious liberty means more than protecting worship. It encompasses the equal dignity of every person's conscience and the equal right of every individual to participate fully in civic life regardless of religion, denomination, or absence of religious belief.

Accordingly, LWVCO supports:

• vigorous protection of the free exercise of religion;
• equal treatment of religious organizations under the law;
• reasonable accommodations for sincerely held religious beliefs when consistent with the rights of others and compelling governmental interests;
• robust enforcement of laws prohibiting religious discrimination;
• governmental neutrality among religions and between religion and nonreligion;
• preservation of the constitutional separation of governmental authority from religious authority.

This constitutional equilibrium has served the Nation well. It has not produced hostility toward religion. Rather, it has produced one of the most religiously diverse societies in human history while protecting the liberty of every citizen to believe, worship, question, dissent, convert, or refrain from religious belief altogether.

LWVCO believes that this balance remains the Constitution's greatest safeguard of religious liberty.

III. Religious Liberty Requires Both Religion Clauses

The League of Women Voters of Colorado agrees with the Commission that the Free Exercise Clause occupies a central place within the American constitutional tradition. Government should neither punish nor unnecessarily burden the sincere exercise of religion. Religious communities should be free to worship, educate, assemble, serve others, and organize their institutions according to their beliefs, subject only to those compelling governmental interests recognized under constitutional law.

Where the Colorado League respectfully departs from the Commission is in its understanding of the Establishment Clause.

Throughout the report, the Commission argues that the constitutional principle commonly described as the "separation of church and state" has been misunderstood and should be replaced by what it characterizes as a more historically accurate "bridge between church and state." The report contends that excessive reliance upon the Establishment Clause has unnecessarily excluded religion from public life and recommends that the Department of Justice adopt new guidance reflecting this interpretation.

LWVCO believes this presents a false constitutional choice.

The Establishment Clause and the Free Exercise Clause were not written to compete with one another. Together, they establish the constitutional framework within which religious liberty has flourished for more than two centuries. Neither clause should be interpreted in isolation from the other.

The Establishment Clause is frequently misunderstood as protecting government from religion. It does not.  Rather, it protects religion from government.  History demonstrates why this distinction matters.

Many of the earliest European settlers came to North America not because religion was absent from public life, but because governments favored one church over another, compelled religious conformity, imposed religious taxes, restricted dissenting congregations, or punished those whose beliefs differed from those of the established church. The Founders inherited these experiences and sought to prevent the federal government from acquiring similar authority.

James Madison warned that religion "can be directed only by reason and conviction, not by force or violence." Thomas Jefferson argued that civil government has no authority over the human mind. Although they differed in theological outlook, both recognized that authentic religious belief cannot be created, sustained, or judged by governmental power.

For this reason, the Constitution deliberately withholds from government the authority to determine religious truth or to favor one religious tradition over another.  This constitutional restraint has produced one of the greatest achievements in American history.

Unlike many nations that maintained established churches well into the nineteenth and twentieth centuries, the United States became home to extraordinary religious diversity. Thousands of congregations representing hundreds of Christian denominations coexist alongside Jewish synagogues, Muslim mosques, Hindu temples, Sikh gurdwaras, Buddhist communities, Native American spiritual traditions, and countless other religious communities. Millions of Americans also identify with no religious tradition while participating fully in civic life.

This remarkable pluralism did not arise despite the Establishment Clause.  It arose because of it.

Government neutrality has allowed religious communities to compete freely in what Justice Hugo Black once described as the marketplace of ideas—not through governmental preference, but through persuasion, example, service, and voluntary association.

LWVCO is therefore concerned that the Commission's repeated criticism of the constitutional principle commonly described as the separation of church and state risks misunderstanding both its historical development and its continuing importance.  The phrase itself does not appear in the Constitution, as the Commission correctly observes.

Neither do the phrases "judicial review," "executive privilege," or "one person, one vote." Yet each describes constitutional principles that have developed through generations of judicial interpretation and constitutional practice.

"Separation of church and state" is best understood not as a constitutional slogan but as a shorthand description of governmental neutrality in matters of religion.  Properly understood, it does not require hostility toward religion.  It does not require removing religion from public life.  It does not require citizens to abandon religious convictions when participating in democratic debate.  Instead, it requires that government itself refrain from exercising religious authority or favoring particular religious beliefs.

This distinction is essential.  Citizens may bring religious convictions into public discourse.  Religious organizations may advocate for public policy.  Faith traditions may inspire charitable work, civic engagement, and moral leadership.  But government must remain the institution that protects the equal liberty of every citizen regardless of religious belief.

LWVCO therefore believes that strengthening religious liberty does not require weakening the Establishment Clause. On the contrary, preserving both Religion Clauses as complementary constitutional guarantees remains the most effective means of protecting religious liberty for Christians, Jews, Muslims, Hindus, Buddhists, Sikhs, Native Americans, Humanists, atheists, agnostics, and every other American.

The Constitution protects religion most effectively when government protects everyone equally.

IV. Government Neutrality Is the Constitutional Foundation of Religious Liberty

The Commission repeatedly argues that the constitutional principle commonly described as the separation of church and state has been misunderstood and that the federal government should instead embrace a closer partnership between religion and government. It describes religious liberty as a "bridge between church and state" and recommends that the Department of Justice issue formal guidance adopting this understanding of the Establishment Clause.

LWVCO respectfully disagrees with this proposed constitutional shift.

The Constitution does not require government to be hostile toward religion. Nor does it require government to promote religion. Rather, it requires government to remain neutral in matters of religion so that every individual is free to determine questions of conscience without governmental influence, preference, or coercion.  Government neutrality should never be confused with governmental indifference.

The federal government has an affirmative obligation to protect every person's right to worship freely, assemble peacefully, establish religious institutions, educate children according to sincerely held beliefs, and participate fully in civic life regardless of religious affiliation. It must vigorously enforce laws prohibiting discrimination based upon religion and provide reasonable accommodations where required by law.

At the same time, government must refrain from deciding which religious beliefs are correct, which religious traditions contribute most to society, or which theological understandings deserve official encouragement.  The Constitution assigns those judgments to citizens, not to government.

Religious Liberty Protects Believers Because Government Is Limited

Throughout the report, the Commission argues that religion is indispensable to American freedom and that government should recognize religion's unique contributions to civic life. LWVCO acknowledges the profound contributions that religious communities have made—and continue to make—to education, healthcare, disaster relief, poverty relief, refugee resettlement, civil rights, and humanitarian service.  Those contributions deserve recognition.  They do not, however, justify governmental preference.

Religious liberty exists because government lacks constitutional authority to determine whether religion is socially superior to nonreligious belief, whether one faith tradition contributes more than another, or whether religious belief is necessary for responsible citizenship.  The Constitution wisely removes these questions from governmental authority altogether.  That constitutional restraint protects religion itself.

History demonstrates that religious communities flourish most fully when their beliefs are embraced voluntarily rather than encouraged or validated by governmental power.

The Equal Liberty of Every Conscience

LWVCO believes that every American enters the public square with equal dignity.  Some citizens understand their moral obligations through Christianity.  Others through Judaism.  Others through Islam.  Others through Hinduism, Buddhism, Sikhism, Native American spiritual traditions, or countless other faiths.  Still others understand their moral obligations through secular ethical traditions, philosophy, humanism, or personal conscience.  The Constitution does not distinguish among them.  Its protection extends equally to every person because liberty belongs to individuals—not to institutions, denominations, or majorities.

Accordingly, government should never place itself in the position of determining whether religious belief is more valuable than nonreligious conviction or whether one religious tradition more accurately reflects the nation's history or identity than another.

The Colorado League's Religious Freedom Position recognizes that protecting freedom of conscience necessarily protects both religious exercise and freedom from governmental establishment of religion.  These constitutional guarantees are inseparable.

Religious Pluralism Is America's Constitutional Success Story

The Commission correctly celebrates America's extraordinary religious diversity.  LWVCO joins in that celebration.  But LWVCO reaches a different conclusion about why that diversity exists.

America has become one of the most religiously diverse nations in the world precisely because government has generally refrained from establishing an official religious identity.  No denomination receives governmental preference.  No church enjoys official legal status.  No citizen must profess a particular faith to participate fully in public life.

Religious communities succeed through persuasion rather than governmental endorsement.  This constitutional arrangement has benefited majority and minority faiths alike.

Indeed, many religious communities that today enjoy broad constitutional protection—including Catholics, Jews, Latter-day Saints, Seventh-day Adventists, Jehovah's Witnesses, Muslims, Sikhs, Hindus, and numerous others—have, at different moments in American history, depended upon governmental neutrality to protect them from discrimination by religious majorities.  LWVCO believes this history should guide future constitutional interpretation.

The proper question is not whether religion should influence individual citizens.  Of course it should.  Religious conviction has inspired abolitionists, advocates for women's suffrage, leaders of the Civil Rights Movement, humanitarian organizations, refugee ministries, hospitals, schools, and countless acts of compassion and justice.  The proper constitutional question is whether government itself should favor, promote, or institutionalize religious belief.  LWVCO believes the Constitution answers that question in the negative.

Religious Liberty Belongs Equally to the Religious and the Nonreligious

Perhaps the most important constitutional principle underlying religious liberty is that it protects not only religious believers but also those who profess no religion.  The Supreme Court has long recognized that the First Amendment safeguards freedom of conscience itself. That protection extends to believers, doubters, seekers, and those who reject religious belief entirely.  This is not hostility toward religion.  It is equality before the law.

A Christian's freedom to preach depends upon an atheist's freedom not to attend.  A Muslim's freedom to worship depends upon a Jew's freedom to disagree.  A Hindu's freedom to build a temple depends upon a Christian's freedom to build a church.  Each freedom reinforces the others.  Government protects all by preferring none.

That constitutional insight has allowed the United States to become a nation in which extraordinary religious vitality coexists with extraordinary religious diversity.  LWVCO believes that this remains one of America's greatest constitutional achievements and should remain the guiding principle for interpreting both Religion Clauses.

V. Religious Equality Is the Measure of Religious Liberty

The League of Women Voters of Colorado welcomes the Commission's repeated affirmation that religious liberty belongs to Americans of every faith. The report expressly states that religious liberty exists for Christians, Jews, Muslims, Sikhs, Hindus, and others, and acknowledges America's religious pluralism as one of the nation's defining strengths.  LWVCO shares that commitment.

We respectfully suggest, however, that religious liberty is measured not simply by the protection afforded to the religious majority, but by the security experienced by religious minorities and those who profess no religion at all.

Throughout American history, minority faith communities have depended upon the Constitution's guarantees to worship freely without governmental preference for another faith tradition. Catholics once faced widespread discrimination in many states. Jewish Americans confronted exclusion from civic and educational institutions. Members of the Church of Jesus Christ of Latter-day Saints experienced both governmental persecution and mob violence. Native American religious practices were suppressed through federal policy for generations. Muslims, Sikhs, Hindus, Buddhists, Jehovah's Witnesses, and numerous other communities have likewise encountered discrimination at various moments in our nation's history.

The constitutional promise of religious liberty has protected each of these communities not because government endorsed their beliefs, but because government was prohibited from preferring another religion instead.  That remains the central insight of the First Amendment.

Religious Liberty Must Include the Freedom Not to Believe

LWVCO believes that religious liberty also protects Americans whose moral convictions are not grounded in organized religion.  The First Amendment protects freedom of conscience itself.  That protection extends to those who embrace religious faith, those who are questioning, those who change religious traditions, and those who conclude that no religion expresses their understanding of the world.

A government that protects only religious belief cannot fully protect liberty of conscience.  LWVCO therefore believes that constitutional neutrality between religion and nonreligion is not hostility toward faith. Rather, it is the mechanism through which every individual enjoys equal citizenship regardless of personal belief.  This principle is particularly important in an increasingly diverse nation.

Today, Americans include members of hundreds of religious traditions, individuals who identify with more than one faith tradition, those who practice Indigenous spiritual traditions, Humanists, atheists, agnostics, and many whose beliefs do not fit traditional categories. Their equal citizenship depends upon a government that neither rewards nor disadvantages any worldview.

Diversity of Perspective Strengthens Constitutional Deliberation

LWVCO recognizes the distinguished public service of the members of the Religious Liberty Commission and appreciates the many hours devoted to preparing this report.  At the same time, LWVCO believes that future commissions addressing questions of religious liberty should more fully reflect the religious and philosophical diversity of the United States.

The Commission includes respected representatives of several religious traditions, but its membership is predominantly Christian, and its advisory boards similarly emphasize Christian institutions and legal organizations, with more limited representation from other faith communities. The report likewise devotes substantial attention to disputes involving Christian schools, churches, ministries, educators, and healthcare providers.

This observation is not a criticism of those participants.  Rather, it reflects the constitutional principle that deliberations concerning religious liberty are strengthened when they include voices from the full spectrum of American belief.  Questions concerning the Religion Clauses affect every American equally.

Accordingly, future commissions should include meaningful participation by representatives of:

• Jewish, Muslim, Hindu, Sikh, Buddhist, and other minority faith communities;
• Native American religious traditions;
• historically Black churches and other Christian traditions representing the full diversity of American Christianity;
• secular constitutional scholars;
• Humanist, atheist, and other nonreligious organizations;
• civil-rights organizations with expertise in First Amendment protections;
• scholars of American religious history representing a range of constitutional perspectives.

Such participation would not dilute religious liberty.  It would strengthen public confidence that recommendations affecting the constitutional rights of all Americans have been informed by the lived experiences of all Americans.

Equal Citizenship Requires Equal Constitutional Concern

One of the Colorado League's principal concerns is that public discussion of religious liberty can unintentionally become focused upon the constitutional interests of whichever religious community currently experiences conflict with government.  Those concerns deserve careful attention.  But constitutional liberty requires a broader perspective.  A constitutional principle that protects today's majority should also protect tomorrow's minority.  A rule adopted to safeguard one faith tradition must also preserve the equal liberty of every other faith tradition.

Likewise, constitutional protections designed to accommodate religious practice should not inadvertently communicate governmental endorsement of religion itself.  LWVCO therefore encourages the Commission to evaluate every recommendation by asking a simple constitutional question:

Would this recommendation provide the same protection to every religion—and to those who profess none?

If the answer is yes, the recommendation is likely consistent with the First Amendment's guarantee of equal liberty.  If the answer depends upon the popularity, historical influence, or theological content of a particular faith tradition, then further constitutional reflection is warranted.  LWVCO believes that equal liberty—not governmental preference—is the enduring constitutional promise of the Religion Clauses.

Public Funding for Religious Education

Recent Supreme Court decisions have recognized that generally available public education benefits may not exclude otherwise eligible religious schools solely because they are religious. At the same time, the expansion of public funding for private religious education raises broader questions about governmental neutrality and the long-term strength of public education. Because public schools serve students of every faith and of no faith, policymakers should carefully consider how funding decisions affect both religious liberty and the state's responsibility to maintain a strong, accessible public education system for all children.

Public education illustrates the tension between religious liberty and democracy

The Commission's recommendations regarding religious education provide a concrete example of the challenges between religious liberty and the full exercise of democracy.  If tax dollars increasingly support religious schools under the banner of religious liberty:

• public schools lose resources,
• citizens increasingly educate children in separate religious systems,
• children have fewer opportunities to learn alongside classmates from different faiths and backgrounds,
• civic identity becomes weaker while religious identity becomes politically stronger.

Democracy requires citizens capable of deliberating across differences.  Public education has historically been one of the principal institutions where that civic formation occurs.  Policies that substantially weaken public education while directing public funds toward religious education may unintentionally weaken one of democracy's most important civic institutions.

VI. Response to Recommendation One:

The Department of Justice Should Protect Religious Liberty Through Governmental Neutrality

The Commission's first recommendation asks the Department of Justice to issue guidance "clarifying the proper understanding of the Establishment Clause and separation of church and state." Throughout the report, the Commission argues that the constitutional principle commonly described as the separation of church and state has been misunderstood and should be replaced with a closer relationship between religion and government.  

The League of Women Voters of Colorado respectfully urges the Commission to reconsider this recommendation.

LWVCO agrees that the Department of Justice plays an essential role in protecting religious liberty. The Department should vigorously enforce constitutional protections for religious exercise, prosecute religious discrimination where authorized by law, defend the rights of religious minorities, and ensure that governmental institutions neither inhibit nor punish sincerely held religious belief.  The Department's responsibility, however, is not to promote a particular theological understanding of the relationship between religion and government.  Its responsibility is to enforce the Constitution impartially.

The Constitution Limits Government—Not Religion

Throughout American history, religious liberty has flourished because constitutional limits were placed upon governmental power rather than upon religious belief.  The Religion Clauses do not authorize government to determine which religious teachings are socially beneficial, historically authentic, or morally superior.  Nor do they authorize government to determine that religion generally deserves greater constitutional favor than nonreligious systems of conscience. 

Instead, the Constitution removes those questions from governmental authority.  By doing so, it leaves churches, synagogues, mosques, temples, religious schools, voluntary associations, families, and individual citizens free to answer them according to conscience.  This constitutional restraint has been one of the nation's greatest strengths.

Government protects religion best when it refrains from becoming an advocate for religion.

Governmental Neutrality Is Not Secularism

The Commission frequently contrasts what it describes as "separation of church and state" with a more cooperative relationship between religion and government. LWVCO believes this framing presents a false choice.  Governmental neutrality is not secular ideology.  It is not hostility toward religion.  It is not the exclusion of religious voices from democratic debate.

To the contrary, governmental neutrality permits religious Americans to participate fully in public life precisely because government does not decide whose religious convictions deserve official preference.  Religious citizens remain entirely free to advocate legislation inspired by their faith.

Religious organizations remain free to educate, worship, serve their communities, and participate in public discourse.  Public officials remain free to hold religious convictions.  The constitutional limitation applies to governmental authority—not to religious expression.  This distinction preserves liberty for everyone.

Religious Diversity Has Changed the Constitutional Landscape

LWVCO recognizes that the United States of 2026 differs significantly from the United States of 1789.  America has become one of the most religiously diverse nations in human history.  Our communities include hundreds of Christian denominations alongside Jewish congregations, Muslim communities, Hindu temples, Sikh gurdwaras, Buddhist centers, Native American religious traditions, Baha'i communities, Humanists, atheists, agnostics, and many others.  Government serves them all.

Precisely because of this extraordinary diversity, government must exercise exceptional care to avoid actions that reasonably communicate official preference for one religious tradition or one understanding of religion.  The broader our religious diversity becomes, the more important governmental neutrality becomes.  Neutrality is no longer simply a constitutional doctrine.  It is a practical necessity for governing a pluralistic democracy.

The Department of Justice Must Remain a Neutral Guardian of Constitutional Rights

LWVCO is particularly concerned because this recommendation would be implemented through the Department of Justice.  The Department occupies a unique constitutional position.  It prosecutes violations of federal law.  It defends civil rights.  It represents the United States before federal courts.  It investigates discrimination.

Its legitimacy depends upon public confidence that constitutional protections will be administered impartially.  For that reason, any Department-wide guidance concerning the Religion Clauses should emphasize equal protection for all religious traditions and for those who profess no religion.

Department guidance should avoid language that could reasonably be interpreted as endorsing particular theological understandings or suggesting that government views religion itself as constitutionally preferred over nonreligious belief.  The Department's constitutional mission is not to define religion.  Its mission is to protect liberty and nurture democratic governance.

Democracy depends on a government that belongs equally to every citizen. Religious liberty protects that democracy when it safeguards freedom of conscience for all. It undermines democracy when government uses its power to privilege particular religious beliefs, direct public resources toward religious institutions, or reinterpret constitutional protections in ways that favor some faiths over others. The Department of Justice should enforce the Constitution impartially—not become an advocate for any religious vision. Religious liberty and democracy flourish together only when government remains neutral among religions and between religion and nonreligion. 

The Colorado League's Recommendation

LWVCO respectfully recommends that the Commission modify Recommendation One to emphasize the Department of Justice's historic responsibility to:

• protect the free exercise rights of every individual and religious community;
• enforce the Establishment Clause with equal concern for believers and nonbelievers;
• safeguard governmental neutrality among religions and between religion and nonreligion;
• protect minority faiths with the same vigor afforded majority faiths;
• ensure that constitutional protections are administered without regard to theology or religious affiliation.

The Constitution has succeeded not because government has chosen one understanding of religion, but because government has protected the equal liberty of every conscience.  LWVCO believes that this constitutional balance should remain the guiding principle of Department of Justice policy.

VII. The Department of Justice Must Protect Religious Liberty Without Becoming Its Arbiter

One of the Colorado League's principal concerns is institutional rather than ideological.  The Religious Liberty Commission was established within the Department of Justice and directed to recommend executive actions, litigation strategies, agency guidance, and legislative priorities concerning religious liberty. The report further recommends creation of a Department of Justice Religious Liberty Task Force to prioritize litigation and develop government-wide guidance interpreting the Religion Clauses.

LWVCO respectfully questions whether this institutional structure best serves the constitutional values the Commission seeks to advance.

The Department of Justice occupies a unique place in American government.  Unlike advisory commissions established to study policy questions from multiple perspectives, the Department exercises the sovereign authority of the United States.  It prosecutes criminal violations.  It enforces federal civil rights statutes.  It appears before the federal judiciary on behalf of the United States.  It investigates discrimination.  It defends the Constitution on behalf of all Americans.

These responsibilities require not only fairness but the appearance of fairness.  Public confidence in the Department depends upon the belief that constitutional protections will be enforced equally regardless of religion, political affiliation, or philosophical conviction.

For this reason, LWVCO believes the Department should exercise particular caution before adopting official guidance that embraces one constitutional philosophy regarding religion when reasonable constitutional debate continues regarding the proper interpretation of the Religion Clauses.

Constitutional Neutrality Strengthens Public Confidence

LWVCO recognizes that every administration appropriately establishes enforcement priorities.  Those priorities, however, should remain rooted in protecting constitutional rights rather than advancing particular theological understandings of religion's role in public life.

The Commission repeatedly celebrates religion as indispensable to American society and recommends that federal agencies encourage broader public appreciation for religion's civic contributions.  LWVCO readily acknowledges the extraordinary contributions that religious communities have made throughout American history.  

The federal government, however, occupies a different role.  Its responsibility is not to evaluate the relative social value of religion.  Its responsibility is to ensure that every American enjoys equal protection under the Constitution regardless of religious belief.  The distinction is subtle but profound.  Churches may proclaim theological truth.  Synagogues may teach religious law.  Mosques may interpret sacred tradition.  Humanist organizations may advocate secular ethics.  The Department of Justice must protect the liberty of every one of those communities without adopting the perspective of any.  That institutional neutrality is not a limitation upon religious liberty.  It is one of religious liberty's strongest protections.

Representation Matters

LWVCO also believes that public confidence in advisory commissions addressing constitutional rights depends upon meaningful representation of the communities affected by those recommendations.  The Commission includes accomplished public servants, religious leaders, and legal scholars whose dedication to religious liberty is evident throughout the report. The League appreciates their willingness to undertake this important work.

At the same time, the composition of the Commission and its advisory boards illustrates the importance of broader representation in future efforts. While the Commission includes representatives of several faith traditions, its membership is predominantly Christian, and its advisory boards similarly reflect a limited range of religious and constitutional perspectives.

This observation is offered not as criticism of those appointed.  Rather, it reflects the constitutional reality that recommendations affecting every American's freedom of conscience are strengthened by participation from the full diversity of American belief.

Future commissions considering religious liberty should include meaningful representation from:

• Christian traditions reflecting the diversity of American Christianity;
• Jewish, Muslim, Hindu, Sikh, Buddhist, and other minority faith communities;
• Native American religious leaders;
• Humanist, atheist, agnostic, and other nonreligious organizations;
• constitutional historians representing multiple schools of interpretation;
• civil-rights organizations with extensive experience litigating First Amendment questions;
• scholars of religion, sociology, and American pluralism.

Such diversity would not produce weaker recommendations.  It would produce recommendations that more fully reflect the constitutional promise of equal liberty.

Religious Liberty Is Strengthened Through Dialogue

One of the strengths of the American constitutional tradition is that no single institution possesses a monopoly on constitutional understanding.  Courts interpret the Constitution.  Legislatures enact laws.  Executive agencies enforce those laws.  Religious communities contribute moral perspectives.  Universities produce scholarship.  Citizens participate through democratic deliberation.  The continuing dialogue among these institutions has allowed the Nation's understanding of religious liberty to mature over generations.

LWVCO believes future commissions should embrace that tradition by actively seeking participation from communities whose experiences with religious liberty differ significantly from one another.  Christians, Jews, Muslims, Hindus, Sikhs, Buddhists, Native Americans, Humanists, atheists, and many others all experience religious liberty through different historical and cultural lenses.  Listening to each of those experiences enriches constitutional understanding.

The Colorado League's Recommendation

LWVCO respectfully recommends that future federal initiatives concerning religious liberty emphasize institutional neutrality, broad public participation, and constitutional equality.  The Department of Justice should remain the nation's impartial guardian of the Religion Clauses—not their theological interpreter.

America's constitutional commitment is not to a particular understanding of religion.  It is to the equal liberty of every conscience.

VIII. Religious Institutions, Political Independence, and the Johnson Amendment

Among the Commission's recommendations is a proposal that Congress repeal the Johnson Amendment or otherwise eliminate restrictions on partisan political activity by tax-exempt religious organizations. The report argues that the Johnson Amendment improperly chills the First Amendment rights of religious leaders and allows the government to regulate sermons and spiritual guidance.

LWVCO respectfully reaches a different conclusion.

LWVCO fully supports the right of clergy and religious leaders to preach, teach, advocate, and address moral questions from the perspective of their religious traditions. Houses of worship have long served as centers of moral reflection, civic engagement, charitable service, and social reform. Religious voices have played indispensable roles in movements to abolish slavery, expand women's rights, advance civil rights, welcome refugees, care for the poor, and promote peace and justice.

Nothing in the Colorado League's position suggests that religious institutions should withdraw from public life.

The constitutional question is different.  It is whether tax-exempt charitable institutions—including churches, synagogues, mosques, temples, and other houses of worship—should become participants in partisan electoral campaigns while continuing to receive the public benefits associated with charitable tax exemption.

LWVCO believes they should not.

Religious Independence Is Strengthened by Political Independence

One of the greatest strengths of American religious life has been the remarkable independence of religious institutions from governmental control.  Unlike established churches in many nations, American congregations have generally remained free to criticize elected officials regardless of political party, challenge public policy on moral grounds, and minister to their communities without becoming formal participants in partisan campaigns.  That independence has strengthened both religion and democracy.

The Johnson Amendment has helped preserve that independence by drawing a distinction between moral witness and partisan endorsement.  

Religious leaders remain free to address public issues, encourage civic participation, educate their congregations about matters of public concern, and advocate for legislation consistent with their religious convictions.

What tax-exempt organizations may not do is intervene or participate in campaigns on behalf of or in opposition to candidates for public office.  This limitation applies broadly to charitable organizations, not solely to religious institutions.  LWVCO believes this distinction has served the Nation well.

Repeal Would Create New Constitutional Tensions

Repealing the Johnson Amendment would not eliminate government involvement with religion.  It could increase it.

If houses of worship became active participants in partisan campaigns while retaining tax-exempt status, government would inevitably face difficult questions regarding campaign finance, political expenditures, disclosure requirements, charitable deductions, and enforcement of tax law.  Rather than reducing interaction between church and state, repeal could require more extensive governmental oversight of political activity conducted by religious organizations.

LWVCO believes that outcome would be contrary to the goal of preserving institutional independence.  Equally important, repeal could place religious communities under increasing pressure to align themselves publicly with political parties or candidates.

Congregations that today unite members across political differences could become identified with particular electoral movements.  Clergy could experience pressure—from within or outside their congregations—to endorse candidates as demonstrations of religious commitment.

Such developments would risk diminishing the prophetic independence that has historically allowed religious communities to speak truth to power regardless of which political party governs.

Moral Leadership Is Different from Partisan Advocacy

LWVCO recognizes an important constitutional distinction.  Religious institutions have every right to proclaim moral principles rooted in their faith traditions.  Those principles frequently influence public policy debates.

Indeed, democratic self-government depends upon citizens bringing their deepest moral convictions—including religious convictions—into public discourse.

Partisan electoral endorsement, however, serves a different purpose.  It seeks to influence the selection of particular candidates for public office.  The League believes that charitable tax exemption carries with it a responsibility to remain institutionally independent of partisan campaigns.

That principle protects the integrity of religious institutions while preserving public confidence that tax-exempt charitable resources are devoted primarily to religious, educational, and charitable purposes.

Equal Treatment for All Religious Communities

The Colorado League's position also reflects concern for the extraordinary diversity of American religion.

If repeal of the Johnson Amendment encouraged houses of worship to become increasingly identified with partisan politics, minority faith communities could face heightened pressure to demonstrate political allegiance in order to protect their interests.

The constitutional promise of religious liberty is better served when every congregation remains free to determine its own mission without governmental encouragement to participate in electoral politics.

LWVCO therefore believes that preserving institutional independence benefits majority and minority faiths alike.

The Colorado League's Recommendation

LWVCO respectfully recommends that the Commission reconsider its recommendation concerning the Johnson Amendment.  Religious liberty is strengthened when houses of worship remain free to speak prophetically without becoming instruments of partisan political campaigns.

Government, likewise, is strengthened when it neither encourages nor discourages partisan political activity by religious institutions beyond the generally applicable rules governing all tax-exempt charitable organizations.  The enduring strength of American religion has rested not upon political privilege but upon moral authority.

LWVCO believes that preserving that distinction continues to serve both religious liberty and constitutional democracy.

IX. Religious Liberty Flourishes When Religious Institutions Remain Independent of Political Power

The history of American religious liberty demonstrates that religion has often exercised its greatest moral influence when it has remained institutionally independent of government and political parties.  Religious communities have repeatedly challenged injustice not because they possessed governmental authority, but because they stood outside governmental power and spoke with moral conviction.

The abolitionist movement drew strength from churches willing to challenge laws that protected slavery.  The Social Gospel movement called attention to poverty, labor conditions, and economic justice.  The Civil Rights Movement was led in large measure by clergy and congregations whose moral authority rested not upon political office but upon their willingness to confront entrenched systems of injustice.

Jewish congregations, Catholic charities, Muslim organizations, Protestant denominations, Native American spiritual leaders, and countless other religious communities have likewise shaped American public life through service, advocacy, education, and moral witness.

Their influence has depended upon credibility.  Credibility depends upon independence.

Moral Authority Cannot Be Legislated

The Commission correctly recognizes that religion has made extraordinary contributions to American society.  LWVCO fully agrees.

Those contributions, however, have not resulted because government encouraged religion to become more closely aligned with political authority.  Rather, they have resulted because religious communities have remained sufficiently independent to challenge government whenever conscience required.  History offers many examples.  Religious leaders have opposed slavery.  They have opposed segregation.  They have opposed war.  They have opposed abortion.  They have defended immigrants.  They have defended labor rights.  They have defended religious minorities.  They have defended free speech.

Often, they have disagreed sharply with one another.  That diversity of moral witness is itself evidence of religious liberty.

The Constitution protects that diversity by ensuring that government neither rewards nor penalizes particular theological or political positions.

Government Should Protect the Independence of Religious Institutions

LWVCO believes one of government's highest constitutional responsibilities is preserving the institutional independence of religious communities.  That responsibility extends beyond protecting the freedom to worship.  It includes protecting the ability of religious institutions to govern themselves, select their leaders, define their doctrines, organize their ministries, educate their members, and carry out charitable work consistent with their beliefs.

Equally important, it includes protecting religious institutions from becoming extensions of governmental or partisan political authority.  Throughout history, governments that have sought close institutional relationships with dominant religious traditions have often weakened both.  Religion becomes vulnerable to political influence.  Government becomes vulnerable to religious favoritism.  Public confidence in both institutions declines.

The American constitutional tradition has generally rejected that model.  Instead, it has protected religious institutions precisely by leaving them free from governmental control and governmental dependence.

LWVCO believes that this institutional independence remains one of the great achievements of the First Amendment.

Religious Diversity Requires Institutional Humility

The Commission repeatedly celebrates America's religious heritage.  The League celebrates something even broader.  America has no single religious heritage.  It has many.

The constitutional promise of religious liberty has enabled successive generations of immigrants and citizens to establish churches, synagogues, mosques, temples, meeting houses, meditation centers, and countless other communities of faith.

It has likewise protected Americans who organize their moral lives outside religious institutions altogether.  This remarkable diversity counsels humility.

No government commission can determine which theological understanding best promotes democracy.  No administration can define the proper relationship between God and government for every citizen.  Those questions belong to individual conscience.  The Constitution wisely leaves them there.

The Prophetic Independence of Religious Communities

Perhaps the most important lesson of American history is that religious communities are often at their strongest when they are least dependent upon political power.  When churches become identified with political parties, they risk dividing congregations whose members share religious commitments but differ politically.

When government appears to favor particular religious institutions, minority faiths may reasonably question whether they stand on equal constitutional footing.  When political movements seek religious validation, both politics and religion risk becoming instruments of one another.

LWVCO therefore believes that government best protects religion not by encouraging closer institutional partnership but by preserving the independence that allows every religious community to speak freely according to conscience.  This principle benefits every tradition.  It protects evangelical churches that challenge government policy.  It protects Catholic bishops who advocate for immigrants.  It protects rabbis confronting antisemitism.  It protects Muslim organizations defending religious freedom.  It protects Native American spiritual leaders preserving sacred traditions.  It protects Humanist organizations advocating secular ethics.  It protects every community whose moral voice remains independent of governmental power.

A Constitutional Vision for the Future

LWVCO respectfully suggests that the future of religious liberty lies not in choosing between religion and government.  It lies in preserving the constitutional distance that allows both institutions to fulfill their distinct responsibilities.

Religious communities exist to pursue truth as they understand it, to form conscience, to serve others, and to bear moral witness.  Government exists to secure the equal rights of all persons under law.  When each institution respects the proper role of the other, both are strengthened.  The Constitution has sustained that balance for more than two centuries.

LWVCO believes it remains the surest foundation for religious liberty in a nation of extraordinary religious diversity.

Principles for Religious Liberty in a Constitutional Democracy

League of Women Voters of Colorado

Religious liberty is among the Nation's first freedoms. It protects the dignity of every individual by safeguarding freedom of conscience and ensuring that government neither compels belief nor suppresses it.  The League of Women Voters of Colorado therefore affirms the following principles:

1. Freedom of conscience belongs equally to every person.

Every individual possesses the equal right to determine matters of religion, belief, philosophy, and conscience without governmental coercion or discrimination.  Religious liberty belongs equally to people of every faith and to those who profess no religion.

2. The Free Exercise Clause and the Establishment Clause are complementary guarantees.

Neither clause is complete without the other.  The Free Exercise Clause protects religious practice.  The Establishment Clause protects the equality that allows religious freedom to flourish.  Together they secure liberty for everyone.

3. Government exists to protect religious liberty, not to define religion.

Government has neither constitutional authority nor institutional competence to determine religious truth, theological correctness, or the relative value of religious and nonreligious belief.  Those questions belong to individual conscience.

4. Government must remain neutral among religions and between religion and nonreligion.

Neutrality is not hostility.  Neutrality is the constitutional principle that ensures every person stands equal before the law regardless of faith or belief.

5. Religious diversity is one of America's greatest constitutional achievements.

The flourishing of hundreds of religious traditions alongside those who profess no religion demonstrates the success of constitutional liberty.  America's diversity should be protected, celebrated, and preserved.

6. Religious institutions strengthen democracy through their independence.

Religious communities best serve society when they remain free to worship, teach, serve, and speak according to conscience without governmental control or partisan dependence.  Their moral authority rests upon freedom rather than political power.

7. Religious liberty and civil rights are mutually reinforcing.

Protecting religious liberty must never become a justification for denying the equal dignity, civil rights, or constitutional protections of others.  Likewise, protecting civil rights must not become a pretext for suppressing legitimate religious exercise.  The Constitution calls us to protect both.

8. Religious liberty requires equal justice.

Government should vigorously protect every individual and every religious community from discrimination, violence, intimidation, and unlawful interference.  No faith community should receive greater constitutional protection than another.

9. Constitutional institutions should reflect the diversity of the American people.

Public bodies addressing questions of religious liberty should include meaningful participation from America's many religious traditions, minority faiths, Indigenous religions, and nonreligious communities.  Equal liberty is strengthened when every voice is heard.

10. Democracy depends upon informed citizens acting in good faith.

The protection of religious liberty requires more than courts and legislatures.  It requires citizens willing to respect differences, defend the rights of others, engage in civil dialogue, and recognize that freedom of conscience belongs equally to all.

11. Religious liberty is strongest when no one must fear government because of belief.

The measure of religious freedom is not how securely the majority worships.  It is whether the smallest minority—and the individual standing alone—enjoys the same constitutional protection.

12. The Constitution's promise is equal liberty of conscience.

The American experiment has succeeded because government has generally protected the equal freedom of every person to believe, worship, question, change, or reject religious belief according to conscience.  That constitutional promise remains one of our Nation's greatest achievements and one of its highest responsibilities.

Conclusion

The League of Women Voters of Colorado believes the United States has achieved something extraordinary.  For more than two centuries, Americans representing countless religious traditions—and those professing no religion at all—have lived together under a Constitution that protects every person's freedom of conscience while denying government authority to decide religious truth.  That achievement remains unfinished.  Every generation must determine anew how best to preserve both religious liberty and religious equality in an increasingly diverse society.

The Commission's report reminds us that Americans continue to care deeply about these questions.  The League welcomes that conversation.  We respectfully encourage the Commission to ensure that its final recommendations preserve the constitutional balance that has served the Nation so well: vigorous protection of the free exercise of religion, equal treatment of every faith and every individual, and steadfast adherence to the constitutional principle that government protects religion best when it protects every conscience equally.

LWVCO believes the future of religious liberty does not depend upon government becoming more religious.  Nor does it depend upon religion becoming less visible in public life.  It depends upon government remaining faithful to its constitutional role.  The Constitution entrusts government with the protection of liberty.  It entrusts citizens with the exercise of conscience.  America flourishes when each honors the proper role of the other.

LWVCO therefore respectfully recommends that the Commission strengthen its final report by reaffirming a constitutional principle that has protected generations of Americans:

The measure of religious liberty is not how securely the majority worships. It is whether the smallest minority—and the individual standing alone—enjoys the same freedom of conscience under the law.