. 1
( 13)



>>

This page intentionally left blank
GOD VS. THE GAVEL: RELIGION AND THE RULE OF LAW

God vs. the Gavel: Religion and the Rule of Law challenges the pervasive as-
sumption that all religious conduct deserves constitutional protection. While
religious conduct provides many bene¬ts to society, it is not always benign.
The thesis of the book is that anyone who harms another person should be
governed by the laws that govern everyone else “ and truth be told, religion
is capable of great harm.
This may not sound like a radical proposition, but it has been under as-
sault since the 1960s. The majority of academics and many religious organi-
zations would construct a fortress around religious conduct that would make
it extremely dif¬cult to prosecute child abuse by clergy, medical neglect of
children by faith healers, and other socially intolerable behaviors. This book
intends to change the course of the public debate over religion by bringing
to the public™s attention the tactics of religious entities to avoid the law and
therefore harm others. God vs. the Gavel will bring much-needed balance to
the contemporary, heated debate about religion and its role in society.

Marci A. Hamilton is an internationally recognized constitutional authority
specializing in church/state relations. She is a leading national expert on
the Religious Freedom Restoration Act, which she successfully challenged
before the U.S. Supreme Court, and is involved in cutting-edge First Amend-
ment litigation involving clergy abuse (on behalf of victims) and religious
land use (Religious Land Use and Institutionalized Persons Act).
GOD vs.
THE GAVEL
RELIGION AND THE
RULE OF LAW
MARCI A. HAMILTON
FOREWORD BY THE HON. EDWARD R.
BECKER
©¤§ µ®©© °
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo

Cambridge University Press
The Edinburgh Building, Cambridge  µ, UK
Published in the United States of America by Cambridge University Press, New York
www.cambridge.org
Information on this title: www.cambridge.org/9780521853040

© Marci A. Hamilton 2005


This publication is in copyright. Subject to statutory exception and to the provision of
relevant collective licensing agreements, no reproduction of any part may take place
without the written permission of Cambridge University Press.

First published in print format 2005

©®-± ·-°-µ±±-±·°-± eBook (EBL)
©®-±° °-µ±±-±·°- eBook (EBL)

©®-± ·-°-µ±-µ°-° hardback
©®-±° °-µ±-µ°- hardback




Cambridge University Press has no responsibility for the persistence or accuracy of µ¬s
for external or third-party internet websites referred to in this publication, and does not
guarantee that any content on such websites is, or will remain, accurate or appropriate.
This book is dedicated to

my beloved Peter, Will, and Alexandra,
whose loving encouragement has been a godsend.
CONTENTS

Acknowledgments / ix
Foreword, by the Hon. Edward R. Becker / xi

part one. why the law must govern religious entities
1 The Problem / 3
2 Children / 12
3 Marriage / 50
4 Religious Land Use and Residential Neighborhoods / 78
5 Schools / 111
6 The Prisons and the Military / 141
7 Discrimination / 173

part two. the history and doctrine behind the rule that
subjects religious entities to duly enacted laws
8 Boerne v. Flores: The Case That Fully Restored the Rule of
Law for Religious Entities / 203
9 The Decline of the Special Treatment of Religious Entities
and the Rise of the No-Harm Rule / 238
10 The Path to the Public Good / 273
Epilogue / 306

Notes / 313
Index / 399

vii
ACKNOWLEDGMENTS

This book could not have been written without the assistance of my
chief research assistant and third-year law student at Benjamin N.
Cardozo School of Law, Rachel Steamer. She did a tremendous job,
and I will be forever indebted to her for her extraordinary research skills,
work ethic, and excellent judgment. I also thank Research Assistants
Jodi Erickson, Rachel Lavery, Andrew Kopelman, Leo Mikityanskiy, and
Philip Wellner, for their hard work and research assistance. My good
friend, Kerry Ledbetter, provided invaluable line editing.
I am also indebted to John Berger, who is a brilliant editor at Cambridge
University Press, and who helped me immeasurably to marshal ten years
of scholarly work and practical experience into a single coherent project
for a more general audience. I am very grateful to my agent, Karen Zahler,
who helped me tremendously to re¬ne my thesis and then to ¬nd the
right niche for it. Sr. Karol Jackowski, who is the most spiritual person I
know, was a much-needed source of inspiration and friend through it all.
Signi¬cant portions of Chapter 9 were previously published as part of
the Foundations of Church Autonomy Symposium at the Brigham Young
University School of Law. See Marci A. Hamilton, Religious Institutions,
the No-Harm Doctrine, and the Public Good, 2004 B.Y.U. L. Rev. 1099
(2004). I am grateful to the participants of the symposium for their com-
ments and for the excellent editorial work of BYU student editor Brigham
Cannon and others.


ix
x / ACKNOWLEDGMENTS


Thanks are also due to the Benjamin N. Cardozo School of Law,
Yeshiva University, for a summer grant and sabbatical in 2004, which
made it possible for me to write God vs. the Gavel, and especially to
Deans Paul Verkuil and David Rudenstine for their un¬‚agging support
for my admittedly unorthodox scholarship. Gratitude is also due to Tom
Lee for his generous philanthropy that supports my chair at Cardozo
School of Law, the Paul R. Verkuil Chair in Public Law. In addition, the
Princeton Theological Seminary, where I was a visiting scholar during the
fall of 2004, provided important research resources as well as a welcome
atmosphere of open inquiry about religion and theology.
Judge Edward R. Becker, who provided the foreword, deserves lifelong
gratitude. He has been the sort of mentor many people never know. He
is in every sense of the term a mensch and a blessing on all those who
know him.
The list of people who have taught me what I needed to know to write
this book is endless, but I must express my gratitude to Jeffrey Anderson,
who was helping clergy abuse victims long before the rest of us knew it
was a problem, for his wisdom about clergy abuse; Ellen Mugmon and
Rita Swan, for opening my eyes to the plight of children at the hands
of some religious believers; Barbara Blaine and David Clohessy, of the
Survivors Network of those Abused by Priests (SNAP), for their tireless
dedication to the victims of childhood sexual abuse by clergy; Len Hill,
who started the League of Residential Neigbhorhood Advocates, for his
courage and dedication in standing up for residential neighborhoods
negatively affected by ambitious religious building projects; Sarah Hart,
Pam Sargent, and Todd Marti, who educated me about the abuses of
religious privileges in the prisons; and the Mayor of Boerne, Texas, the
Rev. Patrick Heath, whose courage as a Methodist minister in ¬ghting
the Religious Freedom Restoration Act all the way up to the Supreme
Court inspires me still.
But no one deserves more credit than my husband, Peter Kuzma. He
has read chapters when he needed to sleep, provided the right criticism
when it was needed most (and even when I did not want to hear it), and set
an example of a believer who will not tolerate the status quo if a religious
entity has overstepped its bounds. He is a devoted Roman Catholic who is
determined to do everything he can to make the church safe for children.
His integrity, his belief in the truth, and his loving support for this book
literally made it happen.
FOREWORD

The role of religion in a free society, once a subject of benign and lofty
discourse, has become a raging controversy in both the private and pub-
lic arenas. While few in America challenge the multifarious bene¬ts of
religion to the individual believer and to society as a whole, there are
sharply divergent views as to the extent to which notions of religious lib-
erty immunize religious conduct from sanction when it interferes with
public health, safety, and welfare.
In recent years, religious entities, often with the assistance of legisla-
tures and courts, have advocated a presumptive constitutional right to
avoid the law pursuant to the federal and state free exercise of religion
guarantees, arguing that the First Amendment, the Due Process Clause,
and separation of powers render them immune from some legal require-
ments and precepts. Opponents of these initiatives have responded that
this approach is at odds with American culture and legal tradition.
In this volume, Professor Marci Hamilton, one of the nation™s leading
legal scholars and one of the premier authorities on the Constitution™s
Religion Clauses, tackles these issues in depth and with gusto. Her dom-
inant theme is that the temptation to treat religion as an unalloyed good
is a belief one can embrace only at one™s peril. Building upon her al-
ready proli¬c body of work, she proceeds from the baseline of the “no-
harm principle” “ that no person or entity can act in ways that harm others
without consequence “ which she demonstrates was widely shared by the
Framers™ generation. After establishing, with impressive documentation,

xi
xii / FOREWORD


that, despite their generally bene¬cent effect, religious entities can be
responsible for many harms, e.g., lethal medical neglect of children,
childhood sexual abuse, the takeover of neighboring property owners™
rights under the zoning laws, and the undermining of laws against dis-
crimination, she forcefully argues that the burden rests on the religious
believers demanding exemption from a law to prove that the conduct
sought to be immunized is not harmful to the society and individuals
within it. Referencing the precept of Employment Division v. Smith that
“the [correct] reading [of the Free Exercise Clause] is . . . an individual™s
religious beliefs do not excuse him from compliance with an otherwise
valid law prohibiting conduct that the State is free to regulate,” Profes-
sor Hamilton engages the scholarship of Professor Laycock and Professor
(now Judge) McConnell and that of others who have criticized this hold-
ing. She argues that these scholars have misconstrued the jurisprudence
of the Religion Clauses and that their defense of the Religious Freedom
Restoration Act (overruled by City of Boerne v. Flores) and the Religious
Land Use and Institutionalized Persons Act (RLUIPA) is ¬‚awed.
Whatever the reader™s take on these issues may be, he or she will be
edi¬ed by Professor Hamilton™s exegesis of the history, jurisprudence, and
policy considerations that inform the debate. This is a truly important,
if provocative work, which is essential reading for anyone who wishes to
delve beneath the surface of the contemporary battle over religion and
values.
The Hon. Edward R. Becker
United States Court of Appeals
for the Third Circuit
GOD VS. THE GAVEL: RELIGION AND THE RULE OF LAW
PART ONE


WHY THE LAW MUST
GOVERN RELIGIOUS
ENTITIES
1


THE PROBLEM




The United States has a romantic attitude toward religious individuals and
institutions, as though they are always doing what is right. As one scholar
has quipped: “There is a long history in this country of religion being
reduced to Sunday school morality in service of the common good.”1
Were religious institutions and individuals always bene¬cial to the public,
this book would not need to be written, and they would not need to
be deterred from criminal or tortious behavior. Religious liberty could
be absolute. The unrealistic belief that religion is always for the good,
however, is a hazardous myth. The purpose of this book is to persuade
Americans to take off the rose-colored glasses and to come to terms with
the necessity of making religious individuals and institutions accountable
to the law so that they do not harm others.


3
4 / GOD VS. THE GAVEL


Without a doubt many religious entities provide important bene¬ts to
society. Catholic Charities, the United Jewish Communities, and numer-
ous other mission organizations do wonderfully good works. They feed
and house the poor, counsel the addicted, minister to the downtrodden,
and educate on a large scale. In 2003, religious organizations received
nearly 40 percent of all charitable contributions in the United States,
which translates into over $86 billion to spend on good deeds.2 In 2005,
religious relief organizations have been indispensable in helping the mil-
lions of Indonesian tsunami victims. It is nearly impossible to imagine
how the United States or the world could function without the services
of these groups. There would be a severe de¬cit in the public™s welfare if
they were to close their doors.
Religious belief and ritual also can be a powerful source of inspiration,
comfort, and healing, as the hard sciences now acknowledge.3 It can
ease the suffering caused by disease, death of a loved one, and the other
catastrophes of human life. I know this ¬rsthand as I have turned to prayer
many times in my life.
Religious beliefs and speech are also a crucial source of critique of
the state, and at their best bring the human drive to power into per-
spective. Religion can be a liberating force. For example, believers chal-
lenged slavery in the United States as early as the 18th century, built the
slave-liberating Underground Railroad in the late 19th century, and then
led the civil rights marches in the 1960s. It is an undeniably powerful
force.
No country, of course, can afford to ignore religion™s force on the peo-
ple, as China is learning with its unsuccessful attempts to eliminate Falun
Gong and Christianity.4 In today™s China, burgeoning religious plural-
ism has translated into increasingly repressive government policies. The
2004 Report of the U.S. Commission on International Religious Freedom
explained the problem: “The Chinese government™s campaign against
evil cults has reportedly expanded beyond the Falun Gong and similar
groups to those who are not part of the of¬cially sanctioned religious
organizations. This includes both newer and long-established Protestant
and Catholic churches and leaders who, for various reasons, refuse to
register with the government. Religious leaders have been imprisoned
and followers detained and ¬ned for ˜cultist activity.™”5
THE PROBLEM / 5


There could not be a gentler religion than the Falun Gong, but its
existence has threatened the governing powers in China. Three values “
truth, compassion, and tolerance “ form the backbone of Falun Gong™s
philosophy. Since July of 1999, communist of¬cials, most notably party
head Jiang Zemin, have campaigned to “eradicate” Falun Gong and any
support for it among the Chinese people or foreign governments. Accord-
ing to the Falun Dafa Information Center, as of November 2002, over
500 have died from maltreatment in custody. Sources inside China, how-
ever, place the number of deaths in the thousands. Hundreds of thou-
sands more suffer relentless abuse in prisons, forced labor camps, and
brainwashing facilities.6 Chinese authorities have also waged an aboli-
tion campaign against Christian organizations such as the Three Class
Servants Church, whose members are said to number in the millions. In
2004, a campaign of arrests, beatings, and extortion of family members
resulted in the disappearances and deaths of both bishops and laypersons
alike.7 China™s relentless persecution of believers has led to sanctions
from the United States and other countries.8
Communism did not survive in Eastern Europe and has not led to true
freedom for the people in other countries in part because of its inabil-
ity to incorporate religious belief into its social structure.9 Russia tried
to suppress the Orthodox Church under communism, but could not
stamp it out. Church members escaped to the catacombs, where they
created an underground church and developed an elaborately encrypted
method of communication. Despite the imprisonment and execution of
church leaders in Soviet Gulags and concentration camps, the secret
church survived and was shepherded through the Soviet era by priests
and believers who continued to perform consecrations and religious
services.10 Religion simply cannot be denied.
Despite these many virtues, a good deal of religious conduct is not
bene¬cial. Herein lies the problem “ some religious conduct deserves
freedom and some requires limitation. Ridding society of religion is no
answer, and therefore the United States must grapple with religion at its
worst as well as its best. God vs. the Gavel argues that the right balance is
achieved by subjecting entities to the rule of law “ unless they can prove
that exempting them will cause no harm to others. There is nothing in this
book that can take away these virtues, and no intention to do so. There is
6 / GOD VS. THE GAVEL


another side, though. Religion™s force can be just another iteration of the
drive to power. As such, it can wreak horrible wrongs on individuals and
society. Sometimes the ¬ght goes on for centuries, as it has in Ireland be-
tween Catholics and Protestants.11 Christians led the horror-¬lled years of
the Medieval Inquisition and the Spanish Inquisition.12 Britain™s Queen
Mary and Queen Elizabeth executed or exiled scores of “in¬dels” who
did not profess to the queen™s religion.13 The Hindu majority in India and
the Muslim majority in Pakistan have been battling over the Kashmir
border region since the British partition in 1947.14 Israel has been in con-
¬‚ict with Palestinians over the West Bank for over 50 years. In the United
States, the Salem witches were hung or, in one man™s case, crushed to
death, for religious reasons.15 In this era, Islamic radicals, many of whom
are part of a fundamentalist movement that was initiated in 1928,16 are
waging a war of terror worldwide. To this day, there are male fundamen-
talist polygamists in secret enclaves who enslave women and sexually and
physically abuse their children.17 Faith-healing parents let children die of
agonizing deaths from easily treated medical conditions like diabetes.18
Thousands of children have been sexually abused by clergy in many de-
nominations. And this is only a sampling of the numerous religiously
motivated actions that harm others.
Despite such facts, there has been a temptation in the United States
to treat religion as an unalloyed good. It is a belief one can embrace only
at one™s peril. There has been an increasingly strident chorus that the
United States has been secularized and that religion has lost its force in
the culture. Yale Law professor Stephen Carter™s widely read book, The
Culture of Disbelief: How American Law and Politics Trivialize Religious
Devotion,19 fed into this social drive. The book portrayed religion as a
diminishing in¬‚uence in society. Ironically, the secularization thesis has
permitted organized religion to don the garb of the underdog, when in
fact its political power has been quite potent, even if usually behind the
scenes. Religion™s double role of downtrodden and politically powerful
was ironically transparent when in 1993 Senator Orrin Hatch justi¬ed
the Religious Freedom Restoration Act, which put religious individuals
and institutions in the position of being able to challenge every neutral,
generally applicable law in the country, by saying, “Government too
often views religion with deep skepticism and our popular culture too
often treats religious belief with contempt.”20
THE PROBLEM / 7


Indeed, the Culture of Disbelief and the viewpoint it fostered aided
religions in their lobbying efforts, because few would suspect that such
“weak” political actors could be as busy and as successful as they have been
in the legislative context. The truth is that the vast majority of Americans
are religious believers, church attendance is higher in the United States
than anywhere else in the world, higher than at any time in U.S. history,
and religious viewpoints ¬ll the public square. While Americans were
reading Carter™s book and being convinced that the United States was
“trivializing” religion, thousands of children were being sexually abused
by clergy, with no one seemingly able to help them “ not the press, not
the prosecutors, not their parents, and certainly not the churches. As
American society has sublimated the potential risks of religious entities,
it has sold out its most vulnerable.
The test of religious liberty that would fail to take into account this
other side of religion guarantees suffering. Religious entities have the
capacity for great good and great evil, and society is not duty bound by any
constitutional right to let them avoid duly enacted laws, especially where
their actions can harm others. To say that religious liberty must encompass
the right to harm others is to turn the First Amendment on its head.
Part One details some of the instances where religious entities have
harmed the public good and documents facts about religion that require
sunshine and public debate. Some will label it perverse, and others a
betrayal, but it is intended to be an education “ one that is sorely needed
if true liberty for all is ever to be embraced. Nor is Part One intended to
be an argument for eradicating religion, as some might try to interpret it.
To the contrary, the impetus for this book lies in a belief in the depthless
good that religious entities can and do supply. But that belief is tempered
by my deep disappointment in learning the truth of what some religious
entities actually have done and continue to do. My rose-colored glasses
broke years ago.
From the ivory tower, it is easy to spin abstract arguments about the
high principle of protecting religious conduct. Read this:


Having engaged in my own weighing of the value of religious diversity
against the potential for anarchy and having determined that religious
diversity is highly valuable while the fear of anarchy is without basis
at this time in history, I would push the line to be drawn in these
8 / GOD VS. THE GAVEL


cases to the farthest extreme compatible with the viability of a living
democracy, which is to say that the exercise of religion should trump
most governmental regulation.21


I™m now embarrassed to say that I wrote that. If one™s theory of protecting
religious conduct is based on hypotheticals, ideals, and Sunday School,
as mine was, it is not dif¬cult to concoct a theory of religious liberty that
permits religious conduct to sail above the law and the people. My views
have changed 180 degrees, because I have been educated and now know
the severe harm religious entities can cause. Most laws should govern
religious conduct, with the only exception being when the legislature
has determined that immunizing religious conduct is consistent with
public welfare, health, and safety.
In recent decades, religious entities have worked hard to immunize
their actions from the law, either by obtaining legislative exemptions
or by forcing the courts to invalidate any law substantially burdening
religious conduct that was not absolutely necessary. They have always
waved the banner of “religious liberty,” and few Americans have thought
to question them. What could be more important in a free society than
religious liberty? When the question is left in the abstract, it is hard
to think of anything more important. But when one operates from the
ground and knows the facts, the answer to the question is that there are
all sorts of interests that must trump religious conduct in a just and free
society “ such as the interest in preventing childhood sexual abuse, or in
deterring terrorism, or in preserving private property rights. Every citizen
has at least as much right to be free from harm as the religious entity has
to be free from government regulation.
In effect, though never explicitly, religious entities have been lobbying
for the right to hurt others without consequences. That is a severe attack
on the rule of law, which is supposed to guarantee that no one becomes
a law unto himself. In a republican form of democracy like this one, the
laws are enacted to serve the larger public good, and no one should be
permitted to harm another person without account. True religious liberty
recognizes an absolute right of belief and, at the same time, society™s
necessary power to regulate religious conduct to serve the public good.
There are two legal tacks religious individuals and institutions (the
collective of which I will refer to as “religious entities”) have pursued
THE PROBLEM / 9


that have led to disastrous results: legislative exemption and/or constitu-
tional “ typically First Amendment “ interpretation. The ¬rst is to put
pressure on the legislative process to obtain exemptions from generally
applicable laws. Sometimes they are asking for the right to follow their
religious beliefs. For example, the Christian Scientists have a longstand-
ing campaign to exempt parents from having to provide their children
with medical treatment, which I will address in Chapter 2.
At other times religious entities ask for exemptions that go well beyond
their religiously motivated conduct to avoid liability for their misconduct.
For example, the Catholic Church worked hard to prevent clergy from
having to report child abuse (knowing as it did that many of its priests
were in fact abusing children) “ even when a report would not violate
the confessional. Their religiously motivated conduct did not require the
protection, but their project of keeping secret widespread child sexual
abuse by its clergy did.
At other times, the exemptions requested are what I refer to as blind
exemptions. Groups of religious entities have persuaded legislatures to
grant them a presumptive right to trump all laws or an entire category
of law, on the theory that religious liberty demands freedom from the
law. Examples include the Religious Freedom Restoration Act of 1993, its
counterparts in the states, and the Religious Land Use and Institutional-
ized Persons Act of 2000 each of which will be discussed in more detail
in later chapters.
Too often, speci¬c exemptions have been passed without the general
public “ and sometimes the legislators “ having any idea how the exemp-
tion would affect others. In a typical scenario, a religious group would
quietly approach a legislator (inside or outside the capitol), and the leg-
islator would then slip the exemption into some bill involving a wholly
different subject. There would be no hearings, no public debate, and
there would be no in-depth reporting to unmask the dangers of freeing
religious entities from the law. Everyone who knew about it would go
home satis¬ed “ the legislator because he had done a “good deed” that
day, and the religious entity, because it would avoid liability for its ac-
tions. Yet, the secrecy meant that the entities™ future victims had no idea
what was coming, as it permitted legislators to mimic the hear-no-evil,
see-no-evil, speak-no-evil monkeys. This was supposedly religious liberty,
American style. The results, documented in Part One, are not pretty.
10 / GOD VS. THE GAVEL


The blind exemptions tended not to be so secret, because they were
cast in general terms. In other words, the laws themselves were bandied
about for all to see, but their terms were so general, hardly anyone could
comprehend how the law would affect anyone other than the religious
entity getting the exemption. The Religious Freedom Restoration Act,
the grand blind exemption of all time, gave religious entities the right to
disobey any law unless the government could prove it was necessary. It was
as opaque on its surface as they come. It would take ¬ve years for groups
like the ACLU, one of its ¬rst and most ardent supporters, to discover
that it had supported a law that undermined its interests “ in its case,
the antidiscrimination laws. The legislative history is ¬lled with paeans to
religious liberty, but precious little analysis of what was going to happen
if religious individuals and institutions had the power to overcome the
laws that regulate conduct.
Whether speci¬c or blind, many of these exemptions have meant that
the United States has been tolerating harms known only to those in¬‚ict-
ing the harm and their victims. Children have been sexually abused by
priests in rectories while clergy were exempt from reporting child abuse,
homeowners have been told their residential neighborhoods would now
host a church that would bring the kind of traf¬c and strangers that would
force them to keep their children at home, and the prisons would become
breeding grounds for terrorists.
In addition to seeking legislative exemptions, religious entities have
argued vigorously and actively in the courts (and the legislatures) for a
presumptive constitutional right to avoid the law pursuant to the federal
and state free exercise of religion guarantees. They have foisted a de¬-
nition of the First Amendment onto the American people that means,
in effect, that they are immune to all but the most necessary laws. They
have attempted to use the First Amendment as a shield in prosecutions
involving child rape and murder. But their efforts have not stopped at the
First Amendment. They have also employed due process, ex post facto,
and separation of power theories to argue that the law should not apply
to them, often because they are religious.
Part One describes six arenas where religious individuals and institu-
tions have insisted on the right to avoid the law as they have harmed others:
children, marriage, schools, land use in neighborhoods, the prisons and
the military, and civil rights. Sometimes the exemption was consistent
THE PROBLEM / 11


with the public good and no harm accrued, but too often, the exemption
meant that a victim had no recourse under the law.
Part Two charts the fall of special privileges for religious conduct in
Anglo-American history and the rise of the rule that religious entities have
no legal right to harm others. After centuries of development, it is quite
clear that harm is harm, and whoever causes it must be held to account.
I will endorse the Supreme Court™s unfairly maligned opinion in Em-
ployment Div. v. Smith, and I will argue that there is no constitutional
right to harm others simply because the conduct is religiously motivated.
Therefore the rule of law “ which is the collection of legal principles that
are duly enacted by legitimate legislatures “ must be applied evenhand-
edly to all religious entities. Legislatures can exempt the religious from
some laws, but only where the religious entities have borne the burden
of proving that exempting them renders no harm.
2


CHILDREN




Warning: If this chapter were a movie, it would have an NC-17 rating,
because it describes horrible things that have been done to children
beneath the cloak of religion in the United States. Children have been
raped, beaten, and permitted to die excruciating deaths.
Young people are at risk from religious adults and institutions in two
ways: (1) through the misuse of religious power to abuse the child; or
(2) through their parents™ religiously motivated medical neglect or phys-
ical abuse. The suffering is often unimaginable, because the children
lack the ability to protect themselves from death, permanent disability,
or severe abuse “ at the hands of those they have been taught are here on
earth to care for them.
In the ¬rst instance, some clergy, day-care providers, and religious
schoolteachers use their position to take advantage of children. No person

12
CHILDREN / 13


can be trusted to hold power without some check on it, and that is why
we have the law “ to protect the vulnerable from harm and to preserve the
common good. The religious authority ¬gure can be the most outwardly
religious and pious individual, but without the law™s ability to make the
person accountable, he or she is capable of physical and spiritual murder.
It is not just a wolf “ but a lion “ in sheep™s clothing. Oftentimes this power-
based abuse takes the form of sexual abuse, and sometimes it is physical
abuse or ritualistic abuse. Many children, especially those who are already
in dif¬cult family situations, lack the life skills to be able to fend off the
clergy member who seduces them with attention and affection and only
then turns into a sexual predator.
In the second scenario, the parents impose sincere religious beliefs on
the child that endanger him or her. The most common example is faith
healing, where the parent™s faith precludes medical treatment and the
child suffers from easily treatable ailments, such as diabetes, which, left
untreated, lead to an agonizing death. When one person™s liberty to act
is expansive, it is usually at the cost of another, and this is doubly true in
the medical-neglect cases. This is a zero-sum game, and unfortunately,
too often than not, it is the children who are sacri¬ced, instead of the
religious conduct.1
No person who has ever loved a child can keep from asking the
question: What kind of society permits children to be hurt like this?
The answer is the United States, when it overzealously or thoughtlessly
protects the right to religious conduct.


Childhood sexual abuse by clergy
The following stories are all true and only touch the tip of the iceberg
of clergy childhood sexual abuse. Some of these are notorious; others
are run-of-the-mill. There are many more reported cases, and even more
unreported cases, because the shame of the acts or the threats of the
perpetrators often lead the victims to prefer shadow rather than sunlight
regarding their experiences. The perpetrators are clergy members “ the
men and women children are taught to trust with their very souls. These
pedophiles and ephebophiles use their position of religious authority to
lure vulnerable children into sexual molestation.2 Although the precise
details of the sexual attacks vary, the grievous harm to the victims then and
14 / GOD VS. THE GAVEL


later in life is the same. Victims of sexual attacks by clergy typically have
no idea what has happened to them immediately after the sexual attack
occurs. They are confused, ashamed, and afraid. When the clergy mem-
ber tells them that they will go to hell if they tell anyone “ which happens
on a regular basis “ the victims are almost always silent. The victims are
children, after all, and this is usually their very ¬rst introduction to sex
(unless they were already sexually abused by another adult). Typically, it
takes decades of emotional turmoil and multiple missed dreams for them
to ¬nally realize that the acts that were done to them as children disabled
some essential part of their psyche. They require intense counseling, fam-
ily support, and even then may never achieve their full potential. The
Roman Catholic canon law expert and hero, Father Thomas Doyle, who
has dedicated his life to helping clergy-abuse victims, has accurately la-
beled what is done to these children as “soul murder.” There is no better
way to describe it.
Religious institutions have been havens for pedophiles for three rea-
sons. First, up until now, society has so trusted clergy that no one ques-
tioned the priest or pastor or elder who volunteered to spend extra time
with Bobby. Second, religion is an authoritative structure in a person™s
life, so that demands by clergy are oftentimes equated with commands
from God and therefore are treated as imperatives. Third, religious insti-
tutions, especially those that form tight-knit communities, often succumb
to the temptation to shield their public moral position by keeping internal
sexual abuse secret, which ensures the authorities will not be contacted
and permits the pedophile to continue to operate. The circumstances
are tailor-made for the child molester. In the words of a former elder of
the Jehovah™s Witnesses, the religious organization can be a “pedophile
paradise,” especially where it features a “closed society, elder authority,
[and a] masculine dominated society.”3
As if it is not bad enough that religious institutions are magnets for
pedophiles (partly because of the laws the religious institutions have
endorsed), some religious institutions themselves have actively aided
and abetted the abuse. The Roman Catholic Church and the Jehovah™s
Witnesses, among others, have handled reports of clergy abuse as though
the public good was not their problem and have insisted on silence as
they refused to report the crimes to authorities. There is no question that
they placed the good of the organization above the needs of the child or
CHILDREN / 15


the legitimate demands of society. Their disregard for the public good is
even more sinister when one discovers that they were sacri¬cing the pub-
lic good to elevate their earthly needs. The silence is an integral part of
a twofold strategy: protect the institution™s ¬nances and protect its public
image.
Twenty years ago, an internal report was offered to the U.S. Catholic
Bishops that cast the phenomenon of clergy abuse in terms of an epidemic
of clergy abuse cases waiting to explode.4 It urged them to adopt a three
part strategy that began with pastoral outreach to victims and included in-
depth research and a crisis intervention team of experts to assist bishops
with individual cases.5 The perceived need for silence led the church
to pretend publicly that it harbored no pedophiles, so that across the
country cardinals, archbishops, and bishops shuf¬‚ed known pedophiles
from parish to parish without notice to anyone, leaving behind a trail of
young victims. It was the perfect environment for the crime, which is why
it happened over and over again, so that today there are thousands upon
thousands of Catholic-clergy victims.6 The same appears to be true of the
Jehovah™s Witnesses, and who knows who else.7 The secrecy permitted
the religious institutions to maintain a moral high ground in public and
at the same time robbed vulnerable children of the forces of society that
otherwise might have protected them “ parents, prosecutors, the media,
and civil rights groups.
The parents were often kept in the dark, even when a pedophile was
assigned to their parish or children™s religious school, and their lack of
knowledge yielded two distinct problems. First, they had no idea they
needed to act to protect their children from their own clergy in the ¬rst
instance. Second, some refused to believe a child who told them about
the abuse. Indeed, in some circumstances, the abused child was beaten
by a parent for having the nerve to suggest a priest would do something
so heinous, so abuse piled on top of abuse.
The prosecutors only heard of a small number of such cases, and
therefore extrapolated to the conclusion that there must be only a small
number. Since the problem appeared to be a negligible social problem,
when the bishop or cardinal would ask them to let the church take care
of its dirty laundry, prosecutors were all too willing.
It is somewhat of a mystery why the press did not break the story of
widespread clergy abuse sooner. Perhaps they were ignorant that there
16 / GOD VS. THE GAVEL


were so many unspeakable crimes being committed in their jurisdictions.
Or perhaps “ like the prosecutors “ they deferred to the bishop or cardinal,
who asked them to leave the problem to them. It is not that the press
has let religious entities off the hook in all circumstances. The Pulitzer
Prize has been awarded many times for stories that uncovered ¬nancial
misdealings in a religious institution,8 and at least one reporter, Jason
Berry, was focused on the Catholic Church™s clergy-abuse problem as
early as the 1980s.9 But until 2003, no newspaper had won an award as
a result of covering a national news story about clergy abuse, despite its
obvious sensationalistic element.
1984 was a bellwether year for clergy abuse. Roman Catholic Father
Gilbert Gauthe of Lafayette, Louisiana, was indicted for the abuse of
35 children.10 The question was: “How did Gauthe get away with abusing
that many children?” It was quite obvious: Gauthe had used his position in
the church to obtain victim after victim.11 Clear-headed reporting would
have driven a good reporter into the internal operations of the Roman
Catholic Church and its devotion to secrecy on these issues, and, in fact,
there was intense interest by the press at the height of the scandal.12 That
interest was abetted by the intense emerging interest in the issue of child
abuse at the same time.13 In the same year, congressional testimony by FBI
supervisory special agent Kenneth Lanning in 1984 stated that pedophiles
gained access to children through their occupations and mentioned the
following occupations: “teacher, camp counselor, babysitter, school bus
driver . . . physician, minister, photographer, social worker, police of¬cer,
etc.”14 The same was circulated widely in an article in Newsweek, which
referred to an alleged Methodist minister child abuser and quoted an
expert as saying, “There should be a presumption that child abusers will
gravitate to work with children.”15 It was common knowledge at the time
that child molesters “are among the more respected members of their
communities,”16 a category that in most circumstances would include
clergy. Thus, all the elements were in place for the story to break in the
mid-1980s.
Yet, stories detailing a larger Church problem than just one perpetrator
did not appear until 2001 in Boston when the Boston Globe unmasked
the depth of the Boston Archdiocese™s turpitude (and then won a Pulitzer
Prize). The Globe was praised for its courage, but one must ask what took
CHILDREN / 17


so long? For decades, children were being abused at will by pedophiles
who were wearing a collar and grooming their young victims with charm
and attention “ across the country. To be sure, there is no one answer, but
some component must be that at the end of the day, it was hard for even
the jaded press to comprehend the enormity of the evil perpetrated by a
single religious institution. And one cannot underestimate the lengths to
which the Catholic Church went to keep its ugly secrets to itself. One lay
Catholic described it as follows: “Their structure and social chemistry is
almost identical to the Ma¬a. There is a deep secrecy and a ¬erce loyalty
to the organization.”17
Father Andrew Greeley, sociologist and well-known novelist, hypoth-
esized at least 100,000 victims in 1993.18 In 2004, the church™s lay review
board conducted an internal audit of the dioceses and concluded that
there were roughly 10,000 victims, which is the very minimum number.19
It runs against the grain of the post“World War II society to believe that re-
ligious institutions do wrong, which means religious institutions™ victims
have stayed under the social radar longer than other institutions™ victims.
Moreover, children have been politically powerless. Children don™t
vote, to quote many a child advocate. To be sure, there are dedicated
organizations like the American Academy of Pediatrics and CHILD, Inc.
and individuals who push hard for children™s rights,20 but in this society
at this time religious interests are too often granted “rights” at the expense
of children.
The civil liberties groups have not been focused on the plight of chil-
dren, unless they were vehicles for larger agendas. State civil liberties
organizations often turn down children™s advocates who ask for their sup-
port. For example, despite protestations from children™s and women™s
groups, the Utah Civil Rights and Liberties Foundation recently spear-
headed a lawsuit in Utah to defend polygamy as a constitutionally pro-
tected religious practice, and in the face of widely circulated accounts
of underage marriage and statutory rape.21 The American Civil Liberties
Union supported the Religious Freedom Restoration Act, which worked
against children™s interests and is discussed in Part Two, and only withdrew
support for that type of religious liberty legislation when its leadership
realized it undermined antidiscrimination laws. The children™s issues, de-
spite being pressed by various groups, in the end did not move the ACLU.
18 / GOD VS. THE GAVEL


The crimes and tortious acts described in this chapter have occurred
in every state “ and in many countries around the world. This is not a
phenomenon limited to the United States. Every victim has a unique
story, so that it is impossible to generalize to a single paradigm. Pedophiles
as a general matter do share certain characteristics, however. The fore-
most authority in the country on the topic is Kenneth Lanning from the
FBI. In 1984, he testi¬ed before the Senate Judiciary Committee™s Sub-
committee on Juvenile Justice and in prepared testimony described the
pedophile:

He typically nonviolently seduces children that he has befriended
through the use of attention, affection and gifts. The pedophile is skilled
at recognizing and then temporarily ¬lling the emotional and physical
needs of children. He is usually willing to spend as much time as it
takes to seduce the targeted child.22


In most instances, he is a “nice guy,” for the obvious reason that it furthers
his schemes.23 Pedophiles seek children through various means, but the
primary avenue is occupation, which permits them “to impose authority
and control on the child and thus make the seduction process easier and
more secure.”24
Despite law enforcement™s ability to pro¬le pedophiles, individual
clergy-abuse stories need to be told for the public to truly understand
what has been done to children and the public good by these religious
individuals and institutions, who when confronted by the law furiously
wave the First Amendment “ in hopes the public will not focus on the
evil. The criminal clergy and the religious institutions that knew about the
pedophiles in their midst routinely invoke both the First Amendment and
religious liberty legislation to avoid liability for the harm. For example,
after the Boston Globe dropped the dime on the Boston Archdiocese™s
practice of shuf¬‚ing pedophile priests around parishes, and unveiled
its most heinous pedophiles “ including John Geoghan, who abused at
least 130 children,25 and Paul Shanley, who openly advocated the North
American Man-Boy Love Association26 “ the Church tried to block dis-
covery by claiming it had free-exercise rights not to disclose its ¬les.27 It
was a tactic that did not work there, but is being duplicated in thousands
of abuse cases in the United States, and not just by the Catholic Church.
CHILDREN / 19


It is a favored tactic for any religious organization that has known about
the pedophiles in its ranks and done nothing.

hayward, california. The following facts are taken from a video made
prior to trial by lawyers for a brave childhood sexual abuse victim to
document her experience so that others could learn about clergy abuse.28
After grooming her with loving words and attention over several months,
Monsignor George Francis took a ¬ve-year-old parishioner by the name
of Jennifer Chapin into his rooms in the rectory and digitally penetrated
her. He called her his “little princess.” Then on weekends, he would take
her to a hotel, where he ritualistically and sexually abused her. First, he
taught this barely school-age child how to make manhattans, and then
he tied her arms above her head and forced her legs apart so that he
could fondle and rape her while he commanded her to tell him, “I love
you.” When he was done, he said she was “Satan™s child,” because she
had tempted a priest. He then turned to ritualistic abuse to “purify” her
by sprinkling her with holy water, inserting a scepter into her vagina,
and hitting her while she was still tied to the bed.29 Then he undressed
and proceeded to rape her in a “loving style,” as opposed to a ritualistic
manner. If she told anyone, he declared that one of her family members
would be killed by God. This ritualistic and sadistic abuse continued
for ¬ve years. A neighbor who suspected abuse noti¬ed the diocese, but
nothing was ever done.
As is usually the case, Chapin was not the only victim. Terrie Light was
abused by Francis when she was seven years old,30 and she claims that
she has spoken to ¬ve other women, besides Chapin, who were victims
of Francis.31
When Chapin™s attorneys asked the church to release Francis™s ¬les to
the public, the archdiocese refused and asserted that the First Amend-
ment protected it from discovery in the case and that supposed privacy
concerns for other victims prevented disclosure of the ¬les. Both sides
decided to forego a trial. On January 24, 2004, the Roman Catholic
Church™s Oakland diocese agreed to pay $3 million in damages and up to
$50,000 in counseling and to add (at her request) her video to its pro-
gram of educating parishioners, priests, and diocesan employees on the
prevention of childhood sexual abuse.32 Francis™s ¬les were not released
at that point, but other victims are suing.
20 / GOD VS. THE GAVEL


middleton, massachusetts. In Massachusetts, Christopher Reardon
was hired as a youth worker at the parishes of St. Agnes in Middleton and
St. Rose™s in Tops¬eld, Massachusetts. At the same time, he was hired to
teach swimming at the YMCA in Danvers. During the 1990s, he abused
scores of boys, aged 11 to 13, some of whom later attempted suicide, many
of whom saw As and Bs on their report cards turn into failing marks, and
virtually all of whom suffered extreme emotional scarring.33 After being
arrested in June 2000, Reardon pleaded guilty of 75 counts of abuse,
including rape, of 24 boys, and received up to 50 years in prison for his
crimes. The YMCA quickly settled the boys™ claims against it; but the
church held out for another year.34 The Boston Archdiocese ¬nally paid
$85 million to settle the claims of 552 victims, including Reardon™s, in
September 2003.35
Part of the horror of the Reardon story is that it appears that St. Agnes
parish priest Jon C. Martin knew about the abuse well before Reardon
was arrested, and therefore could have stopped it. Victims alleged in their
lawsuit that when he discovered two boys in Reardon™s of¬ce in 1998, he
simply warned Reardon that it might not look right. Even after a retired
priest from St. Rose™s parish contacted Martin to tell him he had seen a
young boy go into Reardon™s of¬ce, Martin took no action, which made it
possible for Reardon to continue to commit crime after crime.36 This has
been a repetitive pattern in the United States, where the Roman Catholic
Church, the Jehovah™s Witnesses, and other denominations have had evi-
dence that one of their own was a predatory pedophile, yet they responded
by ignoring the problem, ultimately endangering thousands of children.

st. francisville, illinois. Gina Trimble Parks was a teenage girl,
who in the 1970s helped out with the cleaning at the local rectory. The
following are the allegations of abuse that appeared in the court™s pub-
lished decision. One day, while cleaning Father Raymond Kownacki™s
bedroom, the priest said he would show her a voodoo trick. He had her
close her eyes and chant, and then he raped her. She became his sexual
slave after he persuaded her parents to let him take her to a “better” school
in a different parish. She was set up in the rectory with him and was re-
quired to do his sexual bidding. When she tried to break away by dating a
boy her own age, and she became pregnant, Kownacki (who claimed to
have had a vasectomy) became enraged and abused her physically and
CHILDREN / 21


verbally. He gave her a dose of quinine, which he believed would cause
an abortion, and then while she was unconscious, he manually aborted
the fetus.
When the family sued Kownacki for what he had done to their daugh-
ter, he successfully defended himself on the ground that they had missed
the statute of limitations, which was only two years long.37 The brevity of
the statutes of limitations has been a signi¬cant and persistent hurdle to
clergy-abuse victims ¬nding justice. If future children are to be protected,
these statutes need to be abolished. The sad truth is that religious entities
have not jumped on this bandwagon for kids. Instead, they have either
been silent or, worse, lobbied to keep the statutes of limitations just as
they are in order to protect their purse and their image. They have been
especially effective in preventing amendment where the proposal is to
make civil claims retroactive so that existing victims have some means of
gaining some justice.38
Of course, Kownacki did not have only one victim. Other claims against
him have been widely reported, and he was barred from active ministry in
1995.39 In 2003, an Illinois man who wanted to remain anonymous ¬led a
suit against Kownacki for abusing him during a three-year period between
1979 and 1982.40 In 2004, the diocese fought release of Kownacki™s ¬les
in this case and was ¬ned by an Illinois Court for failure to comply
with the court™s order. This is typical stonewalling, and the case is still
pending.

hildale, utah. In the late 19th century in the United States, the Church
of Jesus Christ of Latter-day Saints, also known as the Mormons, prac-
ticed polygamy, which was a divine mandate. The practice was formally
renounced in 1890, roughly 30 years after Congress placed a general ban
on all polygamous practices.41 Today, the mainstream Mormons do not
practice polygamy, though it does feature in their views of the afterlife.42
Various splinter sects have refused to accept the Mormons™ reversal on
polygamy, however, and still practice it today “ despite the fact it is illegal
under state and federal law.
One such group, the Fundamentalist Church of Jesus Christ of Latter-
day Saints, the FLDS, is currently led by Warren Jeffs, who is the
prophet and president and who rules the sect with complete authority.
His nephew, Brent Jeffs, has ¬led suit against the prophet and the FLDS
22 / GOD VS. THE GAVEL


for compensatory and punitive damages alleging that when Brent was
between the ages of four and six, Warren Jeffs and his brothers Leslie and
Blaine Jeffs took Brent out of Sunday School, into a lavatory, and sodom-
ized him.They allegedly told him that the abuse was “God™s work,” done
so that he would “become a man,” and told him he would suffer “eter-
nal damnation” if he ever told anyone.43 Brent allegedly was regularly
passed around between the men during these sessions.44 Although the
leadership of the church knew about the abuse for years, the complaint
alleges the leadership did nothing to stop it.45 The church has strongly
denied all the allegations, and no doubt will respond that it has a First
Amendment right to avoid discovery and the legal theories alleged. This
is a cloistered group that lives outside the bounds of society already, and
therefore is not likely to acquiesce to the application of the law lightly.
Abuse is abuse is abuse, though, and if Brent Jeffs™s allegations turn out to
be true, the defendants deserve both compensatory and punitive damages
assessed against them.
In a similar vein, Arvin Shreeve of the polygamous Zion Society of
Ogden, Utah, pleaded guilty in 1991 to sodomy and sexual abuse of un-
derage girls. In addition, 12 members of his sect, including several women,
were prosecuted and put on the Utah sex offender list, because they used
underage girls as models for their homemade lingerie.46

the united states and british columbia, canada. There is ev-
idence that the FLDS has been transporting underage girls across the
Canadian border to Bountiful, British Columbia, where they are joined
in marriage with much older men in polygamous unions.47 If these facts
are true, it would be a violation of the federal Mann Act, which pro-
hibits anyone from “knowingly transport[ing] an individual who has not
attained the age of 18 years in interstate or foreign commerce . . . with
intent that the individual engage in prostitution, or in any sexual ac-
tivity for which any person can be charged with a criminal offense.”
The Department of Justice does not appear to have taken any action
to stop the practice.48 Complaints to parliament, government tribunals
and press reports allege that girls are quickly married to men some-
times three times their age, forced to have sex, and impregnated as
soon and as often as possible. Because the wives that follow the ¬rst
wife are not legal, typically the girl-wives are left to care for their numer-
ous children with no support from the husband, no education, and no
CHILDREN / 23


means of earning a living; many have no option but to turn to public
assistance.49
The local authorities in Bountiful, Canada, entered into a pact with
the FLDS in the early 1990s entitled the Child Protection Protocol
Agreement.50 It allegedly provided that any child-abuse allegations would
have to be screened by Rulon Jeffs (Warren™s now-deceased father) and
his successor, Winston Blackmore, before local authorities would have
to be contacted, and the elders held the power to decide whether to re-
port alleged child abuse. As one might have expected, there have been
no reports. As with other sexual misconduct within religious institutions,
the rule in Bountiful apparently has been silence. One person testi¬ed
before the Hansard Legislative Assembly that, “[S]ilence is the code word
in Bountiful. No one, under fear of harm, is allowed to talk. The kids are
taught to keep quiet; the women are taught to keep quiet.”51
The FLDS was not the only entity to maintain silence on the issue,
however. For decades, the government in British Columbia paid little
heed to the complaints by women who had escaped from Bountiful.
There appears to have been some misguided thinking that the commu-
nity™s violation of the laws was protected by the constitutional right to the
free exercise of religion.52 In 2004, a number of women ¬led allegations
with the British Columbia Human Rights Tribunal, charging the govern-
ment with permitting “massive contraventions of females™ and children™s
human rights . . . which reduce women and children to chattel status and
oppress their lives, [and which] prevent Bountiful™s women and children
from participating fully in Canada™s economic and social life, as is their
right.”53 The complaint describes the fate of one Deborah Palmer, who
was in the commune between 1957 and 1988. At 15, she was given to
Ray Blackmore, 57, to be his sixth wife, or “concubine,” in the terms of
the complaint, and later to two more husbands. She eventually escaped
with her eight children. Given the alleged inbreeding within Bountiful,
she is stepmother, sister-in-law, and niece all to the same man, Winston
Blackmore. Women are taught to obey the men, or “their souls will burn
for all eternity in Hell,” and that their life™s purpose is to assist the men
in reaching “godhood,” which is attained if the man has many concu-
bines. Merrill Palmer, who is the principal of the Bountiful Elementary-
Secondary School; James Oler, the current bishop of Bountiful; Winston
Blackmore, the former bishop of Bountiful; and the Ministries of the
Attorney-General and Education were the named defendants. Seven
24 / GOD VS. THE GAVEL


women who escaped Bountiful are allegedly willing to come forward,
but only if they are protected by complete anonymity from the FLDS™s
practice of “blood atonement,” which their complaint alleges is violence
against those who dare to challenge the sect.54 In a turnaround from the
government™s previous permissive stance toward Bountiful, the tribunal
has agreed to hear the case, which is still pending.


colorado city, arizona, and hildale, utah. Another arm of the or-
ganization has also established an enclave in the border cities of Colorado
City, Arizona, and Hildale, Utah, where the church need not worry about
the fact that child abuse and polygamy violate state law, because local law
enforcement belong to the church, and acquiesce in the violations.55 The
complete disregard for state and federal law and the arrogation of the right
to make and enforce its own law is about as anarchical as an organization
can get. These groups are discussed in further detail in Chapter 3. The
FLDS™s attitude, though, is just a more extreme version of the pervasive
belief in the United States that religion is above the law.


montreal, canada. A 52-year-old man is being tried on charges of sex-
ual assault of a girl who was 10 years old at the time (and is now 15).
His defense is religious liberty! He claims that he married the girl under
the aegis of the evangelical Christian sect he started. Therefore, to his
way of thinking, he had a legal marriage, the prosecution imposed on
his free exercise of religion and therefore he could not be charged with
sexually assaulting his wife.56 The girl tells a very different story of child-
hood sexual abuse, lasting for several years, while the mother apparently
knew nothing of the abuse. The story is a typical clergy pedophile story,
which started out as charity and ended in tragedy. The family was in dire
straits, with the mother homeless and the children taken from her. Acting
the Good Samaritan, the man helped the mother ¬nd employment and
then restore her custody of her children. He paid for utilities and den-
tal bills and even took vacations and shared the holidays with them. He
even attended parent-teacher conferences at the girl™s school. They were
needy, and apparently he took advantage of every angle to supply himself
with a trusting mother, who worked long hours, and a young, vulnerable
girl.
CHILDREN / 25


woodland, california. For those not familiar with the Jehovah™s
Witnesses, they are the individuals who are seen handing out the Watch-
tower publication in public places. They are a closely knit organization.
Read how one member explained the group on national television:
[A]s a Jehovah™s Witness, you associate only with members in good
standing. And that leaves you in a position where everybody you know,
everybody you trust, everybody you™ve ever known or trusted, is some-
body who™s inside that organization. The threat of being thrown out of
that and shunned from them is one powerful enough [to keep victims
of abuse silent when told to do so by the organization].57
There has been a rule that no charge of abuse would be believed unless
there were two eyewitness accounts,58 a standard that is usually impossible
to satisfy when the crime is adult-on-child sexual abuse.
In a complaint ¬led in 2003, Daniel West and two others alleged that
Timothy Silva, a leader of a Jehovah™s Witnesses “adolescent book stud-
ies”, sexually abused them. By the time the three alleged victims were
ready to ¬le charges, the criminal and civil statute of limitations had long
since expired. Fortunately, they were able to take advantage of California™s
one-year window during 2003 that repealed the statute of limitations for
civil actions involving childhood sexual abuse, no matter when the abuse
occurred.59 According to the complaint, West was 13 years old when the
molestation occurred, and while the church knew about it, it did noth-
ing and did not notify the authorities. Indeed, the church appears to have
taken the offensive and accused him of “participating in homosexual
activity.”
Another one of Silva™s alleged victims, Shane Pence, claimed to have
been sexually attacked for ¬ve years, starting at the tender age of seven.
When his mother reported the abuse to the church, the family was warned
not to contact the authorities and assured that the church would deal with
the issue. The church, in a fashion prototypical of other churches in these
cases, did not notify the police, according to the complaint, which is still
pending.60
The same pattern was evident in the abuse cases of Heidi Meyer and
Amber Long, who told Connie Chung that the Witnesses threatened
“excommunication,” or as they call it, “disfellowship,” if they told the
police.61 When Meyer ¬led suit, the congregation and Watchtower, the
Witnesses™ parent organization, raised the First Amendment as a defense,
26 / GOD VS. THE GAVEL


and the court ruled in their favor. Employing reasoning that is indefensi-
ble in an ordered society, the court ruled that neither the congregation nor
Watchtower had a duty to protect the children, because they had “acted
within their constitutional right to religious freedom, which includes the
authority to ˜independently decide matters of faith and doctrine™ and ˜to
believe and speak what it will.™”62 A church does have a right to speak
and believe at will, but it has no right to use those beliefs to justify ille-
gal conduct. In effect, this reading of the First Amendment immunizes
actions that display callous disregard for society™s most important norms.
One former elder, Bill Bowen, now runs www.silentlambs.org, a web-
site to assist victims of childhood sexual abuse within the Jehovah™s
Witnesses. Bowen claims to have spoken to over 6,000 victims of abuse
by the Witnesses. He says there is a pattern in the abuse cases: When
victims went to the elders, they were told to keep the abuse secret, and
the abusers were permitted to remain in the fold.63 Sometimes the girls
reporting the abuse were banished from their close-knit congregations
and denied contact with fellow members thereafter.64 Those outside
the Witnesses™ world are considered part of Satan™s world, so these girls
were thrown into a society they had been taught is evil and debased.65
Despite the lurid facts involving defenseless children, the Witnesses typ-
ically argue that the institution has a First Amendment right to avoid
criminal and civil liability. Along with other religious organizations, they
have succeeded to date in Maine66 and Connecticut67 in persuading
courts that applying neutral principles of law to their actions would re-
quire them to inquire into the defendants™ beliefs. They have also won
the right, purportedly under the First Amendment, to shun disfavored
members.68
I will explain in Part Two how erroneous this reasoning is, but suf¬ce to
say, the courts that have reached these conclusions have felt that they were
backed into a corner by the reality of the harm and a misunderstanding of
free-exercise guarantees. The Supreme Judicial Court of Maine clearly
stated that it understood the “enormity” of the harm done to children
where sexual abuse is “in¬‚icted in the context of religious activities,”
followed by a rote recitation of the principle that judicial examination
of a religious organization™s conduct is “wholly forbidden by the Free
Exercise Clause of the First Amendment.”69 The good news, as I will
discuss in Part Two, is that an increasing majority of the state courts
contemplating the weighty evidence of massive misconduct by religious
CHILDREN / 27


institutions has ¬gured out that the First Amendment is not a haven for
scoundrels, but rather consistent with the rule of law and the rule of no
harm.

spring¬eld, missouri. A Roman Catholic Church priest, Rev.
Michael Brewer, hosted Michael Gibson and a friend for a sleepover
to watch movies in the rectory. Michael alleged that, at some point in
the morning, Brewer fondled him sexually. When Michael™s parents con-
tacted the diocese to complain, they were allegedly told that “this happens
to young men all the time.” The diocesan authorities added that Michael
“would get over it,” and suggested the Gibsons work it out with Brewer
themselves. When they heard about other boys suffering the same treat-
ment from Brewer, and complained again, the diocese told them that
Brewer had done no more than give Michael “an innocent pat on the
butt,” that they should “forgive and forget,” and that they should move on.
The Gibsons ¬led a lawsuit against Brewer and the diocese that cited nine
neutral principles of law that would have been invoked and applied to
the defendants were they a teacher who fondled a child and a school that
knowingly placed children in the reach of a pedophile: “battery, negligent
hiring/ordination/retention, negligent failure to supervise, negligent in-
¬‚iction of emotional distress, intentional in¬‚iction of emotional distress,
breach of ¬duciary duty, conspiracy, agency liability, and independent
negligence of the Diocese.”70 The defendants denied the allegations and
sought the protection of the First Amendment.
In one of the more extreme and unfortunate decisions in the country,
the Missouri Supreme Court held that the First Amendment immunized
the defendants from the law. According to the court, the action could not
go forward, because the courts were not permitted to “[a]djudicat[e] the
reasonableness of a church™s supervision of a cleric “ what the church
˜should know™“ . . . this would create an excessive entanglement, inhibit
religion, and result in the endorsement of one model of supervision.”71
Thus, a pedophile and a religious institution covering for him were re-
lieved of any civil liability for their actions on the basis of supposed First
Amendment principles.

portland, oregon. Franklin Richard Curtis was an 87-year-old high
priest of the Church of Jesus Christ of Latter-day Saints when he allegedly
sexually abused Jeremiah Scott in 1990 and 1991. Scott was 11 years old at
28 / GOD VS. THE GAVEL


the time, which yields a 76-year difference between the two. Scott sued
the church in 2001, alleging that the church knew that Curtis had abused a
minimum of ¬ve other children in one ward but had not warned anyone.72
Nor were the police noti¬ed, according to the complaint. In another
ward, the bishop also allegedly knew of Curtis™s pedophilic tendencies,
but remained silent, because Curtis repented. The worst part of the story
is next: the complaint alleges that when Curtis asked to live with a family
during his last days, Jeremiah™s mother, Sandra Scott, offered her home,
and the bishop who knew Curtis™s past told her only that it was not a good
idea “ not that she was bringing a pedophile into her home. Because of a
shortage of bed space, Curtis ended up sleeping in Scott™s bed with him,
and for six months, Curtis allegedly abused Scott on a nightly basis.
The court hearing Scott™s case ordered the church to produce any
and all records involving childhood sexual abuse in its ¬les. In what
seems like a scripted response by a U.S. religious organization to claims
of internal childhood sexual abuse, the church declared it had a First
Amendment right to keep its records secret. Before it had to produce the
records, the church settled the case for $3 million. The church™s lawyer,
Von G. Keetch, declared that the case “lacked merit” and the settlement
re¬‚ected only a desire to end costly litigation.73 One can only wonder
at the temerity of religious institutions that have been accused of such
speci¬c crimes and torts yet insist they are settling individual nuisance
suits for millions of dollars.

new york, new york. This is a classic case of pedophilic behavior by a
trusted clergy member “ where the law worked as it should. Seventh Day
Adventist pastor Brian N. Savage was charged with aggravated criminal
sodomy, two counts of criminal sodomy, two counts of aggravated inde-
cent solicitation of a child, and aggravated indecent liberties with a child
for the sexual crimes he committed against a 13-year-old boy, whom he
had groomed to be his victim. At the time of the molestation, Savage was
44, and the victim was one of his parishioners. Savage was friendly with
the victim and began to take on a fatherly demeanor with him. They
emailed each other, with Savage writing, “You are like a son to me,”
and signing off, “Love, Dad.” In the midst of this love and affection, he
sodomized the boy. Some of the sexual abuse occurred in the church.
He pled guilty and was sentenced to 200 months, or roughly 16.6 years, in
CHILDREN / 29


prison.74 Of course, there were other victims. For those victims, Savage
pled guilty and was sentenced to an additional ¬ve years.75

salt lake city, utah. Lynette Earl Franco was allegedly abused in 1986
when she was seven years old by 14-year-old boy. They were both mem-
bers of the same local ward of the Church of Jesus Christ of Latter-day
Saints. For seven years, she repressed the memory, but when she reached
her teens, she needed counseling. She and her parents sought assistance
from the local ward, where they were allegedly told to “forgive, forget,
and seek Atonement.” When they asked for a referral to a mental health
professional, the parents claim their local bishop, Dennis Casaday, and
president, David Christensen, suggested a “doctor,” whose business card
included the phrases, “Individual, Marital, and Family Counseling” and
“General Psychiatry.” The problem with the doctor, according to the
Francos, was that he was not a psychiatrist, and his advice to Lynette and
her parents was to forgive the perpetrator, forget the incidents, and to avoid
going to the police. When they independently found a mental health pro-
fessional, that person reported the sexual abuse to the police, after which
their fellow Mormons “ostracized and denigrated” Lynette. They left
the Church, and sued the Church, Casaday, Christensen, and Browning
(along with the Bountiful Health Center where he “practices”) for clerical
malpractice, gross negligence, negligent in¬‚iction of emotional distress,
breach of ¬duciary duty, intentional in¬‚iction of emotional distress, and
fraud.76
The church and other defendants won on all theories. The Supreme
Court of the State of Utah found that the ¬rst three claims were barred by
the First Amendment™s Establishment Clause, on the theory that it would
have required the court to delve into LDS beliefs. The court was right that
clerical malpractice is not a legitimate theory, because it invites the courts
to determine the standards of care for a clergy member of a particular reli-
gious order. Courts are not allowed to determine or set beliefs within a reli-
gious organization, and clerical malpractice is too close for comfort under
the First Amendment. On the other theories, however, the court™s reason-
ing was far less persuasive. The court read the various negligence theories
as duplications of the clergy malpractice claim, but that is a fundamental
misunderstanding of the law. Clerical malpractice claims would force
the courts to ask what the religious entity would have its clergy do, but
30 / GOD VS. THE GAVEL


negligence requires a determination of what the “reasonable person” in
the circumstances would do. If the person acts unreasonably and has a
duty to act reasonably, he or she is liable for damages. The reasonable
person here would not have aided in perpetrating a fraud against a vul-
nerable sex-abuse victim. At least one hopes that is true! The court would
not have needed to determine the church™s beliefs to reach a negligence
holding, but rather would have had to apply neutral principles to factual
action, regardless of motivation.
The court also rejected the other claims, because the defendants™ ac-
tions were not suf¬ciently “outrageous,” and because the complaint failed
to allege that Casaday and Christensen knew that Browning was not a
licensed psychiatrist. Not every state would have ruled the same way,
but the moral to this case is “believer beware.” Courts can bend over
backward to make sure the religious are protected from accountability
for their bad actions.

virginia, maryland, pennsylvania. The scariest pedophiles are not
the “Stranger Danger” many of today™s adults were warned about as chil-
dren, but rather “nice” guys who know how to operate at a child™s level.
Religious pedophiles, like all pedophiles, exploit whatever pathways they
can to obtain victims, and the Internet is a favored path. In this case, a
Seventh-day Adventist pastor, Barry William Katzer, lured a Virginia boy
to meet him in person after spending four weeks conversing with him
in an Internet chat room. Katzer picked up the boy and took him to a
Maryland motel, where he sexually abused the boy amidst pornographic
magazines and tapes.77 Only an anonymous call to the police about sus-
picious activity at the hotel stopped the abuse. Katzer was sentenced to
11 months in jail after admitting he had sex with the boy.78 Every abused
child should have such a guardian angel.
There has not yet been a religious organization that has defended in-
ternal childhood sexual abuse on the ground that it believed in such
abuse. Rather, these cases are about adults misusing their positions of
authority to prey on trusting children and religious institutions turning
a blind eye to heinous crimes, immoral actions, and the victims™ de-
forming pain. There is no good argument to treat either the perpetrators
or their institutional aides and abettors any differently than any other
CHILDREN / 31


entity harming children. The First Amendment was not intended to fos-
ter social irresponsibility by religious institutions.
The medical neglect cases discussed next are quite different. In these
cases, children sometimes die of untreated medical ailments, but the par-
ents defend themselves on the ground that their actions were compelled
by their belief in prayer over modern medicine. The question is posed
whether parents can make martyrs of their children.


Medical neglect
Religions like the First Church of Christ, Scientist, commonly known
as Christian Science, that rely on faith rather than medicine to cure ill-
ness have obtained a number of exemptions in the states from laws that
normally protect children. For example, all states except Mississippi and
West Virginia permit parents to refuse to vaccinate their children on reli-
gious grounds.79 Many have exemptions from newborn testing.80 There
are also many exemptions from the requirement of providing medical
care to a sick child.
The federal government is partly at fault for the many state exemp-
tions permitting the medical neglect of children. From 1974 to 1983,
the states were required to enact such exemptions to qualify for fed-
eral funding related to children.81 In other words, the states would not
receive federal funding unless they instituted exemptions. It was a clas-
sic carrot-and-stick approach, and roughly 30 states plus the District of
Columbia now have exemptions for religious parents from the medical
neglect laws. In effect, this means that faith-healing parents need not ob-
tain medical care for their children unless the children are near death or
permanent disability,82 and even then, in some states, the parents may be
immunized from manslaughter or felonious murder charges. From the
children™s perspective, the harm is even more imminent than it would
be if the parents were acting out of secular motivation, because in too
many circumstances, the parents either do not recognize serious illness
and imminent death, or they hold the misguided belief that they should
not be subject to the law. Whether they see imminent harm or state in-
terference, they may be motivated to hide their extremely ill children
from the authorities whose job it is to ensure that children do not die or
32 / GOD VS. THE GAVEL


suffer permanent disability from medical neglect. The result is suffering,
unnecessary death, and the martyrdom of children who have not been
permitted to reach adulthood when they could make an informed choice
to live or die for their religious beliefs.
Some may argue that parents have a right to teach their children any
religious belief they choose, and they would be correct. But parents do
not have an unfettered right to act in ways that harm their children,
even if they are acting on religious beliefs. It is now well settled that
religious motivation is no defense to illegal conduct. In addition, the
Supreme Court has explained that children have rights independent of
their parents:

Parents may be free to become martyrs themselves. But it does not follow
that they are free, in identical circumstances, to make martyrs of their
children before they have reached the age of full legal discretion when
they can make that choice for themselves.83

The preeminent right is the right to live, so the exemptions do raise some
interesting constitutional questions whether a child might well have a
constitutional (as well as a statutory) right to receive medical treatment
despite the parents™ beliefs. At the very least, the Constitution does not
prohibit the states from mandating medical treatment for seriously ill
children of faith-healing parents. The religious entities™ capacity to avoid
the child-welfare laws is derived from their political power and moxie,
not any constitutional right.
Despite the value normally placed on life in this society, and the many
laws that deter individuals from causing or permitting others to die, states
frequently provide religious exemptions when the victim is a child. While
abortion has the attention of the American public, deaths of children aris-
ing from religiously motivated conduct have not galvanized the people.
The problem is education. Few “ other than those who bene¬t and the
legislators that grant the bene¬t “ know about or understand the ex-
emptions or their consequences. Yet, exemptions for medical neglect are
pervasive. A total of 32 states provide a defense for felonious child ne-
glect, manslaughter, or murder, where the child™s life was sacri¬ced for
religious reasons, as well as a religious defense for misdemeanors arising
from physical harm to children resulting from medical neglect.84 When
a child dies as a result of the parents™ religious motivation, at least one
CHILDREN / 33


court has taken the position that the contrast between civil exemption
from abuse and generally applicable homicide laws creates enough un-
certainty to deny the religious defendant due process of law.85 In other
words, the current rule in Florida is that an exemption from civil or lesser
causes of action for medical neglect entails an exemption from related
crimes. To be clear, these exemptions are not benign grants of religious
liberty with no victims. They mean that religious parents and caretakers
may not be charged with the crimes speci¬ed when their child dies from
lack of readily available medical treatment. The exemptions erase the de-
terrence function of the criminal laws and enable devout adult believers
who would martyr their children for the parents™ faith to remain a serious
risk to children. They also send a message that it is acceptable to let one™s
child die, if the death is the result of the parents™ belief, which is to say,
the child™s life is not all that valuable. These exemptions are particularly
ironic in states with strong antiabortion measures. It is a familiar lament
among children™s advocates that many in the United States value a fetus™s
right to live more than a child™s.
The Christian Scientists have put signi¬cant pressure on state and
federal legislatures for the purpose of obtaining exemptions from the
medical neglect laws,86 although they are not always the only religious
entity that bene¬ts.87 As the number of exemptions shows, they have
been quite successful. Christian Science theology teaches that modern
medicine is unnecessary, because “[h]ealth is not a condition of matter,
but of Mind,” and that illness is evidence of sin that needs to be treated
by prayer.88 Yet, Christian Science leaders claim that their theology does

. 1
( 13)



>>