. 10
( 13)


§ 2919.22(A) (EWOC); Okla. Stat. Ann. tit. 21, §§ 852(C), 852.1(B), (2002) (omis-
sion to provide for a child); 23 Pa. Cons. Stat. Ann. § 6303 (1991) (EWOC); R.I.
Gen. Laws § 40-11-15 (2004) (cruelty or neglect); S.C. Code Ann. § 20-7-490(2)(c)
(2003) (unlawful conduct toward a child); Tex. Penal Code Ann. § 22.04(k)(2)
(Vernon 2003) (injury to a child); Utah Code Ann. 1953 §§ 62A-4a-101(18)(c),
76-5-110(3)(a), 78-3a-103(1)(s)(iii) (2004) (abuse and neglect); Va. Code Ann.
§ 18.2-371.1(C) (2004) (abuse and neglect); Wash. Rev. Code Ann. §§ 9A.42.005,
26.44.020(3) (2004) (criminal mistreatment); Wis. Stat. Ann. §§ 48.981(3)(c)(4),
948.03(6) (2003) (abuse and neglect).
Many of the statutes listed above can also be a defense for misdemeanors. The
grading of the crime will often depend on the degree of harm. See, e.g., Minn. Stat.
Ann. § 609.378(b)(2) (2004) (endangerment is normally a misdemeanor, however,
if “the endangerment results in substantial harm to the child™s physical, mental,
or emotional health, the person may be sentenced to imprisonment for not more
than ¬ve years . . . ” In such cases, the crime would be a felony.).
Exemptions for misdemeanors (usually Class A): Ala. Code § 13A-13-6(b) (1975);
Alaska Stat. § 11.51.120(b) (1983); Cal. Penal Code § 270 (1988); Kan. Stat. Ann.
§ 21-3608(1)(b) (1995); Wyo. Stat. § 14-3-202(a)(vii); 6-4-403(c) (2004) (Abandon-
ing or endangering children is a misdemeanor for the ¬rst violation, a felony
for the second). See also National Clearinghouse on Child Abuse and
Neglect Information, 2003 Child Abuse and Neglect State Statute Series
Statutes-at-a-Glance (Dept. Health & Human Services 2003), also available
at http://nccanch.acf.hhs.gov/general/legal/statutes/de¬ne.pdf (last visited Oct. 3,
85. Compare Hermanson v. State, 604 So. 2d 775, 782 (Fla. 1992) (“In this in-
stance, we conclude that the legislature has failed to clearly indicate the point at
which a parent™s reliance on his or her religious beliefs in the treatment of his
or her children becomes criminal conduct.”); and State v. McKown, 475 N.W.2d
63, 68-69 (Minn. 1991), cert. denied, 502 U.S. 1036 (1992); with Walker v. Superior
NOTES TO PAGES 33“34 / 323

Court, 47 Cal. 3d 112, 142 (1988) (“The ˜matter of degree™ that persons relying on
prayer treatment must estimate rightly is the point at which their course of conduct
becomes criminally negligent. In terms of notice, due process requires no more.”);
and Hall v. State, 493 N.E.2d 433, 435 (Ind. 1986).
86. See, e.g., Walker, 47 Cal. 3d at 131 n. 11 (describing lobbying activities of
Christian Scientists in California); Caroline Fraser, God™s Perfect Child:
Living and Dying in the Christian Science Church 282 (1999) (hereinafter
God™s Perfect Child).
87. Most religious exemptions are worded in general terms that would extend to
any religious believer relying on faith rather than medicine, but there are statutes
that have been crafted solely with the Christian Scientists in mind. See Children™s
Healthcare Is a Legal Duty, Inc. v. Vladeck, 938 F. Supp. 1466 (D. Minn. 1996)
(holding 42 U.S.C. § 1395x(e) and 42 U.S.C. § 1395x(y)(1), which explicitly referred
to Christian Science practices as unconstitutional). After the church-speci¬c law
was found unconstitutional, Congress responded by passing a broader regulation,
that was not sect speci¬c, although virtually no other religious organization would
satisfy the description. The new regulations, 42 U.S.C.S. § 1395x(ss)(1) and 42
U.S.C.S. § 1395i-5(a)(2), have been held constitutional since they are not facially
discriminatory and a permissible accommodation of religion. Children™s Health-
care Is a Legal Duty, Inc. v. De Parle, 212 F.3d 1084 (8th Cir. 2000), cert. denied,
532 U.S. 957 (2001).
88. Mary Baker Eddy, Science and Health 120, 1 (1994), also available at
http://www.spirituality.com/dt/toc sh.jhtml (last visited Oct. 1, 2004) (hereinafter
Science and Health).
89. God™s Perfect Child, supra note 86, at 337.
90. Spiritual Healing “ A Family Affair, Christian Science Sentinel, July 23,
2001, at 7.
91. See, e.g., Lundman v. McKown, 530 N.W.2d 807, 819 (Minn. Ct. App.
1995), cert. denied, 516 U.S. 1099 (1996) (“Appellants [including Christian Science
Church] challenge the existence of a duty of care and a breach of that duty.”).
92. See id. at 814“15 (When child was not admitted to Christian Science Nursing
Home because he was under 16, his mother considered taking him to the hospital.
She dismissed this idea after the nursing home “proposed hiring a private Christian
Science nurse to come to the McKown home.”); see also What Is a Christian Science
Practitioner?, Christian Science Sentinel, Aug. 30, 2004, at 13 (Answer of Jon
Benzon, practitioner, to the question “Have you ever refused to give someone
treatment?” Benson responded: “Yes, though rarely. . . . I realized that Christian
Science treatment was being asked for to ˜hedge their bets,™ so to speak, while
the patient was also relying on medical treatment.”); Id. at 18 (“What should the
patient™s role be when you are praying for him or her?” Practitioner Leide Lessa
responded: “A patient needs to be sincere. And I can feel it clearly when this
is not the case.”); Robert Peel, Spiritual Healing in a Scienti¬c Age 34
(1987) (hereinafter Spiritual Healing in a Scienti¬c Age) (“Christian Science
treatment and medicine do not mix well.”).
324 / NOTES TO PAGES 34“36

93. Mary Trammell, A Prayer-First Approach to Healthcare, Christian Science
Sentinel, July 23, 2001, at 1.
94. Science and Health, supra note 88, at 4.
95. Spiritual Healing “ A Family Affair, Christian Science Sentinel, July 23,
2001, at 7 (quoting Christian Science practitioner Richard Biever).
96. God™s Perfect Child, supra note 86, at 329. Practitioners pray for the sick,
while nurses tend to their physical needs.
97. Spiritual Healing in a Scienti¬c Age, supra note 92, at 151.
98. See Janna C. Merrick, Christian Science Healing of Minor Children: Spir-
itual Exemption Statutes, First Amendment Rights, and Fair Notice, 10 Issues in
L. & Med. 321 (1994).
99. Some have asserted that the Christian Scientists were the only organization
that asked for the rule. They did not testify, but that is no indication of whether
they sought the rule behind the scenes. See id. at 330 (between 1967 and 1974 “the
church began a widespread lobbying effort to enact laws that would protect its
members from future prosecutions.”).
100. See, e.g., Michael Higgins, Boy™s Death Puts Religious Exemption in Spot-
light, Chi. Trib., Sept. 5, 2003, at C18 (“Forty-one states, including Illinois, have
exemptions in their civil laws, such as those governing when child welfare of¬cials
can remove a child from a home. . . . Some of the laws stem from lobbying by Chris-
tian Science Church members, many of whom use prayer instead of science-based
medicine.”); see also Gayle White, Variety of Faiths Make Views Known at Capitol,
Atlanta J.-Const., February 16, 2002, at 2B.
101. Seth M. Asser, M.D., & Rita Swan, Child Fatalities from Religion-motivated
Medical Neglect, 101 Pediatrics 625 (1998).
102. See 1995 Or. Laws 657 (H.B. 2492). Other states have similar statutes. See
Ark. Code Ann. § 5-10-101(a)(9) (1997) (af¬rmative defense for capital murder);
W. VA. Code § 61-8D-2(d) (2004) (same).
103. The investigation, by Oregon™s medical examiner, showed that at least 21 of
the 78 children who died since 1955 probably would have survived with medical
treatment. Mark Larabee & Peter D. Sleeth, Followers Children Needed Medical
Care, Experts Say, Cleveland Plain Dealer, June 28, 1998, at 21A.
104. Mark Larabee, Bill Aims to Lift All Oregon Religious Shields, Oregonian,
Jan. 22, 1999, at C6.
105. Or. Rev. Stat. § 163.115(4) (2003).
106. See Or. Rev. Stat. §§ 163.115(1); 163.125(2003).
107. Walker, 47 Cal. 3d at 118“19, 138“39, 141.
108. Lawrence J. Goodrich, Christian Scientist™s Case Settled in California,
Christian Science Monitor, June 25, 1990, at 8.
109. See generally Manslaughter Working Group, Report to the (U.S.
Sentencing Guideline) Commission (Dec. 15, 1997), also available at
http://www.ussc.gov/publicat/MANSLAUG.PDF (last visited Oct. 2, 2004) (dis-
cussing median sentences for involuntary manslaughter).
NOTES TO PAGES 37“40 / 325

110. Lundman, 530 N.W.2d at 813“14, 815. The Minnesota Supreme Court re-
versed the punitive damage award, but allowed the compensatory damages (re-
duced by the trial court to $1.5 million) to stand. Id. at 832.
111. Id. at 817, 819, 825.
112. Id. at 816, 832.
113. “Today, many LDS women and men are involved in health care practice
and research. Church members, who are advised to seek medical assistance from
competent licensed physicians, generally believe that advances in medical sci-
ence and health care have come though the inspiration of the Lord.” Cecil
O. Samuelson, Jr., Medical Practices, in 2 Encyclopedia of Mormonism
(1992), also available at http://www.lightplanet.com/mormons/daily/health/
Medical Practices EOM.htm (last visited Oct. 6, 2004). The faith does prescribe a
health regimen: “Among its provisions: no alcoholic drinks, no smoking or chew-
ing of tobacco, and no ˜hot drinks™ “ believed to refer speci¬cally to tea and
coffee. ˜Wholesome herbs,™ along with fruits and grains, are speci¬cally recom-
mended. Meat is to be used sparingly. Church of Jesus Christ of Latter-day Saints,
Health Professionals See Sense in Latter-day Saints™ 170-Year-Old Health Code, at
http://www.lds.org/ newsroom/ showpackage/0,15367,3899-1 “ 44-2-513,00.html (last
visited Oct. 6, 2004).
114. Katy Kelly, A Dangerous Parent Trap, U.S. News & World Rep., Oct. 13,
2003, at 12.
115. MRI Abnormal in Boy Whose Parents Reject Chemotherapy, Chi. Trib.,
Sept. 28, 2003, at 20.
116. Couple Missing after Fleeing with Sick Son, Chi. Trib., Aug. 21, 2003, at 20.
117. Utah Won™t Force Parents to Treat Son, Milwaukee J. Sentinel, Sept. 30,
2003, at 4A; Amy Joi Bryson, Parental Rights Gain Momentum in Senate, Deseret
Morning News (Salt Lake City), Feb. 1, 2005.
118. Dave Wedge, Cult Mom Acquitted in Baby™s Starving Death, Boston
Herald, Feb. 4, 2004, at 8.
119. Marie Szaniszlo, Cultist™s Guilty Plea Expected for Vision That Starved Baby,
Boston Herald, Feb. 10, 2004, at 12.
120. Dave Wedge, Jury Finds Cult Dad Guilty of Killing Son, Boston Herald,
June 15, 2002, at 1.
121. Ted McDonough, Lost Boys Found: How the Plight of Several Young Men
Became a Legal battle to Bring Down a Polygamous Sect, Salt Lake Weekly,
Sept. 23, 2004, also available at http://www.slweekly.com/editorial/2004/feat 2004-
09-23.cfm (last visited Oct. 3, 2004).
122. Id.; see also Pamela Manson, “Lost Boys” File Suit Against FLDS Church,
Salt Lake Trib., Aug. 28, 2004, at B1.
123. Brooke Adams, Polygamy™s “Lost Boys” Need Not Walk Alone, Salt Lake
Trib., Aug. 1, 2004, at B1.
124. See Derrick Nunnally, Minister Gets 30 Months in Boy™s Death, Milwaukee
J. Sentinel, Aug. 18, 2004, at 1B.
326 / NOTES TO PAGES 40“44

125. Commonwealth v. McBurrows, 2001 PA Super. 164, 779 A.2d 509 (2001),
appeal denied, 815 A.2d 632 (Pa. 2002), cert. denied, 124 S.Ct. 60 (2003).
126. Keith Herbert, Pastor Is Sentenced In Beating, Phila. Inquirer, Aug. 28,
127. Jim Vertuno, Two on Trial in Bible Studies Beating, Assoc. Press, Dec. 3,
128. Claire Osborn, Brothers Get Prison Terms for Beating, Austin American-
Statesman (Tex.), Dec. 13, 2003, at B1.
129. Associated Press, Church Members Sentenced on Abuse Charges, Lawrence
J.-World (Kan.), Jan. 7, 2004.
130. Associated Press, Case Involved Restraining Kids with Belts, Cords, Topeka
Capital-J. (Kan.), Feb. 8, 2004.
131. Associated Press, Church Members Sentenced, supra note 129.
132. See Richard Greer, Preacher Convicted in Whipping Faces Jail for Directing
DeKalb Church Beating, Atlanta J.-Const., June 5, 1993, at 1B.
133. Steve Visser & Jill Young Miller, Strong Words End Church Trial, Atlanta
J.-Const., Oct. 15, 2002 at 1B.
134. Jill Young Miller, House of Prayer™s Preacher Leaves Jail, Atlanta J.-Const.,
Jan. 26, 2003, at 7C.
135. Steve Visser, Minister Sentenced to 2 Years, Atlanta J.-Const., Aug. 26,
2003, at 3B.
136. Michael Ferraresi, Teen Reach Founder Fires Back at State, Ariz. Republic,
Apr. 3, 2004, at 1B.
137. The bill has not yet been passed into law.
138. Cara Connelly, Former Students, Prosecutors Question Methods of Some
˜Tough Love™ Schools, KY3 News (Spring¬eld, Mo.), Apr. 30, 2004, available at
http://www.ky3.com/newsdetailed.asp?id=6189 (last visited Oct. 24, 2004).
139. Mo. Rev. Stat. § 210.254 (2004).
140. Paul Pinkham, Is Camp Salvation or Ruin? Children™s Home Again De-
fends Itself against Abuse Complaints, Florida Times-Union, July 13, 2003,
at B1.
141. Paul Pinkham, Second Lawsuit Alleges Abuse at Camp: Harvest Baptist
Church Runs Camp for Troubled Youths, Florida Times-Union, June 7, 2003, at
B1; see also Pinkham, Is Camp Salvation or Ruin?, supra note 140.
142. Jessie-Lynne Kerr, Law & Disorder: Church Settles Abuse Suit, Florida
Times-Union, Nov. 8, 2003, at B3.
143. Pinkham, Is Camp Salvation or Ruin?, supra note 140.
144. Pinkham, Second Lawsuit Alleges Abuse at Camp, supra note 141.
145. Pinkham, Is Camp Salvation or Ruin?, supra note 140.
146. See generally National Assoc. for Regulatory Admin. & The Chil-
dren™s Foundation, 2004 Family Child Care Licensing Study (2004).
147. See Christian Bottorff, Judge Rules Church Is in Contempt, Tennessean,
Sept. 8, 2004, at 1B.
NOTES TO PAGES 45“46 / 327

148. See, e.g., Health Serv. Div., Health & Env™t Dep™t v. Temple Baptist Church,
814 P.2d 130 (N.M. 1991); North Valley Baptist Church v. McMahon, 696 F. Supp.
518 (E.D. Cal. 1988), aff ™d. 893 F.2d 1139 (9th Cir. 1990), cert. denied, 496 U.S. 937
(1990); Michigan Dep™t of Soc. Serv. v. Emmanuel Baptist Preschool, 455 N.W.2d 1
(Mich. 1990); State v. Corpus Christi People™s Baptist Church, Inc., 683 S.W.2d 692
(Tex. 1984), appeal dismissed, 474 U.S. 801 (1985); State ex rel. O™Sullivan v. Heart
Ministries, Inc., 607 P.2d 1102 (Kan. 1980); North Carolina v. Fayetteville Street
Christian School, 258 S.E.2d 459 (N.C. App. Ct. 1979), vacated and remanded
on other grounds, 261 S.E.2d 908 (N.C. 1980), vacated and remanded on other
grounds following reh™g, 265 S.E.2d 387 (N.C. 1980), appeal dismissed, 449 U.S. 807
149. Mo. Rev. Stat. § 210.211(1)(5), (2) (2004). The other states with complete
exemptions are: Alabama (Code of Ala.§ 38-7-3 (2004)); Arkansas (Ark. Code
Ann. §§ 20-78-206, 209(a), 9-28-402 (2004)); Florida (Fla. Stat. § 402.316); Indiana
(Ind. Code Ann. § 2-17.2-2-8(5) (2004)); Maryland (Md. Code Ann. § 5-574(b)
(2004)); North Carolina (N.C. Gen. Stat. § 131D-10.4(1) (2004)); Vermont (Vt.
Stat. Ann. tit. 33, § 3502(b)(3) (2004)). Some states exclude religiously operated
child care from the de¬nition of “child care” and provide the exemption that way.
See, e.g., Michigan (Mich. Comp. Laws § 722.111(1)(e) (2004)); New Hampshire
(N.H. Rev. Stat. Ann. §170-E:3(I)(d) (2004)); New Jersey (N.J. Stat. Ann. §30:5B-
3(b)(3) (2004)). Ohio is slightly different, because the exemption only applies where
the parent, guardian, or custodian are participating in religious services on the same
premises. SeeOhio Rev. Code Ann. § 5104.02(b) (2004)).
150. See Indiana Family and Social Services Administration, et al., The
ABC™s of a Child Care Business 3-4 (3d ed. 2002) (contrasting the require-
ments of licensed facilities with those of facilities registered by ministries to il-
lustrate this point), available at http://www.in.gov/fssa/care¬nder/become/abc.pdf
(last visited Oct. 18, 2004); see also Vermont State Auditor, Review of Child Care
Licensing and Registration by the Child Care Services Division of the Depart-
ment of Social and Rehabilitation Services (December 18, 1997), available at
http://www.state.vt.us/sao/reviews/ch ¬nal.htm (last visited Oct. 18, 2004) (explain-
ing the distinction in Vermont™s dual system).
151. The states are: Delaware (Del. Code Ann. tit. 31, § 343 (2004)); Kansas
(Kan. Stat. Ann. § 65-501 (2003)); Maryland (Md. Code Ann., Fam. Law § 5-
509 (2003)); Massachusetts (Mass. Ann. Laws ch. 28A, § 11 (2004)); Michigan
(Mich. Comp. Laws § 722.111 (2004) which only exempts from licensing “A facility
operated by a religious organization where children are cared for not more than
3 hours while persons responsible for the children are attending religious services.”);
Oklahoma (Okla. Stat. tit. 10, § 403 (2004)); Washington (Wash. Rev. Code
§ 74.15.090 (2004) with an exception only for Native American tribes).
152. Ala. Const. Amend. No. 622 (1999); Ariz. Rev. Stat. §§ 41-1493 to -1493.02
(1999); Conn. Gen. Stat. Ann. § 52-571b (1993); Fla. Stat. Ann. §§ 761.01-.05
(1998); Idaho Code §§ 73-401 to 404 (2000); 775 Ill. Comp. Stat. Ann. 35 (1998);
328 / NOTES TO PAGES 46“47

N.M. Stat. Ann. §§ 28-22-1 to -5 (2000); Okla. Stat. Ann. tit. 51, §§ 251-258 (2000);
Pa. Stat. tit. 71, §§ 2401-2407 (2002); R.I. Gen. Laws §§ 42-80.1-1 to .1-4 (1993); S.C.
Code §§ 1-32-10 to -60 (1999); Texas Civ. Prac. & Rem. Code§§ 110.001 to .012
153. Employment Div. v. Smith, 494 U.S. 872 (1990).
154. Attorney General v. Desilets, 636 N.E.2d 233, 236 (Mass. 1994) (“In inter-
preting [the state constitition], we prefer to adhere to the standards of earlier First
Amendment jurisprudence.”).
155. Rourke v. New York State Dep™t of Correctional Serv, 603 N.Y.S.2d 647,
650 (N.Y. Sup. Ct. 1993), aff™d, 201 A.D.2d 179 (N.Y. App. Div. 1994) (“[I]t is hard
to imagine that New York would not continue to apply a ˜strict scrutiny™ standard
of review, and a balancing of the state™s competing interests and the fundamental
rights of the individual.”).
156. State v. Hershberger, 462 N.W.2d 393, 397 (Minn. 1990) (“Minnesotans
are afforded greater protection for religious liberties against governmental ac-
tion under the state constitution than under the ¬rst amendment of the federal
157. Swanner v. Anchorage Equal Rights Comm™n 874 P.2d 274, 281 (Alaska
1994), cert. denied, 513 U.S. 979 (1994) (“[E]ven though the Free Exercise Clause of
the Alaska Constitution is identical to the Free Exercise Clause of the United States
Constitution, we are not required to adopt and apply the Smith test to religious
exemption cases involving the Alaska Constitution merely because the United
States Supreme Court adopted that test to determine the applicability of religious
exemptions under the United States Constitution. We will apply [the Sherbert
standard], to determine whether the anti-discrimination laws violate Swanner™s
right to free exercise under the Alaska Constitution.”).
158. State v. Miller, 549 N.W.2d 235 (Wis. 1996) (“We hold that our state con-
stitution provides an independent basis on which to decide this case. . . . We will
apply the compelling state interest/least restrictive alternative test.”).
159. First Covenant Church of Seattle v. City of Seattle, 840 P.2d 174, 187
(Wash. 1992) (“State action is constitutional under the free exercise clause of
[the state constitution] if the action results in no infringement of a citizen™s
right or if a compelling state interest justi¬es any burden on the free exercise of
160. Humphrey v. Lane, 728 N.E.2d 1039, 1045 (Ohio 2000) (“[T]he Ohio Con-
stitution™s free exercise protection is broader, and we therefore vary from the federal
test for religiously neutral, evenly applied government actions. We apply a different
standard to a different constitutional protection. We adhere to the standard long
held in Ohio regarding free exercise claims “ that the state enactment must serve a
compelling state interest and must be the least restrictive means of furthering that
161. Rupert v. City of Portland, 605 A.2d 63 (Me. 1992) (quoting and
reaf¬rming Blount v. Department of Educational & Cultural Services, 551
A.2d 1377 (Me. 1988), utilizing the Supreme Court™s pre-Smith free exercise
NOTES TO PAGES 47“52 / 329

162. See In re Browning, 476 S.E.2d 465, 467 (N.C. App. 1996) (applying strict
163. State v. Evans, 796 P.2d 178, 180 (Kan. Ct. App. 1990) (“The Kansas Consti-
tution contains a strong prohibition against religious coercion. We are persuaded
that . . . ˜only those interests of the highest order™ ought to override the free exercise
of religion.™”) (quoting Wright v. Raines, 571 P.2d 26, rev. denied, 222 Kan. 749
(1977), cert. denied 435 U.S. 933 (1978)).
164. Barbara Baird, Youth Groups Fear Specter of Sexual Abuse, L.A. Times,
Sept. 25, 1988, at 4 (quoting psychiatrist and sexual abuse expert, “most of those
identi¬ed [accused] as molesters are never booked; most of those who are booked
are dismissed without charges. And any charges are often negotiated down so that
they are not recognizable as a sexual crime. The effective child molester will be
active all his life without attracting accusations. Only the inept losers get caught.”).
165. See supra note 8 (describing coverage).
166. 2 Paths, No Easy Solution, supra note 39.

3. Marriage
1. Goodridge v. Dep™t of Pub. Health, 440 Mass. 309, 313“14 (2003).
2. Id. at 320“21.
3. Opinions of the Justices to the Senate, 440 Mass. 1201, 1205“1206 (2004).
4. See Terence Neilan, High Court in Massachusetts Rules Gays Have Right
to Marry, N.Y. Times, Nov. 18, 2003, available at http://www.nytimes.com/2003/
11 /18/national/18CND-GAYS.html?ex=1097640000&en=cb3367646f6d6b61&ei=
5070&hp (last visited Oct. 11, 2004); see also Pam Belluck, Same-sex Marriage: The
Overview, N.Y. Times, Nov. 19, 2003, at A1 (quoting Tony Perkins of the Family
Research Council: “[I]t is inexcusable for this court to force the state Legislature
to ˜¬x™ its state constitution to make it comport with the pro-homosexual agenda
of four court justices.”).
5. Beliefnet, Reactions to the Massachusetts Supreme Court Ruling, at http://
www.beliefnet.com/story/136/story 13603 1.html (last visited Oct. 12, 2004) (quoting
Brian Fahling, Senior Trial Attorney, AFA [American Family Association] Center
for Law & Policy).
6. Elizabeth Mehren, Mass. High Court Backs Gay Marriage, L.A. Times, Nov.
19, 2003, at A1 (quoting Roberta Combs, Pres, Christian Coalition of America).
7. See Pam Belluck, Same-sex Marriage: The Overview, supra note 4 (quoting
President George W. Bush).
8. Rose Arce, Massachusetts Court Upholds Same-sex Marriage, CNN, Feb. 6,
2004, available at http://www.cnn.com/2004/LAW/02/04/gay.marriage/ (last visited
October 11, 2004) (quoting President George W. Bush).
9. See Marriage Protection Amendment, H.R.J. Res. 106, 108th Cong. (Sept. 23,
2004), also available at http://thomas.loc.gov/cgi-bin/query/z?c108:H.J.res.106: (last
visited Oct. 12, 2004); H.R.J. Res. 56, 108th Cong. (May 21, 2003). Marriage Protec-
tion Act of 2004, H. R. 3313, 108th Cong. (passed in the House of Representatives
on July 22, 2004).
330 / NOTES TO PAGES 52“56

10. “The Musgrave Federal Marriage Amendment”: Hearing Before the Subcomm.
on the Constitution of the House Comm. On the Judiciary, 108th Cong. (May 13,
2003) (statement of U.S. Rep. Marilyn Musgrave), also available at http://www.
house.gov/judiciary/musgrave051304.htm (last visited Oct. 13, 2004). The proposed
Federal Marriage Amendment resolution stated: “Marriage in the United States
shall consist only of the union of a man and a woman. Neither this Constitution or
the constitution of any State, nor state or federal law, shall be construed to require
that marital status or the legal incidents thereof be conferred upon unmarried
couples or groups.” H.R.J. Res. 56, 108th Cong. (May 21, 2003).
11. “Limiting Federal Court Jurisdiction to Protect Marriage for the States”:
Hearing Before the Subcomm. on the Constitution of the House Comm. On
the Judiciary, 108th Cong. (June 24, 2004) (statement of Former U.S. Rep.
William E. Dannemeyer), also available at http://www.house.gov/judiciary/
dannemeyer062404.pdf (last visited Oct. 13, 2004). There were 19 Senator co-
sponsors to the joint resolution to amend the Constitution to forbid gay marriage
(S.J.RES.40), and 131 Representatives (H.J.RES.56).
12. Editorial: Call Congress Now; Urge Support for Marriage Amendment Dur-
ing Sept. 30 Vote, Sept. 24, 2004, Baptist Press, available at http://www.bpnews.
net/bpnews.asp?ID=19174 (last visited Oct. 15, 2004).
13. Jerry Falwell Ministries, Petition for Support of the Federal Marriage Amend-
ment, available at http://www.onemanonewoman.com/ (last visited Oct. 15, 2004).
14. Robert P. George, One Man and One Woman, Wall Street J., Nov. 28,
2003 at A8.
15. Matthew D. Staver, Why Do We Need a Federal Marriage Amendment?,
in Same-Sex Marriage: Putting Every Household at Risk (2004), available
at http://www.lc.org/ProFamily/FMA why we need04.htm (last visited Oct. 15,
16. See National Briefs: Polygamist™s Appeal Based on Gay Sex Ruling, Houston
Chron., Dec. 2, 2003, at A17; Complaint, Bronson v. Swenson, No. 04-CV-0021
(D. Utah ¬led Jan 12, 2004), also available at http://marriagelaw.cua.edu/Law/
cases/ut/Complaint.pdf (last visited Oct. 12, 2004).
17. See Angie Welling, Green™s Conviction Is Upheld by Ruling, Deseret Morn-
ing News (Salt Lake City), Sept. 4, 2004, also available at http://deseretnews.
com/dn/view/0,1249,595089043,00.html (last visited Oct. 12, 2004).
18. See Complaint, Bronson v. Swenson, No. 04-CV-0021 (D. Utah ¬led Jan
12, 2004), also available at http://marriagelaw.cua.edu/Law/cases/ut/Complaint.pdf
(last visited Oct. 12, 2004).
19. Id.
20. Press Release, Alliance for Marriage, Introduction of the Federal Mar-
riage Amendment in Congress, (May 15, 2002) (on ¬le with author), also available at
www.allianceformarriage.org/site/PageServer?pagename=mac coalition statement
(last visited Oct. 15, 2004).
21. Vatican Of¬ces of the Congregation for the Doctrine of the Faith, Considera-
tions Regarding Proposals to Give Legal Recognition to Unions Between Homosexual
NOTES TO PAGES 56“57 / 331

Persons, June 23, 2003, at ¶ 4 (approved by Pope John Paul II on Mar. 28, 2003), also
available at http://www.vatican.va/roman curia/congregations/cfaith/documents/
rc con cfaith doc 20030731 homosexual-unions en.html (last visited Oct. 15,
22. Dennis M. Mahoney, Is Homosexuality a Sin?, Columbus Dispatch (Ohio),
Sept. 12, 2003, at F1.
23. See id.
24. Bill Graves, Faiths Clash on Gay Marriage, Oregonian, Sept. 19, 2004,
at B1.
25. Don Lattin, Black Clergy Gathering to Fight Gay Matrimony, S.F. Chron.,
May 15, 2004, at A4.
26. Alliance Defense Fund, What We Believe: Faith Mission, available at
http://www.alliancedefensefund.org/about/whatwebelieve.php# (last visited Oct.
13, 2004).
27. Alliance Defense Fund, Protecting Family Values, at http://www.
alliancedefensefund.org/issues/familyvalues.php (last visited Oct. 15, 2004).
28. See Alan Cooperman, Opponents Of Gay Marriage Divided, Wash. Post,
Nov. 29, 2003, at A1 (interviewing Matt Daniels, President of Alliance for Marriage);
see also Mathew D. Staver, Esq. et al., Letter on behalf of The Liberty Counsel, The
Federal Marriage Amendment Preserves Marriage as the Union of One Man and One
Woman and is Consistent with Constitutional Jurisprudence and Federalism, Jul. 10,
2004, available at http://www.lc.org/marriage/fma memo senate 071004.pdf (last
visited Oct. 12, 2004); Editorial: Call Congress Now; Urge Support for Marriage
Amendment During Sept. 30 Vote, Baptist Press, Sept. 24, 2004, available at
http://www.bpnews.net/bpnews.asp?ID=19174 (last visited Oct. 12, 2004).
29. See Press Release, Cardinal Adam Maida, Archbishop of Detroit, An
Open Letter to Michigan™s United States Senators [Levin and Stabenow], July 2,
2004 (on ¬le with author), also available at http://www.aodonline.org/aodonline-
sqlimages/ PressReleaseStatements/Maida/040702letter senators.pdf (last visited
Oct. 12, 2004). Orthodox Jews also support the Amendment. See Press Release,
Union of Orthodox Jewish Congregations of America, Union Of Orthodox Jewish
Congregations Supports Constitutional Marriage Amendment, July 13, 2004
(on ¬le with author), also available at http://www.ou.org/public/statements/2001/
nate31.htm (last visited Oct. 24, 2004).
30. Todd Hertz, Christian Conservatives Split on Federal Marriage Amendment,
Christianity Today.com, June 20, 2004, available at http://www.christianitytoday.
com/ct/2002/123/43.0.html (last visited Oct. 12, 2004) (discussing divide among
Christian conservatives whether FMA was adequate to ensure there would be
no marriages in the United States other than heterosexual).
31. See, e.g., Human Rights Campaign, Organizations Opposed to a Fed-
eral Anti-Marriage Rights Constitutional Amendment (as of May 13, 2004),
at http://www.hrc.org/Template.cfm?Section=Center&CONTENTID=17630&
TEMPLATE=/ContentManagement/ContentDisplay.cfm (last visited Oct. 12,
332 / NOTES TO PAGES 57“62

32. See James D. Besser, Gay Marriage Debate Now Embroiling Jews, Jew-
ish Week, Mar. 12, 2004, available at http://www.thejewishweek.com/news/
newscontent.php3?artid=9179 (last visited Oct. 11, 2004).
33. Lawrence v. Texas, 539 U.S. 558 (2003).
34. Harold O. J. Brown, A Decisive Turn to Paganism, 48 Christianity Today 39
(Aug. 2004), also available at http://www.christianitytoday.com/ct/2004/008/24.39.
html (last visited Oct. 15, 2004).
35. Diana L. Eck, A New Religious America: How A “Christian Country”
Has Become the World™s Most Religiously Diverse Nation (2001).
36. Id. at 1.
37. Lee Duigon, Why Is This Happening? “Gay Marriage” as a Scourge,
Chalcedon Foundation, Mar. 6, 2004, available at http://www.chalcedon.
edu/articles/ 0403/040306duigon.php (last visited Oct. 12, 2004).
38. See Michael Paulsen, Protestants Weigh Same-Sex Marriage, Boston
Globe, Nov. 30, 2003, at B10; Don Lattin, Rabbinical Group Backs Gay Mar-
riage, S. F. Chron., Mar. 20, 2004, at A2.
39. Sharon Sheridan, New Same-sex Rites Resolution Emerges, Episcopal
News Service, Aug. 3, 2003, available at http://www.episcopalchurch.org/3577
17813 ENG HTM.htm (last visited Oct. 13, 2004); Lydia Polgreen, Episcopalians
Ponder New Gay Bishop, N.Y. Times, Aug. 11, 2003, at A4.
40. The Lambeth Commission on Communion, The Windsor Report
2004, at ¶¶ 3, 157 (Anglican Communion Of¬ce, London 2004), also
available at http://windsor2004.anglicancommunion.org/windsor2004/downloads/
windsor2004full.pdf (last visited Oct. 25, 2004).
41. Proceeding with Gay Unions “ Same-sex Marriages, Christian Cen-
tury, Aug. 16, 2000, also available at http://www.¬ndarticles.com/p/articles/
mi m1058/is 23 117/ai 65014567 (last visited Oct. 13, 2004).
42. Id.
43. Id.
44. Id.
45. Id.
46. See Richard Cameron Blake & Lonn Litch¬eld, Religious Freedom in South-
ern Africa: The Developing Jurisprudence, 1998 B.Y.U.L. Rev. 515, 521 (1998) (“The
Dutch Reformed Church (known in Afrikaans as Nederduitse Gereformeerde
Kerk (NGK)) provided the moral and philosophical underpinnings for National-
ist apartheid policies. It also gave support to particular laws and made statements
supporting the government™s actions.”).
47. Dunbar Rowland, 1 Jefferson Davis 286 (1923).
48. Ephesians 6:5“9 (Jerusalem Bible).
49. See William H. Seibert, The Underground Railroad from Slavery
to Freedom 93“99 (1968) (discussing the role of Quakers and Methodists in the
crusade against slavery).
50. For example, the Christian Legal Society was part of a coalition supporting
the Freedom from Religious Persecution Act of 1998, see H.R. 2431, 105th Cong.
NOTES TO PAGES 62“66 / 333

H3,267“69 (May 14, 1998), during the same year they supported the Religious
Liberty and Charitable Donation Protection Act of 1998, see H.R. 2604, 105th
Cong. H4,001 (June 03, 1998).
51. Policy Responses to the Denial and Restriction of Religious Liberty in
the People™s Republic of China: Hearing Before the United States Commis-
sion on International Religious Freedom (Mar. 16, 2002) (Prepared Statement
of Rev. Drew Christiansen, S.J., Woodstock Theological Center [Georgetown
University] Washington, D.C.), also available at http://www.uscirf.gov/hearings/
16mar00/christiansenPT.php3 (last visited Oct. 15, 2004).
52. See Harold J. Berman, Law and Revolution II: The Impact of the
Protestant Reformations on the Western Legal Tradition 209“10, 215“16
(2003) (Between 1630 and 1640, an estimated twenty thousand religious dissenters
¬‚ed to the Massachusetts Bay Colony, and a similar number emigrated to the
Netherlands); see also Robert E. Rodes, Jr., Law and Modernization in the
Church of England: Charles II to the Welfare State 81 (1991); 1 William
S. Holdsworth, A History of English Law (7th ed. 1956).
53. 539 U.S. 558 (2003).
54. Id. at 578.
55. Id.
56. Id. at 590 (Scalia, J. dissenting).
57. Harold O.J. Brown, A Decisive Turn to Paganism, supra note 34.
58. Id.
59. In re Kandu, No. 03-51312, 2004 WL 1854112, at — 9“10 (Bankr. W.D. Wash.
Aug. 17, 2004) (distinguishing Goodridge on the basis of the more protective Mas-
sachusetts Constitution and holding that “there is no basis for this Court to unilat-
erally determine at this time that there is a fundamental right to marry someone
of the same sex”). In similar cases, an appeals court in Oregon held that the state
deprived same-sex couples of fundamental rights by not allowing same-sex mar-
riage and found the statute unconstitutional. Li v. State, No. 0403-03057, 2004 WL
1258167, slip. op. at — 10, (Or. Cir. Apr. 20, 2004), and a trial court in New Jersey
decided two weeks before Goodridge that “[t]here is nothing in the New Jersey
Constitution or the judicial decisions in this State to support the conclusion that
same-sex marriage is a fundamental right.” Lewis v. Harris, No. MER-L-15-03, 2003
WL 23191114, at — 16 (N.J. Super. Ct. Nov. 5, 2003).
60. Kate Zernike, Groups Vow Not to Let Losses Dash Gay Rights, N.Y. Times,
Nov. 14, 2004, at 30.
61. Anti-Polygamy Acts (the Morrill Act), ch. 126, 12 Stat. 501 (1862) (repealed
1910). The only reference to polygamy in the current U.S. Code deals with
immigration law (Inadmissible aliens include “Practicing polygamists. Any im-
migrant who is coming to the United States to practice polygamy is inadmissible.”
8 U.S.C.S. § 1182 (a)(10)(A) (2004)).
62. American Heritage Dictionary of the English Language (4th ed.
2000), also available at http://www.bartleby.com/61/41/P0424100.html (last visited
Oct. 17, 2004).
334 / NOTES TO PAGES 66“69

63. American Heritage Dictionary of the English Language (4th
ed. 2000), also available at http://www.bartleby.com/61/48/P0424800.html (last vis-
ited Oct. 17, 2004).
64. Lawrence, 539 U.S. at 578.
65. Reynolds v. United States, 98 U.S. 145, 166 (1879) (“Laws are made for the
government of actions, and while they cannot interfere with mere religious belief
and opinions, they may with practices.”).
66. Id. at 166“76.
67. State v. Barlow, 153 P.2d 647, 653 (Utah 1944).
68. Hunting Bountiful: Ending Half a Century of Exploitation, Economist
(London), July 8, 2004.
69. Daphne Bramham, Editorial: See No Evil, Hear No Evil, Speak No
Evil: Local People and Politicians Are Uncomfortable That Police and State Are
Opening the Closed Doors at Bountiful, Vancouver Sun (B.C.), Aug. 21, 2004
at C7.
70. Opinion: B.C. Must Confront Polygamy Abuse, Edmonton Journal (Alta.),
Sept. 13, 2004, at A14 (despite doubts in the B.C. government whether the anti-
polygamy law would survive free exercise scrutiny, “Canada™s Justice Minister Irwin
Cotler, however, is con¬dent the law would stand.”).
71. 401 U.S. 437 (1971).
72. Id. at 461.
73. See Angie Welling, Green™s Conviction Is Upheld by Ruling, Deseret
Morning News (Salt Lake City), Sept. 4, 2004 (quoting Green™s attorney John
Bucher on his plans to appeal to the Supreme Court because “It™s got to be appealed.
It can™t stand. . . . ”); see also Complaint, Bronson v. Swenson, No. 04-CV-0021 (D.
Utah ¬led Jan 12, 2004).
74. See, e.g., Davis v. Beason, 133 U.S. 333, 348 (1890); Reynolds, 98 U.S. at 166;
White v. United States, No. 01-4225, 41 Fed. Appx. 325, 326 (10th Cir. May 23, 2002);
Potter v. Murray City, 760 F.2d 1065, 1070 (10th Cir 1985); In re State in Interest of
Black, 283 P.2d 887, 903“904 (Utah 1955); State v. Barlow, 153 P.2d 647, 653 (Utah
1944); United States v. Snow, 9 P. 697, 700“701 (Utah 1886).
75. In re State in Interest of Black, 283 P.2d at 904 (emphasis in original).
76. Republican Platform of 1856, in 1 National Party Platforms 1840“1972,
at 27, 27 (Donald B. Johnson & Kirk H. Porter eds., 5th ed. 1975).
77. See Sarah Barringer Gordon, Symposium, A War of Words: Revelation and
Storytelling in the Campaign Against Mormon Polygamy, 78 Chi.-Kent. L. Rev.
739, 747“57 (2003).
78. See Susan Mazur, Seven Brides for One Brother: Plural Marriage Is Rife
in the Western United States, Financial Times (London), Oct. 28, 2000, at 1;
Fabian Dawson, 13 Year Old Sent to B.C. for Husband, Province (Vancouver,
B.C.), Dec. 16, 2000, available at http://www.rickross.com/reference/polygamy/
polygamy50.html (last visited Sept. 26, 2004); The Canadian Home of Polygamy,
CBC News (Canada), Jan. 15, 2003, transcript available at http://www.rickross.
NOTES TO PAGES 69“71 / 335

com/reference/polygamy/polygamy99.html (last visited Sept. 26, 2004). The Mann
Act provides, in pertinent part: “A person who knowingly transports 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 activity for
which any person can be charged with a criminal offense. . . . ” 18 U.S.C. § 2423 (a)
79. Cleveland v. United States, 329 U.S. 14, 20 (1946).
80. Grants for Outreach To Target Populations under the Traf¬cking in Per-
sons Program, U.S. Department of Health and Human Services, Administra-
tion for Children and Families (ACF), Of¬ce of Refugee Resettlement, Fund-
ing Opportunity No. HHS-2004-ACF-ORR-ZV-0006 (¬led Jul. 29, 2004), available
at http://www2.acf.hhs.gov/grants/open/HHS-2004-ACF-ORR-ZV-0006.html (last
visited Oct. 16, 2004).
81. See, e.g., United States v. Cole, 262 F.3d 704 (8th Cir. 2001); United States
v. Draper, No. 98-10082, 1999 U.S. App. LEXIS 10990 (9th Cir. May 25, 1999);
United States v. Niece, No. 93-5011, 1993 U.S. App. LEXIS 27327 (6th Cir. Oct.
19, 1993).
82. John Dougherty, Janet™s Missed Opportunity: Governor Napolitano Went
to Utah, and All We Got Was Some Lousy Ring Kissing, Phoenix New Times,
Oct. 7, 2004, also available at http://www.phoenixnewtimes.com/issues/2004-10-
07/news/dougherty.html (last visited Oct. 16, 2004).
83. Joseph A. Reaves, Troubles Dogging Polygamy Prophet, Arizona Republic,
Aug. 1, 2004, at 1A (listing “key dates” for FLDS).
84. Amanda J. Crawford, Polygamy Town Gets Outside Aid, Arizona Republic,
Aug. 10, 2004, at 3B.
85. See, e.g., Brooke Adams, Polygamy™s “Lost Boys” Need Not Walk Alone,
Salt Lake Trib., Aug. 1, 2004, at B1; Patty Henetz, Krakauer Still Vexed by
FLDS, Deseretnews.com (Salt Lake City), July 31, 2004, available at http://
deseretnews.com/dn/print/1,1442,595081003,00.html (last visited Oct. 16, 2004);
Nancy Perkins, FLDS Church, Leaders Sued by 6 “Lost Boys”, Deseret Morning
News (Salt Lake City), Aug. 28, 2004.
86. Travis Reed, Group Calls Utah Soft on Polygamy, Florence News (Ariz.),
July 15, 2004, available at http://www.zwire.com/site/news.cfm?newsid=12354937&
BRD=1817&PAG=461&dept id=222076&r¬=8 (last visited Oct. 16, 2004).
87. Patrice St. Germain, Utah Gets Grant for Rural Communities: Money Will
Be Used to Help Domestic Violence Victims in Polygamous Colonies, Spectrum
(St. George, Utah), Aug. 31, 2004.
88. Mindelle Jacobs, Blind Eye Turned to Forced Polygamy, Edmonton Sun
(Alta.), June 12, 2004, at 11.
89. Kevin Martin, Editorial: Leave Bountiful to Courts, Calgary Sun (Alta.),
July 29, 2004, at 15.
90. Melissa Ridgen, Commune Cop Probe Welcomed, Calgary Sun (Alta.), July
24, 2004, at 2.
336 / NOTES TO PAGES 71“74

91. Letter from Seven Complainants, former wives or concubines at Bountiful
commune, to Tribunal Members, B.C. Human Rights Tribunal 1 (May 19, 2004)
(on ¬le with author); see also Ethan Baron, British Columbia Failed Commune™s
Women, Girls, Complaint Alleges, National Post (Vancouver B.C.), Sept. 1, 2004,
at A6.
92. Bill Laye, Caution Urged in Cult Case, Calgary Sun (Alta.), July 30, 2004,
at 2.
93. Editorial: More Perfect Unions, Salt Lake Trib., Aug. 15, 2004.
94. Brian Barnard, Public Forum Letters, Salt Lake Trib., Aug. 22, 2004.
95. Andrea Moore-Emmett, Inherently Destructive, Salt Lake Trib., Aug. 31,
2004, at A12.
96. Jonathan Turley, Polygamy Laws Expose Our Own Hypocrisy; Rights Should
Be Based on Principle, Not Popularity, USA Today, Oct. 4, 2004, at A13.
97. Id.
98. Associated Press, Judge Upholds Charges Against Wesson, L.A. Times, Apr.
13, 2004 at B7 (“Police said Wesson engaged in a lifestyle of incest and polygamy,
fathering children with his own daughters and nieces. They allege that he held
total control over his family and likened himself to God.”).
99. See, e.g.,In re Conduct of Kirkman, 830 P.2d 206, 207 (Or. 1992) (disbarring
a judge accused of bigamy and saying “These were not ˜victimless™ crimes. The
accused™s duplicity existed over a period of years, causing injury and humiliation
to both of his families.”); Lateef Mungin, Alleged Bigamist May Have Fled to
Tennessee, Atlanta J.-Const., Nov. 5, 2003, at 4J (describing allegations against
Anthony Glenn Owens, “who may have been married to at least nine women
at the same time” and married the “women to steal money from them.”); John
Ellement, Bigamist Sentenced for Theft of Funds, Boston Globe, February 27,
2003, at B2.
100. Press Release, Tapestry Against Polygamy, June 18, 2004, (on ¬le with au-
thor), also available at http://www.polygamy.org/releases.shtml (last visited Oct. 14,
101. Andrea Moore-Emmett, God™s Brothel: The Extortion of Sex
for Salvation in Contemporary Mormon and Christian Fundamentalist
Polygamy and the Stories of 18 Women Who Escaped (2004) [hereinafter
God™s Brothel].
102. Email from Nancy Mereska, Coordinator, Stop Polygamy in Canada, to
Marci A. Hamilton, Oct. 18, 2004 (on ¬le with author).
103. See, e.g., God™s Brothel, supra note 101, at 38; Todd Compton, In Sacred
Loneliness: the Plural Wives of Joseph Smith 199 (1997).
104. No Child Left Behind Act of 2001, 20 U.S.C. §§ 6301 et seq. (2004). “The
purpose of this title is to ensure that all children have a fair, equal, and signi¬cant
opportunity to obtain a high-quality education and reach, at a minimum, pro¬-
ciency on challenging State academic achievement standards and state academic
assessments.” 20 U.S.C. § 6301.
NOTES TO PAGES 74“75 / 337

105. Mike D™Amour, Sect Wives Defend Lives: Women Say Polygamy Choice Is
Theirs, Calgary Sun (Alta.), July 29, 2004, at 4.
106. See Brooke Adams, Plural Wives Defend Lifestyle, Salt Lake Trib.,
Feb. 13, 2004, at C1. See also Mary Batchelor, et al., Voices in Harmony:
Contemporary Women Celebrate Plural Marriage (2000) (a collection
of essays by women who are living in polygamous marriages supporting their
lifestyle); see also Catherine Elsworth, Investigation Launched into Polygamous Sect
Dubbed “Canada™s Dirty Little Secret,” Daily Telegraph (London), Aug. 5, 2004,
at 14.
107. Rasheed Oluwa, In Marriage, Three™s a Crowd “ And a Crime, Poughkeep-
sie Journal (N.Y.), Apr. 28, 2003, at 1A.
108. Naomi Schaefer Riley, Yes, Polygamy Is Everybody™s Business, L.A. Times,
Feb. 9, 2004, at 11.
109. See Nicholas Bala and Rebecca Jaremko Bromwich, Context and Inclusiv-
ity in Canada™s Evolving De¬nition of the Family, 16 Int™l J. L. Pol™y & Fam. 145,
169 (2002) (quoting Flanagan: “ ˜the historical record shows that monogamy, like
private property, is indispensible to constitutional democracy . . . Constitutional
government has emerged only in societies where monogamy was the legally en-
forced, or at least the commonly observed, social norm . . . The modern adoption
of constitutional democracy in non-Western societies such as Japan and India has
been accompanied by the parallel acceptance of monogamy. Those regions of the
world where polygamy is still practiced . . . are precisely the areas where constitu-
tional democracy has made the least progress.™ ”).
110. See John Dougherty, Double Exposure: Arizona™s Finally Followed Utah™s
Lead and Launched Serious Action to Stop Abuses by Polygamists, Phoenix New
Times (Ariz.), Dec. 25, 2003; see also Mark Havnes, Hildale Polygamist Guilty of
Unlawful Sex, Bigamy, Salt Lake Trib., Aug. 15, 2003, at A1 (“FLDS members
believe taking plural wives is a direct commandment from God, to be followed
even if it means violating civil law.”).
111. John Dougherty, Blasphemous Backlash, Phoenix New Times (Ariz.),
Jan. 29, 2004.
112. John Dougherty, Bound by Fear: Polygamy in Arizona, Phoenix New Times
(Ariz.), Mar. 13, 2003 (reporting what Ruth Stubbs says Jeffs told her when she
considered leaving the sect).
113. Reuters, Taliban Ally Urges Afghans to Boycott Elections, Navhind
Times (India), Sep. 3, 2004, available at http://www.navhindtimes.com/stories.
php?part=news&Story ID=090362 (last visited Oct. 16, 2004).
114. Polygamy Law Streamlined, Daily Express (East Malaysia), Aug. 12,
115. Dorothy L. Hodgson, Women™s Rights as Human Rights: Women in
Law and Development in Africa (WiLDAF), 49 Africa Today 3 (2002), also
available at http://iupjournals.org/africatoday/aft49-2.html (last visited Oct. 26,
338 / NOTES TO PAGES 75“80

116. Campaign Against Polygamy & Women Oppression In Nigeria and Africa,
available at http://www.tk-one.com/ (last visited Oct. 24, 2004) (explaining the
beliefs of the organization).
117. Traci Mayette, Interview, A Conversation with Dr. Mojubaolu Olufunke
Okome, reprinted in 10:2 Africa Update Newletter (2003), also available at
http://www.ccsu.edu/Afstudy/upd10-2.html (last visited Oct. 26, 2004).
118. Phillip Bobbitt, Africa™s Plight “ The 2050 Scenario, The Globalist (On-
line Magazine), Jan. 10, 2004, available at http://www.theglobalist.com/DBWeb/
StoryId.aspx?StoryId=3681 (last visited Oct. 26, 2004).
119. General Recommendation 21 on Equality in Marriage and Family Relations,
Comm. on the Elimination of Discrimination Against Women, 13th Sess., at 14,
U.N. Doc. A/49/38 (1994). President Jimmy Carter signed it on July 17, 1980, but
the Senate never rati¬ed it. “Both last fall and for years beforehand, the vigilance
of Sen. Jesse Helms (R-NC), a longtime opponent of measures that compromise
U.S. sovereignty, was the dominant reason why CEDAW never came up for rati-
¬cation.” Melana Zyla Vickers, The Convention on the Elimination of All Forms
of Discrimination Against Women: A Leading Example of What™s Wrong With In-
ternational Law 2, Federalist Society for Law and Public Policy Studies,
available at www.fed-soc.org/Intllaw& AmerSov/CEDAWvic.pdf (last visited Oct.
17, 2004).

4. Religious Land Use and Residential Neighborhoods
1. Zoning and Land use Controls § 40.03 (Matthew Bender 2002) (hereinafter
Zoning and Land use Controls).
2. Allison B. Cohen, Neighbors Divided, L.A. Times, April 25, 2004, at K1 (here-
inafter Neighbors Divided).
3. Zoning and Land use Controls, supra note 1.
4. See generally Scott Thumma, Exploring the Megachurch Phenomena: Their
Characteristics and Cultural Context (Hartford Inst. for Relig. Research 2000),
available at http://hirr.hartsem.edu/bookshelf/thumma article2.html (last visited
Oct. 29, 2004); see also Gustav Niebuhr, Where Religion Gets a Big Dose of
Shopping-Mall Culture, N.Y. Times, Apr. 16, 1995, at A1; Patricia Leigh Brown,
Megachurches as Minitowns, N.Y. Times, May 9, 2002, at F1; Lisa Shafer & Jack
Brown, Church Center™s Pro¬le Brings Fears: Bensalem™s Christian Life Complex
Goes Far Beyond Sunday Services, Phila. Inq., May 14, 1999, at B1 (hereinafter
Church Center™s Pro¬le Brings Fears).
5. Haya El Nasser, Megachurches Clash with Critics Next Door, USA Today,
Sept. 23, 2002, at 1A (discussing Brentwood Baptist Church in Houston, Texas).
6. Daniel B. Wood, Cathedral Re¬‚ects a New Vision of Church, Christian
Science Monitor, Sept. 9, 2002, at 3 (quoting religious architecture expert Jeanne
Kilde of Macalester College in St. Paul, Minn.).
7. See David A. Roozen, Denominations Grow as Individuals Join Congrega-
tions, in Church and Denominational Growth 20“28 (1993), also available
NOTES TO PAGES 80“86 / 339

at http://hirr.hartsem.edu/bookshelf/Church&Denomgrowth/ch&dngrw-ch1.pdf
(last visited Oct. 30, 2004); C. Kirk Hadaway, Is Evangelistic Activity Related
to Church Growth?, in Church and Denominational Growth 178“80 (1993),
also available at http://hirr.hartsem.edu/bookshelf/Church&Denomgrowth/ch&
dngrw-ch8.pdf (last visited Oct. 30, 2004).
8. Church Center™s Pro¬le Brings Fears, supra note 4 (quoting John Vaughan,
Church Growth Today, which studies growth and decline of new and established
9. Mark Chaves & William Tsitsos, Are Congregations Constrained by
Government? Empirical Results from the National Congregations Study, 42 J.
Church & State 335, 342, Apr. 1, 2000, available at 2000 WL 20257776 (here-
inafter Chaves & Tsitsos); Mark Chaves, Congregations in America (2004)
(hereinafter Congregations in America).
10. Quoted in Plaintiffs™ Second Amended Complaint, LRNA v. Los Angeles,
Case No. CV-03-4890-HLH (C.D. Cal. Filed May 6, 2004) (appeal pending).
11. See Complaint, LRNA v. Los Angeles, Case No. CV-03-4890-HLH, AT
¶ 13 (C.D. Cal. Filed July 10, 2003), also available at http://www.thelrna.org/
pdfs/hancockparklawsuit.pdf (last visited Oct. 30, 2004) (quoting Congregation
Etz Chaim v. City of Los Angeles, No. BC192517 (L.A. Sup. Ct.)).
12. Id.
13. Id. at ¶14.
14. Congregation Etz Chaim v. City of Los Angeles, 371 F.3d 1122, 1129 (2004)
(Aldisert, J., dissenting).
15. I represent the neighbors in that litigation. See Order Granting Motion to
Dismiss Second Amended Complaint League of Residential Neighborhood Advo-
cates v. City of Los Angeles, No. CV 03-4890 (CAS) (C.D. Cal. Jul. 15, 2004) (appeal
pending), also available at http://www.thelrna.org/pdfs/071404.pdf (last visited Oct.
26, 2004).
16. The Religious Liberty Protection Act of 1998, Hearing before the House Judi-
ciary Committee, 105th Cong. (Feb. 26, 1998) (statement of Rabbi Chaim Baruch
Rubin), also available at http://www.house.gov/judiciary/22382.htm (last visited
Oct. 26, 2004).
17. Id.
18. Religious Land Use and Institutionalized Persons Act, 105th Con. Rec. S7,
774“75 (Jul. 27, 2000) (joint statement of Sen. Kennedy & Sen. Hatch), available at
http://thomas.loc.gov/cgi-bin/query/F?r106:3:./temp/∼r106K0UUeD:b0: (last vis-
ited Oct. 29, 2004).
19. Douglas Laycock, State RFRAs and Land Use Regulation, 32 U.C. Davis L.
Rev. 755, 779 (1999).
20. Belle Terre v. Boraas, 416 U.S. 1, 9 (1974).
21. Neighbors Divided, supra note 2 (“There is such greater emphasis on land
in California,” Storzer said. “You don™t see these kinds of cases in North Dakota.
Most of the time this is about neighbors™ NIMBYism and churches™ abilities to
worship.”) (quoting Roman Storzer, attorney for the Becket Fund).
340 / NOTES TO PAGES 86“92

22. Anthony R. Picarello, Jr., RLUIPA is Constitutional, 56 Plan. & Envtl
L. 3 (2004), also available at http://www.becketfund.org/other/RLUIPA%20Is%20
Constitutional.pdf (last visited Oct. 31, 2004).
23. See Chaves & Tsitsos, supra note 9; Congregations in America, supra
note 9.
24. See generally, Marci A. Hamilton, Federalism and the Public Good: The True
Story behind the Religious Land use and Institutionalized Persons Act, 78 Ind. L.J.
311 (2003).
25. Freedom Baptist Church v. Township of Middletown, 204 F. Supp. 2d 857,
862 (E.D. Pa. 2002).
26. Haya El Nasser, Megachurches Clash with Critics Next Door, supra note 5.
27. Vanessa Ho, Mainline Religions Dwindle as Megachurches Gain Ground,
Seattle Post-Intelligencer, Mar. 18, 2002, at A1.
28. Neighbors Divided, supra note 2.
29. Justin Catanos, What Form Faith?, News & Record (Greensboro, NC),
May 14, 1995, at A1.
30. Laycock, State RFRAs and Land use Regulation, supra note 19, at 755, 776“
31. Id. at 760.
32. Id. at 758.
33. See John I. Gilderbloom & John P. Markham, The Impact of Homeownership
on Political Beliefs, 73 Social Forces 1589, 1592 (1995) (“Research has also shown
that homeowners are more likely to be involved in community political activities,
to be more neighborly, to be members of church or community organizations, and
to be more aware of local affairs.”) (internal citations omitted).
34. Grosz v. Miami Beach, 721 F.2d 729, 730 (11th Cir. 1983).
35. Id. at 732.
36. Id. at 739.
37. Neighbors Divided, supra note 2.
38. Juan Otero & Veronique Pluviose-Fenton, City of Cheyenne, Wyo., Wins
Religious Land use Case, Nation™s Cities Weekly, June 23, 2003, at 3.
39. Terry Sheridan, Federal Law Invoked as Pastor in Broward Fights County
Zoning, Broward Daily Bus. Rev. (Fla.), Apr. 15, 2003 at A1.
40. Zoning and Land Use Controls, supra note 1, at § 5.01; see also id. at
§ 34.02 (“Two additional valid objectives of zoning enabling legislation are pre-
vention of overcrowding of land and ensuring against undue concentration of
41. Euclid v. Ambler Realty Co., 272 U.S. 365, 367“68 (1926).
42. Lemon v. Kurtzman, 403 U.S. 602, 612 (1971).
43. See Locke v. Davey, 124 S. Ct. 1307, 1312“13 (2004); Church of Lukumi Babalu
Aye v. City of Hialeah, 508 U.S. 520, 532“33 (1993); Employment Div. v. Smith,
494 U.S. 872, 877 (1990).
44. Chaves & Tsitsos, supra note 9.
NOTES TO PAGES 93“96 / 341

45. Employment Div. v. Smith, 494 U.S. 872, 890 (1990).
46. Walz v. Tax Comm™n of New York, 397 U.S. 664 (1970).
47. St. Bartholomew™s Church v. City of New York, 914 F.2d 348 (2d Cir.
48. Keeler v. Mayor & City Council of Cumberland, 940 F. Supp. 879, 886
49. See East Bay Asian Local Dev. Corp. v. California, 24 Cal. 4th 693 (2000),
cert. denied, 532 U.S. 1008 (2001) (upholding Cal. Gov™t Code §§ 25373, 37361
“which have the effect of granting an exemption from landmark preservation laws
to noncommercial property owned by a religious organization that objects to land-
mark designation and determines in a public forum that the organization would
suffer a substantial hardship if the property were designated a historic landmark.”).
50. Tom Barnes, Council Shelters Religious Building, Pittsburgh Post-
Gazette, Feb. 26, 2003, at B3.
51. Judy Evans, District Approved, Minus Churches, Dallas Morning News,
May 8, 2002, at 1R.
52. First Covenant Church v. City of Seattle, 840 P.2d 174 (Wash. 1992).
53. Oregon City v. Hartke, 400 P.2d 255, 261 (1965).
54. First Covenant Church, 840 P.2d at 185.
55. Editorial, So Glorious, Yet So Vulnerable, Opelika-Auburn News (Ala.),
Aug. 23, 2000.
56. Paul Davis, Auburn Shows Its Prowess in Handling a Real Emergency,
Opelika-Auburn News (Ala.), Aug. 20, 2000.
57. 42 U.S.C.S. § 2000bb et seq. (2004) (Nov. 16, 1993, P.L. 103“41, § 2, 107
Stat. 1488). The law currently only applies to the federal government. It was held
unconstitutional as applied to state and local governments.
58. City of Boerne v. Flores, 521 U.S. 507 (1997).
59. Amy Dorsett, 1997 Year in Review: Trees, Traf¬c among Top Issues, San
Antonio Express-News (Tex.), Jan. 1, 1998, at 1S.
60. 42 U.S.C. 2000cc et seq. (2004).
61. See generally Marci A. Hamilton, Religion and the Law in the Clinton Era:
An Anti-Madisonian Legacy, 63 Law & Contemp. Probs. 359 (2000).
62. Statement on Signing the Religious Land use and Institutionalized Persons
Act of 2000, 36 Weekly Comp. Pres. Doc. 2168 (Sept. 22, 2000).
63. 42 U.S.C. 2000cc(b) (2004) provides:
(1) Equal terms. No government shall impose or implement a land-use regulation
in a manner that treats a religious assembly or institution on less than equal terms
with a nonreligious assembly or institution.
(2) Nondiscrimination. No government shall impose or implement a land-use regu-
lation that discriminates against any assembly or institution on the basis of religion
or religious denomination.
(3) Exclusions and limits. No government shall impose or implement a land-use
regulation that “
342 / NOTES TO PAGES 96“102

(A) totally excludes religious assemblies from a jurisdiction; or
(B) unreasonably limits religious assemblies, institutions, or structures within a ju-

64. 42 U.S.C. 2000cc(a) (2004).
65. American Religious Identi¬cation Survey of 2001, conducted by City Uni-
versity of New York, available at http://www.gc.cuny.edu/studies/key ¬ndings.htm
(lasted visited October 22, 2004).
66. Boerne, 521 U.S. at 537 (Stevens, J., concurring).
67. 42 USC § 1988(b) (2004) provides, in pertinent part: “In any action or pro-
ceeding to enforce a provision of . . . the Religious Land Use and Institutional-
ized Persons Act of 2000 . . . the court, in its discretion, may allow the prevail-
ing party, other than the United States, a reasonable attorney™s fee as part of the
68. Cohen v. City of Des Plaines, 8 F.3d 484 (7th 1993); Congregation Beth
Yitzchok v. Ramapo, 593 F. Supp. 655 (S.D.N.Y. 1984); Abram v. Fayetteville,
661 S.W.2d 371 (Ark. 1983); State v. Maxwell, 617 P.2d 816 (Haw. 1980); Medford
Assembly of God v. Medford, 695 P.2d 1379 (Ore. Ct. App. 1985); Yusuf v. Villa
Park, 458 N.E.2d 575 (Ill. App. Ct. 1983); Rose Lees Hardy Home & School Assoc.
v. District of Columbia Bd. of Zoning Adjustment, 324 A.2d 701 (D.C. Ct. App.
1974); Heard v. Dallas, 456 S.W.2d 440 (Tex. Ct. Civ . App. 1970).
69. Love Church v. City of Evanston, 671 F. Supp. 508, 513 (N.D. Ill. 1987).
70. See Roman Catholic Welfare Corp. v. Piedmont, 45 Cal. 2d 325 (Cal.
71. Harvest Christian Ctr. v. Zoning Appeals Bd., 55 Va. Cir. 279, 284 (Va. Cir.
Ct. 2001) (quoting Trustees v. Guthrie, 86 Va. 125, 140“41 (1889)).
72. Grace United Methodist Church v. City of Cheyenne, 235 F. Supp. 2d 1186
(D. Wyo. 2002).
73. Id. at 1190.
74. Neighbors Divided, supra note 2.
75. See Order, Missionaries of Charity, Brothers v. City of Los Angeles, No. CV
01-08115-SVW (C.D. Cal. Jul. 11, 2003), also available at http://www.rluipa.com/
cases/MOC-Order7-11-03.pdf (last visited Oct. 31, 2004).
76. The Becket Fund, RLUIPA Court Cases, Missionaries of Charity, Broth-
ers v. City of Los Angeles, available at http://www.rluipa.com/cases/Missionaries-
OfCharity.html (last visited Oct. 31, 2004) (The Becket Fund represents the plain-
tiffs in the case.).
77. Along with local counsel, I represent the township in this case. Congregation
Kol Ami v. Abington Twp., No. 01-1919, 2004 U.S. Dist. LEXIS 16397, at — 9 (E.D.
Pa. Aug. 12, 2004); Congregation Kol Ami v. Abington Twp., 309 F.3d 120 (3d Cir.
78. Congregation Kol Ami v. Abington Twp., 161 F.Supp.2d 432, 435 (E.D. Pa.
79. Id. at 437.
NOTES TO PAGES 102“108 / 343

80. Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 766 (7th
Cir. 2003); Bethel Baptist Church v. United States, 822 F.2d 1334, 1339 (3d Cir.
81. See Braunfeld v. Brown, 366 U.S. 599, 605 (1961); Civil Liberties for Urban
Believers, 342 F.3d at 762; Grosz, 721 F.2d at 736 (citing Braunfeld).
82. Congregation Kol Ami v. Abington Twp., No. 01-1919, 2004 U.S. Dist.
LEXIS 16397, at — 28 (E.D. Pa. Aug. 12, 2004).
83. Id. at — 29.
84. Patrick Korten, Vice President, Becket Fund for Religious Liberty, Churches
Don™t Stand a Prayer, Wall Street J., Jan. 22, 2003, at A14.
85. Castle Hills Baptist Church v. City of Castle Hills, No. SA-01-CA-1149-RF,
2004 WL 546792, at — 4, — 13, — 14 (W. D. Tex. Mar. 17, 2004).
86. Guru Nanak Sikh Soc™y v. County of Sutter, 326 F. Supp. 2d 1140, 1142 (E.D.
Cal. 2003).
87. Id. at 1152 (quoting Cottonwood Christian Center v. Cypress Redevelopment
Agency, 218 F. Supp.2d 1203, 1226 (C.D. Cal. 2002)).
88. 146 Cong. Rec. S7,776 (daily ed. July 27, 2000) (joint statement of Senator
Hatch and Senator Kennedy).
89. Westchester Day Sch. v. Village of Mamaroneck, No. 03-9042, 2004 U.S.
App. LEXIS 20327, at — 6“7 (2d Cir. Sept. 27, 2004):
90. Id. at — 15.
91. Westchester Day Sch. v. Village of Mamaroneck, 280 F. Supp. 2d 230, 243“44
(S.D.N.Y. 2003).
92. Westchester Day Sch., No. 03-9042, 2004 U.S. App. LEXIS 20327, at — 16.
93. San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024, 1035 (9th
Cir. 2004).
94. Murphy v. Zoning Comm™n, 289 F. Supp. 2d 87 (D. Conn. 2003).
95. Locke v. Davey, 124 S. Ct. 1307, 1312 (2004).
96. 42 U.S.C. § 2000cc(a)(2)(C) provides:
This subsection applies in any case in which . . . the substantial burden is imposed
in the implementation of a land use regulation or system of land use regulations,
under which a government makes, or has in place formal or informal procedures
or practices that permit the government to make, individualized assessments of
the proposed uses for the property involved.
97. The lead case employing this reasoning is Sherbert v. Verner, 374 U.S. 398,
404 (1963).
98. See F.O.P. Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir.
99. See Sherbert v. Verner, 374 U.S. 398 (1963).
100. Freedom Baptist Church v. Twp. of Middletown, 204 F. Supp. 2d 857, 868
(E.D. Pa. 2002).
101. Murphy, 289 F. Supp. 2d at 119 (quoting Freedom Baptist Church, 204 F.
Supp. 2d at 869). See also Guru Nanak Sikh Soc™y, 326 F. Supp. 2d at 1155 (“Re-
lying on RLUIPA™s legislative history, several courts have concluded that ˜these
344 / NOTES TO PAGES 108“114

provisions codify existing Equal Protection Clause and Free Exercise Clause ju-
risprudence.™” quoting Petra Presbyterian Church v. Village of Northbrook, 2003
WL 22048089, at — 11 (N.D. Ill. Aug, 29, 2003); see also Freedom Baptist Church of
Delaware County, 204 F. Supp.2d at 869 (Sections (b)(1) and (b)(3) of RLUIPA
“codify existing Supreme Court decisions under the Free Exercise and Establish-
ment Clauses of the First Amendment as well as under the Equal Protection Clause
of the Fourteenth Amendment.”).
102. See Ala. Const. amend. 622 (2004) (enacted 1999), Ariz. Rev. Stat. § 41-
1493.01 (2004) (enacted 1999), Conn. Gen. Stat. § 52“571b (2003) (enacted 1993),
Fla. Stat. ch. 761.03 (2004) (enacted 1998), Idaho Code § 73“402 (2004) (enacted
2000), 775 Ill. Comp. Stat. 35/1 et seq. (2004) (enacted 1998), N.M. Stat. Ann.
§ 28-22-3 (2004) (enacted 2000), 71 Pa. Cons. Stat. § 2401 et seq. (2004) (enacted
2002), R.I. Gen. Laws § 42-80.1-3 (2004) (enacted 1993), S.C. Code Ann. § 1-32-40
(2003) (enacted 1999), respectively.
103. See Okla. Stat. tit. 51, § 258 (2004) (enacted 2000); Tex. Civ. Prac. & Rem.
Code § 110.010 (2003) (enacted 1999).

5. Schools
1. Phillip Hamburger, Separation of Church and State 219“20, 222, 283,
310 (2002).
2. Rev. Jerry Falwell, Commentary, Defending Prayer in School, World-
NetDaily (online), Oct. 27, 2001, at http://www.worldnetdaily.com/news/
article.asp?ARTICLE ID=25107 (last visited Nov. 2, 2004).
3. Christopher John Farley, Without a Prayer, Time, Dec. 20, 1993, at 41.
4. Id.
5. The Hon. Minister Louis Farrakhan, Atonement: The Road to Peace, The
Final Call (online), Oct. 29, 2001, at http://www.¬nalcall.com/columns/mlf/
mlf-atonement 10-30-2001.htm (last visited Nov. 2, 2004).
6. Hamburger, supra note 1, at 223.
7. Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S. 203, 235 (1948) (Jackson,
J., concurring).
8. 42 U.S.C. § 2000bb (2004) (enacted 1993).
9. 406 U.S. 205 (1972).
10. A Diverse Educational System, in Portrait of the USA (United States
Information Agency 1997), available at http://usinfo.state.gov/usa/infousa/facts/
factover/ch6.htm (last visited Nov. 3, 2004).
11. CUNY Graduate Center American Religious Identi¬cation System,
U.S. Census Bureau, Statistical Abstract of the United States 67 (U.S.
Dep™t of Com. 2003).
12. Religion (13) and Age Groups (8) for Population, for Canada, Provinces,
Territories, Census Metropolitan Areas and Census Agglomerations, 2001 Cen-
sus (Canada) (2001), available at http://www12.statcan.ca/english/census01/pro-
NOTES TO PAGES 114“118 / 345

&VID=0&FL=0&RL=0&FREE=0 (last visited Nov. 2, 2004); Cent. Intelli-
gence Agency, United Kingdom, in The World Factbook (2004), available
at http://www. cia.gov/cia/publications/factbook/geos/uk.html (last modi¬ed Oct.
19, 2004). Central Intelligence Agency, India, in The World Factbook
(2004), available at http://www.cia.gov/cia/publications/factbook/geos/in.html
(last modi¬ed Nov. 2, 2004) (last visited Nov. 5, 2004).
13. W. H. McLeod, The Sikhs: History, Religion, and Society 45, 142 (1989).
Women are admitted into the Khalsa as well as men, though they rarely wear the
turban. In theory, women are regarded as the equals of men. However, actual
practice falls short of the claim. See W. H. McLeod, Who is a Sikh? 108“9 (1989).
14. W. H. McLeod, Who is a Sikh? 112“14 (1989); see also Michael Rollins,
Sikhs Bring Talent, Strife to New Home: Worship Practices Divide the Community
of Immigrants to British Columbia, Oregonian, Aug. 29, 1999, at A22.
15. Sandeep Singh Brar, Understanding the Kirpan for Non-Sikhs, available at
http://www.sikhs.org/art 12.htm (last visited Nov. 3, 2004).
16. See Cheema v. Thompson, No. 94-16097, 1994 U.S. App. LEXIS 24160, at —
16 (9th Cir. 1994) (Wiggins, J. dissenting); Clifford Krauss, A Sikh Boy™s Little
Dagger Sets Off a Mighty Din, N.Y. Times, June 5, 2002, at A4 (stating that kirpan
in “Sikh faith symbolizes the sovereignty of man and serves as a reminder to go to
the defense of others in distress.”).
17. Global News Wire, Punjab Cop™s Son Held for Murder, Times (India),
May 27, 2003.
18. Wendy Darroch, Temple Priest Found Guilty in Stabbing with Dagger,
Toronto Star, May 26, 1989, at A22. Singh was to be sentenced, July 18, 1989,
but he was granted a new trial when evidence emerged that another person may
have grabbed the kirpan from him and used it in the stabbing. Priest Gets New
Trial in Stabbing, Toronto Star, Sept. 8, 1989, at A21. Singh admitted his role in
the stabbing and pleaded guilty to the lesser charge of assault. Wendy Darroch,
Sikh Priest Jailed for Dagger Attack, Toronto Star, Feb. 27, 1990, at A8.
19. Paula Schuck, Sikh Gets 30 Days for Stabbing Relative with Ceremonial
Knife, Toronto Star, July 30, 1007, at B1.
20. Michael Rollins, Sikhs Bring Talent, Strife to New Home: Worship Practices
Divide the Community of Immigrants to British Columbia, Oregonian, Aug. 29,
1999, at A22; Sudarsan Raghavan, Sikhs experience violence over Custom of Temple
Meals, Phila. Inq., Mar. 24, 1999, at Lifestyle.
21. Cheema, No. 94-16097, 1994 U.S. App. LEXIS 24160; Multani v. Commission
Scolaire Marguerite-Bourgeoys, 241 D.L.R. (4th) 336 (2004).
22. For further explanation, see infra Part Two, chapters 8 and 10.
23. Cheema, 1994 U.S. App. LEXIS 24160, at — 11.
24. Id. at — 9, 11.
25. Id. at — 16“17.
26. Greg Lucas, Wilson Veto for Knives at School, S. F. Chron., Oct. 1, 1994,
at A19.
27. Multani, 241 D.L.R. at 359.
346 / NOTES TO PAGES 118“122

28. Greg Toppo, 48 School Deaths Highest in Years; Law Enforcement Cites
Gangs, Budget Cuts, USA Today, June 28, 2004, at A1. See also Douglas E.
Thompkins, School Violence: Gangs and A Culture of Fear, 567 Annals Am. Acad.
Pol. & Soc. Sci. 54 (2000).
29. Alison L. Ramsey et. al, Evaluation of the Gang Resistance and Training
(GREAT) Program: A School-Based Prevention Program, Education, Dec. 22, 2003,
at 297.
30. Jon Yates, Gangs Not Just Young Boys Network; Recent Violence by Girls
Raises Parents™ Fears, Chi. Trib., May 2, 2004, at 1.
31. Jeffrey J. Mayer, Individual Moral Responsibility and the Criminalization of
Youth Gangs, 28 Wake Forest L. Rev. 943, 951 (1993).
32. Levon v. O™Rourke, No. 96 C 7304, 1996 U.S. Dist. LEXIS 19378, at — 4“5
(N. D. Ill. Dec. 24, 1996).
33. Cindy Horswell, Gangs Get A Dressing Down: New Policy at Baytown Ju-
nior High School Limits Colors, Sports Attire, Houston Chron., Mar 28, 1992,
at A1.
34. Todd A. DeMitchell, Richard Fossey, & Casey Cobb, Dress Codes in the
Public Schools: Principals, Policies, and Precepts 29 J. L. & Educ. 31, 44“45
35. Uniform Policy: East High School Bets on Dress for Success, Columbus
Dispatch (Ohio), Jan. 19, 1997, at 2B.
36. U.S. Dept. of Ed., Manual on School Uniforms (last updated Feb. 29,
1996), available at http://www.ed.gov/updates/uniforms.html (last visited Nov. 5,
37. No. 96-C-7304, 1996 U.S. Dist. LEXIS 19378, at — 4“5, — 12, — 4, — 5, — 8 (N. D.
Ill. Dec. 24, 1996).
38. Levon, No. 96-C-7304, 1996 U.S. Dist. LEXIS 19378, at — 22 (quoting Sasnett
v. Sullivan, 91 F.3d 1018, 1022 (7th Cir. 1996)).
39. Id. at — 5.
40. Id. at — 20“21.
41. Press Release, American Civil Liberties Union, Jewish Student to Wear Star
of David Pendant as Mississipi School Board Reverses Policy (Aug. 24, 1999) (on
¬le with author), also available at http://archive.aclu.org/news/1999/n082499a.html
(last visited Nov. 5, 2004) (hereinafter Press Release, ACLU).
42. Olesen v. Board of Educ. of Sch. Dist. No. 228, 676 F. Supp. 820, 821 (N.D.
Ill. 1987) (describing the use of crosses and six-pointed stars by the Simon City
Royals, a large Bremen High School gang). The court dismissed the complaint
against the Board™s policy prohibiting the wearing or display of any gang symbol
and Bremen™s speci¬c prohibition against the wearing of earrings by male students.
Id. at 823.
43. Press Release, ACLU, supra note 41.
44. Student Agrees to Hide Wiccan Symbol, Is Readmitted to Classes, Abilene
Reporter-News (Tex.) (online), Sep. 5, 2002, available at http://texnews.com/
1998/2002/texas/texas Student a95.html (last visited Nov. 1, 2004).
NOTES TO PAGES 123“127 / 347

45. Derek H. Davis, Reacting to France™s Ban: Headscarves and other Religious
Attire in American Public Schools, J. Church & State, Apr. 1, 2004, at 221 (here-
inafter Reacting to France™s Ban).
46. Id.
47. Menora v. Illinois High School Association, 683 F.2d 1030, 1031 (1982), cert.
denied, 459 U.S. 1156 (1983); see also Keller by Keller v. Gardner Community
Consol. Grade School Dist. 72C, 552 F. Supp. 512, (N.D. Ill. 1982).
48. Menora, 683 F.2d at 1033.
49. Id. at 1035.
50. Id. at 1034.
51. Id. (emphasis added).
52. Id. at 1035.
53. Menora, 683 F.2d at 1035.
54. Id.
55. See Heather Rabkin, Wearing Hijab Provides Protection, Liberation, The
Daily Bruin (online), Oct. 20, 2004, at http://www.dailybruin.ucla.edu/news/
articles.asp?id=30445 (last visited Nov. 1, 2004). A burka (also known as burqa
or burqua) is either a veil tied over a headscarf or full burka (also called Afghan
burka or chador), a top to bottom garment, which also covers the face. Hijab
is a head cover worn by Islamic women. Niqab is a face veil worn by Islamic
women, together with the hijab. Khimar is literally a covering “ a headscarf. Farlex,
TheFreeDictionary.com, at http://encyclopedia.thefreedictionary.com.
56. Reacting to France™s Ban, supra note 45 (Candace Ahl¬nger speaking for
the Waxahachie High School, said, “When we disrupt the educational progress
of other students by wearing disruptive clothing, disruptive jewelry, disruptive
hairstyles, whatever is disruptive, we are not only hurting one student, we are hurting
57. Joe Cook, Free Exercise Clause Triumphs “ Lafayette School Board Votes
to Admit 8 Rastafarian Children with Headgear and Dreadlocks, American
Civil Liberties Union Statement, Sep. 21, 2000, at www.laaclu.org/News/2000/
free exercise clause triumphs.htm.
58. Reacting to France™s Ban, supra note 45.
59. Sheema Khan, Why Does a Head Scarf Have Us Tied Up in Knots?,
Globe & Mail (Ca.), Sept. 26, 2003, also available at http://www.caircan.ca/oped
more.php?id=526 0 10 0 C (last visited Nov. 5, 2004).
60. Probe Launched Over Que. Muslim Student™s Hijab, CTC.ca (online),
Sept. 24, 2003, at http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/
1064344107380 59753307/?hub=Canada (last visited Nov. 5, 2004). See also Khan,
supra note 59.
61. Reacting to France™s Ban, supra note 46.
62. Jim Myers, Settlement Announced in Suit over Head Scarf, Tulsa World,
May 20, 2004, at A1.
63. Locke v. Davey, 540 U.S. 712 (2004); Church of Lukumi Babalu Aye,
Inc. v. Hialeah, 508 U.S. 520 (1993); Employment Div., Dept. of Human
348 / NOTES TO PAGES 127“130

Resources of Ore. v. Smith, 494 U.S. 872 (1990); Sherbert v. Verner, 374 U.S. 398
64. See Settlement Announced in Suit over Head Scarf, supra note 62.
65. See http://www.usdoj.gov/crt/edo/caselist.html (listing consent decrees);
U.S. Dept. of Justice Press Release, Justice Department Reaches Settlement Agree-
ment with Oklahoma School District in Muslim Student Headscarf Case, May 19,
2004, available at http://www.usdoj.gov/opa/pr/2004/May/04 crt 343.html; Associ-
ated Press, Judge Signs Settlement in Hijab Lawsuit, Tulsa Area News, May 21,
2004, also available at http://www.teamtulsa.com/news/local/l5020.shtml (last visited
Nov. 1, 2004).
66. Law No. 2004-228 of Mar. 15, 2004, J.O., Mar. 17, 2004, p. 5190, also available
at http://www.legifrance.gouv.fr/WAspad/UnTexteDeJorf?numjo=MENX0400001L
(last visited Nov. 5, 2004).
67. See Elaine Sciolino, Ban on Head Scarves Takes Effect in France, N.Y. Times,
Sept. 3, 2004, at A8.
68. See Suzanne Daley, Europe Wary of Wider Doors for Immigrants, N.Y.
Times, Oct. 20, 2001, at A3.
69. Alabama & Coushatta Tribes of Texas v. Trustees of the Big Sandy Inde-
pendent School District, 817 F. Supp. 1319, 1324“25 (1993), remanded by, Alabama
& Coushatta v. Trustees, 20 F.3d 469 (5th Cir. 1994); see also Chalifoux v. New
Caney Independent School Dist., 976 F. Supp. 659 (S.D. Tex. 1997) (holding that
the heightened level of scrutiny used in hybrid cases applies).
70. Alabama & Coushatta Tribes, 817 F. Supp. at 1323“24.
71. Karr v. Schmidt, 460 F.2d 609 (5th Cir. 1972), cert. denied, 409 U.S. 989
72. See Knight v. Connecticut Dept. of Public Health, 275 F.3d 156 (2d Cir. 2001)
(holding in the context of claims involving free exercise and free speech that the
Smith ™s language relating to hybrid claims is nonbinding dictum); Kissinger v. Bd.
of Trustees of the Ohio State Univ., College of Veterinary Med., 5 F.3d 177 (6th
Cir. 1993) (declining to apply the hybrid rights theory as “completely illogical”).
The following Circuits, while not rejecting the hybrid rights theory outright, have
not applied strict scrutiny in these cases: EEOC v. Catholic Univ. of Am., 83 F.3d
455 (D.C. Cir. 1996) (requiring an independently viable claim of infringement of
a companion right in addition to the free exercise claim); Civil Liberties for Urban
Believers v. City of Chicago, 342 F.3d 752 (7th Cir. 2003), cert. denied, 124 S. Ct.
2816 (2004) (requiring a colorable claim of infringement of a speci¬c constitutional
right in addition to the free exercise claim); Miller v. Reed, 176 F.3d 1202 (9th Cir.
1999) (same); Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694 (10th Cir.
1998) (same); Brown v. Hot, Sexy & Safer Prods., 68 F.3d 525 (1st Cir. 1995), cert.
denied, 516 U.S. 1159 (1996) (same).
73. Tex. Health & Safety Code Ann. § 481.111(a) (Vernon 2004) (“The pro-
visions of this chapter relating to the possession and distribution of peyote do not
apply to the use of peyote by a member of the Native American Church in bona
¬de religious ceremonies of the church.”).
NOTES TO PAGES 130“135 / 349

74. School Dist. No. 11-J v. Howell, 517 P.2d 422 (Colo. Ct. App. 1973) held
that an application permitting noncompliance with school hair regulation was
discriminatory where such application applied only to Indians.
75. Wisconsin v. Yoder, 406 U.S. 205 (1972).
76. See Judith G. McMullen, Behind Closed Doors: Should States Regulate
Homeschooling? 54 S. C. L. Rev. 75, 78 (2002) (noting that religious beliefs are
the impetus for homeschooling in approximately 85% of cases)(“˜These parents
believe that God has given them the responsibility and the authority to educate
their children. . . . Since they are called by God to be the primary teachers of their
children and to apply God™s word to each and every subject, they believe it would
be a sin for them to delegate this authority to another school system.™”(quoting
Christopher J. Klicka, The Right to Home School 2“3 (2d ed. 1998)).
77. Edwards v. Aguillard, 482 U.S. 578 (1987).
78. See generally Marjorie George, Note, And Then God Created Kansas? The
Evolution/Creationism Debate in America™s Public Schools, 149 Pa. L. Rev. 483
(2001). Gabriel Acri, Note, Persistent Monkey on the Back of the American Public
Education System: A Study of the Continued Debate Over the Teaching of Creation
and Evolution, 41 Cath. Law. 39 (2001).
79. Wisconsin district to teach more than evolution, CNN.com, November 7,
2004, at http://edition.cnn.com/2004/EDUCATION/11/06/evolution.schools.ap/
index.html (last visited Nov. 7, 2004).
80. John W. Fountain, Kansas Puts Evolution Back into Public Schools, N.Y.
Times, Feb. 15, 2001, at A18.
81. Ariel Hart, Judge in Georgia Orders Anti-Evolution Stickers Removed From
Textbooks, N.Y. Times, Jan. 14, 2005, at A16.
82. See James G. Dwyer, The Children We Abandon: Religious Exemptions to
Child Welfare and Educational Laws as Denials of Equal Protection to Children of
Religious Objectors, 74 N.C. L. Rev. 1321, 1350 (1996) (“Approximately one million
children in this country are in home schools, and the most common reason parents
have for choosing this option is religious opposition to the content and manner of
instruction in public schools.”).
83. Christopher Klicka, Biblical Reasons to Home School, Issue Analysis, Na-
tional Center for Home Education, May 17, 1999, at http://www.hslda.org/docs/
nche/000000/00000069.asp (last visited Nov. 7, 2004).
84. State Laws Concerning Participation of Homeschool Students in Pub-
lic School Activities, Aug. 20, 2004, at http://www.hslda.org/docs/nche/000000/
00000048.asp (last visited Nov. 7, 2004).
85. Pennsylavnia “ Homeschoolers Religious Freedom Case Can Proceed, Aug. 6,
2003, at http://www.hslda.org/hs/state/pa/200408060.asp (last visited Nov. 7, 2004).
86. Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary, 268 U.S.
510, 535 (1925).
87. See Franklin v. Bristol Township School Dist. “ Family Files Suit under
Religious Protection Act, Sept. 14, 2004, at http://www.hslda.org/Legal/state/pa/
20040422HankinvBTSD/default.asp (last visited Nov. 7, 2004); Newborn v. Franklin
350 / NOTES TO PAGES 135“142

School District “ Family Files Suit Under Religious Protection Act, Sept. 14, 2004,
at http://www.hslda.org/Legal/state/pa/20040205NewbornvFRSD/default.asp (last
visited Nov. 7, 2004); Pennsylavnia “ Homeschoolers Religious Freedom Case Can
Proceed, Aug. 6, 2003, at http://www.hslda.org/hs/state/pa/200408060.asp (last vis-
ited Nov. 7, 2004).
88. United States v. Lee, 455 U.S. 252, 261 (1982).
89. Bowen v. Roy, 476 U.S. 693, 696 (1986).
90. See Parham v. J. R., 442 U.S. 584, 630 (1979) (quoting Prince v. Mas-
sachusetts, 321 U.S. 158, 170 (1944)) (“In our society, parental rights are limited
by the legitimate rights and interests of their children. ˜Parents may be free to be
become martyrs themselves. But it does not follow they are free, in identical cir-
cumstances, to make martyrs of their children before they have reached the age of
full and legal discretion when they can make that choice for themselves.™”).
91. A Dark Side to Home Schooling, CBSnews.com, Oct. 13, 2003, at http://
www.cbsnews.com/stories/2003/10/13/eveningnews/main577817.shtml (last visited
Nov. 7, 2004); Home Schooling Nightmares, CBSnews.com, Oct. 14, 2003, at http://
www.cbsnews.com/stories/2003/10/14/eveningnews/main578007.shtml (last visited
Nov. 7, 2004).
92. Fleischfresser v. Directors of School District 200, 15 F.3d 680, 683 (7th Cir.
93. Press Release, Institute for First Amendment Studies, Institute Joins Im-
pressions Case, Sept. 1992 (on ¬le with author), also available at http://www.
buildingequality.us/ifas/fw/9209/impressions.html (last visited Nov. 5, 2004).
94. Fleischfresser, 15 F.3d at 686“87.
95. Id. at 688.
96. Id.
97. Mozert v. Hawkins County Board of Educ., 827 F.2d 1058 (6th Cir. 1987),
cert. denied, 484 U.S. 1066 (1988); see also Frances R. A. Paterson, The Politics of
Phonics, 15 J. Curriculum & Supervision 179 (2000) (describing the pattern of
lawsuits “[f]rom 1986 to 1994, [in which] Impressions was challenged in at least 74
school districts in 16 states.”).
98. Mozert, 827 F.2d at 1067.
99. Moody v. Cronin, 484 F. Supp. 270 (C.D. Ill. 1979).
100. Id. at 276.
101. Id. at 277.

6. The Prisons and the Military
1. Dan Mihalopoulos, U.S. Probes Jail Ministry for Muslims, Chicago Trib.,
Aug. 10, 2003, at 1 (quoting Dan Pistole) (hereinafter U.S. Probes Jail Ministry
for Muslims); see also Anti-Defamation League, Dangerous Convictions:
An Introduction to Extremist Activities in Prisons, Topics in Extremism
25-6 (2002), also available at http://www.adl.org/learn/Ext Terr/dangerous
convictions.pdf (last visited Nov. 8, 2004) (hereinafter Dangerous Convictions).
NOTES TO PAGES 143“148 / 351

2. Facts regarding the Aryan Brotherhood have been gathered from Federal
Bureau of Investigation, Aryan Brotherhood, ¬le number 183-7396 (ob-
tained through the Freedom of Information and Privacy Acts), also available at
http://foia.fbi.gov/foiaindex/aryanbro.htm (last visited Nov. 8, 2004) [hereinafter
Aryan Brotherhood]; and David Grann, The Brand, New Yorker, Feb. 16 & 23,
2004, at 156 (hereinafter The Brand).
3. The Brand, supra note 2, at 158, 171.
4. Id. at 160.
5. Andrew Blankstein, Task Force Thwarts Prison Gang™s Growing Reach, L.A.
Times, Jan. 30, 2004, at B2.
6. See Charles Lane, Supreme Court Hears Racial Segregation Case, Wash.
Post, Nov. 3, 2004, at A2 (describing California™s justi¬cation for racial segregation
within its prison system); Greg Gittrich, Bloody Gangs of New York Murderous
Youth Violence Surges 80% Across the City, Daily News (N.Y.), Feb. 29, 2004, at 8
(describing the different gang af¬liations in New York City, and noting that there
are about 15,000 gang members “with about a quarter active and not in prison.”).
7. Dangerous Convictions, supra note 1, at 3.
8. Frank Viviano, Future Terrorists Train in Prison, S.F. Chron., Nov. 3, 2001,
at A5.
9. U.S. Probes Jail Ministry for Muslims, supra note 1.
10. Department of Defense Instruction 1304.28 § 6.1.5 (June 11, 2004).
11. See William T Cavanaugh, Jr., The United States Military Chaplaincy
Program: Another Seam in the Fabric of our Society?, 59 Notre Dame L. Rev.
181, 191“92 (1983).
12. See Julie B. Kaplan, Military Mirrors on the Wall: Nonestablishment and the
Military Chaplaincy, 95 Yale L.J. 1210, 1217“18 (1983) (hereinafter Kaplan).
13. “Terrorist Recruitment and In¬ltration in the United States: Prisons and
Military as an Operational Base”: Hearing before the Senate Comm. on the Judi-
ciary, 108th Cong. (Oct. 14, 2003) (testimony of Dr. Michael Waller), available at
http://judiciary.senate.gov/testimony.cfm?id=960&wit id=2719 (last visited Nov. 9,
2004) (hereinafter Waller).
14. U.S. Probes Jail Ministry for Muslims, supra note 1.
15. Activist Gets 23 Years for Libyan Dealings, Chi. Trib., Oct. 16, 2004, at C15.
16. Jerry Markon, Muslim Activist Sentenced to 23 Years for Libya Contacts,
Wash. Post, Oct. 16, 2004, at A17 (hereinafter Markon).
17. Laurie Goodstein, Pentagon Says It Will Review Chaplain Policy, N.Y. Times,
Sept. 28, 2003, at 1.
18. Id.
19. Markon, supra note 16.
20. Jerry Seper, Prisons Breeding Ground for Terror: Moderate Muslim Chaplains
in Short Supply, Justice Report Warns, Wash. Times, May 6, 2004, at A11.
21. See Of¬ce of the Inspector General, U.S. Dep™t of Justice, A Re-
view of the Bureau of Prisons™ Selection of Muslim Religious Services
Providers (2004), available at http://www.usdoj.gov/oig/special/0404/¬nal.pdf
352 / NOTES TO PAGES 148“156

(last visited Nov. 9, 2004) (hereinafter Selection of Muslim Religious Ser-
vices Providers).
22. 395 U.S. 444 (1969).
23. John P. Cronan, The Next Challenge for the First Amendment: The Framework
for an Internet Incitement Standard, 51 Cath. U. L. Rev. 425 (2002).
24. Selection of Muslim Religious Services Providers, supra note 21, at
8“9 (quoting BOP Technical Resource Manual 014.1).
25. For further analysis, see Kaplan, supra note 12; Katcoff v. Marsh, 755 F.2d 223
(2d Cir. 1985).
26. Waller, supra note 13.
27. Rumsfeld v. Padilla, 124 S. Ct. 2711, 2717“18 (2004).


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