. 11
( 13)


28. See Julia Preston, Staten Island Phone Lets U.S. Eavesdrop on Global Mili-
tants, N.Y. Times, Oct. 2, 2004, at A1.
29. Turner v. Sa¬‚ey, 482 U.S. 78, 84 (1987) (quoting Procunier v. Martinez, 416
U.S. 396, 405 [1974]).
30. Turner, 482 U.S. at 89.
31. “Protecting Religious Freedom after Boerne v. Flores”: Hearing before the
Subcomm. on the Constitution of the House Comm. on the Judiciary, 105th Cong.
(July 14, 1997) (testimony of Charles W. Colson), available at http://www.house.gov/
judiciary/222304.htm (last visited Nov. 9, 2004).
32. “The Need for Federal Protection of Religious Freedom after Boerne v. Flores”:
Hearing before the House Comm. on the Judiciary, 105th Cong. (Mar. 26, 1998)
(testimony of Isaac M. Jaroslawicz), available at http://www.house.gov/judiciary/
222356.htm (last visited Nov. 9, 2004).
33. Id.
34. One of the reasons for the lack of opposition to the land-use side existed,
because the attorneys general, who tend to be politically ambitious, would not
lobby against religious institutions seeking land-use preferences, in part, because
these issues are local headaches, not state headaches, and also because religious
individuals vote, but, as is often said, prisoners do not vote.
35. “Protecting Religious Freedom after Boerne v. Flores”: Hearing before the
Subcomm. on the Constitution of the House Comm. on the Judiciary, 105th Cong.
(July 14, 1997) (testimony of Jeffrey Sutton), available at http://www.house.gov/
judiciary/222309.htm (last visited Nov. 9, 2004) (hereinafter Jeffrey Sutton).
36. Id.
37. 146 Cong. Rec. S7774, 7779 (daily ed. July 27, 2000) (statement of Sen.
Reid) (hereinafter Sen. Reid).
38. 146 Cong. Rec. S7991 (daily ed. Sept. 5, 2000) (statement of Sen.
39. Sen. Reid, supra note 37.
40. See Thomas P. O™Connor & Nathaniel J. Pallone, Religion, the Com-
munity, and the Rehabilitation of Criminal Offenders (2003); Stephen T.
Hall, Faith-Based Cognitive Programs in Corrections, American Correctional Chap-
lains Association, at http://www.correctionalchaplains.org/faith-based/page1.html
(last visited Nov. 10, 2004); Robert Toll, How a Multifaith Chaplaincy Program
NOTES TO PAGES 156“167 / 353

Operates in a County Detention Facility, American Correctional Chaplains Associ-
ation, at http://www.correctionalchaplains.org/articles/01-02-2004.html (last visited
Nov. 10, 2004); Oregon Department of Corrections Transitional Services Division,
Spirituality, Religion and What Works: Religious Outcomes This Side of Heaven,
http://www.oregon.gov/DOC/TRANS/religious services/rs article2.shtml (last vis-
ited Nov. 10, 2004).
41. Adam Hochberg, All Things Considered: Series of Lawsuits Calling for More
Religious Freedoms for Prisoners (National Public Radio broadcast, July 10, 2003),
also available at 2003 WL 5581034.
42. See Jeffrey Sutton, supra note 35.
43. Theriault v. Silber, 453 F. Supp. 254, 260 (W.D. Tex. 1978), appeal dismissed,
579 F.2d 302 (5th Cir. 1978), cert. denied, 440 U.S. 917 (1979); see also Paul W.
Keve, Prisons and the American Conscience: A History of U.S. Federal
Corrections 211“12 (1991).
44. Remmers v. Brewer, 494 F.2d 1277 (8th Cir. 1974) (per curiam), cert. denied,
419 U.S. 1012 (1974).
45. Id. at 1278.
46. Theriault, 453 F. Supp. at 264.
47. Goff v. Graves, 362 F.3d 543, 547 (8th Cir. 2004).
48. Id. at 548.
49. Id. at 549.
50. See Yehuda M. Braunstein, Note, Will Jewish Prisoners Be Boerne Again?
Legislative Responses to City of Boerne v. Flores, 66 Fordham L. Rev. 2333, 2379
(1988) (arguing that state RFRAs are necessary in part because, “Religion in prison
is the most effective form of prisoner rehabilitation . . . ”); see also O™Lone v. Estate
of Shabazz, 482 U.S. 342, 368 (1987) (Brennan, J., dissenting) (“Incarceration by
its nature denies a prisoner participation in the larger human community. To deny
the opportunity to af¬rm membership in a spiritual community, however, may
extinguish an inmate™s last source of hope for dignity and redemption.”); Barnett
v. Rodgers, 410 F.2d 995, 1002 (D.C. Cir. 1969) (“Religion in prison subserves the
rehabilitative function by providing an area within which the inmate may reclaim
his dignity and reassert his individuality.”).
51. Tim Padgett, When God Is the Warden: The Nation™s First Faith-Based Prison
Mixes Religion and Rehab “ And Stirs Up Controversy, Time, June 7, 2004, at 50.
52. Barbara Bradley, Morning Edition: ˜Morning Edition™ Visits Bible-based
Prison Program (National Public Radio broadcast, Sept. 7, 2001), also available
at http://www.pfm.org/AM/Template.cfm?Section=About Prison Fellowship1&
template=/CM/HTMLDisplay.cfm&ContentID=2674 (last visited Nov. 9, 2004).
53. The Americans United for Separation of Church and State™s com-
plaint is available online at http://www.au.org/site/DocServer/InnerChangeBrief.
pdf?docID=163 (last visited Feb. 9, 2005).
54. Larson v. Valente, 456 U.S. 228, 246 (1982).
55. Alan Cooperman, An Infusion of Religious Funds in Fla. Prisons, Wash.
Post, Apr. 25, 2004, at A1 (hereinafter Cooperman).
56. See Mark Chaves, Congregations in America 93 (2004).
354 / NOTES TO PAGES 168“183

57. Cooperman, supra note 55.
58. Megan O™Matz, Taking the Bible behind Bars Evangelical Christians Mo-
bilize for Two Campaigns Aimed at Carrying the Gospel of Jesus Christ into State
Prisons, Sun-Sentinel (Ft. Lauderdale, Fla.), Apr. 17, 2004, at 1B.
59. Carlos Campos, Faith Behind Bars Programs Aim to Uplift, But Foes Say
State Oversteps Bounds, Atlanta J.-Const., Aug. 22, 2004, at C4.
60. Goldman v. Weinberger, 475 U.S. 503, 510 (1986).
61. Id. at 514 (Brennan, J., dissenting).
62. Id. at 524 (Blackmun, J., dissenting).
63. See id. at 528“33 (O™Connor, J. dissenting).
64. C. Thomas Dienes, When the First Amendment Is Not Preferred: The Military
and Other “Special Contexts,” 56 U. Cin. L. Rev. 779, 804 (1988).
65. See 10 U.S.C. § 774 (1987).
66. Sherwood v. Brown, 619 F.2d 479 (9th Cir. 1980).

7. Discrimination
1. Hopkins v. Women™s Div., Bd. Of Global Ministries, 238 F. Supp. 2d 174,
181“82 (D.D.C. 2002).
2. 139 Cong. Rec. S 2822 (1993).
3. 139 Cong. Rec. S 14461 (1993).
4. Id.
5. 139 Cong. Rec. S 2822 (1993).
6. 139 Cong. Rec. D1315 (daily ed. Nov. 16, 1993); At Least 5 Die, 500 Hurt
as Explosion Rips Garage under World Trade Center; Bomb Suspected In Midday
Blast, Wash. Post, Feb. 27, 1993, at A1.
7. Owen Bowcott, The Nine Victims of IRA Bomb Aimed at Loyalist Paramil-
itaries, Guardian (London), October 25, 1993, at 1; List of Terrorist Inci-
dents, at http://simple.wikipedia.org/wiki/List of terrorist incidents (last visited
Nov. 14, 2004).
8. 139 Cong. Rec. S 14350 (Statement of Sen. Hatch).
9. Coalition for Religious Freedom Calls on Supreme Court to Uphold Con-
stitutionality of Religious Freedom Restoration Act, at http://www.ajcongress.org/
pages/RELS1997/JAN97REL/jan 005.htm (last visited Nov. 14, 2004).
10. Tex. Civ. Prac. & Rem. Code Ann. § 110.010 (Vernon 2001).
11. 71 Pa. Cons. State. Ann. § 2406(b) (West 2004).
12. Ashcroft v. ACLU, 124 S. Ct. 2783 (2004) (af¬rming a ¬ve-year-old tempo-
rary injunction against enforcement of the Child Online Protection Act, Pub. L.
No. 105“277, 112 Stat. 2681“736 (1998) (codi¬ed as amended at 47 U.S.C. § 231
(2000)); United States v. Am. Library Ass™n, Inc., 539 U.S. 194 (2003) (upholding
the constitutionality of the Children™s Internet Protection Act, Pub. L. No. 106“
554, 114 Stat. 2763A-335 (2001) (codi¬ed as amended at 20 U.S.C. § 9134 (2004) and
47 U.S.C. § 254(h) (2000)); Reno v. ACLU, 521 U.S. 844 (1997) (striking down the
Communications Decency Act of 1996, Pub. L. No. 104“104, 110 Stat. 133 (codi-
¬ed as amended at 47 U.S.C. § 223 (2000)). The ACLU also ¬led an amicus brief
NOTES TO PAGES 183“185 / 355

in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (invalidating the Child
Pornography Prevention Act, 18 U.S.C. § 2252, 2256 (1996), which regulated child
pornography created with digital technology).
13. Levin v. Yeshiva University, 754 N.E.2d 1099 (N.Y. 2001) (medical students
denied campus-subsidized couples housing with their same sex partners).
14. Religious Freedom Restoration Act of 1991: Hearing on H.R. 2797 Before the
House Subcommittee on Civil and Constitutional Rights of the Committee on the
Judiciary, 103rd Cong. 65 (statement of Nadine Strossen, President, and Robert S.
Peck, Legislative Counsel, American Civil Liberties Union).
15. Religious Liberty Protection Act of 1999: Hearing on H.R. 1691 Before the
Subcommittee on the Constitution of the House Committee on the Judiciary, 105th
Cong. (1999) (statement of American Civil Liberties Union).
16. I.R.C. § 501. Exemption from Tax on Corporations, Certain Trusts, Etc. IRS
Rev. Rul. 71-447 states “A private school that does not have a racially nondiscrimi-
natory policy as to students does not qualify for exemption.”
17. Bob Jones University v United States, 461 U.S. 574, 576 (1983).
18. Id. at 604.
19. 42 U.S.C. § 3607 (2004) states, “Religious organization or private club ex-
emption (a) Nothing in this title shall prohibit a religious organization, association,
or society, or any nonpro¬t institution or organization operated, supervised or con-
trolled by or in conjunction with a religious organization, association, or society,
from limiting the sale, rental or occupancy of dwellings which it owns or operates
for other than a commercial purpose to persons of the same religion, or from giving
preference to such persons, unless membership in such religion is restricted on
account of race, color, or national origin. Nor shall anything in this title prohibit
a private club not in fact open to the public, which as an incident to its primary
purpose or purposes provides lodgings which it owns or operates for other than a
commercial purpose, from limiting the rental or occupancy of such lodgings to its
members or from giving preference to its members.”
20. “[A]pparently there has been some question about the potential effect of
S. 2869 on State and local civil rights laws, such as fair housing laws. Although
prior legislative proposals implicated civil rights laws in a way that concerned the
Department, we believe S. 2869 cannot and should not be construed to require
exemptions from such laws.” 146 Cong. Rec. S 7774 (2000) (letter from Robert
Raben, Asst. Att™y. Gen.). See also 146 Cong. Rec. S 7774 (2000) (letter from
Melissa Rogers, General Counsel, Baptist Joint Committee on Public Affairs) (“We
greatly appreciate the work of the bill™s sponsors in drafting the consensus legislation
that will provide important new protections for the freedom of religious exercise
without the harmful consequences for civil rights laws.”).
21. But see Marci A. Hamilton, The Religious Freedom Restoration Act Is Uncon-
stitutional, Period, 1 U. Pa. J. Const. L. 1 (1998).
22. 42 U.S.C.A. § 2000e-1(a) (1964) (“This subchapter shall not apply to . . . a
religious corporation, association, educational institution, or society with re-
spect to the employment of individuals of a particular religion to perform work
connected with the carrying on by such corporation, association, educational
356 / NOTES TO PAGES 185“189

institution, or society of its activities.”). See, e.g., Hopkins v. Women™s Div., Bd.
Of Global Ministries, 238 F. Supp. 2d 174 (D.D.C. 2002) (holding that religious
discrimination claim is exempted from antidiscrimination rules).
23. 1959 Cal. Stat. 4074. See Maureen E. Markey, The Price of Landlord™s “Free”
Exercise of Religion: Tenant™s Right to Discrimination Free Housing and Privacy, 22
Fordham Urb. L.J. 699, 746 (1995).
24. David A. Thomas, Fixing Up Fair Housing Laws: Are We Ready for Reform?,
53 S.C. L. Rev. 7, 50 n. 297 (2001).
25. Those in the latter category include: CA, DC, HI, MD, NH, NJ, NM, NY,
RI. Here are a few citations: R.I. Gen. Laws § 34-37-4 (2004); N.Y Exec. Law § 296
(2004); N.H. Stat. Ann. §354-A(8) (2004); Haw. Rev. Stat. § 368-1 (2003).
26. Smith v. Fair Employment & Hous. Comm™n, 913 P.2d 909, 926 (Cal. 1996);
McCready v. Hof¬us, 586 N.W. 2d 723, 729 (Mich. 1998). See also Stephanie
Hammond Knutson, Note, The Religious Landlord and the Con¬‚ict between Free
Exercise Rights and Housing Discrimination Laws “ Which Interest Prevails?, 47
Hastings L.J. 1669, 1716“17 (1996).
27. Bachman v. St. Monica™s Congregation, 902 F.2d 1259 (7th Cir. 1990), reh™g
denied,902 F.2d 1259 (1990).
28. Swanner v. Anchorage Equal Rights Com™n, 874 P.2d. 274, 280 n. 8 (Alaska
1994) (per curiam); McCready, 586 N. W. 2d at 730 (“A compelling state interest in
eradicating discrimination in real estate transactions justi¬es the burden on their
beliefs”); cf. Attorney Gen. v. Desilets, 636 N.E.2d 233 (Mass. 1994), recognizing a
compelling interest test, but stating “The general objective of eliminating discrimi-
nation of all kinds referred to in the relevant version of § 4 (6) (“race, religious creed,
color, national origin, sex, age, ancestry or marital status” cannot alone provide a
compelling State interest that justi¬es the application of that section in disregard
of the defendants™ right to free exercise of their religion”); see also Markey, The
Price of Landlord™s “Free” Exercise of Religion, supra note 23, at 699.
29. Compare Swanner, 874 P.2d at 274 and McCready at 586 N.W. 2d at 729
with Swanner v. Anchorage Equal Rights Comm™n, 513 U.S. 979 (1994) (Thomas,
J., dissenting from denial of certiorari), Donahue v. Fair Employment & Housing
Com., 2 Cal. Rptr. 2d 32 (Cal. Ct. App. 1991), and State by Cooper v. French, 460
N.W. 2d 2 (Minn. 1990).
30. Swanner, 874 P.2d at 282“83; McCready, 586 N.W. 2d at 729 (explaining
that the Michigan legislature determined the need for equal access to housing
regardless of marital status so fundamental as to require the passing of the Civil
Rights Act).
31. Smith, 913 P.2d at 929.
32. McCready, 586 N.W. 2d at 730; Swanner, 874 P.2d at 280, n. 9.
33. Hack v. Fellows of Yale College, 237 F.3d 81, 89, 90 (2d Cir. 2000).
34. State by Cooper, 460 N.W.2d at 4, 5, 8, 11.
35. Donahue, 2 Cal. Rptr. 2d at 50.
36. 42 U.S.C. § 2000e-1 (1964). The Age Discrimination in Employment Act
(ADEA) does not have a religious exception. See, e.g, De Marco v. Holy Cross
High Sch., 4 F.3d 166, 173 (2d Cir. 1993).
NOTES TO PAGE 189 / 357

37. See, e.g., Killinger v. Samford Univ., 113 F.3d 196 (11th Cir. 1997) (considering
numerous factors, university is a religious institution); EEOC v. Kamehameha
School/Bishop Estate, 990 F.2d 458, 460 (9th Cir. 1993) (when the statute is properly
and narrowly construed, a religious school did not count as a religious organization);
EEOC v. Townley Engineering & Mfg. Co., 675 F. Supp. 566 (D. Ariz. 1987) (for-
pro¬t corporation whose articles of incorporation made no reference to religion
not entitled to Title VII exemption).
38. See, e.g., Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d
648 (10th Cir. 2002) (court will not take jurisdiction where claim involves ¬red
gay youth minister whose lifestyle was prohibited by church doctrine); EEOC v.
Southwestern Baptist Theological Seminary, 651 F.2d 277, 283 (5th Cir. 1981);
Smith v. Raleigh Dist. of the N.C. Conf. of the United Methodist Church, 63
F. Supp. 2d 694, 706 (D. N.C. 1999) (hostile environment claim goes forward
where employees performed nonreligious tasks); Guinan v. Roman Catholic
Archdiocese, 42 F. Supp. 2d 849, 852“53 (S.D. Ind. 1998) (ministerial exception
in applicable in ADEA case where teacher did not function in a ministerial
The Supreme Court upheld Title VII™s exemption for religion in year and in-
terpreted the idea of “religious employee” broadly, so that a janitor in a religious
organization could be denied the right to sue for discrimination. Corporation of
Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S.
327 (1987).
39. See, e.g., Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 958 (9th Cir.
2004) (holding the claims could not proceed in civil court because that would
involve an inquiry into the Church decisions of who shall be a minister); Bollard v.
California Province of the Soc™y of Jesus, 196 F.3d 940, 947 (9th Cir. 1999) (allowing
the case to proceed because “the Jesuits do not offer a religious justi¬cation for
the harassment Bollard alleges” and, hence, there is no danger in secular courts
passing judgment on religious beliefs or doctrine); Cline v. Catholic Diocese, 206
F.3d 651, 658 (6th Cir. 1999) (Title VII and ministerial exception did not protect
the Church from claim based on ¬ring of unwed pregnant woman because the
Church cannot discriminate based on pregnancy, which is clearly discrimination
based on sex); EEOC v. Paci¬c Press Pub. Assoc, 676 F.2d 1272, 1279 (9th Cir. 1992)
(married female employee™s suit against pay according to gender and marital status
permitted to go forward, because de minimis burden on religious belief); EEOC v.
Fremont Christian School, 781 F.2d 1362, 1368 (9th Cir. 1986) (¬nding de minimis
burden on religious belief where Christian school provided health insurance only
to “heads of households”); Dolquist v. Heartland Presbytery, No. 03-2150-KHV,
2004 U.S. Dist. LEXIS 21888 (D. Kan. Oct. 28, 2004); Smith, 63 F. Supp. 2d at 710
(hostile environment claims go forward where they do not intrude upon defendant
church™s spiritual functions).
40. Hartwig v. Albertus Magnus College, 93 F. Supp. 2d 200, 217“18 (D. Conn.
2000) (the contractual claims did not involve impermissible involvement with
issues of religious doctrine but rather involved the alleged misrepresentation of
Hartwig™s status as a priest).
358 / NOTES TO PAGES 189“197

41. Vigars v. Valley Christian Ctr., 805 F. Supp. 802 (N.D. Cal. 1992) (distin-
guishing between exemption permitted where ¬ring was based on adulterous
relationship that violated religious tenets, but not if ¬ring was based on preg-
nancy, which was not proscribed by religious beliefs); Janet S. Belcove-Shalin,
Ministerial Exception and Title VII Claims: Case Law Grid Analysis, 2 Nev.
L.J. 86, 87 (2002). (“This historical [McClure] holding provided a constitutional
mooring for what is variously referred to as “the ministerial exception” . . . “and
what has been construed as a blanket exemption from Title VII judicial re-
view of the employment relationship between a religious organization and its
42. McClure v. Salvation Army, 460 F.2d 553, 558“59 (5th Cir. 1972). On appeal,
the court held the Free Exercise Clause of the First Amendment precluded the
district court from exercising jurisdiction over the minister™s claims.
43. Lewis v. Seventh Day Adventists Lake Region Conference, 978 F.2d 940,
942 (6th Cir. 1992).
44. 676 F.2d at 1289.
45. Williams v. Episcopal Diocese, 13 Mass. L. Rep. 289 (Mass. Sup. Ct. 2001).
46. 233 F. Supp. 2d 917 (N.D. Ohio 2002).
47. Rosati v. Toledo, 233 F. Supp.2d 917 (N.D. Ohio 2002).
48. See, e.g., Hopkins, 238 F. Supp. 2d 174 (holding that church can avoid reli-
gious discrimination claim under Title VII exemption, but not claims regarding
racial discrimination); Guinan, 42 F. Supp. 2d 849 (age discrimination claim stands
where teacher does not function as a minister or clergy member, rejecting claims
under ministerial exception and RFRA).
49. Southwest Baptist Theological Seminary, 651 F.2d at 284.
50. Paci¬c Press Pub. Assoc., 676 F.2d at 1278 (Title VII, sec. 702 applies only to
employees whose duties “go to the heart of the church™s function”).
51. EEOC v. Mississippi College, 626F.2d 477 (5th Cir. 1980) (religious college
does not get bene¬t of Title VII, sec. 702 exemption, because it is not a church).
52. McKelvey v. Pierce, 800 A.2d 840 (N.J. 2002).
53. Id. at 857 (quoting Sanders v. Casa View Baptist Church, 134 F.2d 331, 335“36
(5th Cir. 1998)).
54. Dunn v. Bd. of Incorporators of the African Methodist Episcopal Church,
No. 00-CV02547-D, 2002 U.S. Dist. LEXIS 2464 (N.D. Tex. 2002).
55. Young v. Northern Ill. Conference United Methodist Church, 818 F. Supp.
1206 (N.D. Ill. 1993), aff ™d, 21 F.3d 184 (7th Cir. 1994), cert. denied, 513 U.S. 929
56. Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 953, 953“54, 965 (9th Cir.
2004). See also Petruska v. Gannon Univ., No. 04-80, 2004 U.S. Dist. LEXIS 26085
(W.D. Pa. Dec. 27, 2004).
57. Bollard v. California Province of Society of Jesus, No. C 97-3006 SI, 1998
WL 273011 (N.D. Cal. May 15, 1998), rev™d and remanded by Bollard v. California
Province of the Soc™y of Jesus, 196 F.3d 940 (9th Cir. 1999).
58. Id. at — 1 (N.D.Cal. May 15, 1998).
NOTES TO PAGES 197“207 / 359

59. Bollard, 196 F.3d at 944, 948. Bollard settled his claim against the Jesuits for
an undisclosed amount after the case was remanded to trial. Ex-Jesuit Seminarian
Settled Sex-Harass Suit, S. F. Chron., Aug. 2, 2000, at A24.
60. Dolquist v. Heartland Presbytery, No. 03-2150-KHV, 2004 U.S. Dist. LEXIS
21888, — 7 (D. Kan. Oct. 28, 2004).
61. Id. at — 37.

8. Boerne v. Flores: The Case that Fully Restored the Rule of Law for
Religious Entities
1. Wisconsin v. Yoder, 406 U.S. 205, 221 (1972); Sherbert v. Verner, 374 U.S. 398,
406“7 (1963).
2. Katzenbach v. Morgan, 384 U.S. 641, 652 (1966).
3. In the interest of full disclosure, I represented the City of Boerne, Texas, in
Boerne v. Flores, 521 U.S. 507 (1997), in which the City prevailed. My personal
involvement in the case, however, is only tangentially relevant to the doctrinal anal-
ysis in this chapter. The City of Boerne, Texas was settled by German immigrants
and is pronounced Ber-knee.
4. Thomas Jefferson, “Notes on the State of Virginia (1787),” in 2 The Writ-
ings of Thomas Jefferson, at 221 (Albert Ellery Bergh ed., 1905).
5. John Stuart Mill, On Liberty, reprinted in Vol. XXV, Part 2 The Harvard
Classics (1909“14), available at http://www.bartleby.com/25/2/4.html (last visited
Jan. 7, 2005).
6. This is true in the history leading up to the Constitution, and in the Supreme
Court case across the spectrum of constitutional topics. See Bernard Bailyn, The
Ideological Origins of the American Revolution 77 (1967) (“Liberty, that is,
was the capacity to exercise “natural rights™ within limits set, not by the mere will
or desire of men in power but by nonarbitrary law “ law enacted by legislatures
containing within them the proper balance of forces”); Gordon S. Wood, The
Creation of the American Republic 1776“87 60“61 (1969); Boerne, 521 U.S. at
539“41 (Scalia, J., concurring) (“Religious exercise shall be permitted so long as it
does not violate general laws governing conduct”) (emphasis in original) (citing the
Maryland Act Concerning Religion of 1649, negating a license to act in a manner
“unfaithful to the Lord Proprietary”; the Rhode Island Charter of 1663, requiring
people to “behave” in other than a “peaceable and quiet” manner; the earliest
New York, Maryland, and Georgia Constitutions prohibiting interference with the
“peace [and] safety of the State”; the ¬rst New Hampshire Constitution forbidding
anyone from “disturb[ing] the public peace”; the Northwest Ordinance of 1787
prohibiting citizens from “demean[ing]” oneself in other than a “peaceable and
orderly manner”).
The importance of “ordered liberty” in Supreme Court jurisprudence cannot
be overrstated. See infra note 17.
7. 98 U.S. 145 (1879).
360 / NOTES TO PAGES 207“208

8. Reynolds, 98 U.S. at 164 (quoting 8 Jefferson Works 113).
9. Id. at 166“67.
10. I have called it the no-harm principle. See Marci A. Hamilton, Religious
Institutions, the No-Harm Doctrine, and the Public Good, 2004 B.Y.U. L. Rev.
11. Reynolds, 98 U.S. at 164 (quoting 8 Jefferson Works 113).
12. John Locke, A Letter Concerning Religious Toleration 50 (Bobbs-
Merrill 2d ed. 1955) (1689) (“[L]iberty of conscience is every man™s natural right,
equally belonging to dissenters as to themselves; . . . nobody ought to be com-
pelled in matters of religion either by law or force. The establishment of this
one thing would take away all ground of complaints and tumults upon account of
13. John Locke, Two Treatises of Government (Mark Goldie ed. 1993)
(1689) (hereinafter Locke, Two Treatises), in which he discusses a “no-harm”
principle (“If human beings belong to God, they cannot belong to one another,
or even to themselves. Since God is the true proprietor, no one else has the right
to damage or destroy his property”). See also Russell L. Caplan, The History and
Meaning of the Ninth Amendment, 69 Va. L. Rev. 223, 230 (1983) (hereinafter
Caplan) (“Under [Locke™s] theory, individuals are born into a “state of nature,”
that is, without organized government, and agree out of “strong Obligations of
Necessity, Convenience, and Inclination” to live in political communities. In so
contracting, individuals must give up some of their natural rights so that the rest
of those rights may be more effectively secured. The sole legitimate purpose of
government, therefore, is the good of the contracting parties “ the public. Accord-
ingly, government has a right only to act for the bene¬t of the governed, to protect
its citizens from rebellion within and invasion without”).
14. Locke, Two Treatises, supra note 13, at 164; see also Caplan, supra note 13,
at 230.
15. Reynolds, 98 U.S. at 164.
16. Mill, On Liberty, supra note 5, available at http://www.bartleby.com/25/2/
(last viewed May 11, 2004).
17. See Sell v. U.S. 539 U.S. 166 (2003); Chavez v. Martinez, 538 U.S. 760
(2003); Tyler v. Cain, 533 U.S. 656 (2001); County of Sacramento v. Lewis,
523 U.S. 833 (1998); Washington v. Glucksberg, 521 U.S. 702 (1997); Kansas v.
Hendricks, 521 U.S. 346 (1997); O™Dell v. Netherland, 521 U.S. 151 (1997); Carlisle
v. U.S., 517 U.S. 416 (1996); Goeke v. Branch, 514 U.S. 115 (1995); Gilmore v. Taylor,
508 U.S. 333 (1993); Graham v. Collins, 506 U.S. 461 (1993); Riggins v. Nevada,
504 U.S. 127 (1992); Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990); Butler v.
McKellar, 494 U.S. 407 (1990); Stanford v. Kentucky, 492 U.S. 361 (1989); Michael
H. v. Gerald D., 491 U.S. 110 (1989); Teague v. Lane, 489 U.S. 288 (1989); Yates v.
Aiken, 484 U.S. 211 (1988); U.S. v. Salerno, 481 U.S. 739 (1987); Memphis Com-
munity School Dist. v. Stachura, 477 U.S. 299 (1986); Bowen v. Roy, 476 U.S. 693
(1986); U.S. v. Bagley, 473 U.S. 667 (1985); Dun & Bradstreet, Inc. v. Greenmoss
Builders, 472 U.S. 749 (1985); Kolender v. Lawson, 461 U.S. 352 (1983); Moore v.
City of East Cleveland, Ohio, 431 U.S. 494 (1977); Ingraham v. Wright, 430 U.S.
NOTES TO PAGES 208“212 / 361

651 (1977); Whalen v. Roe, 429 U.S. 589 (1977); Stone v. Powell, 428 U.S. 465
(1976); U.S. v. Janis, 428 U.S. 433 (1976); Paul v. Davis, 424 U.S. 693 (1976); Gertz
v. Robert Welch, Inc., 418 U.S. 323 (1974); Paris Adult Theatre I v. Slaton, 413 U.S.
49 (1973); Roe v. Wade, 410 U.S. 113 (1973); Wisconsin v. Yoder, 406 U.S. 205 (1972);
Coolidge v. New Hampshire, 403 U.S. 443 (1971); Williams v. U.S., 401 U.S. 646
(1971) (plurality opinion); Duncan v. State of La., 391 U.S. 145 (1968); Tehan v. U.S.
ex rel. Shott, 382 U.S. 406 (1966); Ker v. State of Cal., 374 U.S. 23 (1963); Gideon
v. Wainwright, 372 U.S. 335 (1963); Mapp v. Ohio, 367 U.S. 643 (1961); Elkins v.
U.S., 364 U.S. 206 (1960); Ohio v. Price, 364 U.S. 263 (1960) (per curiam); Napue
v. Illinois, 360 U.S. 264 (1959); Bartkus v. Illinois, 359 U.S. 121 (1959); Leland v.
Oregon, 343 U.S. 790 (1952); Rochin v. California, 342 U.S. 165 (1952); Stefanelli v.
Minard, 342 U.S. 117 (1951); Kovacs v. Cooper, 336 U.S. 77 (1949); Bute v. Illinois,
333 U.S. 640 (1948); Screws v. U.S., 325 U.S. 91 (1945).
18. See generally The Works of John Witherspoon, Lectures on Moral
Philosophy (1805).
19. 7 The Works of John Witherspoon 100, 148 (lecture 16) (1805). Wither-
spoon, a signer of the Declaration of Independence and president of Princeton, was
in¬‚uential in the development of many of the Framers, including James Madison.
20. Lee v. Weisman, 505 U.S. 577, 590“91 (1992) (“To endure the speech of false
ideas or offensive content and then to counter it is part of learning how to live in
a pluralistic society, a society which insists upon open discourse towards the end
of a tolerant citizenry. And tolerance presupposes some mutuality of obligation.”);
Smith, 494 U.S. at 879 (“the right of free exercise does not relieve an individual
of the obligation to comply with a ˜valid and neutral law of general applicability
on the ground that the law proscribes (or prescribes) conduct that his religion
prescribes (or proscribes).™” (quoting United States v. Lee, 455 U.S. 252, 263, n. 3
(1982) (Stevens, J., concurring in judgment)).
21. 512 U.S. 687 (1994).
22. 406 U.S. 205 (1972).
23. Smith, 494 U.S. at 881.
24. Lee, 455 U.S. at 259“60.
25. Robert Nozick, Anarchy, State, & Utopia 32“35 (1974).
26. Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 547 (1993).
27. Abington School Dist. v. Schempp, 374 U.S. 203, 305 (1963) (Goldberg, J.
28. Sarah Barringer Gordon, The Mormon Question: Polygamy and
Constitutional Con¬‚ict in Nineteenth Century America 157 (2002).
29. U.S. Const. art. III § 2 states:

The judicial power shall extend to all cases, in law and equity, arising under this
Constitution, the laws of the United States, and treaties made, or which shall be
made, under their authority . . . to controversies to which the United States shall
be a party; “ to controversies between two or more states; “ between a state and
citizens of another state; “ between citizens of different states; “ between citizens
of the same state claiming lands under grants of different states, and between a
state, or the citizens thereof, and foreign states, citizens or subjects.
362 / NOTES TO PAGES 212“215

30. Lee, 455 U.S. at 259“60.
31. Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983).
32. Tony & Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 306
33. Goldman v. Weinberger, 475 U.S. 503, 509“10 (1986).
34. Bowen v. Roy, 476 U.S. 693, 700“701 (1986).
35. Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439, 452
36. Hernandez v. Commissioner, 490 U.S. 680, 683 (1989).
37. Jimmy Swaggart Ministries v. Board of Equalization, 493 U.S. 378, 394
38. O™Lone v. Estate of Shabazz, 482 U.S. 342, 345 (1987).
39. Smith, 494 U.S. at 885. In addition to this list of cases in which the Court up-
held neutral, generally applicable laws against free-exercise challenges, the Court
also refused to read into the requirements of the civil rights act a duty to accommo-
date Sabbatarians. See Trans World Airlines v. Hardison, 432 U.S. 63, 81 (1977) (“It
would be anomalous to conclude that by ˜reasonable accommodation™ Congress
meant that an employer must deny the shift and job preference of some employ-
ees, as well as deprive them of their contractual rights, in order to accommodate
or prefer the religious needs of others, and we conclude that Title VII does not
require an employer to go that far.”). This is especially interesting in light of the
fact that the only arena wherein the Court consistently found free-exercise viola-
tions between 1963 and 1990 involved Sabbatarians challenging the laws governing
unemployment compensation. See, e.g., Sherbert, 374 U.S. 398; see also Frazee v.
Ill. Dep™t of Employment Sec., 489 U.S. 829 (1989).
40. Smith, 494 U.S at 878“79, 885.
41. Lukumi, 508 U.S. at 547, 523 (internal citations omitted).
42. Smith, 494 U.S. at 890.
43. Lukumi, 508 U.S. 520.
44. McDaniel v. Paty, 435 U.S. 618, 628“29 (1978).
45. Locke v. Davey, 124 S. Ct. 1307, 1312“13 (2004) (citing Hobbie v. Unem-
ployment Appeals Comm™n of Fla., 480 U.S. 136 (1987); Thomas v. Review Bd.
of Indiana Employment Security Div., 450 U.S. 707 (1981); Sherbert, 374 U.S. 398
46. See Fowler v. Rhode Island, 345 U.S. 67 (1953), where the appellant was a
minister of Jehovah™s Witnesses who was arrested for addressing a religious meeting
in a public park, in violation of an ordinance of the City of Pawtucket, R.I. Ap-
pellant contended that the ordinance as applied violated the First and Fourteenth
Amendments. On oral argument before the Court, the State conceded that the
ordinance did not prohibit church services in public parks and that Catholics and
Protestants could conduct religious services without violating the ordinance. The
Court held that the ordinance, as construed and applied by the State, amounted
to unlawful discrimination because the religious services were of Jehovah™s
NOTES TO PAGES 215“218 / 363

47. See Brief for Respondent at — 15, Davey, 124 S. Ct. 1307, available at 2002
U.S. Briefs 1315 (LEXIS) (“The state™s express, discriminatory disquali¬cation of
otherwise eligible scholarship recipients, solely because they declare a major in
theology taught from a religious point of view, violates the Free Exercise Clause
of the First Amendment”); Brief for Amici Curiae The Beckett Fund for Religious
Liberty, et. al. at — 3, Davey, 124 S. Ct. 1307, available at 2002 U.S. Briefs 1315
(LEXIS) (“The Washington State law at issue in this case disquali¬es a student
from an otherwise available government bene¬t, only because the student would
use the bene¬t for a religious purpose. That is the core constitutional offense
identi¬ed by the court below, and this Court may af¬rm [the invalidation of the
statute] on that basis alone.”).
48. Davey, 124 S. Ct. at 1312.
49. Frazee, 489 U.S. at 835; Hobbie, 480 U.S. at 141; Thomas, 450 U.S. at 718;
Yoder, 406 U.S. at 221; Sherbert, 374 U.S. at 406“7.
50. Justice Brennan™s opinion in Sherbert, 374 U.S. 398, was the ¬rst case to
introduce this new rule, and its reasoning was the template against which the
succeeding unemployment compensation cases were decided. See, e.g., Hobbie,
480 U.S. at 139“40 (author for majority); Thomas, 450 U.S. at 713“14 (joined in
majority). He also joined the majority in Yoder, 406 U.S. 205, where he also joined
the concurrences of Justices Byron White and Potter Stewart, which argued that
a different case would be presented if an Amish child wished to attend school
beyond the eighth grade, despite the parents™ religious beliefs, id. at 237 (Stewart,
J., concurring), or if the “religion forbade their children from attending any school
at any time and from complying in any way with the educational standards set by
the State.” Id. at 238 (White, J., concurring).
51. Smith, 494 U.S. 872, which rejected the application of strict scrutiny to
generally applicable, neutral laws, was decided on April 17, 1990, only three months
before Brennan retired on July 20, 1990. See Members of the Supreme Court of the
United States, at http://www.supremecourtus.gov/about/members.pdf (last viewed
May 18, 2004).
52. Frazee, 489 U.S. at 835; Hobbie, 480 U.S. at 141; Thomas, 450 U.S. at 718;
Sherbert, 374 U.S. at 406“7.
53. Yoder, 406 U.S. at 221.
54. 374 U.S. 398, 400“401 (quoting S. C. Code, tit. 68, §§ 68-1 to 68-404), 404
55. 450 U.S. 707, 709, 709 n. 1 (quoting Indiana Code § 22-4-15“1 [Supp. 1978])
56. 480 U.S. 136, 137“138 (quoting Fla. Stat. § 443.021 [1985]) (1987).
57. 489 U.S. 829, 830“831 (quoting Frazee v. Ill. Dep™t of Employment Sec., 512
N. E. 2d 789 [Ill. 1987]), 834 (1989).
58. See, e.g., Weiss, Privilege, Posture and Protection: “Religion” in the Law,
73 Yale L.J. 593 (1964); J. Morris Clark, Guidelines for the Free Exercise Clause,
83 Harv. L. Rev. 327, 329 (1969) (“In common sense terms the Sherbert deci-
sion seems correct enough. . . . Yet by its holding that some religious practices
364 / NOTES TO PAGES 218“219

are protected even from laws not intended to affect the communicative aspects
of belief, Sherbert introduced a new range of complexity into the free exercise
59. See generally Kent Greenawalt, Religion as a Concept in Constitutional
Law, 72 Cal. L. Rev. 753 (1984); Philip E. Johnson, Concepts and Compromise
in First Amendment Religious Doctrine, 72 Cal. L. Rev. 817 (1984); Note, Toward
a Constitutional De¬nition of Religion, 91 Harv. L. Rev. 1056, 1077“82 (1978)
(discussing and rejecting criticisms of Sherbert).
60. See, e.g., Douglas Laycock, Continuity and Change in the Threat to Religious
Liberty: The Reformation Era and the Late Twentieth Century, 80 Minn. L. Rev.
1047, 1099 (1996) (“When the evil is human suffering, the sufferer is penalized
because of his religious practice, and the State in¬‚icts the suffering, focusing
on the State™s motive seems to miss the point.”); Michael W. McConnell, The
Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev.
1409, 1516 (1990) (hereinafter McConnell, Origins) (“the Court should extend its
protection to religious groups that, because of their inability to win accommodation
in the political process, are in danger of forced assimilation into our secularized
Protestant culture. . . . The free-exercise clause also makes an important statement
about the limited nature of governmental authority. While the government is
powerless and incompetent to determine what particular conception of the divine
is authoritative, the free-exercise clause stands as a recognition that such divine
authority may exist and, if it exists, has a rightful claim on the allegiance of believers
who happen to be American citizens.”); Stephen M. Feldman, Religious Minorities
and the First Amendment: The History, the Doctrine, and the Future, 6 U. Pa. J.
Const. L. 222, 270 (2003) (“A free-exercise claimant™s religious interests should
be presumed to outweigh all countervailing governmental interests unless the
government shows that its interests are of overriding (or compelling) importance
and cannot be satis¬ed in any other manner. Quite evidently, this presumption
would reinstitute the strict scrutiny or compelling state interest test that the Court
at least claimed to apply for many years in free-exercise cases. The reason for
reintroducing this presumption is powerful: the Court might all too easily permit
the sacri¬ce of outsiders™ sincere religious interests for the mere convenience of
the government or democratic majorities (the religious mainstream).”).
61. 406 U.S. 205 (1972).
62. Yoder, 406 U.S. at 228“29.
63. See Ellis West, The Case Against a Right to Religious-Based Exemptions, 4
Notre Dame J. L. Ethics & Pub. Pol™y 591, 624 (1989) (rejecting constitutionally
compelled exemptions, but not legislative exemptions); William P. Marshall, The
Case Against the Constitutionally Compelled Free Exercise Exemption, 40 Case
W. Res. L. Rev. 357 (1990). The historical case against mandatory exemptions
was initiated in the well-respected article, Philip A. Hamburger, A Constitutional
Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. L. Rev.
915 (1992).
64. McConnell, Origins, supra note 60.
65. Id. at 1415.
NOTES TO PAGES 219“221 / 365

66. See generally Frederick M. Gedicks, An Un¬rm Foundation: The Regrettable
Indefensibility of Religious Exemptions, 20 U. Ark. Little Rock L.J. 555, 574 (1998)
(“[T]he historical moment for exemptions has come and gone. There no longer
exists a plausible explanation of why religious believers “ and only believers “ are
constitutionally entitled to be excused from complying with otherwise legitimate
laws that burden practices.”); Marshall, supra note 63; Hamburger, supra note 63;
West, supra note 63, at 624 (rejecting constitutionally compelled exemptions, but
not legislative exemptions); see also Gedicks, supra note 66, at 950“51 (“[I]n the
long run, no effective defense is possible [for judicially mandated exemptions]. To
the extent that a residuum of religious exemptions persists under state law, . . . I say
enjoy them while they last.”).
67. See, e.g., II John Calvin, Institutes of the Christian Religion, bk. IV,
ch.XX, §32, at 1520:
But in that obedience which we have shown to be due the authority of rulers,
we are always to make this exception, indeed, to observe it as primary, that such
obedience is never to lead us away from obedience to him.
68. See Marci A. Hamilton, Religion, the Rule of Law, and the Good of the
Whole: A View from the Clergy, 18 J. L. & Politics 387, 396“408 (2002).
69. Political Sermons of the American Founding Era, 1730“1805, at 147“48
(Ellis Sandoz ed., 1991) (Charles Chauncy 1747).
70. 494 U.S. 872 (1990).
71. See Oral Argument in Smith, 494 U.S. 872, available at 1989 U.S. TRANS
LEXIS 94, at — 36. Respondents argued that “it is our belief that the state cannot
meet any of the burdens in this case. The compelling state interest is the regulation
of drug abuse generally, but we do not have any evidence in this case that peyote
has been abused or that it contributes to the drug abuse problem. In fact, all of the
evidence is to the contrary. We have the ¬ndings, for instance, of the federal agency
charged with enforcement of the drug laws in this country, which found that and
concluded that the religious use of peyote by the Native American Church does
not cause a law enforcement problem in this country.”
72. See Reply Brief for Petitioners, Smith, No. 88“1213, 494 U.S. 872 (“Un-
like Yoder, the practice at issue here directly affects physical and mental health.
The State™s health interests in preventing the use of peyote is no different from
its interests in preventing the use of mescaline, psilocybin, and LSD, all of
which have substantially the same hallucinogenic properties as peyote. Unlike
the Amish™s practices, the state cannot accommodate religiously motivated drug
use without substantially compromising its interests in the health and safety of its
citizens.” (footnote omitted)).
73. Smith, 494 U.S. at 878“79.
74. Smith, 494 U.S. at 890.
75. See, e.g., Michael W. McConnell, Free Exercise Revisionism and the Smith
Decision, 57 U. Chi. L. Rev. 1109, 1129 (1990) (hereinafter McConnell, Free
Exercise Revisionism) (“The rhetoric of [Smith] is certainly impolitic, leaving the
Court open to the charge of abandoning its traditional role as protector of minority
rights against majoritarian oppression.”); Douglas Laycock, The Remnants of Free
366 / NOTES TO PAGES 221“223

Exercise, 1990 Sup. Ct. Rev. 1, 15 (criticizing Smith™s reliance on exemptions in
part because “Legislators are under no obligation to be principled. Subject only to
their oath to uphold the Constitution, they are free to re¬‚ect majority prejudices,
to respond to the squeakiest wheel among minorities, to trade votes and make com-
promises, and to ignore problems that have no votes in them.”); Gordon, infra note
83, at 110 (calling Smith™s invocation of exemptions “Small comfort. ˜Discrete and
insular minorities™ often cannot protect themselves adequately in the legislative
process. The right to practice one™s religion should not be reduced to a question
of political in¬‚uence, completely subject to the whims of transient and shifting
majorities,” quoting United States v. Carolene Prods. Co., 304 U.S. 144, 153 n. 4
76. Smith, 494 U.S. at 879 (quoting United States v. Lee, 455 U.S. 252, 263, n. 3
(1982) (Stevens, J. concurring in judgment)).
77. Yoder, 406 U.S. at 216“17. For this reason, Yoder is an early harbinger of Chief
Justice Burger™s later decision in Bowers v. Hardwick, 478 U.S. 186 (1986), where
he employed biblical passages to interpret the 14th Amendment™s Equal Protection
Clause. Bowers was overruled in Lawrence v. Texas, 539 U.S. 558, 578 (2003).
78. See, e.g.,Knight v. Conn. Dep™t of Pub. Health, 275 F.3d 156, 167 (2d Cir.
2001) (“The allegation that a state action that regulates public conduct infringes on
more than one of a public employee™s constitutional rights does not warrant more
heightened scrutiny than each claim would warrant when viewed separately.”);
Swanson by & Through Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d
694, 699 (10th Cir. 1998) (“It is dif¬cult to delineate the exact contours of the
hybrid-rights theory discussed in Smith. As we discuss below, however, we be-
lieve that simply raising such a claim is not a talisman that automatically leads to
the application of the compelling-interest test. We must examine the claimed in-
fringements on the party™s claimed rights to determine whether either the claimed
rights or the claimed infringements are genuine.”); Kissinger v. Board of Trustees
of Ohio State Univ., 5 F.3d 177, 180 (6th Cir. 1993) (“We do not see how a state
regulation would violate the Free Exercise Clause if it implicates other constitu-
tional rights but would not violate the free Exercise Clause if it did not implicate
other constitutional rights. . . . At least until the Supreme Court holds that legal
standards under the Free Exercise Clause vary depending on whether other con-
stitutional rights are implicated, we will not use a stricter legal standard . . . to eval-
uate generally applicable, exceptionless state regulations under the Free Exercise
79. Smith, 494 U.S. at 907 (Blackmun, J. dissenting) (“This Court over the
years painstakingly has developed a consistent and exacting standard to test the
constitutionality of a state statute that burdens the free exercise of religion. Such
a statute may stand only if the law in general, and the State™s refusal to allow a
religious exemption in particular, are justi¬ed by a compelling interest that cannot
be served by less restrictive means.”).
80. Douglas Laycock, The Supreme Court™s Assault on Free Exercise, and the
Amicus Brief that Was Never Filed, 8 J.L. & Religion 99, 102 (1990).
81. McConnell, Free Exercise Revisionism, supra note 75, at 1120.
NOTES TO PAGES 223“224 / 367

82. Steven D. Smith, Free Exercise Doctrine and the Discourse of Disrespect, 65
U. Colo. L. Rev. 519, 575 (1994).
83. Harry F. Tepker, Jr., Hallucinations of Neutrality in the Oregon Peyote Case,
16 Am. Indian L. Rev. 1 (1991).
84. James D. Gordon III, Free Exercise on the Mountaintop, 79 Cal. L. Rev. 91,
114“15 (1991).
85. Robert L. Stern, et. al., Supreme Court Practice 313“14 (8th ed. 2002).
86. The following colloquy from the oral argument is telling:

QUESTION [BY JUSTICE]: I mean, we granted certiorari on the question pre-
sented, which is whether the Free Exercise Clause of the First Amendment pro-
tects a person™s religiously motivated use of peyote from the reach of the state™s
general criminal law prohibition. And you say maybe it is not so much a question
of criminal law, but you agree that the First Amendment issue is here.
MR. DORSAY: Yes, but we think it is disposed of, and we need to keep
reemphasizing this by Sherbert and Thomas, that the criminality is irrelevant.
If the criminality is relevant, we still believe that the state has not met their test
under the First Amendment. And I would be glad to move to that issue. Transcript
of oral argument in Smith, 494 U.S. 872, 1989 U.S. TRANS LEXIS 94, at — 35“42.
The representative of Galen and Black, Mr. Dorsay, argued: The state has failed
to meet its burden under the First Amendment to justify what we believe would
be the total destruction of this religion, and that is because of the test that has been
established by this Court in First Amendment cases. There is a sincere religious
belief, it is a bona¬de religion; that is conceded by the state. But once that is
shown, the state must show, as Justice O™Connor summarized in the Goldman
case, that the interest will in fact be substantially harmed by granting the type of
exemption requested, and that the state interest will be undermined by granting
the exemption, and there is no less restrictive alternative that can be granted in
this case. And it is our belief that the state cannot meet any of the burdens in this
case. The compelling state interest is the regulation of drug abuse generally, but
we do not have any evidence in this case that peyote has been abused or that it
contributes to the drug abuse problem.
QUESTION BY JUSTICE: [W]hy can™t the state say we don™t want Native
American Church members to use it either. We think this is dangerous. It is
harmful to people. We don™t want children to be brought into this church and
taught to use this thing, it is harmful to them. It is a Schedule I substance; we
have made that determination.
MR. DORSAY: Because the First Amendment, I believe, requires something more
than a mere legislative statement that we believe it may be harmful.
QUESTION BY JUSTICE: How about marijuana use by a church that uses that
as part of its religious sacrament?
MR. DORSAY: Well, see, I think we can get into a lot of examples, and I don™t
want to go down that road too far because we don™t “
QUESTION BY JUSTICE: I™ll bet you don™t. (Laughter)
368 / NOTES TO PAGES 224“228

87. William P. Marshall, In Defense of Smith and Free Exercise Revisionism, 58
U. Chi. L. Rev. 308, 308“9 (1991).
88. See Religious Freedom Restoration Act of 1990: Hearing before the Sub-
committee on Civil and Constitutional Rights of the House Committee on the
Judiciary, 101st Cong., 2d Sess. (Sept. 27, 1990).
89. The one exception was Sen. Harry Reid of Nevada, who in the ¬nal stages
before RFRA was passed, requested an amendment to exempt the prisons. The
amendment failed. See 139 Cong. Rec. S14, 461“68 (daily ed. Oct. 27, 1993); 139
Cong. Rec. S14, 350“68 (daily ed. Oct. 26, 1993).
90. 42 U.S.C. § 2000bb-1 (1993). RFRA was nothing but an attempt by Congress
to impose the reasoning of Sherbert and Yoder on all classes of neutral, generally
applicable laws, even though the Court had never traveled that far from the rule
of law. Congress stated in their ¬ndings and declared purposes that:

(a) Findings. The Congress ¬nds that “
(1) the framers of the Constitution, recognizing free exercise of religion as an
unalienable right, secured its protection in the First Amendment to the
(2) laws “neutral” toward religion may burden religious exercise as surely as
laws intended to interfere with religious exercise;
(3) governments should not substantially burden religious exercise without
compelling justi¬cation;
(4) in Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme
Court virtually eliminated the requirement that the government justify
burdens on religious exercise imposed by laws neutral toward religion;
(5) the compelling interest test as set forth in prior Federal court rulings is a
workable test for striking sensible balances between religious liberty and
competing prior governmental interests.
(b) Purposes. The purposes of this Act are “
(1) to restore the compelling interest test as set forth in Sherbert v. Verner,
374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to
guarantee its application in all cases where free exercise of religion is
substantially burdened; and
(2) to provide a claim or defense to persons whose religious exercise is sub-
stantially burdened by government.

42 U.S.C. 2000bb (1993).
91. Smith, 494 U.S. at 890.
92. Robert C. Post & Reva B. Siegel, Equal Protection by Law: Federal Antidis-
crimination Legislation after Morrison and Kimel, 110 Yale L.J. 441 (2000).
93. Larry D. Kramer, No Surprise. It™s an Activist Court, N.Y. Times, Dec. 12,
2000, at A33. (“But perhaps the most audacious instance of judicial activism is the
way the court has extended the doctrine of judicial review itself.”) (referring to
94. Nev. Dep™t of Human Res. v. Hibbs, 538 U.S. 721 (2003).
95. Tennessee v. Lane, No. 02“1667, 541 U.S. 509 (2004).
NOTES TO PAGES 228“230 / 369

96. Civil Rights Act of 1957, PL 85“315, 71 Stat. 634; Civil Rights Act of 1960,
PL 86“449, 74 Stat. 86; Civil Rights Act of 1964, PL 88“352, 78 Stat. 241; Voting
Rights Act of 1965, PL 89“110, 79 Stat. 437.
97. 42 U.S.C. § 2000b states:

Whenever the Attorney General receives a complaint in writing signed by an
individual to the effect that he is being deprived of or threatened with the loss of
his right to the equal protection of the laws, on account of his race, color, religion,
or national origin, by being denied equal utilization of any public facility which is
owned, operated, or managed by or on behalf of any State or subdivision thereof,
other than a public school or public college as de¬ned in section 2000c of this
title, and the Attorney General believes the complaint is meritorious and certi¬es
that the signer or signers of such complaint are unable, in his judgment, to initiate
and maintain appropriate legal proceedings for relief and that the institution of
an action will materially further the orderly progress of desegregation in public
facilities, the Attorney General is authorized to institute for or in the name of the
United States a civil action in any appropriate district court of the United States
against such parties and for such relief as may be appropriate, and such court
shall have and shall exercise jurisdiction of proceedings instituted pursuant to this
section. The Attorney General may implead as defendants such additional parties
as are or become necessary to the grant of effective relief hereunder.

Similar language was included in all previous versions of the Civil Rights Act.
98. 347 U.S. 873 (1954).
99. Loving v. Virginia, 388 U.S. 1 (1967).
100. McLaughlin v. Florida, 379 U.S. 184 (1964).
101. Anderson v. Martin, 375 U.S. 399 (1964).
102. Garner v. Louisiana, 368 U.S. 157 (1961); see also Bell v. Maryland, 378 U.S.
226 (1963) (public accommodation law supersedes criminal trespass law used to
convict African-American students who participated in a “sit-in” at private restau-
rant that refused to serve them).
103. Johnson v. Virginia, 373 U.S. 61 (1963).
104. Whitus v. Georgia, 385 U.S. 545 (1966).
105. Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964).
106. Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961).
107. Cooper v. Aaron, 358 U.S. 1 (1958).
108. Reitman v. Mulkey, 387 U.S. 369 (1967).
109. U.S. Const. art. V provides:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall
propose Amendments to this Constitution, or, on the Application of the Legis-
latures of two thirds of the several States, shall call a Convention for proposing
Amendments, which, in either Case, shall be valid to all Intents and Purposes,
as Part of this Constitution, when rati¬ed by the Legislatures of three fourths of
the several States, or by Conventions in three fourths thereof, as the one or the
other Mode of Rati¬cation may be proposed by the Congress; Provided that no
Amendment which may be made prior to the Year One thousand eight hundred
and eight shall in any Manner affect the ¬rst and fourth Clauses in the Ninth
370 / NOTES TO PAGES 230“233

Section of the ¬rst Article; and that no State, without its Consent, shall be de-
prived of its equal Suffrage in the Senate.
110. EEOC v. Wyoming, 460 U.S. 226 (1983).
111. Id. at 262 (Burger, C.J., dissenting).
112. William Cohen, Congressional Power to Interpret Due Process and Equal
Protection, 27 Stan. L. Rev. 603, 606 (1975).
113. See id. at 614; see also Matt Pawa, Comment, When the Supreme Court
Restricts Constitutional Rights, Can Congress Save Us? An Examination of Section
5 of the Fourteenth Amendment, 141 U. Pa. L. Rev. 1029, 1062 (1993); but see generally
Lawrence H. Tribe, A Constitution We Are Amending: In Defense of a Restrained
Judicial Role, 97 Harv. L. Rev. 433 (1983).
114. See 103 Cong. Rec. S6,867 (1994) (statement of Sen. Cochran quoting
Douglas Laycock).
115. Further proof of the widespread and entrenched dogma regarding
Congress™s power to enact laws like RFRA, resides in the fact that on the law
and religion listserv, where church/state scholars debate various issues, the betting
on Boerne was heavily in favor of Professor Laycock™s position. As I understand
it, my client, the City of Boerne, received only one vote in support, and that was
by someone who was simply willing to take the bet. As it turned out, he was also
willing to take the case of beer when the City of Boerne won.
116. Douglas Laycock, Conceptual Gulfs in City of Boerne v. Flores, 39 Wm.
& Mary L. Rev. 743, 743 (1998) (“Marci Hamilton and others who doubted the
validity of the Religious Freedom Restoration Act plainly had a much better sense
than I of the Court™s political mood. The city™s brief contained twenty-nine cita-
tions to dissenting opinions, most of them for key points. But Professor Hamilton™s
judgment was exactly right; the former dissenters now had the votes to change the
law. Moreover, something about the facts or politics of RFRA provoked at least the
acquiescence of Justices who I suspect would not have joined the earlier dissents
on which she relied.”)
117. 384 U.S. 641 (1966).
118. U.S. Const. amend. XIV § 5.
119. Lassiter v. Northhampton County Bd. Of Elections, 360 U.S. 45, 51“53
120. While not using the term “prophylactic” explicitly in this opinion, the
term was part of the jurisprudence that Brennan subscribed to at the time. See,
e.g., Estes v. State of Texas, 381 U.S. 532, 616 (1965) (White, J. dissenting, in which
Brennan, J. joins) (“Serious threats to constitutional rights in some instances justify
a prophylactic rule dispensing with the necessity of showing speci¬c prejudice in
a particular case.”).
121. Katzenbach, 383 U.S. at 309.
122. Katzenbach, 383 U.S. at 668 (Harlan, J., dissenting).
123. 383 U.S. at 651 n. 10.
124. Archibald Cox, Foreword: Constitutional Adjudication and the Promotion
of Human Rights, 80 Harv. L. Rev. 91, 110“11 (1966).
NOTES TO PAGES 233“241 / 371

125. Cohen, supra note 112, at 606“7.
126. Eugene Gressman & Angela C. Carmella, The RFRA Revision of the Free
Exercise Clause, 57 Ohio St. L.J. 65, 118“19 (1996) (“The ˜ratchet theory,™ which
at the time of its birth in Morganled to a spirited dissent by Justices Harlan and
Stewart, has never been revisited, followed, or clari¬ed by the Court.”).
127. 400 U.S. 112 (1970).
128. 446 U.S. at 220“21.
129. 400 U.S. 112 (1970).
130. 460 U.S. at 262 (quoting Oregon v. Mitchell, 400 U.S. 112, 205 (1970)).
131. Gressman & Carmella, supra note 126, at 131“32.
132. Id. at 118“19; see also Daniel O. Conkle, The Religious Freedom Restoration
Act: The Constitutional Signi¬cance of an Unconstitutional Statute, 56 Mont. L.
Rev. 39, 46 (1995).
133. Boerne, 521 U.S. at 519.
134. Id. at 530.
135. Id. at 532.

9. The Decline of the Special Treatment of Religious Entities and the Rise
of the No-Harm Rule
1. Harold J. Berman, Law and Revolution: The Formation of the Western
Legal Tradition 267 (1983) (hereinafter Berman, Law and Revolution).
2. A. R. Hogue, Origins of the Common Law, 5, 186“90 (1966).
3. See infra notes 144“151 and accompanying text (discussing no-harm principle
in works of John Locke, James Madison, and Thomas Jefferson).
4. See, e.g., Craigdallie v. Aikman, 1 Dow 1, 3 Eng. Rep. 601 (H. L. 1813) (Scot.);
The Reverend G. H. Forbes, of the Scotch Episcopal Church v. The Right Rev-
erend Bishop Eden, Primus of the Scotch Episcopal Church, L. R. 1 Sc. 568 (1867)
(“Per Lord Colonsay: A Court of Law will not interfere with the rules of a voluntary
association, unless to protect some civil right or interest which is said to be infringed
by their operation.”) (emphasis added).
5. The Feoffees of Heriot™s Hospital v. Ross, 1846, 12 Clark & Fin. 507, 8 Eng. Rep.
1508 (introducing the doctrine of charitable immunity); Duncan v. Findlater, 1839,
6 Clark & Fin. 894, 7 Eng.Rep. 934 (similar dicta from the same judge in this earlier
case); Holliday v. St. Leonard, 1861, 11 C.B., N.S., 192 (following Duncan™s case);
McDonald v. Massachusetts General Hospital, 1876, 120 Mass.432, 21 Am.Rep. 529
(¬rst American case adopting the charitable immunity rule of Holliday™s case);
Perry v. House of Refuge, 1885, 63 Md. 20, 52 Am.Rep. 495 (charitable immunity
rule of Heriot™s case adopted by Maryland).
6. See Bradley C. Canon & Dean Jaros, The Impact of Changes in Judicial
Doctrine: The Abrogation of Charitable Immunity, 13 Law & Soc™y Rev. 969, 971
(1979) (hereinafter Canon & Jaros).
7. See, e.g., Elizabeth Stewart Poisson, Comment, The Impropriety of Statutory
Caps on Pain and Suffering Damages in the Medical Liability System, 82 N. C. L.
372 / NOTES TO PAGES 241“243

Rev. 759 (2004); M. King Hill III & Katherine D. Williams, State Laws Limiting
Liability for Noneconomic Damages: How Courts Have Dealt with the Related
Legal and Medical Issues in Asbestos Personal Injury Cases, 27 U. Balt. L. Rev. 317
(1998); Nancy L. Manzer, Note, Tort Reform Legislation: A Systematic Evaluation
of Caps on Damages and Limitations on Joint and Several Liability, 73 Cornell
L. Rev. 628 (1988); George L. Priest, The Current Insurance Crisis and Modern Tort
Law, 96 Yale L.J. 1521, 1587“88 (1987).
8. See, e.g., Michel Rosenfeld, The Rule of Law and the Legitimacy of Constitu-
tional Democracy, 74 S. Cal. L. Rev. 1307, 1345“46 (2001) (noting that that the com-
mon law “is grounded in a common well of values, a widely shared sense of justice
and fairness, and dedication to elaborating a pragmatically oriented, empirically-
based working legal order that insures stability through steadfast adherence to core
principles.”); id. at 1349 (“At least under certain propitious circumstances, there-
fore, the rule of law can promote both predictability and fairness; this seems equally
possible in an Anglo-American common law setting as in a continental civil law
system.”); Charles H. Koch, Jr., Envisioning a Global Legal Culture, 25 Mich J.
Int™l L.J. 1, 54 (2003) (“the common law judge is charged with applying the ˜law™
in order to render individual fairness, but is also committed to treating like cases
9. See Locke v. Davey, 124 S. Ct. 1307, 1309 (2004); City of Boerne v. Flores, 521
U.S. 507 (1997); Employment Div. v. Smith, 494 U.S. 872 (1990); Jimmy Swaggart
Ministries v. Board of Equalization, 493 U.S. 378 (1990); Braunfeld v. Brown, 366
U.S. 599 (1961); Reynolds v. U.S., 98 U.S. 145 (1878).
10. Religious institutions being sued or prosecuted for childhood sexual abuse
have repeatedly asserted so-called “privileges” over the law, claiming that they need
not provide internal documents, despite their relevance. The Catholic Church
has asserted numerous privileges that purportedly prevent the state from seeing
employee ¬les in grand jury proceedings. See, e.g.,William Lobdell and Jean
Guccione, A Novel Tack by Cardinal, L.A. Times, Mar. 14, 2004, at A1.
11. Wayne A. Logan, Criminal Law Sanctuaries, 38 Harv. C.R. - C.L. L. Rev.
321, 323“24 (2003) (hereinafter Logan). The practice of sanctuary may date back
much farther. The Bible explicitly mentions sanctuary three times and temples
in ancient Greece afforded sanctuary to criminals. Id. Roman temples, on the
other hand, offered only a temporary refuge before turning criminals over to civil
authorities. Id. at 324.
12. See Norman MacLaren Trenholme, The Right of Sanctuary in
England: A Study in Institutional History 5, 325 (1903) (hereinafter Tren-
13. Id. at 47 (1903).
14. See Logan, supra note 11, at 326.
15. See Trenholme, supra note 12, at 43 (noting that, during the 13th and 14th
centuries, the law forced clergymen to surrender to ecclesiastical courts for “spir-
itual offenses” and to secular authorities for common law crimes. Once in the
secular courts, however, they would be permitted to invoke the bene¬t of clergy,
NOTES TO PAGES 243“244 / 373

which sent them to the ecclesiastical courts, where they escaped the most severe
16. See Logan, supra note 11, at 328.
17. Stephen, infra note 82, at 491“92.
18. See Logan, supra note 11, at 329.
19. Id.
20. See C. Warren Hollister, The Making of England: 55 b.c. to 1399,
149“50, 162“64 (7th ed. 1996) (hereinafter Hollister); Richard Barber, Henry
Plantagent 30, 106“10 (1967) (hereinafter Barber).
21. See Edward A. Freeman, 4 The History of the Norman Conquest of
England: Its Causes and Results 392 (1871); George W. Dalzell, Bene¬t
of Clergy in America & Related Matters 13 (1955) (hereinafter Dalzell);
Hollister, supra note 20, at 115. William the Conqueror divided the ecclesiastical
courts from the secular courts, decreeing that “no bishop or archdeacon shall any
longer hold pleas involving episcopal laws in the hundred [court],” that instead
bishops were to maintain separate courts of their own in which to try civil matters
such as marriage, wills, and debts, and criminal offenses committed by or upon all
members of the church. Richard Winston, Thomas Becket 17 (1967) (quoting
H. I. Stubbs, Historical Introductions to the Rolls Series (ed. Arthur
Hassell, 1902) (hereinafter Winston). In the 12th and 13th centuries, canon law
claimed jurisdiction over criminal and civil cases arising out of sin and breach of
faith, as well as over clerics and church property; secular law had jurisdiction over
criminal and civil cases arising out of seisin of freehold land and breach of the
king™s peace. See Berman, Law and Revolution, supra note 1, at 516.
22. See Peter D. Jason, The Courts Christian in Medieval England, 37 Cath.
Law. 339, 342 n. 27 (1997) (citing Z. N. Brooke, The English Church and
the Papacy 188“89 (1968) (“Overall, Stephen failed to preserve the barrier against
papal authority over the English Church. Therefore, when Henry II succeeded
Stephen, he was faced with the challenge of overcoming the increased authority
of the Church.”).
23. Unless otherwise noted, the account of the feud between Henry II and
Thomas Becket in the following paragraphs can be found in Hollister, supra
note 20, at 160“64; Barber, supra note 20, at 110“21; Winston, supra note 21, at
166“91, 318“21.
24. Henry C. Lea, Studies in Church History 187 (1869).
25. See Hollister, supra note 20, at 161.
26. See Winston, supra note 21, at 319“20.
27. See Hollister, supra note 20, at 162; Barber, supra note 20, at 110“11;
Winston, supra note 22, at 167“68. As archbishop of Canterbury, Becket (who
had previously served as Henry™s royal chancellor) was the head of the English
Church, responsible for the crowning of kings and direct relations with Rome. See
Hollister, supra note 20, at 161“63.
28. Henry ordered Becket to stand trial in the royal court for various offenses
allegedly committed when he was Henry™s chancellor. Claiming clerical immunity
374 / NOTES TO PAGES 244“246

from royal jurisdiction, Becket ¬‚ed the country to appeal his case to the pope,
which violated the prohibition of unlicensed appeals to Rome. See Hollister,
supra note 20, at 162; Barber, supra note 20, at 116“21; Winston, supra note 21,
at 175“91.
29. See Berman, Law and Revolution, supra note 1, at 262 (“Interdict was a
partial or total suspension of public services and sacraments; it could extend to one
or more persons or to a whole locality or kingdom.”).
30. See Winston, supra note 21, at 319“20 (quoting 3 Materials for the
History of Thomas Becket, Archbishop of Canterbury 119 [James Craigie
Robertson, ed. 1875]).
31. See Hollister, supra note 20, at 163; Barber, supra note 20, at 140“41;
Winston, supra note 21, at 302“5.
32. See Hollister, supra note 20, at 163, 164; Barber, supra note 20, at 161“65;
Winston, supra note 21, at 375.
33. See 2 The Reports of John Spelman 327 (J.H. Baker ed. 1978) (stating that
bene¬t of clergy appeared in 1170).
34. Dalzell, supra note 21, at 11.
35. See Phillip M. Spector, The Sentencing Rule of Lenity, 33 U. Tol. L. Rev.
511, 515 (2002) (hereinafter Spector).
36. See Dalzell, supra note 21, at 11 (“church tribunal could not enter a ˜judg-
ment of blood,” i.e., a capital sentence or an attainder”).
37. R. H. Helmholz, The Spirit of the Classical Canon Law 158“59 (1996).
38. Dalzell, supra note 21, at 11; R. H. Helmholz, Crime, Compurgation and
the Church Courts, in Canon Law and the Law of England 137 (1987) (“Too
many accused persons successfully underwent purgation for the method to inspire
con¬dence as a fact¬nding device . . . Almost every person who came before the
ecclesiastical courts accused of theft, murder, or other secular offense, and who
went on to purgation, did so successfully.”).
39. Dalzell, supra note 21, at 11.
40. See Spector, supra note 35, at 515.
41. Dalzell, supra note 21, at 13.
42. Id. at 12 (“From the tie of the ¬rst Plantagenet the toleration of a class of
privileged criminals was persistently assailed as iniquitous.”). See also Lea, supra
note 24, at 186“91.
43. See Spector, supra note 35, at 515, n. 22 (noting that in 1350, the privilege
was statutorily extended to “all manner of clerks, as well secular as religious.”) This
statute was intended to extend the privilege to “inferior Orders” of the clergy rather
than to laypersons. Id. Judges nonetheless interpreted “secular clerks” to include
all literate males. Id. at 515.
44. Frank Riebli, Note, The Spectre of Star Chamber: The Role of an An-
cient English Tribunal in the Supreme Court™s Self-Incrimination Jurisprudence, 29
Hastings Const. L.Q. 807, 826 (2002) (hereinafter Riebli).
45. 1 William S. Holdsworth, A History of English Law 608 (A.L.
Goodhart & H.G. Hanbury eds., 7th ed. 1956) (hereinafter Holdsworth).
NOTES TO PAGES 246“248 / 375

46. Id. at 605“08.
47. Id. at 24.
48. John H. Langbein, Shaping the Eighteenth Century Criminal Trial: A View
from the Ryder Sources, 50 U. Chi. L. Rev. 1, 40, 45 (1983) (hereinafter Langbein).
49. See Dalzell, supra note 21, at 24 (discussing 18 Eliz., ch. 7, §§2“3
50. Langbein, supra note 48, at 38 n. 147 (1983) (citing 18 Eliz., ch. 7, §§ 2“
3 (1576), discussed in William Blackstone, 4 Commentaries on the Laws of
England 368 (Sir George Tucker, ed., 1803); J. F. Stephen, infra note 82, at 462.
51. See Spector, supra note 35, at 516.
52. Blackstone, supra note 50, at 368“69.
53. Id. at 36.
54. Dalzell, supra note 21, at 49.
55. E. Morgan, Roger Williams: The Church and the State 67 (1967).
Because there were no high of¬cials of the Anglican church in the New World,
there were no ecclesiastical courts. Matters still subject to ecclesiastical jurisdiction
in England “ marriage, divorce, probate “ became purely civil matters in the
colonies. Id.
56. Langbein, supra note 48, at 38.
57. See, e.g., Craigdallie v. Aikman, 1 Dow 1, 3 Eng. Rep. 601 (1813); The Rev-
erend G. H. Forbes, of the Scotch Episcopal Church v. The Right Reverend Bishop
Eden, Primus of the Scotch Episcopal Church, L.R. 1 Sc&Div 568 (1867).
58. See, e.g., Craigdallie, The Reverend G. H. Forbes, 1 Dow 1, 3 Eng. Rep. 601
59. In many jurisdictions, the Catholic Church has attempted to resist grand
jury subpoenas for documents on the ground of a First Amendment “privilege.”
See William Lobdell & Larry B. Stammer, Mahony Criticized by National Review
Panel, L.A. Times, Feb. 28, 2004, at A1, see also, Peter Shinkle & Hannah Bergman,
Diocesan Cooperation Varies across Country, St. Louis Post-Dispatch, Jun. 21,
2003, at 12 (Los Angeles and Metuchen, N.J. bishops refusing to cooperate, while St.
Louis bishop and new Boston bishop are cooperating); James F. McCarty, Bishop
Pilla Walks Tightrope in Priest Sex Abuse Scandal, Cleveland Plain Dealer,
May 5, 2002, at A1 (describing church lawyers™ tactics to avoid grand jury subpoe-
nas). One jurisdiction, however, fully cooperated without raising such defenses);
Stephen Kurkjian, N.H. Diocese Admits Likely Violations, Boston Globe,
Dec. 11, 2002, at A1 (reporting the settlement of the N.H. Diocese sexual abuse
claims and the bishop™s statement that, “The Diocese of Manchester has reached a
legally binding mutual agreement with the Of¬ce of the Attorney General of New
Hampshire which involves acknowledgment by the diocese that the state has evi-
dence likely to sustain a criminal conviction against the diocese for a failure in its
duty to care for young people”).
60. See Canon & Jaros, supra note 6, at 971“72. Charitable organizations are
those that serve the public, not just their members. See Tremper, supra note 14, at
376 / NOTES TO PAGES 248“250

61. See Charles Robert Tremper, Compensation for Harm from Charitable Activ-
ity, 76 Cornell L. Rev. 401, 401“02 (1991) (hereinafter Tremper); Canon & Jaros,
supra note 6, at 971.
62. Restatement (Second) of Torts § 895E (1979); See also McDonald v.
Massachusetts, 120 Mass. 432, 434“35 (1876).
63. Restatement (Second) of Torts § 895E (1979).
64. See Benjamin S. Birnbaum, Comment, Cashman v. Merident Hospital, 169
Atl. 915 (Conn.), 14 Boston Univ. L. Rev. 477, 478 (1934).
65. Canon & Jaros, supra note 6, at 971.
66. The Feoffees of Heriot™s Hospital v. Ross, 12 Clark & Fin. 507, 8 Eng. Rep.
67. 120 Mass. 432, 21 Am. Rep. 529 (1876), overruled in part by Colby v. Carney
Hospital, 254 N.E.2d 407, 408 (Mass. 1969) stating:
In the past on many occasions we have declined to renounce the defence of
charitable immunity set forth in McDonald v. Massachusetts Gen. Hosp., 120
Mass. 432. Now it appears that only three or four States still adhere to the doc-
trine. . . . Accordingly, we take this occasion to give adequate warning that the next
time we are squarely confronted by a legal question respecting the charitable
immunity doctrine it is our intention to abolish it.
68. Canon & Jaros, supra note 6, at 971.
69. Id. See also Mersey Docks Trustees v. Gibbs, L.R. 1 H.L. 93 (1866); Foreman
v. Mayor of Canterbury, L.R. 6 Q.B. 214 (1871).
70. Hillyer v. St. Bartholomew™s Hospital, (1909) 2 K.B. 820.
71. Tremper, supra note 61, at n. 107 (describing rejected theories behind char-
itable immunity).
72. 130 F.2d 810, 815 (D.C. Cir. 1942).
73. Tremper, supra note 61, at 422 (emphasis added). The doctrine of char-
itable immunity established by common law still exists, to varying degrees, in
nine states: Alabama, Arkansas Georgia, Maine, Maryland, New Jersey, Vir-
ginia, Utah, and Wyoming. Nonpro¬t Risk Management Center, State
Liability Laws for Charitable Organizations and Volunteers 8 (2001)
(hereinafter Nonpro¬t Risk Management Center). In the face of the clergy
sexual abuse cases, there is a movement to repeal it. For example, a New
Jersey senate committee has approved S-540, an amendment to the state™s char-
itable immunity statute, which would bar immunity for charitable organizations
in damage suits alleging negligent hiring or supervision of an employee which re-
sulted in sexual abuse of a minor. See Valerie L. Brown, et al., 2004 Capitol Report,
13 N.J. Lawyer, Apr. 5, 2004, at 708.
74. Jefferson Hosp. Ass™n., 337 Ark. at 211 (Giving narrow construction to protect
“[t]he essence of the doctrine[, ] that agencies, trusts, etc., created and maintained
exclusively for charity may not have their assets diminished by execution in favor
of one injured by acts of persons charged with duties under the agency or trust.”).
75. In 1997, Congress enacted the Volunteer Protection Act, 42 U.S.C. § 14501
et. seq., which immunizes volunteers from tort liability in certain, limited cir-
cumstances. The majority of state statutes follow this approach, with the VPA
NOTES TO PAGES 250“251 / 377

preempting those state laws that protect volunteers more narrowly. 42 U.S.C. §
14502. Rep. Inglis (S.C.), one of the bill sponsors, stated on the ¬‚oor of the House
of Representatives that:
[T]here are 124 separate charitable organizations that support this legislation very
strongly. They range from the American Association of University Women to
the American Heart Association, to the American Red Cross, to the American
Symphony Orchestra League, to B™nai Brith International, the Girl Scout Council
USA, the National Association of Retired Federal Employees, the National Easter
Seal Society, the Salvation Army, Save the Children, United Way, the YMCA.
Any national organization that one can think of probably is a strong supporter of
this legislation.
105 Cong. Rec. H.R. 911, H3097 (daily ed. May 21, 1997) (statement of Rep.
Inglis), available at http://thomas.loc.gov (last viewed Mar. 8, 2004). Britain
has not followed the United States™ lead on volunteer immunity. See Tash
Shifron, Volunteer Bill ˜Could Be Deterrent,™ Guardian, Mar. 5, 2004, available
at http://society.guardian.co.uk/print/0,3858,4873706-106647,00.html (last viewed
Mar. 8, 2004) (the chief executive of Volunteering England has said, “[w]e have
serious concerns that a bill intended to support and encourage volunteering could
have exactly the opposite effect.”).
76. Those states are Colorado, Massachusetts, and South Carolina. Nonpro¬t
Risk Management Center, supra note 73, at 9.
77. Holdsworth, supra note 45, at 584 (“As the state grew into conscious life
it was inevitable that occasions for disputes between the temporal and spiritual
powers should arise.”).
78. Id. (noting that, “from that time on, the professional jealousy of the common
lawyers led them to restrict the jurisdiction of the ecclesiastical courts whenever it
was possible to restrict it.”).
79. Id. at 587.
80. Theodore F.T. Plucknett, A Concise History of the Common Law 41
(1929) (hereinafter Plucknett).
81. Id. (noting that, by the time Edward VI (1547“1553), the Reformation was
used as a political weapon against Rome, and after the brief reign of Catholic Mary
(1554“1558), Elizabeth made the Reformation “the permanent basis of English
political and religious life.”)
82. R. H. Helmholz, Canon Law and the Law of England 320“21 (1997); See
also id. at 316“317 (ecclesiastical jurisdiction over testamentary debt and probate
began a slow decline in the mid-16th century; R. H. Helmholz, in Select Cases
on Defamation to 1600 xxxvii“x1i (Selden Soc™y No. 101, 1985) (royal courts be-
gan to prohibit the church courts from hearing defamation cases involving secular
crimes and began to hear such cases on their own in the 16th century); Edward P.
Steegmann, Note, Of History and Due Process, 63 Ind. L. J. 369, 397 (1988) (citing
J. F. Stephen, 2 A History of the Criminal Law of England, ch. 25 (London
1883) (hereinafter Stephen) (sodomy made a secular offense by statute in 1533);
Jeremy D. Weinstein, Note, Adultery, Law, and the State: A History, 31 Hastings
L.J. 195, 225 (1986) (citing W. Blackstone, 4 Commentaries 64“65) (Puritans of
378 / NOTES TO PAGES 251“252

the Commonwealth made adultery a capital offense in 1650, although this was
nulli¬ed in 1660 with the Restoration). Conversely, the Church retained jurisdic-
tion over other matters well beyond the Reformation. See, e.g., R. H. Helmholz,
Marriage Litigation in Medieval England 3 (1974) (jurisdiction over marriage
and marital disputes not withdrawn from the Church until 1857); R. H. Helmholz,
Canon Law and the Law of England 210 (1997) (jurisdiction over bastardy liti-
gation not withdrawn until the nineteenth century).
83. In 1576, the ecclesiastical courts were relieved of their jurisdiction over clergy
who committed crimes. Dalzell, supra note 21, at 24 (discussing 18 Eliz., ch. 7,
§§2“3 (1576)). In 1641, the Puritan-dominated Long Parliament abolished all crim-
inal jurisdiction of the ecclesiastical courts. See Holdsworth, supra note 45, at
84. See Berman, Law and Revolution, supra note 1, at 268.
85. Id. at 266“67.
86. See Plucknett, supra note 80, at 43“44, 46; see generally R. H. Helmholz,
Canon Law and the English Common Law, in Canon Law and the Law of
England 2 (discussing approaches to the relationship between the two systems
during the rise of the common law).
87. See Holdsworth, supra note 45, at 588 (“The wealth and corruption of the
church, and more particularly the abuses of the ecclesiastical courts, were exciting
extreme unpopularity.”); Frank Lambert, The Founding Fathers and the Place
of Religion in America 34“35 (2003) (hereinafter Lambert) (“Whether or not the
Church . . . was in as deplorable condition as its critics made out is beside the point;
the fact is, widespread opinion that it was corrupt constituted the greater reality
that shaped events.”); Will Durant, The Reformation: A History of European
Civilization from Wyclif to Calvin, 1300“1564, 584 (1957) (hereinafter Durant,
The Reformation) (referring to “the collapse of the spiritual and moral authority
of the priesthood.”).
88. Of the Reformers, John Calvin in particular addressed the faults of the 16th-
century Catholic Church as a problem in the structure of the church, with his
primary concern being the lack of accountability of the clergy to the members or
the higher good. It was his view that the Church had deviated from the ancient
church™s structures of accountability. See, e.g., II John Calvin, Institutes of the
Christian Religion, bk. IV, ch. IV, §§ 1“2, at 1068“70 (describing ancient practice
of electing bishops and their accountability to “the assembly of his brethren”); Id. at
bk. IV, ch. VII, § 21, at 1141 (criticizing contemporary pope for ruling in a “tyrannical
fashion” and considering “his own whim as law. . . . [I]t is utterly abhorrent not only
to a sense of piety but also of humanity.”).
89. See Cheyney, infra note 110, at 383“84.
90. “The Act of Supremacy [26 Henry VIII. C.I.] recognized the king as ˜the
only Supreme Head in earth of the church of England,™ having full power to
correct all ˜errors, heresies, abuses, offences, contempts, and enormities,™ which
by any manner of spiritual authority ought to be reformed; and the form of oath
NOTES TO PAGES 252“253 / 379

taken under the provisions of this Act denied to the Pope any other authority than
that of Bishop of Rome.” Holdsworth, supra note 45, at 591“92 (citing Report of
Ecclesiastical Commission 1883, 72). The ecclesiastical authorities lost all power
save that granted by the King, and ecclesiastical judges need no longer needed to
be clerics, a move that displaced Rome™s canon law. Id. at 592.
91. Riebli, supra note 44, at 826 (quoting Leonard W. Levy, Origins of the
Fifth Amendment 96 (1986)).
92. See Durant, The Reformation, supra note 87, at 579 (Somerset “favored
a Protestant policy.”); id. at 581, 585 (noting that in 1550, under Warwick (who
was made duke of Northumberland in 1551), “the protectorate was now de¬nitely
Protestant.”); id. at 585 (“Religious persecution, so long of heretics by Catholics,
was now in England, as in Switzerland and Lutheran Germany, of heretics and
Catholics by Protestants.”).
93. Although “numerically a minority,” the Protestants were “¬nancially power-
ful,” and nearly every in¬‚uential family held property taken from the Catholic
Church. See Durant, The Reformation, supra note 87, at 590; id. at 588
(London, however, was a “half-Protestant city.”).
94. See id. at 595 (“To her simple faith these heresies seemed mortal crimes, far
worse than treason.”).
95. Id. at 598 (“[Cranmer™s] death marked the zenith of the persecution. Some
300 persons died in its course, 273 of them in the last four years of her reign.”).
96. Robert E. Rodes, Jr., Law and Modernization in the Church of
England: Charles II to the Welfare State 81 (1991) (hereinafter Rodes).
97. Holdsworth writes:
The Act of Supremacy (26 Henry VIII. C.I.) recognized the king as ˜the only
Supreme Head in earth of the church of England,™ having full power to correct
all ˜errors, heresies, abuses, offences, contempts, and enormities,™ which by any
manner of spiritual authority ought to be reformed; and the form of oath taken
under the provisions of this Act denied to the Pope any other authority than that
of Bishop of Rome.
Holdsworth, supra note 45, at 591“92 (citing Report of Ecclesiastical Commission
1883, 72).
98. Rodes, supra note 96, at 81.
99. 7 The Cambridge Modern History 13 (W. Ward, et al. eds., 1934).
100. Riebli, supra note 44, at 826.
101. See Berman, Law and Revolution II, infra note 108, at 104, and accom-
panying text.
102. Holdsworth, supra note 45, at 597.
103. Id. at 611; Berman, Law and Revolution, supra note 1, at 113.
104. 2 The Cambridge Modern History 532“33 (W. Ward, et al. eds.,
105. Cheyney, infra note 110, at 325; Durant, The Reformation, supra note
87, at 598. The of¬cial website of the British monarchy places the ¬gure at
380 / NOTES TO PAGES 253“257

300 executed in three years. See Kings and Queens of England (to 1603), at
http://www.royal.gov.uk/output/Page45.asp (last visited Apr. 30, 2004).
106. 2 The Cambridge Modern History 586 (W. Ward, et al. eds., 1934).
107. See John Coffey, Persecution and Toleration in Protestant England:
1558“1689 169“70 (2000).
108. See Russell Chamberlin, The Tower of London 68“71 (1989).
109. See id. at 78.
110. See Harold J. Berman, Law and Revolution II: The Impact of the
Protestant Reformations on the Western Legal Tradition 209“10, 215“16
(2003) (hereinafter Berman, Law and Revolution II). Between 1630 and 1640, an
estimated 20,000 religious dissenters ¬‚ed to the Massachusetts Bay Colony, and a
similar number emigrated to the Netherlands. Id. at 216.
111. See infra note 129.
112. Lambert, supra note 87, at 38“39. Early attempts at colonization were un-
successful “ settlements founded in Virginia between 1585 and 1587, and again
in 1602, were either abandoned or destroyed. See Edward P. Cheyney, A Short
History of England 354“55 (1919). Jamestown, founded in 1607 in Virginia, was
the ¬rst permanent English settlement in America. Id. at 403.
113. Holdsworth, supra note 45, at 611.
114. James Madison, Memorial and Remonstrance, in 8 The Papers of James
Madison, at 301“2 (William T. Hutchinson, et al. eds., 1962).
115. See generally Christian Perspectives, infra note 151 (discussing the para-
dox of hope and distrust at the base of constitutional vision).
116. The Selected Writings of John Witherspoon: Landmarks in
Rhetoric and Public Address 135“36 (Thomas Miller ed., 1990). Witherspoon,
whose stamp on the Constitution is visible, was also mentor to a number of other
Framers. See generally, Marci A. Hamilton, Why the People Do Not Rule
(unpublished manuscript, on ¬le with the author).
117. Will Durant, The Age of Faith: A History of Medieval Civilization -
Christian, Islamic, and Judaic “ from Constantine to Dante: a.d. 325“1300
779 (1950) (hereinafter Durant, The Age of Faith).
118. See Wade Rowland, Galileo™s Mistake: A New Look at the Epic
Confrontation between Galileo and the Church (2003).
119. See Durant, The Age of Faith, supra note 117, at 782.
120. Id. at 208“9 (1957).
121. 2 The Cambridge Modern History 650 (W. Ward, et al. eds., 1934).
122. See Durant, The Age of Faith, supra note 117, at 209.
123. See John Edward Longhurst, The Age of Torquemada 85 (1964),
available at http://libro.uca.edu/torquemada/torquemada.htm (last visited April 25,
124. See Charles H. Lea, 4 A History of the Inquisition of Spain 467“68
(1907) (Spanish Inquisition ended in 1834); 7 The Cambridge Modern His-
tory 208“9 (W. Ward, et al. eds., 1934) (Declaration of Independence signed in
NOTES TO PAGES 257“259 / 381

125. See Rodes, supra note 96, at 87. The original Act of Uniformity, passed by
the Elizabeth™s Parliament in 1571, required that all Church of England prayers,
services, and rites conform to the Book of Common Prayer. See Lambert, supra
note 87, at 40.
126. Rodes, supra note 96, at 88“89, 93, 147.
127. Carl H. Esbeck, Symposium, The Church-State Settlement in the Early
American Republic, 2004 B.Y.U.L. Rev. 1385 (2004).
128. See Marci A. Hamilton, Religion, the Rule of Law, and the Good of the
Whole: A View from the Clergy, 18 J.L. & Politics 387, 394, n.22 (2002) (here-
inafter Hamilton, Religion, the Rule of Law, and the Good of the Whole); See also
Alice M. Baldwin, The New England Clergy and the American Revolution
22“31 (2d ed. 1965) (detailing the social impact of the works of New England clergy
before 1763); Francis J. Bremer, Shaping New England: Puritan Clergymen
in Seventeenth Century England and New England 82“88 (1994) (noting
the in¬‚uence of the clergy on education and government in 17th-century New
England); Bernard Bailyn, The Ideological Origins of the American Revo-
lution 246“50 (1967) (hereinafter Bailyn) (discussing the predominant religions
in the colonies before the Revolutionary War); Gordon S. Wood, The American
Revolution: A History 129“35 (2002) (detailing impact of Protestant ministers
at the forefront of the Revolutionary movement); James T. McHugh, A Liberal
Theocracy: Philosophy, Theology, and Utah Constitutional Law, 60 Alb. L. Rev.
1515, 1520 n. 16 (1997) (citing Alice M. Baldwin, The New England Clergy and
the American Revolution 22“31 (2d ed. 1965) which details the social impact of
the works of New England clergy before 1763)).
129. The Reformation was instituted by Martin Luther and John Calvin, because


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