. 12
( 13)


they believed that the Roman Catholic Church had turned away from all that is
holy and become infested with evil. II John Calvin, Institutes of the Christian
Religion, bk. IV, §§ 21“30, at 1141, 1144, 1147 (referring to “corruption of the present-
day-papacy”; “kingdom of Antichrist”; “moral abandonment of the popes”). They
were Church insiders, who initially acted in order to reform the Church itself, but
the Church proved incapable of suf¬ciently rapid change to avoid having many
of its members leave the Church to follow Luther, Calvin, or other reformation
leaders, into new churches. The instinct to schism, in response to the perceptions
of corruption, has never left the Protestant movement, which has resulted in the
thousands of modern-day sects that continue to divide. See generally Steve Bruce,
A House Divided: Protestantism, Schism, and Secularization (1990).
130. I Calvin: Institutes of the Christian Religion, bk. II, ch. V, § 19, at
340 (John T. McNeill ed., 1975).
131. Calvin wrote that the “principal use” of the law was to help believers know
the will of God and to incite them to obedience:

[The law] is the best instrument for enabling them daily to learn with greater truth
and certainty what the will of the Lord is. . . . Then, because we need not doctrine
merely, but exhortation also, the servant of God will derive this further advantage
382 / NOTES TO PAGES 259“260

of from the Law: by frequently meditating upon it, he will be excited to obedience,
and con¬rmed in it, and so drawn away form the slippery paths of sin.

I Calvin: Institutes of the Christian Religion, bk. II, ch. VII, § 12 at. 360“61
(“Even the believers have need of the law.”). The depravity of humans, however,
never made obedience to the law alone suf¬cient to ensure redemption. Id. at §3
at 351“52.
132. Rev. William Ralph Inge, Protestantism 3“5 (1927). See also 1 Emile G.
Leonard, A History of Protestantism: The Reformation 316 (H. H. Rowley
ed., Joyce M. H. Reid trans., 1965) (noting that Farel agreed with Luther in con-
demning institutionalism, saying “sects, organizations and institutions are born
of the ¬‚esh”); 1 Rev. J. A. Wylie, The History of Protestantism 2 (London,
Cassell, Petter & Galpin) (“[Protestants] replaced the authority of the Infallabil-
ity with the authority of the Word of God. The long and dismal obscuration of
centuries they dispelled, that the twin stars of liberty and knowledge might shine
forth . . . and human society . . . might, after its halt of a thousand years, resume its
march towards a higher goal”).
133. See Durant, The Reformation, supra note 87, at 329“33. On the eve of
the Reformation in Germany, the Catholic Church was rife with abuses: there had
been a breakdown of monastic discipline and clerical celibacy, greedy ecclesiastical
authorities increased clerical rents, incomes, and taxes; the higher ecclesiastical
orders brazenly displayed their wealth, to the chagrin of the people; “mercenary
abuse of sacred things” was common; and hush money was often sent to Rome.
134. See Charles P. Hanson, Necessary Virtue: The Pragmatic Origins of
Religious Liberty in New England 11 (1998); see generally Philip Hamburger,
The Separation of Church and State (2003).
135. II John Calvin, Institutes of the Christian Religion, supra note 86,
at bk. IV, ch. 7, § 19.
136. Leonard J. Kramer, Presbyterians Approach the American Revolution, 31
J. Presbyterian Hist. Soc. 72 (1953) (quoting minutes of the Synod of New
England, 1776“82).
137. See, e.g., Richard A. Epstein, The Harm Principle “ And How It Grew, 45
U. Toronto L.J. 369, 370“71 (1995).
138. See M.N.S. Sellers, American Republicanism 133“41 (1994); M.N.S.
Sellers, The Sacred Fire of Liberty 101“2 (1998).
139. John Stuart Mill, On Liberty 87 (David Spitz ed., 1975).
140. Id at 11, 18.
141. See generally H. L. A. Hart, Law, Liberty, and Morality (1962); Richard
A. Epstein, Principles for a Free Society: Reconciling Individual Liberty
with the Common Good (1998). Hart believed that “[r]ecognition of individual
liberty as a value involves, as a minimum, acceptance of the principle that the
individual may do what he wants, even if others are distressed when they learn what
it is that he does “ unless, of course, there are other good grounds for forbidding
it.” Id.
NOTES TO PAGES 260“262 / 383

142. See generally Joel Feinberg, The Expressive Function of Punishment,
in Doing and Deserving (1970); Joel Feinberg, 1 The Moral Limits of Crim-
inal Law 214 (1988).
143. See Angela C. Carmella, The Protection of Children and Young People:
Catholic and Constitutional Visions of Responsible Freedom, 44 B.C.L. Rev. 1031,
1044 (2003) (“There is one condition attached to all exercises of freedom: that the
use of the freedom will not breach minimal responsibilities owed to the larger
society as those responsibilities are embodied in legitimate laws.”).
144. Thomas Jefferson, Notes on the State of Virginia (1787), in 2 The
Writings of Thomas Jefferson, at 221 (Albert Ellery Bergh ed., 1905).
145. Thomas Jefferson, An Act for Establishing Religious Freedom, Passed in
the Assembly of Virginia in the Beginning of the Year 1786, in 2 The Writings of
Thomas Jefferson, supra note 144, at 312. On the absolute right to believe, see
also Letter to Benjamin Rush, supra note 144, at 381 (referring to “the common
right of independent opinion, by answering questions of faith, which the laws have
left between god and himself”).
146. Letter from Thomas Jefferson to James Madison (Jul. 31, 1788), in The
Papers of Thomas Jefferson (Julian P. Boyd, et al. eds., 1950).
147. Adrienne Koch, Madison™s “Advice to My Country” 15 (1966) (quoting
James Madison).
148. Letter from James Madison to William Bradford (Apr. 1, 1774), in 1 The
Papers of James Madison, at 112“13 (William T. Hutchinson, et al. eds., 1962).
149. Letter from James Madison to William Bradford (Jan. 24, 1774), in 1 The
Papers of James Madison, supra note 148, at 112“13, 106.
150. See, e.g., James Madison, Memorial and Remonstrance, in 8 The Papers
of James Madison, supra note 148, at 301“2 (“Because experience witnesseth that
ecclesiastical establishments, instead of maintaining the purity and ef¬cacy of
Religion, have had a contrary operation. During almost ¬fteen centuries has the
legal establishment of Christianity been on trial. What have been its fruits? More or
less in all places, pride and indolence in the Clergy, ignorance and servility in the
laity, in both, superstition, bigotry and persecution”); Jefferson, supra note 145, at
221“22 (“Had not the Roman government permitted free enquiry, Christianity could
never have been introduced. Had not free enquiry been indulged, at the aera of
the reformation, the corruptions of Christianity could not have been purged away.
If it be restrained now, the present corruptions will be protected, and new ones
151. See generally Marci A. Hamilton, The Calvinist Paradox of Distrust and
Hope at the Constitutional Convention, in Christian Perspectives on Legal
Thought (Michael. W. McConnell et al. eds., 2001) (hereinafter Christian
152. Kerry S. Walters, The American Deists: Voices of Reason and
Dissent in the Early Republic 106“40 (1992). Jefferson, of course, was not soli-
tary in his beliefs. Deists dominated the colleges during the latter 18th century.
384 / NOTES TO PAGES 262“263

153. See Fawn M. Brodie, Thomas Jefferson: An Intimate History 372
154. Letter from Thomas Jefferson to Benjamin Rush, (Apr. 21, 1803), in 10 The
Writings of Thomas Jefferson, 380 (Albert Ellery Bergh, ed., 1905).
155. See generally Philip Hamburger, Separation of Church and State,
supra note 134.
156. See R. H. Helmholz, The Spirit of the Classical Canon Law 316-
21 (1996); 1 William S. Holdsworth, A History of English Law 588 (A.L.
Goodhart & H.G. Hanbury eds., 7th ed. 1956); Will Durant, The Reformation:
A History of European Civilization from Wyclif to Calvin 1300“1564, at 584
157. The Reformation was instituted by Martin Luther and John Calvin because
they believed that the Roman Catholic Church had turned away from all that is
holy and become infested with evil. See, e.g., 2 John Calvin, Institutes of the
Christian Religion, bk. IV, ch. IV, 1“2, at 1141, 1144, 1147 (referring to “corruption
of the present-day papacy”; “kingdom of Antichrist”; and “moral abandonment of
the popes”). They were Church insiders who initially acted in order to reform the
Church itself, but the Church proved incapable of suf¬ciently rapid change to
avoid having many of its members leave the Church to follow Luther, Calvin, or
other reformation leaders into new churches. The instinct to schism, in response
to the perceptions of corruption, has never left the Protestant movement, result-
ing in the thousands of modern-day sects that continue to divide. See generally
Steve Bruce, A House Divided: Protestantism, Schism, and Secularization
158. Hamilton, supra note 114.
159. Frederick Nymeyer, A Great Netherlander Who Had One Answer to the
Problem of ˜Liberty™ Destroying Liberty, Namely Sphere Sovereignty, in Progressive
Calvinism (Feb. 1956), available at http://www.visi.com/∼contra m/pc/1956/2-
2great.html (last visited Mar. 8, 2004).
160. David H. McIlroy, Subsidiarity and Sphere Sovereignty: Christian Re¬‚ec-
tions on the Size, Shape and Scope of Government, 45 J. Church & State 739,
754“59 (2003).
161. Abraham Kuyper, Sphere Sovereignty, New Church Speech, October 20,
1880 (cited in McIlroy, supra note 160, at 755).
162. Id.; Abraham Kuyper, Lectures on Calvinism 124“25 (William B.
Eerdmans ed., 1987) (1898“99), also available at http://www.kuyper.org/stone/
lecture4.html (last visited May 28, 2004).
163. McIlroy, supra note 160, at 757“59; see also Johan D. van der Vyver,
Sphere Sovereignty of Religious Institutions: A Contemporary Calvinistic The-
ory of Church-State Relations, at 24 (1999) available at http://www.uni-trier.de/
∼ievr/konferenz/papers/vanvyver.pdf (last visited Mar. 8, 2004) (“Persons engaged
in government [have] the right and an obligation to scrutinize the conduct of their
subjects. . . . Unbecoming conduct should not escape the power of the sword simply
because it was committed in the name of religion.”).
NOTES TO PAGES 263“265 / 385

164. See Johan D. van der Vyver, Review, Culture and Equality: An Egalitarian
Critique of Multiculturalism: By Brian Barry, 17 Conn. J. Int™l L. 323, 329 (2002).
165. See generally Hamilton, Religion, the Rule of Law, and the Good of the
Whole, supra note 128.
166. Cass R. Sunstein, American Advice and New Constitutions, 1 Chi. J. Int™l
L. 173, 178 (2000) (noting that while we cannot overestimate the signi¬cance of
the constitutional text, we also cannot underestimate the “need for a culture that
is committed, ¬rst to the rule of law and constitutional limitations”); Guillermo
Garcia-Montufar & Elvira Martinez Coco Antecedents, Perspectives, and Projec-
tions of a Legal Project about Religious Liberty in Peru 1999 B.Y.U.L. Rev. 503;
American Bar Association, Central Eastern European Law Initiative, available at
http://www.abanet.org/ceeli/home.html (last visited June 10, 2004) (ABA/CEELI
“advances the rule of law in the world by supporting the legal reform process in
Central and Eastern Europe and the New Independent States of the former Soviet
167. To be sure, many of the sermons used in this chapter were delivered by
Calvinists, who would have a predisposition to the virtues of the rule of law. These
views, however, were not exclusive to Calvinists, and appealed to Calvinists of
all sorts, including Congregationalists, Anglicans, and Presbyterians, as well as
the many Baptists in¬‚uenced by Calvinist perspectives. See, e.g., Gregory A.
Wills , Democratic Religion: Freedom, Authority, and Church Discipline
in the Baptist South, 1785“1900 103 (1997); see also Robert Baylor Semple,
The History of the Baptists of Virginia 60 (1810).
168. Unless otherwise indicated, sermons are drawn from Ellis Sandoz™s ex-
tremely useful collection, Political Sermons of the American Founding Era,
1730“1805 (Ellis Sandoz ed., 1991) (hereinafter Political Sermons). Id. at 334“35
(Isaac Backus 1773) (“God has appointed two kinds of government in the world,
which are distinct in their nature, and ought never to be confounded together;
one of which is called civil, the other ecclesiastical government.”). See also
Hamburger, Separation of Church and State, supra note 134, at 21 (stating
that Christians “often took for granted that church and state were distinct institu-
tions, with different jurisdictions and powers”).
169. Political Sermons, supra note 168, at 80 (Elisha Williams 1774); See also
id. at 81“82 (urging obedience to laws involving “those things which are the objects
of the civil magistrate™s power, viz. the civil interests of the people” but not on
“matters of religion”).
170. Id. at 58; see also id. at 337 (Isaac Backus 1773) (“the state is armed with
the sword to guard the peace, and the civil rights of all persons and societies,
and to punish those who violate the same”); Jonas Clarke, A Sermon 29 (1781),
cited in Phillip A. Hamburger, A Constitutional Right of Religious Exemption: An
Historical Perspective, 60 Geo. Wash. L. Rev. 915, at 943 n. 112 (1992) (“[A]s by the
social compact, the whole is engaged for the protection and defense of the life,
liberty and property of each individual”).
171. Political Sermons, supra note 168, at 147“48 (Charles Chauncey 1747).
386 / NOTES TO PAGES 265“267

172. Harry S. Stout, The New England Soul: Preaching and Religious
Culture in Colonial New England 273 (1986) (hereinafter New England
173. Political Sermons, supra note 168, at 72, 67.
174. Id. at 58; see also id. at 1064 (Israel Evans 1791) (“We the people are the
source of all legislative authority.”).
175. Gersham C. Lyman, A Sermon 12, 19 (1784), cited in Hamburger, Consti-
tutional Right of Religious Exemption, supra note 170, at 942 n. 112 (“It is a most
inconsistent and distracted piece of conduct, to set up rulers, and then disobey
their just & needful laws.”).
176. A Declaration of Certain Fundamental Rights and Liberties of the Protes-
tant Episcopal Church of Maryland, in 1 Anson P. Stokes, Church and state
in the United States 741 (1950), cited in Hamburger, Constitutional Right of
Religious Exemption, supra note 170, at 935 n. 84. See also Noah Hobart, Civil
Government The Foundation of Social Happiness 42 (1751), cited in Hamburger,
Constitutional Right of Religious Exemption, supra note 170, at 942 n. 96 (stating
that the government should not “in¬‚ict temporal Punishments” for ecclesiastical
errors that “do not affect the Peace and Happiness of Civil Society”).
177. Political Sermons, supra note 168, at 337 (Isaac Backus 1773).
178. Samuel Stillman, A Sermon 20, 27“28 (Mass. Election sermon, 1779), cited
in Hamburger, Constitutional Right of Religious Exemption, supra note 170, at 942
n. 111; see also The Constitution of the Presbyterian Church in the United States
of America (adopted 1788).
179. The Constitution of the Reformed Dutch Church, in the United States
of America 190 (1793), cited in Hamburger, A Constitutional Right of Religious
Exemption, supra note 170, at 942 n. 111 (1992).
180. Political Sermons, supra note 168, at 143 (Charles Chauncy 1747), Id. at
335 (Isaac Backus 1773) (“God has appointed two kinds of government.”).
181. Id. at 922 (Elizur Goodrich 1787); see also Aaron Hutchinson, A Well
Tempered Self-Love a Rule of Conduct Towards Others 37“38 (1779) (“it is
folly and stupidity for a man to plead conscience for breaking the moral law, which
is a transcript of the moral perfections of God, and written upon the hearts of all by
nature.”); Gordon S. Wood, The Creation of the American Republic 1776“
1787 69 (1969) (quoting Samuel Magaw, A Discourse Preached in Philadelphia
(Oct. 8, 1775) (“[T]he practice of all the social virtues is the law of our nature, and
the law of our nature is the law of God.”).
182. James D. Gordon III, The New Free Exercise Clause, 26 Cap. U. L. Rev.
65, 92 (1997); David E. Steinberg, Rejecting the Case against the Free Exer-
cise Exemption: A Critical Assessment, 75 B.U.L. Rev. 241 (1995); Michael W.
McConnell, The Origins and Historical Understanding of Free Exercise of Religion,
103 Harv. L. Rev. 1409, 1461“66 (1990); Douglas Laycock, Formal, Substantive, and
Disaggregated Neutrality toward Religion, 39 DePaul L. Rev. 993, 1002 (1990).
183. Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting)
(“The makers of our Constitution . . . conferred, as against the Government, the
NOTES TO PAGES 267“270 / 387

right to be let alone “ the most comprehensive of rights and the most valued by
civilized men.”).
184. New England Soul, supra note 172, at 213.
185. Political Sermons, supra note 168, at 914 (Elizur Goodrich 1787).
186. Wood, The Creation of the American Republic, supra note 181, at
69, 61.
187. Id. at 60.
188. Political Sermons, supra note 168, at 331“32 (Isaac Backus 1773).
189. Jonas Clarke, A Sermon 29 (Mass. election sermon 1781), in Hamburger,
Constitutional Right of Religious Exemption, supra note 170, at 943 n. 112. See also
Wood, The Creation of the American Republic, supra note 181, at 118 (referring
to “common emphasis on the usefulness and goodness of devotion to the general
welfare of the community”); American State Papers 113 (Presbyterians stating
that the “end of civil government is security to the temporal liberty and property
of mankind . . . ”).
190. Jonathan Edwards, An Humble Attempt to Promote Explicit Agreement and
Visible Union of God™s People in Extraordinary Prayer, Works, III, reprinted in A.
Heimert, The Great Awakening: Documents Illustrating the Crisis and Its
Consequences 567 (1967). This view certainly did not die with the passing of the
18th century. See, e.g., James W. Gordon, Religion and the First Justice Harlan: A
Case Study in Late Nineteenth-Century Presbyterian Constitutionalism, 85 Marq.
L. Rev. 317, 346, 369, 371 (2001) (discussing Justice Harlan™s view of the role of
the religious believer in aiming for the public good) (hereinafter Gordon); Sydney
Ahlstrom, A Religious History of the American People 275“77 (1972), cited in
Gordon, supra, at 366“67.
191. 7 The Works of John Witherspoon 100 (1805).
192. Political Sermons, supra note 168, at 334 (Isaac Backus 1773). The New
York Evening Post echoed these views in 1747. See Bailyn, supra note 128, at 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 non-arbitrary law-law
enacted by legislatures containing within them the proper balance of forces.”).
193. Political Sermons, supra note 168, at 1063 (Israel Evans 1791).
194. Moses Hemmenway, A Sermon 27, 30 (1784), cited in Hamburger, Consti-
tutional Right of Religious Exemption, supra note 170, at 934 n. 84.
195. Political Sermons, supra note 168, at 67 (Elisha Williams 1744); id. at 339
(Isaac Backus 1773) (“God always claimed it as his sole prerogative to determine by
his own laws, what his worship shall be, who shall minister in it, and how they shall
be supported, so it is evident that this prerogative has been, and still is, encroached
upon in our land.”).
196. Political Sermons, supra note 168, at 1089 (John Leland 1791).
197. The Writings of the Late Elder John Leland 228 (1845) (hereinafter
leland Writings). Thomas Jefferson made the same point in 1782, saying that
“[t]he legitimate powers of government extend to such acts only as are injurious to
others.” Thomas Jefferson, Notes on the State of Virginia 152 (1964).
388 / NOTES TO PAGES 270“271

198. Political Sermons, supra note 168, at 1089 (John Leland 1791).
199. Caleb Blood, A Sermon (1792), cited in Hamburger, Constitutional Right
of Religious Exemption, supra note 170, at 918 n. 15.
200. John Leland, The Yankee Spy, in Leland Writings, supra note 180, cited
in Hamburger, Constitutional Right of Religious Exemption, supra note 170, at 942
n. 111.
201. Hamburger, Separation of Church and State, supra note 134, at 69
(citing William Balch, A Sermon (1749) “requiring Submission and Obedience to
lawful Authority in the People, as well as Integrity and a public Spirit in Rulers”).
Noah Webster extended the concept of subjugation to the law to clergy members
as well. Id. at 88.
202. Samuel Stillman, cited in Hamburger, Constitutional Right of Religious
Exemption supra note 170, at 942 n. 111. This reasoning appeared a century earlier
in the works of Roger Williams, 3 The Complete Writings of Roger Williams
127 (1963). These views also were explicitly embraced by the Supreme Court and
especially Justice Harlan a century later. See Reynolds v. United States, 98 U.S. 145
(1878); Gordon, supra note 190, at 346.
203. Isaac Backus, Isaac Backus on Church, State, and Calvinism:
Pamphlets, 1754“1789, app. 3, at 487 (W. McLoughlin, ed. 1968).
204. McConnell, supra note 182, at 1415 (“Constitutionally compelled exemp-
tions were within the contemplation of the framers and rati¬ers as a possible in-
terpretation of the free exercise clause”); Michael W. McConnell, The Problem
of Singling out Religion, 50 DePaul L. Rev. 1 (2000); Michael W. McConnell,
Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109 (1990);
Douglas Laycock, Towards a General Theory of the Religion Clauses: The Case of
Church Labor Relations and the Right to Church Autonomy, 81 Colum. L. Rev.
1373 (1981); see also Ira C. Lupu, Reconstructing the Establishment Clause: The
Case Against Discretionary Accommodation of Religion, 140 U. Pa. L. Rev. 555
205. See generally Marci A. Hamilton, Symposium, Religious Institutions, The
No-Harm Doctrine, and the Public Good, 2004 B. Y. U. L. Rev. 1099 (2004); Freder-
ick 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 exist 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.”);
William P. Marshall, The Case against the Constitutionally Compelled Free Exer-
cise Exemption, 40 Case W. Res. L. Rev. 357 (1990); Hamburger, A Constitutional
Right of Religious Exemption, supra note 170; 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); see also Frederick Mark Gedicks, Towards a Defensible Free Exercise
Doctrine, 68 Geo. Wash. L. Rev. 925, 950“51 (2000) (“[I]n the long run, no effec-
tive defense is possible [for judicially mandated exemptions]. To the extent that
NOTES TO PAGES 271“276 / 389

a residuum of religious exemptions persists under state law, . . . I say enjoy them
while they last.”).
206. The Warren Court™s distortion of the Free Exercise Clause from a principle
of no harm to a virtually unfettered individual right was contrary to the intent
of the First Amendment and fundamental common sense. See, e.g., Sherbert v.
Verner, 374 U.S. 398, 423 (1963) (Harlan, J., dissent) (“Those situations in which
the Constitution may require special treatment on account of religion are, in my
view, few and far between, and this view is amply supported by the course of
constitutional litigation in this area”).
207. Boerne, 521 U.S. at 539 (1997) (Scalia, J., concurring).
208. Id. (emphasis in original).
209. Queen v. Lane, 6 Mod. 128, 87 Eng. Rep. 884, 885 (Q. B. 1704).
210. See, e.g., Kathleen Brady, Symposium, Religious Organizations and Free
Exercise: The Surprising Lessons of Smith, 2004 B. Y. U. L. Rev. 1638 (2004); to a
lesser extent, Ira C. Lupu & Robert W. Tuttle, Symposium, Sexual Misconduct and
Ecclesiastical Immunity, 2004 B. Y. U. L. Rev. 1789 (2004).
211. See Zelman v. Simmons-Harris, 536 U.S. 369 (2002); Good News Club v.
Milford, 533 U.S. 98 (2001).

10. The Path to the Public Good
1. 521 U.S. 507 (1997).
2. Aristotle, Ethica Nicomachea (W.D. Ross, trans.), in IX The Works of
Aristotle Translated Into English (W.D. Ross, ed. 1925).
3. 406 U.S. 205 (1972).
4. See generally Marci A. Hamilton, The Calvinist Paradox of Distrust and Hope
at the Constitutional Convention, in Christian Perspectives on Legal Thought
(Michael. W. McConnell et al., eds., 2001) (hereinafter Hamilton, Distrust and
5. For example, the dual sovereignty of federalism was intended to divide power
between the federal government and the states, with each checking the other. See
Federalist No. 46 (James Madison) (“The federal and State governments are
in fact but different agents and trustees of the people, constituted with different
powers, and designed for different purposes.”); see id. (noting that federal and state
governments each possess a different “disposition and faculty” with which to “resist
and frustrate the measures of the other.”) Similarly, the three federal branches
were assigned discrete powers and the power to check the other branches. See
Federalist No. 47 (Madison) (“the preservation of liberty requires . . . that the three
great departments of power should be separate and distinct.”); Federalist No. 51
(Madison) (“[T]he defect must be supplied, by so contriving the interior structure of
the government, as that its several constituent parts may, by their mutual relations,
be the means of keeping each other in their proper places.”).
6. Articles of Confederation, art. II (U.S. 1781).
390 / NOTES TO PAGES 277“278

7. Gordon S. Wood, The Creation of the American Republic 1776“87 359
(1969) (hereinafter Wood, The Creation).
8. See II The Records of the Federal Convention of 1787 288 (Max
Farrand, ed. 1966) (hereinafter II Records) (“What led to the appointment of
this convention? The corruption & mutability of the Legislative Councils of the
States.”) (Mercer); id. at 74 (“Experience in all the States had evidenced a powerful
tendency in the Legislature to absorb all power into its vortex.”) (Madison).
9. See Marci A. Hamilton, Symposium, Direct Democracy and The Protestant
Ethic, 13 J. Contemp. Legal Issues 411, 418“422 (2004) (hereinafter Hamilton,
Direct Democracy); see also Marci A. Hamilton, Why the People Do Not
Rule (Aug. 2004) (unpublished manuscript, on ¬le with the author) (hereinafter
Hamilton, Why the People Do Not Rule).
10. See Bernard Bailyn, The Ideological Origins of the American Revo-
lution 57“60 (1967); Wood, The Creation, supra note 7, at 135; see also Hamilton,
Direct Democracy, supra note 9; see generally Hamilton, Distrust and Hope, supra
note 4.
11. See M.N.S. Sellers, The Sacred Fire of Liberty: Republicanism, Liber-
alism and the Law 39“40 (1998) (hereinafter Sellers, Sacred Fire) (discussing
historical in¬‚uences on the framing generation™s choice of a republican form of
representative government and concluding they chose it because, “[t]his concep-
tion of liberty as subjection to equal laws made by common consent, for the general
welfare, maintained the old republican connection between political rights and
substantive freedom.”); Wood, The Creation, supra note 7, at 164 (“Only with
the presence of the democracy in the Constitution [through an elected legislature]
could any government remain faithful to the public good.”); Hamilton, Why
the People Do Not Rule, supra note 9 (discussing Calvin™s in¬‚uence on the
Framer™s, and Calvin™s notion that “[r]epresentatives were to be watched by the
people and tethered to their common good, yet they bore the independent duty to
make decisions serving the people on behalf of God.”).
12. See Donald S. Lutz, Symposium, Religious Dimensions in the Development
of American Constitutionalism, 39 Emory L.J. 21, 23“24 (1990).
13. See generally Hamilton, Direct Democracy, supra note 9; Hamilton, Distrust
and Hope, supra note 4; see also Hamilton, Why the People Do Not Rule,
supra note 9.
14. U.S. Const. amend. I.
15. U.S. Const. amend. I. (“Congress shall make no law respecting an es-
tablishment of religion, or prohibiting the free exercise thereof . . . ”); see gener-
ally Leonard W. Levy, The Establishment Clause: Religion and the First
Amendment (1983).
16. See James Madison, Memorial and Remonstrance, in 8 The Papers of James
Madison 301“302 (Robert A. Rutland, et al., eds. 1962).
17. Bernard Lewis, Islam and the West 186 (1993).
18. Jones v. Wolf, 443 U.S. 595, 602“603 (1979); cf. Employment Div. v. Smith,
494 U.S. 872, 885 (1990).
NOTES TO PAGES 278“284 / 391

19. Gillette v. United States, 401 U.S. 437, 461 (1971).
20. See, e.g., Kathleen Brady, Symposium, Religious Organizations and Free
Exercise: The Surprising Lessons of Smith, 2004 B.Y.U. L. Rev. 1633 (2004); to a
lesser extent, Ira C. Lupu & Robert W. Tuttle, Symposium, Sexual Misconduct
and Ecclesiastical Immunity, 2004 B.Y.U. L. Rev. 1789 (2004).
21. See Zelman v. Simmons-Harris, 536 U.S. 369 (2002); Good News Club v.
Milford, 533 U.S. 98 (2001).
22. Smith, 494 U.S. at 890.
23. DEA Briefs & Background, Drugs and Drug Abuse, Drug Descriptions,
Peyote & Mescaline, at http://www.usdoj.gov/dea/concern/peyote.html (last visited
Sept. 11, 2004).
24. See National Prohibition Act of 1919, ch. 85, tit. II, § 3, 41 Stat. 305, 308“09
25. Terrence A. Gerace, The Toxic-Tobacco Law: “Appropriate Remedial Action,”
20 J. Pub. Health L. 394, 400 (1999).
26. Goldman v. Weinberger, 475 U.S. 503, 509“510 (1986).
27. 10 U.S.C. § 774 (1987).
28. Sherwood v. Brown, 619 F.2d 47 (9th Cir. 1980), cert. denied, 449 U.S. 919
29. 42 U.S.C. § 2000(e)(1) (1964).
30. 118 Cong. Rec. 4503 (1972) (statement of Sen. Ervin) (“[T]his amendment
is to take the political hands of Caesar off the institutions of God, where they have
no place to be.”).
31. 42 U.S.C. § 2000(e)(1) (1964). The exemption was expanded in 1972 to exempt
employees of religious organizations that were engaged in “activities” and not just
“religious activities.” H.R. Rep. No.92“238 & Conference Report No. 92“899, see
1972 U.S. Code Cong. & Adm. News, at 2137, 2180.
32. Corporation of Presiding Bishop of the Church of Jesus Christ of Latter Day
Saints v. Amos, 483 U.S. 327, 338 (1987).
33. See Marci A. Hamilton, Religious Institutions, the No-Harm Rule, and the
Public Good, 2004 B.Y.U. L. Rev. 1099 (2004).
34. The Military Selective Service Act provides: “Nothing contained in this
title shall be construed to require any person to be subject to combatant training
and service in the armed forces of the United States who, by reason of religious
training and belief, is conscientiously opposed to participation in war in any form.”
50 U.S.C. Appx. § 456(j) (2004).
35. See Russell, Development of Conscientious Objector Recognition in the
United States, 20 Geo. Wash. L. Rev. 409, 412“414 (1952) (citing colonial laws
exempting Quakers from compulsory service).
36. See, e.g., Welsh v. United States, 398 U.S. 333, 342“44 (1970).
37. 50 U.S.C. Appx. § 456(j) (2004).
38. II Records, supra note 8, at 287“88.
39. I have written in more detail about this in Hamilton, Why the People
Do Not Rule, supra note 9; Hamilton, Direct Democracy, supra note 9; Marci
392 / NOTES TO PAGES 284“287

A. Hamilton, Discussion and Decisions: A Proposal to Replace the Myth of Self-
Rule with an Attorneyship Model of Representation, 69 N.Y.U. L. Rev. 477 (1994)
(hereinafter Hamilton, Discussion and Decisions).
40. Mortimer Sellers, Republicanism, Liberalism, and the Law, 86 Ky. L.J. 1, 3
41. See Stephan Thernstrom & Abigail Thernstrom, America in Black and
White: One Nation, Indivisible 310“36 (1997).
42. 347 U.S. 483 (1954).
43. Geoffrey R. Stone, et al., Constitutional Law 456 (4th ed. 2001)
44. See Morgan v. Hennigan, 379 F. Supp. 410 (D. Mass. 1974), aff™d, 509 F.2d
580 (1st Cir. 1974), cert. denied, 421 U.S. 963 (1975).
45. See Keyes v. School Dist. No. 1, 413 U.S. 189 (1973).
46. See Milliken v. Bradley, 418 U.S. 717 (1974) (reversing and remanding the
Detroit desegregation plan implemented by District Court Judge).
47. Katzenbach v. Morgan, 384 U.S. 641 (1966).
48. Loving v. Virginia, 388 U.S. 1 (1967) (holding that miscegenation statutes
preventing marriages between persons solely on basis of racial classi¬cation violate
equal protection and due process clauses of Fourteenth Amendment).
49. Shelley v. Kraemer, 334 U.S. 1 (1948) (upholding restrictive covenants barring
ownership or occupancy of property by Blacks).
50. Reitman v. Mulkey, 387 U.S. 369 (1967) (holding that provision of Califor-
nia™s constitution prohibiting the state from denying property owners the right to
decline to sell or rent to anyone at their discretion impermissibly involves the state
in private racial discrimination).
51. See The New Rules Project, The New England Town Meeting, at
http://www.newrules.org/gov/townmtg.html (last visited Aug. 20, 2004) (showing
the rules and de¬nitions for town meetings in Marsh¬eld); see also generally Frank
M. Bryan, Real Democracy (2003).
52. See Hamilton, Why the People Do Not Rule, supra note 9.
53. See Mancur Olson, The Logic of Collective Action 144 (2d ed. 1971);
see also Jeffrey M. Berry, The New Liberalism: The Rising Power of Citizen
Groups 154 (1999) (“The dominant scholarly explanation of interest group mobi-
lization “ then and now “ is Mancur Olson™s selective incentive theory of collective
54. Sellers, Sacred Fire, supra note 11, at 104.
55. See Peter Smith, Protestants Are Close to Losing Majority Status, Louisville
Courier-J., Jul. 21, 2004, at 1A.
56. See generally Hamilton, Why the People Do Not Rule, supra note 9.
57. See generally id.; Hamilton, Direct Democracy, supra note 9; Hamilton,
Discussion and Decisions, supra note 39.
58. See Olson, supra note 53, at 144; see also Berry, supra note 53, at 154.
59. See generally Diana L. Eck, A New Religious America (2001).
60. Maria Jow Parejo Guzman, The Anomolous European Rights to Life and
Death: Understanding the Struggle for Recognition of Religious Minority Rights by
NOTES TO PAGES 287“290 / 393

Examining the Cultural Identity of Spain and Other European Communities, 35
Texas Tech. L. Rev. 297, 308 (2004); see also Nathan A. Adams, IV, A Human
Rights Imperative: Extending Religious Liberty Beyond the Border, 33 Cornell
Int™l L. Rev. 1 (2000).
61. Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 533 (1993).
62. Id.; see also Corp. of Presiding Bishop of the Church of Jesus Christ of Latter-
day Saints v. Amos, 483 U.S. 327, 330 (1987) (upholding exemption from Title VII
for the secular, non-pro¬t activities of a religious organization).
63. For further elaboration of this concept, see generally Hamilton, Direct
Democracy, supra note 9.
64. Smith, 494 U.S. at 878“79.
65. Douglas Laycock, Free Exercise and the Religious Freedom Restoration Act,
62 Fordham L. Rev. 883, 884 (1994).
66. Press Release, The Pew Research Center, Religion and Politics: Con-
tention and Consensus 42 (Jul. 24, 2003) (hereinafter Press Release, The Pew
Research Center) (on ¬le with author), also available at http://pewforum.org/
publications/surveys/religion-politics.pdf (last visited Aug. 25, 2004) (answer to
Question 17: “What is your religious preference “ do you consider yourself
Christian, Jewish, Muslim, other non-Christian such as Buddhist or Hindu, athe-
ist, agnostic, something else, or don™t you have a religious preference?” 82% of
respondents in March 2002 identi¬ed themselves as Christian, 1% as Jewish, 1% as
other non-Christian, 2% as an unlisted religion, 2% were agnostic, 1% were atheists.
Only 10% said they didn™t have a religious preference.).
67. Michael W. McConnell, Free Exercise Revisionism and the Smith Decision,
57 U. Chi. L. Rev. 1109, 1142“43 (1990) (hereinafter McConnell, Free Exercise
Revisionism and the Smith Decision).
68. Hall v. Baptist Mem™l Health Care Corp., 215 F.3d 618 (6th Cir. 2000).
69. See First Covenant Church v. Seattle, 840 P.2d 174, 184“85 (Wash. 1992)
(holding an exemption from city™s zoning ordinances that exempted structural
changes for liturgical purposes was still unconstitutional because it requires the city
to determine “what is liturgy and what is a valid religious purpose . . . foster[ing]
exactly the kind of religious entanglement the constitution seeks to avoid.”); Society
of Jesus of New England v. Boston Landmarks Comm™n, 564 N.E.2d 571 (Mass.
1990) (holding landmark commission approval of interior renovations of church
violated the Massachusetts Constitution and not reaching the federal question).
70. See, e.g., Cal. Evid. Code § 5193 (Deering 2004) (“A parent or guardian of
a pupil has the right to excuse their child from all or part of comprehensive sexual
health education, HIV/AIDS prevention education, and assessments related to
that education . . . ”); R.I. Gen. Laws § 16-22-17 (2003) (“A parent or legal guardian
may exempt his or her child from the [HIV/AIDS education] program by written
directive to the principal of the school . . . ”); S.C. Code Ann. § 59-32-50 (Law.
Co-op. 1976) (“A public school principal, upon receipt of a statement signed by
a student™s parent or legal guardian stating that participation by the student in
the health education program con¬‚icts with the family™s beliefs, shall exempt that
394 / NOTES TO PAGES 290“293

student from any portion or all of the units on reproductive health, family life,
and pregnancy prevention where any con¬‚icts occur.”); Iowa Code Ann. § 279.50
(West 1996) (“A pupil shall not be required to take instruction in human growth
and development if the pupil™s parent or guardian or ¬les with the appropriate
principal a written request that the pupil be excused from the instruction.”); N.C.
Gen. Stat. Ann. § 115C-81(e1)(7) (Bender 2004) (“Local boards of education shall
adopt policies to provide opportunities either for parents and legal guardians to
consent or for parents and legal guardians to withhold their consent to the students™
participation in any or all of these [i. STD and pregnancy prevention, ii. Abstinence
until marriage, iii. Comprehensive sexual education] programs.”).
71. Ford v. McGinnis, 352 F.3d 582, 598 n.17 (2d Cir. 2003) (in case of Muslim
inmate denied religious meal, “we hold as a matter of law that the prison of¬cials™
conduct was not objectively reasonable”); see also Jackson v. Mann, 196 F.3d 316,
320 (2d Cir. 1999) (in case of Jewish inmate denied access to kosher meal program,
the court noted that “prison of¬cials must provide a prisoner a diet that is consistent
with his religious scruples”) (quoting Bass v. Coughlin, 976 F.2d 98, 99 (2d Cir.1992)
(per curiam)); Love v. Reed, 216 F.3d 682, 690 (8th Cir. 2000) (in case of inmate
practicing “Hebrew religion” who wished to observe the Sabbath, prison™s “failure to
provide the requested accommodation . . . substantially burdens [inmate™s] ability
to freely exercise his religion.”).
72. 42 U.S.C. § 300a-7 (2004).
73. 26 U.S.C.S. § 501(c)(3) (2004).
74. Stephen L. Carter, The Culture of Disbelief: How American Law
and Politics Trivialize Religious Devotion (1993).
75. See Martin E. Marty, Religion and Republic 71“72 (1987) (describing
advent of secularization in law and commenting that Supreme Court decisions in
the 1960s and 1970s drained “the last trace of religious substance” from the law);
see also generally Martin E. Marty, The In¬del: Free Thought and American
Religion (1961).
76. Kathleen A. Shaw, Priests Huddle on Role in Election, Telegram & Gazette
(Worcester, MA), Sept. 10, 2004, at B7.
77. See generally Marci Hamilton, Protecting Religious Institutions™ Right to
Political Speech, Findlaw™s Writ, Aug. 15 2002, at http://writ.news.¬ndlaw.
com/hamilton/20020815.html (last visited Sept. 12, 2004). There is a bill pending
in both Houses of Congress that would affect the repeal.
78. Smith, 494 U.S. at 872.
79. 139 Cong. Rec. S 14350, 103rd Cong., 1st Sess. Oct. 26, 2993 (statement of
Sen. Hatch).
80. McConnell, Free Exercise Revisionism and the Smith Decision, supra note
67, at 1152.
81. See generally Kent Greenawalt, Religion and American Political Judgments,
36 Wake Forest L. Rev. 401 (2001).
82. Bill Broadway, Claim of ˜Post-Denominational Era™ De¬ed, Wash. Post,
Mar. 14, 2001, at A3 (citing Hartford Institute for Religion Research study).
NOTES TO PAGES 293“298 / 395

83. The 2000 Census reported a total U.S. population of 281,421,906. Popula-
tion Division, U.S. Census Bureau, Annual Estimates of the Population of
The United States and States, and for Puerto Rico: April 1, 2000 to July
1, 2003 (Dec. 18, 2003) (revised May 11, 2004), available at http://www.census.gov/
popest/states/tables/NST-EST2003-01.pdf (last visited Aug. 29. 2004).
84. Stephen D. Smith, The Rise and Fall of Religious Freedom in Constitutional
Discourse, 140 U. Pa. L. Rev. 149, 232, 237 (1991).
85. Christopher L. Eisgruber & Lawrence G. Sager, The Vulnerability of
Conscience: The Constitutional Basis for Protecting Religious Conduct, 61 U. Chi.
L. Rev. 1245, 1315 (1994).
86. Christopher L. Eisgruber & Lawrence G. Sager, Why the Religious Freedom
Restoration Act is Unconstitutional, 69 N.Y.U. L. Rev. 437, 456“57 (1994).
87. Id.
88. McConnell, Free Exercise Revisionism and the Smith Decision, supra note
67, at 1150.
89. Model Rules of Prof™l Conduct and Code of Judicial Conduct
Canon 3(B)(5) (1999).
90. 28 U.S.C. § 453 (2004).
91. 28 U.S.C. § 455(a) (2004).
92. Tennessee Valley Auth. v. Hill, 437 U.S. 153, 195 (1978).
93. See Jesse Choper, The Supreme Court and the Political Branches: Demo-
cratic Theory and Practice, 122 U. Pa. L. Rev. 810, 814 (1974); Richard A. Posner,
Overcoming Law 134 (1995).
I reject an expanded judicial role because it must eventually lead to the ridiculous
conclusion that members of the judiciary not only must be experts on topics
ranging from anatomy to zoology, but that they also are capable of resolving
differences of opinion within each of those disciplines. . . . It is far more probable
that over time such judges will substitute their personal preferences for those of
the framers or legislators.
William Gangi, Saving the Constitution from the Courts 275 (1995). See
also Norman Ornstein, The Role of the Legislature in a Democracy, Freedom
Paper No. 3, (Wayne Hall ed., 1992), available at http://usinfo.state.gov/products/
pubs/archive/freedom/freedom3.htm#lesson (last visited Aug. 25, 2004).
94. That is in fact happening in the context of children™s interests. Religious
organizations have been successful in obtaining state and federal laws that ex-
empt faith-healing parents from the force of the laws that protect children. See
Rita Swan, Ph.D., Symposium, Moral, Economic, and Social Issues in Children™s
Health Care: On Statutes Depriving a Class of Children of Rights to Medical
Care: Can this Discrimination be Litigated?, 2 Quinnipiac Health L.J. 73, 79“80
(1988). Children™s rights, however, have become internationally recognized and
the argument for giving such latitude to parents to harm their children, even if
religiously motivated, have lost a signi¬cant degree of force. See, e.g., Weld Ap-
proves Child Abuse Law, Boston Globe, Dec. 29, 1993, at Metro-24 (reporting the
passage of legislation that “repeals a statutory provision that states a child shall not
396 / NOTES TO PAGES 298“304

be deemed neglected if treated with spiritual healing alone.”); Cal. Pen. Code §
11166(a)(2)(c)(1)-(2) (Bender 2004) (Duty to report statute excludes reporting infor-
mation received during “penitential communication” but clari¬es that “ [n]othing
in this subdivision shall be construed to modify or limit a clergy member™s duty to
report known or suspected child abuse or neglect when the clergy member is acting
in some other capacity that would otherwise make the clergy member a mandated
95. Smith, 494 U.S. at 890.
96. Press Release, The Pew Research Center, Religion and Politics: Contention
and Consensus, supra note 66.
97. The investigation by Oregon™s medical examiner showed that the deaths
of at least 21 of the 78 children who died since 1955 probably could have been
prevented with medical treatment. Mark Larabee & Peter D. Sleeth, Followers
Children Needed Medical Care, Experts Say, Cleveland Plain Dealer, Jun. 28,
1998, at 21A.
98. Mark Larabee, Bill Aims to Lift All Oregon Religious Shields, Oregonian,
Jan. 22, 1999, at C6.
99. Mark Larabee, Balancing Rights Makes Faith-Healing Bills Thorny, Ore-
gonian, Jun. 28, 1999, at A1.
100. Id.
101. In 1844, Karl Marx said, “Religion is the sigh of the oppressed creature,
the heart of a heartless world, and the soul of soulless conditions. It is the opium
of the people.” Karl Marx, Critique of Hegel™s ˜Philosophy of Right™ 131
(Joseph O™Malley ed., Annette Jolin & Joseph O™Malley trans., 1970). Thomas
Mann paraphrased Marx in 1930, saying, “Fanaticism turns into a means of salva-
tion, enthusiasm into epileptic ecstacy, politics becomes an opiate for the masses,
a proletarian eschatology; and reason veils her face.” Thomas Mann, An Appeal
to Reason, in Order of the Day, Political Essays and Speeches of Two
Decades 57 (Helen T. Lowe-Porter trans., 1942).
102. C.B. MacPherson, The Political Theory of Possessive Individualism:
Hobbes to Locke 3 (1962).
103. See generally various authors, Symposium, Foundations of Church Auton-
omy, 2004 B.Y.U. L. Rev.
104. Friedrich Nietzsche, Beyond Good and Evil 52 (Helen Zimmern
trans., 1967) (“Granted, ¬nally, that we succeeded in explaining our entire in-
stinctive life as the development and rami¬cation of one fundamental form of will
“ namely, the Will to Power, as my thesis puts it; granted that all organic functions
could be traced back to this Will to Power, and that the solution of the problem
of generation and nutrition “ it is one problem “ could also be found therein: one
would thus have acquired the right to de¬ne all active force unequivocally as Will
to Power. The world seen from within, the world de¬ned and designated according
to its ˜intelligible character™ “ it would simply be ˜Will to Power™ and nothing else.”)
(emphasis in original).
NOTES TO PAGES 305“310 / 397

105. Ira C. Lupu, Free Exercise Exemption and Religious Insitutions: The Case
of Employment Discrimination, 67 B.U. L. Rev. 391, 403 (1987).

1. Brochure, U.S. Conference of Catholic Bishops, The Challenge of Faithful
Citizenship: A Catholic Call to Political Responsibility (2004), available at http://
www.usccb.org/faithfulcitizenship/pdf/brochure.pdf (last visited Jan. 8, 2004).
2. Carol Eisenberg, Religious Political Revival, Newsday (N.Y.), Nov. 5, 2004,
at A28.
3. Emma Schwartz, Falwell™s School Joins Others in Teaching Law to Their
Flocks, L.A. Times, Nov. 21, 2004, at A24; see also Adam Liptak, Giving the Law a
Religious Perspective, N.Y. Times, Nov. 23, 2004, at A16.
4. Bernard Goldberg, Arrogance: Rescuing America from the Media 27
5. Rukhl Schaechter & Eric J. Greenberg, Major Rabbinical Council Slammed
for Releasing Names in Sexual Abuse Case, Forward (N.Y.), Dec. 17, 2004.
6. Rebecca Ruiz, Satanists Not so Spooky, Say Supporters, North Gate
News Online (Berkeley, Cal.), Oct. 27, 2004, at http://journalism.berkeley.edu/
ngno/stories/003517.html (last visited Jan. 8, 2004).
7. Id.
8. John R. Llewellyn, Believer Beware: A Dissertation Dealing with Govern-
ment Ineptness in Combating Coerced Sexual Exploitation “ and the Dire Need
for New Legislation (2004) (unpublished manuscript on ¬le with the author).
9. Laurie Goodstein, Murder and Suicide Reviving Claims of Child Abuse in
Cult, N.Y. Times, Jan. 15, 2005, at A12.

ABA Model Rules of Professional American Civil Liberties Union (ACLU)
Conduct and Code of Judicial and discrimination, 185
Conduct, 296 and prisons, 166, 168
Abandonment and public schools, 122, 133
First Amendment defense, 39 RFRA support by, 10, 17
within FLDS, 39 RLPA and, 180, 183
Abdullah (Crown Prince), 146 RLUIPA and, 97
abuse. See abandonment; failure to American Council on Education, 145
provide a safe environment; medical American Family Association, 112
neglect; physical abuse; reporting American Muslim Armed Forces and
laws; sexual abuse. Veteran Council, 146
Ackles, Will, 196 American Muslim Council, 146
Afghanistan, 75 AmericanPlanning Association (APA), 184
Polygamy in, 75 Americans United for Separation of
African Methodist Episcopal Church Church and State, 177
(AME), 195 and prisons, 166
AIDS (Acquired Immune De¬ciency RLPA and, 177, 184
Syndrome), 76 Americans with Disabilities Act (ADA),
Alabama Coushatta Tribes, 192, 228
120“30 Amish
Alamoudi, Abdurahman, 146 in public schools, 131“32, 209“10, 218,
Alcoholics Anonymous, 80 222“23
Aleph Institute, 150“53 Social Security payments for, 135, 212
Allen, Arthur R., 41 Anglican Church
Alliance Defense Fund, 57 in England, 257
Alliance for Marriage, 57 Antelope Valley College, 1269
American Academy of Pediatrics, 17, Arizona
273 FLDS in, 21“22, 24
American Baptist Churches, 184 Religious camps in, 42

400 / INDEX

Bureau of Prisons (BOP), 146“47
Arizona Aryan Brotherhood, 142
Bob Jones University, 174, 184, 212
Articles of Confederation, 276
Boston Globe, 16“18
Aryan Brotherhood (AB)
Bountiful Health Center, 29
in prisons, 142“44
Bowen, Bill, 25
Aryan Brotherhood of Texas, 142
Bowers v. Hardwick, 223
Aryan Circle, 142
Bowman, Pasco M., 164
Asani, AIi, 147
Bradbury, Ray, 137
Asser, Seth, 34
Brandenburg v. Ohio, 148
“at-will” contracts, 191
“The Brand,” 143. See also Aryan
Bachman, Barbara, 186
Brennan, William, 170, 216, 229“30,
Bachman, Michael, 186
Backus, Isaac, 266“70
Brewer, Michael, 27
Bali, Dania, 127
Brewer, Russell, 144
Baptist Press, 53
British Columbia Civil Liberties
Baum, L. Frank, 137
Association, 71
Becket Fund, 86, 97, 103
Brown, Harold O. J., 57, 64
Becket, Thomas, 244“47
Brown v. Board of Education, 228,
Bene¬t of clergy, 240“51, 262
in Colonies, 247, 248, 253
Browning, Paul, 29“30
in England, 242, 243“48
High Commission, 246, 252, 253, 258
in prisons, 161
Star Chamber, 246, 252, 253, 255,
Burger, Warren, 47, 170, 216, 223
Bush, George W., 52, 157
Benjamin Franklin Science Academy,
Bush, Jeb, 158
Butegwa, Florence, 75
Berglund, Jason, 43
Byrd, James, Jr., 144
Berry, Jason, 16
Berry, Sean, 144
Best, Virgil, 91
Aryan Brotherhood in, 143
homicide exemptions in, for religious
Ephesians, 60
institutions, 36
in public schools, 112, 132, 136
land use cases in, 82“94
Big Sandy Independent School District,
Supreme Court of, 83, 85, 93,
Black, Galen, 220, 224
Calvin, John, 258“59
Blackmore, Ray, 23
Calvin Presbyterian Church, 196
Blackmore, Winston, 23
Blackmun, Harry, 170
18th century preachers, 219
blind exemptions, 9“10. See also
In¬‚uence of framers, 219
legislative exemptions; RFRA;
and no-harm principle, 262
Camp Tracey, 43
Bloods (gang), 144
Campaign Against Polygamy & Women
Board of Education of Kiryas Joel Village
Oppression in Nigeria and Africa
School District v. Grumet, 209
Bollard, John, 197
INDEX / 401

Chalcedon Foundation, 58
camps (religious)
Chapin, Jennifer, 19
Camp Tracey, 43
Charitable immunity,
discipline in, 41“44
in England, 241, 248“50
in Florida, 43
Feoffees of Heriot™s Hospital v. Ross, 249
in Missouri, 42
Georgetown College v. Hughes, 250
Teen Reach, 42
McDonald v. Mass. Gen. Hosp., 249
in Texas, 41
Remaining vestiges, 250
in US, 241, 248“50
FLDS in, 22“23, 71
charitable organizations
polygamy in, 22“23, 67“69, 71
Catholic Charities, 4
sexual abuse cases in, 22“23
United Jewish Communities, 4
Carmella, Angela, 234
Charles I (king), 253
Carter, Stephen, 6, 48, 291
Chauncy, Charles, 219, 265“67
Casady, Dennis, 29“30
Chaves, Mark, 167
Castagnetta, Kathy, 106
Cheema, Jaspreet, 116
Castle Hills v., 103“04
Cheema, Rajinder, 116
Catholic Brothers of the Missionaries of
Cheema, Sukhjinder, 116
Charity, 100“01
Cheema v. Thompson, 116“18
Catholic Charities, 4
description of, 5
Catholic church, 9, 62
Free Exercise Clause in, 117
Boston Archdiocese, 16, 18, 20
RFRA in, 116
Ecclesiastical courts, 240“53
CHILD, Inc., 17, 273
and employment discrimination,
child care centers (religious)
190“94, 197
exemptions for, 43“45
in England, 175, 198, 239, 253
and First Amendment claims, 44“46
and housing discrimination, 188
land use laws and, 99“100
and Inquisition, 256
licensing for, 43“45
legal exemptions for, 9
under RFRA, 99
monetary damages against, 19
under RLUIPA, 99“100
and public schools, 111“12
and state RFRAs, 46
and Reformation, 251
Child Protection Protocol Agreement, 23
RLUIPA and, 87
children™s rights, 17, 32
same-sex marriage and, views on, 56,
Christianity in, 4“5
sanctuary and, 240
Falun Gong in, 4“5
self-protection within, 15
religious persecution in, 4“5, 62
sexual abuse within, 14“16, 27
Christensen, David, 29“30
Catholic Citizenship, 291
Christian Coalition of America, 52
Contemplative Order of the Sisters of the
Christian Legal Society, 181, 184
Visitation, 192
Christian Prison Fellowship Ministries,
Convention for the Elimination of All
150, 155, 166
Forms of Discrimination Against
Christian Science Sentinel, 34
Women (CEDAW), 76
Christian Scientists, 9
Court of Chancery (England), 257
legal exemptions for, 9, 31“34
Center for Law and Religious Freedom,
medical neglect and, 9, 31“34
402 / INDEX

Confederate Knights of America, 144
Christian Scientists (cont.)
Congregation Beth Simchat Torah, 59
RFRA and, 180
Congregation Etz Chaim, 84
theology of, 31“34
Congregations in America (Chaves), 167
Christianity. See individual
Congress. See Legislature.
Congressional Record, 87
Chung, Connie, 25
Church Autonomy, 240“43, 263,
RFRA in, 109
Conservative Judaism, 60
Church of Jesus Christ of Latter-Day
Constitutional Convention, 277, 283“85
Saints, 21“22, 70, 211, 282
Continental Congress, 276“77
First Amendment claims by, 28, 29
Cooper, Clarence, 133
medical neglect within, 38
Cottrell, Terrance, 40
polygamy within, 66, 70“71, 211
Courts, role of,
RFRA and, 180
Cox, Archibald, 232
RLUIPA and, 87
Creationism, 132
sexual abuse within, 21, 27“30
Crips, 144
Church of Lukumi Babalu Ave. v. City of
cult organizations
Hialeah, 108, 214“16
“The Body,” 38
Church of Scientology, 213
Church of The New Song (CONS), The Culture of Disbelief: How American
157 Law and Politics Trivialize Religious
Devotion (Carter), 6“7, 48, 291
in prisons, 163“65
Curtis, Franklin Richard, 27“28
Cicero, 284
City of Boerne v. Flores, 178, 204, 214, 226,
Dalzell, Stewart, 108
239, 271, 273, 279
Dannemeyer, William, 53
Congressional power in, 204, 227“28
Davis, Jefferson, 60
Federalism in, 227, 228
Day-care centers (religious). See child
Fourteenth Amendment in, 230, 232,
care centers (religious).
Daye, Erika, 40
Free Exercise Clause in, 204,
Daye, Michael, 40
Declaration of Independence (U.S.),
main issues in, 204
257, 276
“ratchet theory” applications in, 235
Deists, 62
RFRA and, 225
Department of Education (U.S.), 119
strict scrutiny under, 206, 214, 215
Department of Justice (U.S.),
City of Rome v. United States, 233
Mann Act prosecutions, 69“71
civil unions. See same-sex marriage.
and prisons, 147
Clarke, Jonas, 268
and public schools, 127“28
Clinton, Bill, 96, 119, 150, 291
RLUIPA and, 97, 107, 184
Coalition for Free Exercise of Religion,
Democracy. See direct democracy;
96, 178, 225
coeducational classes, 138“39
Dhillon, Tarlochan, 115
Cohen, William, 232
Direct Democracy, 285
College of New Jersey, 209, 256, 269
discrimination (religious)
College Regina Assumptia, 127
ADA claims, 192
Colson, Charles, 150“52, 155, 165“66
in employment, 189“98
communism, 5
INDEX / 403

in religious institutions, 189“90, 198
Fair Housing Act, 187
sexual harassment, 194
by gender, 191
for sexual orientation, 190
in housing, 175“88, 285
Employment Division v. Smith, 92, 126,
land use and, 85, 87
129, 135, 162, 214, 215, 216, 219, 220,
marital status, 184, 187
221, 222, 224, 227, 235, 237, 239, 271,
ministerial exception and, 174, 185
279, 280, 287, 299, 303
racial, 184, 199
arguments against rule of, 293
RFRA and, 175, 176, 178, 181“87
“hybrid rights” in, 130
RLUIPA and, 175, 184, 185
and legislative exemptions, 11
Sexual harassment, 194, 197
and no-harm principle, 239
State RFRAs and, 182, 185
and religious accommodations, 130
Title VII, 189, 190, 192
Employment Security Act (Indiana),
“disfellowship,” 25. See also
England (Great Britain)
Dolquist, Sue Ann, 197
legal history, 239
Doyle, Thomas, 14
religious con¬‚ict in, 6, 64
Drug Enforcement Agency (U.S.),
Republicanism in, 242
U.S. law compared to, 239
Duigon, Lee, 58
Ephebophilia, 13. See pedophilia.
Dunn, Albert, 195
Episcopal Church USA, 59
and employment discrimination,
East Malaysia
polygamy in, 75
Equal Opportunity Employment
Ecclesiastical courts,
Commission (EEOC), 192
in Colonies, 247, 248, 258
Equal Protection Clause, 228. See also
in England, 240“51
Fourteenth Amendment.
Eck, Diana L., 58
Equality, 56, 76, 229, 293“95
Ecole Louis Riel, 126
Esbeck, Carl, 58
Eddy, Mary Baker, 34
Establishment Clause, 29, 124, 128, 169,
Edgar, Brian, 41
258, 272, 275“79, 300
Edgar, Christy Y., 41
in Edwards v. Aguillard, 132
Edgar, Neil E., 41
and land use, 92“93
Edward I (king), 252
in public schools, 132, 133, 137
Edwards, Jonathan, 268
and religious accommodations, 275
Edwards v. Aguillard, 132
Evangelical Free Church, 188
Eells, Nathaniel, 267
evolution, 132
EEOC v. Wyoming, 230, 234
excommunication (Jehovah™s Witnesses)
Eighteenth Amendment, 281
as threat, 26
Eisgruber, Christopher, 293“95
exemptions. See blind exemptions;
Elizabeth I (queen), 6, 64, 244, 246“48,
legislative exemptions; religious
Elvig, Monica L. McDowell, 196
employment discrimination
Failure to provide a safe environment,
“at-will” contracts and, 191
43“45. See also child care centers.
gender, 190, 191
Fair Housing Act (FHA), 186“88
for marital status, 191
Fair Labor Standards Act, 213
ministerial exception, 174, 190
404 / INDEX

Followers of Christ Church, 35, 300
Faith-healing. See medical neglect.
Fordice, Kirk, 112
Falun Dafa Information Center, 5
Focus on the Family, 57
Falun Gong, 4“5, 10, 13
Fourteenth Amendment
value systems for, 5
in Brown v. Bd. of Education, 228
Falwell, Jerry, 53, 111, 291
in City of Boerne v. Flores, 204, 228
Family Medical Leave Act, 228
and discrimination, 228, 229, 231
Family Research Council, 53
Equal Protection Clause, 228
Farrakhan, Louis, 112
and federalism, 228, 229
Farris, Michael, 134
in Katzenbach v. Morgan, 230
Federal Marriage Amendment, 52, 54
in Lawrence v. Texas, 223
Federalism, 227, 228, 389
and privacy, 234
Feinberg, Joel, 260
and ratchet theory, 232
The Feoffees of Heriot™s Hospital v. Ross,
and RFRA, 230, 236
Section 5, 204, 228, 230“33, 237
Ferdinand (king), 257
Fourth Amendment, 205
Ferguson, Royal, 103
Framing Generation
Fifth Amendment, 206
and Calvinism, 262
Fine, Glenn A., 147
Framers, 219
First Amendment (US Constitution); see
and no-harm principle, 260
also Establishment Clause; Free
Preachers, 219
Exercise Clause; Free Speech
Muslim extremists in, 144
belief, absolute protection for, 7
prison systems in, 144, 149
children and, 18, 19, 25, 26, 27, 29, 31,
school dress codes in, 128“29
35, 39, 42, 45, 47
Francis, George, 19
and discrimination claims, 174, 190,
Franco, Lynette Earl, 29
193, 194, 196
Frazee v. Ill Dep™t of Employment Sec., 217
exemptions and, 9
Free Exercise Clause, 47, 152, 171, 221, 292
foundations of, 25, 39
in Cheema v. Thompson, 117
marriage and, 55, 65, 66, 72, 76
in Church of Lukumi Babalu Ave. v.
military systems and, 170
City of Hialeah, 215
neutrality and, 169, 272, 279
in City of Boerne v. Flores, 204, 205“7
no-harm principle in, 35
discrimination and, 183, 187“89, 196
polygamy claims under, 66, 72
in Employment Div. v. Smith, 129
principles of, 205“6
and equality, 229, 293“95
religious child care centers™ use of, 45
hybrid rights and, 130
in schools, 123, 126, 127, 128, 131, 137
and land use, 92, 107
First Church of the Christ, Scientist, 31.
and legislative exemptions, 54
See Christian Scientists.
in Locke v. Davey, 215
First Presbyterian Church, 88
marriage and, 54, 67
Fitzsimmons, Holly, 106, 108
neutrality and, 207“27, 278“83
Flanagan, Thomas, 74
and prisons, 171
Fletcher, Betty Binns, 116
and public schools, 128, 131
and religious accommodations, 130
ACLU in, 168
in Reynolds v. U.S., 67
religious camps in, 42“43
RFRA and, 107
religious prisons in, 167“69
INDEX / 405

Green, Ryan, 122
RLUIPA and, 107
Green, Tom, 54
in Sherbert v. Verner, 108
Greenawalt, Kent, 293
Strict scrutiny under, 214, 215, 216
Gregory IX (pope), 256
in Wisconsin v. Yoder, 218
Gressman, Eugene, 232
Free Speech Clause (US Constitution),
Grif¬n, Kirk, 43
Grosz, Naftali, 90
Brandenburg v. Ohio, 148
Grosz, Sarah, 90
and hybrid rights, 130
Guerrero, Louie, 41
in prisons, 148
Guiliani, Rudolph, 87
Frelix, Harold, 43
Guru Nanak Sikh Society, 104
French, Layle, 188
Frohnmayer, David, 220
Hall, Cynthia Holcomb, 116
Fundamentalist Church of Jesus Christ
Hamas, 146
of Latter-Day Saints (FLDS),
Hamburger, Phillip, 111
abandonment and, 39
Harlan, John Marshall, 231
“blood atonement” and, 24
Harm Principle, 260
in Canada, 22“23
Hart, H. L. A., 260
Child Protection Protocol Agreement
Harvard Law Review, 219
and, 23
Hatch, Orrin, 6, 85, 87“88, 96, 155,
“lost boys” and, 39
175“76, 292
polygamy within, 21“24, 66, 70“71
Hearn, Nashala, 127
sexual abuse and, 21“24
Hemphill, Ray Anthony, 40
in United States, 21“24
Henkel, Mark, 74
Henry II (king), 239“47
Henry VIII (king), 246, 252
in prisons, 142“44
Hezbollah, 146
in public schools, 118“22
High Commission (England), 246,
Gauthe, Gilbert, 16
gay marriage. See same-sex marriage.
Hinduism, 6
gender discrimination, 190, 191
in prisons, 161
Geoghan, John, 18
historical preservation
George, Robert P., 53
for houses of worship, 93
Georgetown College v. Hughes, 250
Gibson, Michael, 27 Hobbie v. Unemployment Appeals
Comm™n of Fla., 217
Gill, Mazell, 99
Holmes, Oliver Wendell, 238
Gillette v. United States, 68, 279
home prayer
Global Ministries, 174
under RLUIPA, 109
“God Pods,” 166“67
Home School Legal Defense Association
God™s Creation Outreach Ministry, 41
(HSLDA), 133“35
Goldman, S. Simcha, 170“71
homeschooling, 132“36
Goldman v. Weinberger, 170“71
Goodrich, Elizur, 267
under RLUIPA, 100“01
Gordon, James D., 224
homicide exemptions (for religious
Grace United Methodist Church, 91
institutions), 35, 36
Graduate School of Islamic and Social
Sciences (GSISS), 146 Hopkins v. Women™s Div. Bd. of Global
Ministries, 174
Greeley, Andrew, 17
406 / INDEX

Horace Mann Junior High, 119
religious con¬‚icts in, 6, 177
Horn, Martin, 156
Irish Republican Army (IRA), 177
House of Prayer, 41
Irvin, John, 120
houses of worship
Isabella (queen), 257
Abington, 101, 102, 103
Islamic Association of Palestine, 146
Boerne, 95
“Islamic Group,” 149
Castle Hills, 103, 104
Islam. See Muslims.
discrimination claims, 85
Extremism, Fundamentalism, 6,
First Amendment and, 93
Imams, 141, 145“49
Grosz, 90
Polygamy and, 75
Guru Nanak Sikh, 104
and prisons, 141, 145
Hancock Park, 82, 84, 85
and public schools, 126“29
historical preservation issues for,
Islamic Society of North America
(ISNA), 146
landmark status for, 93
“megachurches,” 80
Religious con¬‚ict in, 6, 177
mission of, 88, 91
multiple uses for, 80
Jackson, Robert, 113
neighborhood disputes:
Jains, 161
under RFRA, 91, 94
James I (king), 253
under RLUIPA, 93, 85, 86, 87, 88,
Jaroslawicz, Isaac M., 150“53, 155
Jefferson, Thomas, 205, 207“08,
and state RFRAs, 107, 109


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