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not prohibit medical care, which implies that believers have a choice
between medical care and prayer alone.89 Indeed, when challenged, they
will defend their faith by saying that prayer is not the only option, just the
preferred option. For example, a teenage girl had a broken ankle and was
asked by her parents what she “wanted to do “ pray or go to a hospital.
[She] felt prayer was reliable.”90
If one follows the logic of this supposed choice, it also seems to imply
that deaths by medical neglect are not the responsibility of the church.91
The Church can and will say the parents had a choice. Yet, the fail-
ure to rely on prayer alone is looked upon as a serious spiritual failing,
and Christian Science practitioners often chide worried parents not to
give into the temptation to obtain medical attention and to pray more
34 / GOD VS. THE GAVEL


fervently, which translates into a message that those who face the most
dire medical emergencies are holier if they avoid medical treatment.92
An editor of the Christian Science Sentinel wrote that the “most impres-
sive and persuasive ways [to show their children God loved them] often
had to do with turning to God for healthcare. Children remember being
healed, thanks to prayer alone, of children™s diseases, organic problems,
hernia, mononucleosis, serious sports injuries.”93 In Mary Baker Eddy™s
words, “The habitual struggle to be always good is unceasing prayer,”94 a
sentiment that has been translated by contemporary Christian Scientists
to mean that “[d]isease really has mental roots. If you go to the root of
the problem in thought “ and fear is usually a factor “ you™ll eliminate
it.”95 Moreover, the institution supports, trains, and provides faith-healing
caretakers to offer end-of-life care. These caretakers are deemed “prac-
titioners” and “nurses,” although they may have no medical training,
and if they do, must renounce it.96 Christian Science treatment centers
are, in fact, hospices where no medical science is practiced and no pain
medication is provided, but minimal bodily needs are tended to as the
patient expires.97 They are supported in no small part through medicare
funding.
Historically, Christian Scientists have put a great deal of effort into
seeking exemptions from federal and state laws that would otherwise hold
faith-healing parents accountable for harm done to their children.98 They
testi¬ed and argued in favor of the federal Regulation “ now repealed “
that forced states to enact medical neglect exemptions in order to obtain
federal aid.99 They also have been active in state legislatures.100 At least
one of their former members is trying to put a stop to the Christian Scien-
tists™ efforts. Rita Swan, a former Christian Scientist whose 16-month-old
son, Matthew, died of spinal meningitis as a result of religiously motivated
medical neglect, now lobbies to protect children from faith healing. She
and Seth Asser, M.D. (Dept. of Pediatrics at U.C.S.D. School of Med.),
cowrote an article detailing the deaths of more than 200 children from
medical neglect during the years 1975“95.101
Even when there is an exemption for faith healing, the state typically
will intervene to protect the child if they know about the child™s situation.
That does not mean children survive faith healing. A religious exemption
permits the religious parent to initiate care on the basis of prayer alone,
and getting the parent to move off that path onto the path of medical care
CHILDREN / 35


can be dif¬cult. Thus, if the untreated child of faith-healing parents no-
ticeably starts to decline, it is often the case that the believers will actively
attempt to keep the child from view so as to avoid state intervention.
When a child dies of a treatable medical ailment resulting from faith
healing, practitioners (and churches) often raise a First Amendment de-
fense, even to criminal charges. There are two legal regimes governing
medical neglect across the states “ those that treat religious parents like
other citizens, and hold them accountable, and those that exempt the
faith-healing parent or church and therefore make them unaccountable
for the harm they in¬‚ict on an untreated ill child. The ¬rst illustrates
the principles of the rule of law and the no-harm principle I will develop
in Part Two. The second shows overzealous state legislatures that have
confused liberty with lawlessness and sacri¬ced children on the altar of
religious anarchy.
Oregon, beginning in 1995, exempted faith-healing parents from its
criminal laws, which is to say religiously motivated parents could raise an
af¬rmative defense to criminal liability simply by proving their belief in
prayer alone to heal.102 In 1997 and 1998, the Followers of Christ Church
in Oregon City, Oregon, allowed three children to die of medical neglect.
During the subsequent investigation, authorities discovered a cemetery
of 78 children, and the alarm bells began to ring. Medical authorities esti-
mated that 21 of the deceased children could have been saved by routine
medical care, and 38 died before their ¬rst birthday.103 Prosecutors were
determined to convict those responsible for the infant deaths, but were
stymied by Oregon law that allowed individuals who let their children
die as a result of their religious beliefs to use their faith as a defense in
homicide and child abuse prosecutions.104 “It is an af¬rmative defense
to a charge of [criminal homicide by neglect or maltreatment] that the
child or dependent person was under care or treatment solely by spiritual
means pursuant to the religious beliefs or practices of the child or person
or the parent or guardian of the child or person.”105 Prosecutors, and the
public, were outraged. Children were dying for no good reason. Yet, a bill
that was introduced to make religious parents accountable for the death
of a child failed in most regards. Despite the overwhelming amount of
factual evidence, Oregon continues to maintain a religious exemption for
felony murder, which means the most serious available charge against a
parent who lets a child die of a treatable medical ailment is second degree
36 / GOD VS. THE GAVEL


manslaughter.106 Oregon™s failure to repeal the af¬rmative defense for the
most serious crimes devalues the lives of children who die at the hands
of their religious parents.
In contrast, California legislation places religious parents and care-
takers on a level playing ¬eld with all others who commit manslaugh-
ter. Laurie Grouard Walker, who was a Christian Scientist, treated her
four-year-old daughter for bacterial meningitis solely with prayer, and
the child died. When the Sacramento District Attorney™s Of¬ce ¬led
criminal charges against the mother, she argued that she was “absolutely
protected” from criminal liability by the religion clauses of the federal
and California constitutions. The mother and the church (which was not
a defendant, but ¬led a friend-of-the-court brief in support of the mother)
also claimed that the court must consider the least restrictive alternative
for punishing her. They argued that criminal liability was too burden-
some on religious belief and that civil dependency proceedings would
further the government™s interest in a way that was less burdensome on
the mother™s religious beliefs. In other words, the mother argued that
she need not be criminally liable for the preventable death of a child,
because the death was a result of religiously motivated conduct, and that
civil penalties would be suf¬cient. In other words, the sole frame of ref-
erence was supposed to be the adult believer™s faith, rather than the best
interests of the child. The court rejected these arguments, because the
interest in deterring the death of children was so high, and held that there
is no less restrictive or more effective way to deter parents from letting
their children die.107 Even so, the mother reached an agreement with
the district attorney that amounted to no jail time, less than ¬ve years™
probation, a $300 ¬ne, and community service. In addition, her teenage
daughter was to be permitted to choose between her mother™s beliefs and
modern medical science.108 Considering she permitted a child to die, the
failure to sentence this mother to any jail time is troubling,109 but at least
criminal liability attached to a parent™s actions that culminated in the
death of her child.
Similar arguments were raised in a suburban Minneapolis, Minnesota,
case where a divorced, Christian Science mother let her son die the ag-
onizing death of an untreated diabetic. Had he been seen by a medical
professional during the last weeks of his life, Ian Lundman™s symptoms
would have been easily diagnosed as diabetes. Insulin, administered as
CHILDREN / 37


late as a few hours before death, would have saved him. Yet, his mother
entrusted him to Christian Science caretakers, who cared for him by
“reading hymnals to him.” His condition worsened to the point that
his mother knew she should seek outside help, but she did not. The
boy died after three days of excruciating suffering. The father, who no
longer subscribed to the Christian Science faith, had left the family be-
fore Ian became ill. When he learned of his son™s death, he sued his wife,
the church, and the practitioners who treated Ian for wrongful death.
Following a seven-week trial, a jury awarded the father $14.2 million “
$5.2 million in compensatory damages and $9 million in punitive dam-
ages, an award that had tremendous deterrence potential.110
Compensatory damages are awarded to redress the actual harm to the
victim, while punitive damages are granted for reprehensible behavior
that deeply offends U.S. values. The defendants raised a religious de-
fense to the award, arguing that the damages were precluded by their
free-exercise rights. While the court properly found that the mother and
the Christian Science practitioners did not have a free-exercise right to
avoid damages for their conduct, it absolved the church. The appellate
court held that the church had no duty to Ian, because “[t]o rule otherwise
would make too much of the consequences of the church™s adherence to
and promotion of its core tenet.” The church that inculcated the danger-
ous beliefs was held harmless, while the mother and the practitioners did
have a duty to the child. In other words, the court ruled that a sect™s beliefs
can immunize it from responsibility for the natural consequences of its
members™ actions. Though it would not hold the church accountable
for the death, the court found that it was perfectly proper for “disputes
involving the consequences of religious-based conduct [to] be brought
before the civil courts where, as here, the underlying lawsuit is not a
vehicle for attacking religious belief.”111 With respect to the church, this
was a pyrrhic victory, at best.
The Minnesota Supreme Court reversed the punitive damage award,
but allowed the compensatory damages (then reduced by the trial court to
$1.5 million) to stand. The punitives were rejected because of the religious
character of the neglect: “We do not grant churches and religious bodies
a categorical exemption from liability for punitive damages. But under
these facts, the risk of intruding “ through the mechanism of punitive
damages “ upon the forbidden ¬eld of religious freedom is simply too
38 / GOD VS. THE GAVEL


great.”112 This is indefensible reasoning. In effect, the court ruled that
religiously motivated individuals who let children die extremely painful
deaths do not need to be deterred. The opposite is in fact true. Religious
conduct occupies no “forbidden ¬eld,” but rather stands shoulder-to-
shoulder with all other conduct that engenders the same harm. The
question was whether the behavior was so reprehensible as to deserve
punitives. Obviously, a jury thought so.
Sometimes the state gives up, even when the child is in plain danger.
While the Church of Jesus Christ of Latter-day Saints does not endorse
faith healing alone, some adherents disfavor medical treatment.113 Dur-
ing the fall of 2003, a drama began in the state of Utah involving Mormon
parents, and their 12-year-old son, Parker Jensen, who was diagnosed
with Ewing™s sarcoma, which is a lethal cancer. Doctors recommended
chemotherapy, and gave him a 70 percent chance of surviving with the
treatment, and only 20 percent without it.114 His parents, Daren and Bar-
bara Jensen, refused the treatment, saying he did not have cancer115 and
several days later asserted that the treatment would make him sterile and
impede his growth.116 They ¬‚ed Utah and were wanted for kidnapping,
but when they voluntarily returned, the state announced it would not
seek custody of the boy for medical purposes, because the Jensens agreed
to abide by the recommendations of an oncologist. When the state backed
out of the picture, and the oncologist recommended nearly a year of
chemotherapy and a bone marrow test, they once again asserted the can-
cer did not exist and refused to follow the doctor™s recommendation. The
Utah legislature has responded to the drama by pursuing a bill that would
increase parents™ rights to deny medical treatment to their children.117
Infants have no chance when their religiously motivated parents do not
feed them. There is a recurring belief on the part of a small but signi¬cant
number of religious parents that a baby should not be de¬led by ordinary
sustenance. One pregnant mother, Karen Robidoux, who was a member
of a cult called “The Body,” submitted to her sister-in-law™s “vision from
God” that required her to take her infant son Samuel (who was the son
of the cult™s leader, Jacques Robidoux) off of solid food and to revert back
to breast milk only. “Dubbed The Body, the isolationist group believes
in paddling children as young as one and rejects the authority of the gov-
ernment and doctors.”118 The mother was relegated to the basement and
CHILDREN / 39


threatened with losing her unborn child if she did not follow the prophecy.
When her body stopped producing adequate milk for him, baby Samuel
wasted away and eventually died just before his ¬rst birthday. The mother
was acquitted by a jury of second-degree murder, because she claimed
that she had been brainwashed and lacked the requisite intent. Instead,
the jury convicted her of assault and battery. Her sister-in-law pled guilty
to being an accessory to assault. In contrast, a jury convicted the baby™s
father of ¬rst-degree murder, and he received life in prison for the death of
his son.119 That was precisely the right result for the father. Prosecutors are
still shaking their heads, however, over the fact that the mother received
only assault and battery for letting her son die day-by-day of starvation.120


Abandonment
Sometimes religiously motivated neglect takes the form of abandonment.
There is no better example than the practices of the polygamous FLDS
community, the older members of which routinely leave their compounds
to take teenage boys to large cities, where they are dropped off on a cor-
ner with no money and no means of surviving. They have been dubbed
the “lost boys.”121 The abandonment is necessary to ensure that the older
men can successfully obtain numerous younger women as their wives.
It is pure math: If the young boys stay, they will compete for the avail-
able women. If the boys are abandoned, the older men™s odds increase
dramatically. Some of the boys have sued, and the FLDS™s response has
been the First Amendment, with one of the church™s legal representatives
telling one reporter, “There is no exception in the First Amendment for
minors.”122 Nor is there an exception in family law for the religious aban-
donment of children. In fact, there is no First Amendment principle that
protects any organization, religious or not, from discarding its children
at will. Parents have responsibilities to their underage children, and any
interpretation of the First Amendment that says otherwise has hijacked
fundamental principles in an ordered society. The Utah attorney general,
Mark Shurtleff, has considered ¬ling charges against the parents, but no
charges have yet been ¬led.123 In this era, one can never overestimate
the likelihood that an elected of¬cial will fail to hold religious entities
accountable.
40 / GOD VS. THE GAVEL



Physical abuse
There are times when spiritual care is in fact physical abuse, and chil-
dren are severely hurt. In the following case, an exorcism led to a child™s
death. In Milwaukee in 2003, a storefront church of few members in
Milwaukee gathered around 8-year-old Terrance Cottrell, Jr., during ex-
tended services with the intention of exorcising his autism. The child
fought the members™ (including his mother™s) hands that restrained him,
while the pastor, Ray Anthony Hemphill, pressed his knee against the
boy™s chest. After three weeks of meetings, the child quieted down, but
when the 12th ceremony ceased, the boy could not be revived, because
he had died of suffocation. Hemphill defended himself on the grounds
that he was engaging in a religious practice to no avail, but his religious
motivation seems to have softened the prosecutor™s will. A jury convicted
him of child abuse, and he was sentenced to 30 months in prison and
barred from performing exorcisms for 10 years without formal training in
the practice.124 He should have been charged with reckless homicide at
the least, but the prosecutor did not have whatever it takes to do what is
right: this man™s deeds killed this boy, and their religious quality does not
alter that fact one iota.
It is tempting to trust one™s own clergy with one™s child, but clergy,
like anyone else offering care for a child, can be hazardous. A pastor
at the Third Christian Church in Overbrook in Philadelphia, the Rev.
Javan McBurrows, opened his home to Erika Daye™s four-year-old son,
Michael, and two siblings at a time when she was having dif¬culties
coping.125 She was one of his parishioners. Known as a man who believed
in strict discipline, McBurrows had certain house rules, including a rule
that children had to close their eyes when they entered the bathroom.
When Michael did not close his eyes one day and saw another child
on the toilet, McBurrows responded with a vicious beating. He swung a
metal-edged carpenter™s level (which is a straight metal bar hollowed out
on the inside like a long, thin rectangle) at Michael 6 to 10 times, and then
forced the toddler to walk on his injured legs. He then commanded the
boy to walk outside and rubbed snow in his face, according to testimony
by his wife. That night, Michael died of multiple traumas. McBurrows
immediately packed up his family and drove to Stone Mountain, Georgia,
where he was arrested. The initial charge was ¬rst-degree murder, which
CHILDREN / 41


could have led to the death penalty. At a nonjury trial, he was convicted
of third-degree murder and then sentenced to 22 to 45 years in prison.126
Anyone “ religious or not “ who does that to a child deserves to be in
prison at least that long. Life would have been more appropriate.
Choosing a religious camp rather than a secular camp does not neces-
sarily increase the odds that a child will be safe. Discipline, in particular,
can be harsh. A summer Bible camp in Texas put a 12-year-old boy, Louie
Guerrero, in the intensive care ward for a week with near kidney failure
and in need of a blood transfusion. Camp operators Joshua and Caleb
Thompson severely beat the boy with a switch from a tree to “get the
devil out of [him].”127 A jury convicted the men of serious injury to a
child and aggravated assault. At the sentencing phase, the two men ar-
gued they should receive probation rather than prison time. Properly,
Joshua received 26 years for beating the boy and Caleb received 14 years
for holding him down.128 Whatever their motivation, the boy™s injuries
justi¬ed stiff sentences for the abuse.
Although most of American society has moved away from it, corporal
punishment is still a tenet of some religious organizations. Neil E. Edgar
and Christy Y. Edgar, the leaders of a small Kansas City church, God™s
Creation Outreach Ministry, disciplined their nine-year-old son, Brian,
by wrapping him in duct tape, only leaving space for his nose. He died
by suffocation, as a result of choking on his own vomit.129 Mother, father,
and babysitter all received life sentences.130 Further investigation into
the storefront church led investigators to bring abuse charges against ¬ve
more women who abused the ministers™ children and a family friend. At
least two of the women pled guilty and received probation.131
Preacher Arthur R. Allen, Jr., was convicted of beating children in
the early 1990s and then again in 2002.132 In the latter case, he engaged
in the whippings of two boys, in a ceremony within the church.133 At
trial, he and other members of his House of Prayer congregation refused
legal counsel on the ground that they believed corporal punishment
was permissible in Georgia and the Bible, and necessary to shore up
struggling families. He served three months in jail and was released on
ten years™ probation. The terms of his probation “allow[ed] him only to
hand spank his own children and forbid him from encouraging others
to punish their children.”134 Almost immediately upon his release, Allen
made it clear he had no intention to follow the conditions of his probation.
42 / GOD VS. THE GAVEL


Allen declared that he and his fellow believers follow the biblical teaching
that “sparing the rod spoils the child.” He was rearrested and found guilty
of violating his probation, for which he received two additional years in
jail.135 Obviously, the civil authorities had made no impression on him.
So long as he demonstrated an intent to abuse children, the state had an
obligation to incarcerate and to monitor him.
Religious boot camps typically minister to “at-risk” or “troubled” youth,
and are often the last resort for parents desperate to correct their wayward
children. In Scottsdale, Arizona, Teen Reach, a faith-based evangelical
youth facility that charges approximately $35,000 per year for drug and
alcohol rehabilitation, was ordered to close for child abuse when a child
was seriously bruised from religiously motivated spanking in 2004. In an-
other instance, four or more adults allegedly held a child, while a ¬fth
lay across his back, in order to deliver a spanking, which is a practice
grounded in the organization™s textual reading of the Bible. The admin-
istrator who ordered the closing, David Matthews of the Arizona State
Department of Economic Security, quite correctly reasoned that the re-
ligious motivation for the child abuse was irrelevant. “There is no agency
in the state that is permitted to beat a child.”136 Teen Reach responded
aggressively to the closing, and ¬led a lawsuit against the state for violat-
ing its First Amendment right to the freedom of religion, as well as other
claims. It also resolutely refused to obtain a license for its operations.
A state judge rejected the argument that Teen Reach was not a child
welfare agency, which means it will have to be licensed to reopen. Teen
Reach is appealing. At roughly the same time it de¬ed the state™s licens-
ing requirement, a bill was introduced into the Arizona legislature that
would have exempted faith-based agencies from having to be licensed,137
which would permit religiously motivated abuse of children to go forward
without state knowledge or oversight.
Missouri, which does not regulate faith-based child-care homes, has
been home to other troubling religious boot camps, which physically
abused their residents, intentionally deprived them of sleep, and even
disciplined a child by tying him to the back of a moving vehicle, an ATV,
so that he would have to run behind it, and dragged if he fell.138 These
abuses have not been forestalled by Missouri™s system of letting religious
entities police themselves. “Any child-care facility maintained or operated
under the exclusive control of a religious organization” is exempt from
CHILDREN / 43


state licensing requirements. Instead, the facilities are required to notify
parents in writing, for example, that the facility is in compliance with
“¬re, health and sanitation requirements,” that all employees have been
subject to background checks, and about the “disciplinary philosophy
and policies of the child-care facility; and [t]he educational philosophy
and policies of the child-care facility.” The facility must undergo annual
¬re and safety inspections, and submit copies of its written notice to
parents to the state, but that is the extent of the state™s oversight in the
interest of children.139 It is a system wherein parents either have no helping
hand to ensure their children are safe or are complicit in the religiously
motivated abuse. The statute operates from a parents™ rights perspective,
at the expense of children.
A Baker County, Florida, church camp for troubled youth has been
cited more than once by children as a place where they suffered abuse.
Pastor Wilford McCormick sets strict rules for the campers “ little family
contact, a minimum year stay, dress codes, no medical or dental treat-
ment unless there is an emergency or it is specially requested by a camp
employee, and a ¬ve-minute limit on incoming calls with no outgoing
calls permitted. The camp was investigated by the state of Florida in 1983
after three runaways charged there was abuse. It was investigated again
by a grand jury in 1987, and is now the subject of at least two civil law-
suits. Kirk Grif¬n and Jason Berglund ¬led lawsuits in 2003, each saying
that they were subjected to repeated demands for oral and anal sex and
to cruel physical abuse.140 Berglund alleged that he was threatened with
physical harm if he spoke of the extreme abuse he suffered in 1993 at
the age of 12.141 Grif¬n alleged he had been abused from 1989 to 1992.142
Both Berglund and Grif¬n claimed the alleged abuse occurred after a
Baker County grand jury already had disapproved of Camp Tracey for its
corporal punishment methods involving handcuffs and ropes. The grand
jurors objected to: the use of ropes and handcuffs to restrain children, the
fact that the children were forced labor for a private farmer, the limited
parental contact, and the inclusion of a convicted felon on the staff.143
No charges were ¬led, however, because the existing law was inadequate
to hold the camp accountable. McCormick denigrated the report as
“bureaucratic harassment,”144 as though he was the relevant victim.
Instead of amending Florida law to make such camps accountable for
the well-being of the children who attend, Florida took the opposite tack.
44 / GOD VS. THE GAVEL


After the camp complained about having to submit to state licensing,
including health and ¬re inspections, in a classic case of bending to
religious interests regardless of the effect on children, Florida exempted
religious organizations from those requirements.145 Children who attend
a camp that has been alleged to have permitted child abuse in the past
and is not even required to undergo routine ¬re and safety inspections
that any fast-food restaurant would have to permit, are being placed at
risk. It is really that simple, and the state of Florida should be castigated
for elevating the religious entities™ convenience above children™s welfare.
Any legislator who responds by saying that religious institutions are good
for children, and therefore should not have to bear the monetary burden
and inconvenience of state inspections of their premises, needs to read
this chapter carefully, maybe more than once.


Failure to provide a safe environment for children
In the 1970s, states began to require that child-care centers be licensed.
Three factors were at work: the growing number of mothers entering the
workforce, in-depth studies about the importance of early childhood ed-
ucation, and licensing was a condition of receiving government funds.
Areas of coverage included child-to-staff minimum ratios, space require-
ments (i.e., square footage/child), prohibitions on smoking, certain nu-
tritional guidelines, and minimal health and safety requirements, for ex-
ample, smoke alarms or sprinklers in large facilities.146 In recent years,
some religious organizations have lobbied to avoid such requirements.
Their primary argument “ in a nutshell “ is that they should not be forced
to pay for such requirements, because they are tight on funds and have
other priorities for the money. In essence, they are saying that they should
be trusted with the health and safety of children, even though they are
¬ghting the laws passed for the intention of protecting children from
foreseeable harms.
A church-run day-care center in Antioch, Tennessee, was noti¬ed in
2004 that it was not in compliance with the state™s neutral, generally
applicable licensing requirements for child-care centers. Not only was
the center out of compliance, but it also had no intention of obtaining
a license, because it claimed to do so would suppress its free-exercise
rights.147 Harold Frelix, Sr., continues to ¬ght the state agency and has
CHILDREN / 45


vowed to ¬ght the licensing requirements all the way to the U.S. Supreme
Court. Such First Amendment arguments often fall on deaf ears, however,
luckily for children. A signi¬cant number of state agencies have stood
behind their licensing requirements, and their courts have supported
them.148 Even so, one can only hope that Frelix does take the issue all the
way to the top, and that the Supreme Court takes the case so that it can
reiterate one more time that everyone must adhere to neutral, generally
applicable laws, including regulations enacted for the health and safety
of children. It would be helpful for state regulators, and even better for
children.
What would not be a victory for children would be if Tennessee were
to follow Florida™s lead and provide faith-based child-care providers like
Frelix a pass on the typical licensing requirements for the health and
safety of children. There are a number of states who have done just that.
Three legal regimes make it possible for religious entities to run child-
care centers without having to abide by the usual state licensing require-
ments. First, some states have exempted religious child-care centers from
their licensing system altogether. For example, Missouri exempts “[a]ny
child-care facility maintained or operated under the exclusive control of
a religious organization[,]” so long as the facility receives no state or fed-
eral funding.149 Second, some states require religious child-care centers to
register rather than obtain a license. The registration approach typically
means that the state is not monitoring the child-care center to ensure
the safety and health of children, but rather accepting a registration and
taking action only if a complaint is ¬led. It is passive regulation. The
licensing system thus is preventive, while the registration system is reac-
tive at best, which means it may well be too late to protect any particular
child.150 Third, other states require all child-care facilities to meet state
standards, religious or not.151 The ¬rst two schemes displace the state™s
responsibility to ensure the well-being of children with blind deference
to religious entities.
As I hope this book makes abundantly clear, that is an assumption
that abdicates the welfare of society. It is not that every religious day
care will harm children, but some may, and given the prevalence of
religious day care recalcitrance to state safety and health regulation, one
cannot be certain about child safety. Nor can anyone be certain that any
particular denomination or religious leader is safe for children without
46 / GOD VS. THE GAVEL


some licensing requirements. General licensing requirements are neutral
and necessary to ensure children™s safety is not being sacri¬ced for budget
reasons or other such priorities. When the state acts as a check on abuse
or neglect or danger and prescribes reasonable licensing requirements,
it is doing precisely what the public good demands.
Other states have enacted religious liberty acts (typically called reli-
gious freedom restoration acts, as I will discuss in Part Two), that make it
impossible for the state to apply its laws to religious entities unless the law
was passed for a compelling purpose and it is the least restrictive means of
regulating the child-care center.152 While only the most extreme defender
of religious liberty would argue the state does not have a compelling in-
terest in protecting children from physical harm at day-care centers, legal
disputes are likely to center on what is the “least restrictive means” of en-
suring that the centers are safe. For example, a large center might argue
that even though ¬re safety is a very strong state interest, the requirement
that it install sprinklers is far more restrictive than smoke detectors, be-
cause of the cost. This is a theme that runs through much of church/state
litigation. If the religious entity has to bear the cost of a legally imposed
duty (whether it is criminal or tort liability or regulation), it will argue
that its religious mission is undermined. Yet, it is the state™s obligation
to assess what is necessary to ensure children are safe “ and that value
transcends whether the owner of the operation is religious or secular.
The problems for children under the state religious liberty acts are still
not fully apparent, because the laws have been in place for a relatively
short time. None of the states that have taken this route have preserved
the laws that protect children, with the lone exception of Pennsylvania,
which exempts day care licensing and the duty to report child abuse.
Every other Pennsylvania law affecting children is impaired by the act,
which is to say that children™s rights to life, liberty, and protection from
harm by religious entities are at risk in Pennsylvania and every state with
a religious liberty protect act.


Why has U.S. law and society failed these children so miserably?
This chapter has described a lot of suffering. To those who would argue
that these are just the bad apples, that is simply not the case. These
are only a very small number of the many, many instances of religious
CHILDREN / 47


entities putting children™s interests second, or even worse. But even if
these are only the bad apples, these bad apples are precisely whom the
law is intended to deter and punish. Even one child™s life sacri¬ced for
an adult™s religious beliefs is one too many, and to be sure, there are far
more than one.
From the 1960s through the 1980s, during the Chief Justice Earl
Warren and Chief Justice Warren Burger Supreme Courts, the religious
institutions were coddled to believe that they had special rights under
the First Amendment to avoid general laws. Thus, the Supreme Court
deserves some of the blame here. As I will discuss in Part Two, there was
a brief period in the history of the Religion Clauses where the Supreme
Court toyed with permitting religious entities to avoid any law that was
not necessary. That encompasses a lot of law. Worse, legislators were led
to believe by the high-¬‚ying rhetoric that accompanied the Court™s free-
exercise cases that it was appropriate to exempt religious entities without
inquiring into the harm they might cause. This false understanding of
free exercise in this ordered society led courts and legislatures down er-
rant and ultimately dangerous paths. It cannot be that the Constitution
was intended or crafted in such a way that there is no means for society to
deter, redress, or halt child abuse in religious settings. The First Amend-
ment is about freedom from government overreaching, not about ¬nding
loopholes for criminals to avoid paying what they owe society. It is a false
and dangerous understanding of free-exercise rights to believe that reli-
gious entities sit above the society. They are part of it and therefore must
be accountable for the harm they cause. The Supreme Court in 1990
clari¬ed its free-exercise doctrine and explained that neutral, generally
applicable laws certainly can be applied to religious conduct.153 There
can be no other rule if children™s interests are to be adequately protected.
Some states continue down the wrong path and let religious entities
off the hook when what is needed is stronger deterrence. For example,
a handful of state courts have held fast to the Supreme Court™s errant
jurisprudence from the 1960s, 1970s, and 1980s, despite the Court™s plain
and persuasive rejection of the notion that any and all laws that sub-
stantially burden religious entities are presumptively unconstitutional.
They include: Massachusetts,154 New York,155 Minnesota,156 Alaska,157
Wisconsin,158 Washington,159 Ohio,160 Maine,161 North Carolina,162 and
Kansas.163
48 / GOD VS. THE GAVEL


But legal doctrine has not been the only cause of harm to these chil-
dren. There has also been a long era, at least since 1950, during which the
people of the United States have believed as a general matter that religion
is always moral and that it is as innocuous as apple pie. This view was
fostered in the latter 20th century by Stephen Carter™s widely read book,
The Culture of Disbelief. This Pollyanna understanding of religion sold
these children short and cannot be sustained in the face of these facts.
It was also a mistake for prosecutors to permit religious institutions
to handle their own “dirty laundry,” which happened too often. When
that was combined with the typical dif¬culties attendant upon removing
molesters out of the way of children, the de¬ciencies of the law and its
enforcement “ from a child™s perspective “ become apparent.164 With
rare exceptions, the media also gave religious entities a pass. That dirty
laundry was the public™s problem and needed public airing, and if either
had ful¬lled their appropriate roles, more children might have been saved
from such harm. Blind trust in any human, whether religious or not, is
misplaced trust.
It is also a profound fact that power protects power. The religious
leaders that were on the A-list, with the in¬‚uential newspaper editors,
and with the powerful legislators, were capable of asking for favors that
should not have been granted, but were. The press has been dogged in
pursuit of stories about religious institutions™ ¬nancial improprieties.165
The children deserve that same devotion from every corner of society.
In the end, society pays when religious entities place themselves above
or beyond the law, and thus all of us are victims. When the churches hid
the facts about child molesters, they kept these monsters out of prison in
the ¬rst instance and then permanently when the statute of limitations
expired during their prolonged secrecy. When they let a clergy member
go, they typically did not alert anyone outside their closed circle that a
pedophile would now be on the loose, free to groom and seduce other
children at will. That means that former priests can now be found per-
forming karaoke or pumping gas, and living lives with plenty of access to
children.166
Society is also severely burdened when polygamous sects deprive
women of education at the same time they saddle them with multiple
children, and society, at large, is further hindered when these same sects
abandon their boys to keep the ratio of girls-to-men optimal for the older
CHILDREN / 49


men. Public assistance too often becomes necessary in both instances “
which means the average taxpayer is being forced to prop up the illegal
polygamous society. Finally, when faith healers permit children to die or
to become permanently disabled, or when fundamentalist disciplinarians
permanently injure or kill children, they deprive society of the talent and
the good those children could have brought into the world. The cost is
enormous, and it is the result of an abundance of religious license, as
opposed to liberty. It is also proof positive that religious individuals and
institutions cannot be permitted to act as though they have no obligations
to the rest of us.
3


MARRIAGE




Recent wars of religious power have been intense on the subject of mar-
riage “ whether the issue is gay marriage or polygamy. Both topics have
earned headlines in the early part of the 21st century, with religious en-
tities intent on imposing their religious viewpoint on public policy. The
religious have every right to contribute their religious viewpoints to the
public debate and to try to persuade leaders and fellow citizens that their
ideas about social problems have merit; wisdom can be found in many
corners. But they do not have a right in the United States to mold public
policy to their beliefs, and their beliefs alone. The hard choices depend
on a more broad-ranging inquiry than any one religious worldview en-
compasses (even when that perspective is shared by a signi¬cant number
of individuals and institutions).


50
MARRIAGE / 51


The complication in the debates over marriage in 21st century America
is that few in government seem to understand or be willing to shoulder
their role, which demands signi¬cantly more than deference to religious
entities. Citizens may speak to them from the heart and soul, but it is up to
our elected of¬cials to contextualize the debate by adding the scope of the
public good to all public consideration. That is not secularization, as those
who would employ religious rhetoric to drown out all discourse might
insist, but rather the hallmark of a successful representative democracy. If
government of¬cials do not move the conversation off of its solely religious
bottom, they have shortchanged everyone, because they have abdicated
their responsibilities. To be sure, it is easier to react to religious voices
and to give them what they demand. They are, after all, typically quite
passionate. But that is no excuse for elected representatives to abandon
the public good.
The controversy over marriage has stretched from coast to coast. On
the eastern side of the United States, the Supreme Judicial Court of
Massachusetts in February 2004 held that the state was required to per-
mit same-sex couples to get married. Fourteen homosexual couples in
long-term relationships had challenged Massachusetts™s heterosexual-
only marriage law.1 Their argument, which was re¬‚ected in the court™s
opinion, was in a nutshell that their unions were not distinguishable
from heterosexual unions. They were monogamous and dedicated, and
they nurtured their children. The purposes of Massachusetts™s marriage
laws were served by their unions, and therefore, Massachusetts™s distinc-
tion between gay and traditional marriages rested on invidious discrim-
ination on the basis of sexual orientation.2 The Massachusetts Senate
asked the court whether the Massachusetts Constitution would permit
it to enact Senate No. 2175, which accorded homosexual couples civil
union “ but not marital “ status. The answer was, “No.” After paying
lip service to the importance of deferring to legislative judgment in this
arena, the court said, “[T]he traditional, historic nature and meaning
of civil marriage in Massachusetts is as a wholly secular and dynamic
legal institution, the governmental aim of which is to encourage sta-
ble adult relationships for the good of the individual and of the com-
munity, especially its children. The very nature and purpose of civil
marriage, the court concluded, renders unconstitutional any attempt to
52 / GOD VS. THE GAVEL


ban all same-sex couples, as same-sex couples, from entering into civil
marriage.”3
The response from some conservative religious organizations to the
original opinion was swift and ¬erce.4 To quote: “This decision is on an
order of magnitude that is beyond the capacity of words. The court has
tampered with society™s DNA, and the consequent mutation will reap
unimaginable consequences for Massachusetts and our nation.”5 Part of
the opposition arose out of deep-seated disapproval of homosexuality, not
just of homosexual marriage. For example, according to the Christian
Coalition of America, the Massachusetts decision was wrong, because
“marriage is one of the last obstacles to the complete normalization of
homosexuality in America.”6
President George W. Bush, who typically has echoed his fundamental-
ist conservative base on social issues, declared that “Marriage is a sacred
institution between a man and a woman.”7 The blame for the decision,
according to Bush, lay in an activist judiciary. “If activist judges insist
on re-de¬ning marriage by court order, the only alternative will be the
constitutional process. We must do what is legally necessary to defend
the sanctity of marriage.”8
Many demanded from a religious standpoint that the federal govern-
ment take action, which was their right. Unfortunately, some members
of Congress followed suit “ employing those same religious perspec-
tives “ by introducing a (dead-on-arrival) Marriage Protection Amend-
ment (MPA) (formerly known as the Federal Marriage Amendment)
that would have banned all gay marriages in the United States, as
well as various court-stripping laws that would keep the issue from
the “activist” federal courts.9 Representative Marilyn Musgrave (R “
Colo.) spoke more like a pastor in support of the MPA than an elected
of¬cial:

The very foundational document of our nation assumes that our rights
exist within the context of God™s created order. The self-evident differ-
ences and complementary design of men and women are part of that
created order. We were created as male and female, and for this reason
a man will leave his father and mother and be joined with his wife, and
the two shall become one in the mystical spiritual and physical union
we call “marriage.”10
MARRIAGE / 53


Former Rep. William Dannemeyer of California supported a court-
stripping bill to protect heterosexual marriage in equally religious
language: “Decisions of the federal judiciary over the last half century
have resulted in the theft of our Judeo-Christian heritage.”11 For these
politicians, their interpretation of the Bible, which for them is the only
interpretation, blesses only heterosexual marriage. The snag is that they
are (or were) elected representatives charged with serving all Americans,
not just those who have a Christian heritage that they believe needs to
be preserved.
Religious organizations were not shy about using political muscle in
support of pro-traditional marriage proposals. On September 24, 2004,
the Baptist Press published an editorial in which members were urged
to contact members of Congress who were “undecided or who live in
districts where the amendment likely would be popular” to urge support
of the measures. It appended a list of “high priority” members and their
phone numbers, which was compiled by the Family Research Council,
for Baptists to contact.12 Rev. Jerry Falwell initiated a “Save the Sanctity of
Marriage” campaign on his ministry™s website, where he urged supporters
to sign and send a petition to their congressional representative reading:

I am greatly concerned over recent Canadian and American liberal
court rulings in favor of homosexual “marriage,” the legalization of
sodomy, and other actions damaging the traditional family.
As a voting taxpayer, I fully support Rep. Marilyn Musgraves™s pro-
posed Federal Marriage Amendment (H.J. Res. 56) and urge your un-
wavering support for this legislation.13

Catholic ethicist and Princeton professor Robert P. George, writing
in the Wall Street Journal, insisted that there was a natural law justi¬ca-
tion for ¬ghting same-sex marriage, when he justi¬ed a ban on same-sex
marriage on the basis of the self-evident “nature of marriage as a ˜one-
¬‚esh union™ of sexually complementary spouses” and the corresponding
self-evident entitlement of mixed-sex marriages to receive “bene¬ts, privi-
leges, rights or immunities” because the spouses are of the opposite sex.14
Apparently, the physical characteristics of males and females predeter-
mines the law of marriage. His circular reasoning implies that no legis-
lature should consider the issue other than to reach his religiously based
54 / GOD VS. THE GAVEL


conclusion, a conclusion once again that is an argument from theocracy,
not public policy. Accordingly, he promoted the idea of a federal con-
stitutional amendment to ban all marriages other than those between a
man and a woman, without entering into the debate over what forms of
marriage are best for children, the economy, or the public good. His is a
revealed legal regime, not a reasoned one.
Once the presumed invincibility of heterosexual marriage was pierced
by the Massachusetts decision, and it became necessary to articulate
why one man/one woman marriage is important (or not), the subject of
polygamy was reintroduced into the public square as well. Some have
tried to link the two issues by saying that opening the door to one opens
the door to the other, but they have fundamentally missed the point of the
legislative role. Constitutional principles can be subject to what is called
a “slippery slope” effect, where the granting of one right logically entails
the granting of another; those who have argued that judicial recogni-
tion of gay marriage demands recognition of polygamy are employing
slippery-slope reasoning. For example, the Liberty Counsel in a letter in
support of the Federal Marriage Amendment asserted as fact that “[i]f
same-sex marriage were sanctioned it would be virtually impossible to
ban polygamy.”15 They are speaking to the wrong branch of government,
though. In most states, this is a policy and not a constitutional issue.
There is no such slippery slope when it comes to crafting public policy
on marriage. The legislature is required to determine what elements of
marriage best serve the common good, and they must take into account
how the arrangement affects children, inheritance, and the culture at
large, just for starters. From that perspective, the two challenges to tra-
ditional marriage, which are factually quite distinct, are also, for public
policy purposes, separate topics for legislative consideration.
In the Western United States, fundamentalist Mormons are actively
challenging the laws that ban polygamy.16 Polygamist Tom Green, who
was convicted of bigamy,17 asked the Supreme Court to hear his con-
stitutional defense of polygamy. The Utah Civil Rights and Liberties
Foundation18 defended the right to polygamous marriage when a cou-
ple that sought to add an additional wife were denied a license.19 They
claimed that the three adults had a right to the free exercise of religion
to be exempt from the federal and state antipolygamy laws. Their argu-
ments have fallen on deaf judicial ears, as they should, but they provide
MARRIAGE / 55


an excellent example of religious conduct that cannot be vouchsafed by
the First Amendment “ which incorporates the need to deter and punish
conduct that harms individuals and society.
Their arguments belong in the legislative sphere, where many voices “
religious, secular, activist, and traditional “ can contribute to ¬nding the
optimal public policy. If they can persuade a legislature that opening the
de¬nition of marriage to include polygamy is consistent with the public
good, it can be done. Similarly, if gay rights groups and others can per-
suade state legislatures that same-sex marriage is in the public interest
while those opposed express their views, the legislature has the power
to expand the de¬nition of marriage. In response to the Massachusetts
decision mandating same-sex marriage, the Alliance for Marriage advo-
cated returning the debate “to the democratic process at the state level
authority that is currently being usurped by courts at the request of ac-
tivist organizations.”20 They are right to look to state legislatures, but they
will not avoid the actions of “activist” organizations by removal to the
legislature. Indeed, one of the advantages of dealing with these issues in
the legislatures rather than the courts is that more voices can be heard. If
proponents cannot persuade the legislature that their proposals are con-
sistent with the public good, then neither the First Amendment nor the
legislature offer refuge.
Although the resolution of each issue is ultimately a matter for the
legislatures, which I will explain in more detail in Part Two, these two
social issues represent the two paradigmatic ways religion interacts with
the culture. In the gay marriage context, fundamentalist religions have
been insisting quite loudly in the public square that their biblical values
mandate a particular form of marriage and that their belief should in fact
be the law. They are intent on using what political power they have to
ensure the law matches their religious worldview.
The polygamy debate is quite different, at least from a constitutional
perspective. The polygamists are not trying to impose their beliefs on
everyone else. Rather, they are asking for relief from the law that governs
everyone else. It is typical, therefore, to hear polygamists talk in libertar-
ian terms and to dwell on the right to be left alone by the government. In
contrast, those trying to forestall gay marriage talk in terms of the “Chris-
tian tradition” and the necessity of maintaining social order. Despite the
differences, though, in the end, both religious entities are trying to shape
56 / GOD VS. THE GAVEL


the law to their religious conduct, and it is the government™s obligation
to persistently reframe the issues in light of public interest.

The gay marriage debate: religious liberty is not religious hegemony
A powerful, mainstream religious voice composed of numerous denom-
inations has denounced the Massachusetts Supreme Judicial Court™s de-
cision that the state could not distinguish between homosexual and het-
erosexual couples to de¬ne marriage. The issue was framed as an equality
principle, but it charged into the public forum as a debate over morality
and religion. Opponents of gay marriage are actually arguing that their
religious worldview should determine the country™s constitutional law.
The religious opponents of gay marriage would have the country de-
termine the de¬nition of marriage solely by reference to their religious
beliefs and traditions, which are typically taken literally from the Bible
and their own religious tradition. Relying on the Bible, human biology,
and Catholic tradition, a 2003 Vatican document declared that “[t]here
are absolutely no grounds for considering homosexual unions to be
in any way similar or even remotely analogous to God™s plan for mar-
riage and family. . . . Marriage is holy, while homosexual acts go against
the natural moral law.”21 For Orthodox Rabbi Jonathan Rosenberg, whose
congregation is in Bexley, Ohio, homosexuality and therefore same-sex
marriage is wrong, and “[w]e™ll never change our position, based on the
Torah . . . which we consider to be divine; it wasn™t manmade.”22 For the
Orthodox Jew, according to Rosenberg, same-sex marriage is just one
of many public policy issues that are to be addressed through Jewish
laws.23
Christian fundamentalists, who believe in reading the Bible literally,
believe ¬rst that homosexuality is a sin and second that gay marriage is
as well.24 One televangelist, Frederick K.C. Price of California, has said
that he has “nothing against homosexual individuals,” but the Bible is
clear that “marriage is a union [between a man and a woman] created
and recognized by God” and that “homosexuality is an abomination.”25
There has been a concerted attempt by those opposed to gay marriage
on religious grounds to set up an us-against-them political scene. The “us”
is every true American with the right view against same-sex marriage. The
“them” are the in¬dels who believe in same-sex marriage. One of the most
MARRIAGE / 57


active groups against it, the Alliance Defense Fund, which was founded
“for the legal defense and advocacy of religious freedom” 26 believes that
“God has de¬ned marriage as one man married to one woman . . . [and
that] radical activist groups in the U.S. are attempting to twist the law
to change the de¬nition of the family to include same-sex ˜marriage,™
polygamy, and other structures.”27 The Alliance for Marriage, which
¬ghts gay marriage, claims to incorporate a broad swath of believers,
saying it “cuts across traditional party lines and includes Catholic, Jewish
and Muslim leaders as well as ministers in historically black Protestant
denominations.”28 In short, the Alliance (note the name) hopes to convey
the image that all Americans stand shoulder-to-shoulder with them. Oth-
ers joining the chorus of disapproval have included Catholics and Ortho-
dox Jews,29 and “the Southern Baptist Convention, Focus on the Family,
several Catholic dioceses, and the Traditional Values Coalition.”30 It is
an impressive array, but it does not encompass every Christian or believer
in the United States by a long shot.
At the same time, a signi¬cant cadre of religious and secular groups
opposes the federal amendment, for example, the Human Rights
Campaign.31 Certain Reform and Conservative Jewish groups also are
opposed.32 Thus, the ¬ght over same-sex marriage cannot be drawn on
“Christian” or even “Judeo-Christian” lines and certainly does not in-
clude all those who would consider themselves part of that tradition. Once
the debate cannot be framed by one religious tradition, the door has been
opened to a more appropriate public debate over the common good.
In the midst of this debate, there has been a growing refrain that this
is a “Christian country.” The Supreme Court™s decision in Lawrence v.
Texas, which held that private, consensual sex between adults is protected
by the constitutional right to privacy,33 and the specter of same-sex unions
have prompted some religious leaders to pine for what they believe is the
“soul” of the country. Theology Professor Harold O. J. Brown put it this
way:

[T]here are many vestiges of authentic Christianity still to be found in
our nation. But it would be a disaster for Christians and other God-
fearers not to recognize that we™ve reached a turning point in our cul-
tural history, and to go on dreaming that we can gradually change this
formerly more or less Christian country for the better.34
58 / GOD VS. THE GAVEL


The “Christian country” claim in this era faces an uphill battle. Har-
vard Professor of Comparative Religion and Indian Studies Diana L. Eck
has written a book entitled, A New Religious America: How a “Christian
Country” Has Become the World™s Most Religiously Diverse Nation,35
which captures the evolution of religious diversity in the contempo-
rary United States. She describes a Cambodian Buddhist temple open-
ing in the Minnesota farmlands and the Sikh gurdwara in Fremont,
California.36 Despite the attempts to paint this as a solely or predom-
inantly or properly a Christian country, Eck™s work, as well as others™,
leads to the irrevocable conclusion that it is no such thing. If it ever was,
it is not now. “Christian country” is a mantra that has become more insis-
tent as the gay marriage battle has raged, indicating that its speakers are
not only asserting what they believe as fact, but also attempting to hold
onto a vision of the United States that even they, in their most re¬‚ective
moments, must admit is no longer accurate. For example, Lee Duigon, a
freelance writer and contributing editor for the Chalcedon Foundation,
said, “many of us have been wondering how, in a supposedly Christian
country, we ¬nd ourselves watching helplessly, dazedly, as our whole way
of life is dismantled, piece by piece, by liberal judges, lawsuit-happy athe-
ists, alleged ˜entertainers,™ so-called ˜educators,™ and even out-of-control
elected of¬cials.”37 The whole culture has turned against him, it seems.
The problem may be, though, not in the country, but rather in the fact
that there is no reliable content to the phrase, “Christian country.” Those
words might have described Britain when the monarchy imposed a reli-
gious set of beliefs on the people (Catholic or Protestant), but it does not
capture the miraculous blossoming of many varieties of religious beliefs
in the United States.
The “Christian country” declaration hides the ball and begs the public
policy question all at the same time.

hiding the ball. The primary problem with the “Christian country”
claim in this context is that it is factually misleading. In truth, not all
Christians or Jews oppose same-sex marriage and many are undecided.
For example, the Unitarian Universalist Church and the Reconstruc-
tionist [Jewish] Rabbinical Association perform same-sex marriages.38 At
the same time, various mainstream dominations have had divisive and
spirited arguments over the issue, with the parent organization banning
MARRIAGE / 59


gay unions while individual congregations and pastors have performed
them in de¬ance. For example, a national Episcopalian committee rec-
ommended a compromise that would bless same-sex unions at the same
time that the church was at odds over the issue of whether or not to
con¬rm an openly gay bishop in New Hampshire.39 More recently, an
Anglican Church commission chastised the Episcopal Church USA for
condoning both, but it did not censure the Episcopalians. Indeed, the
report sent a double message: on the one hand, there was a “real danger”
the two churches would split apart, but on the other hand, the Angli-
can commission wanted to try “dialogue” before taking any de¬nitive
action.40 Presbyterian Church representatives at their annual meeting
only narrowly sustained the rule against same-sex unions, while ministers
have openly de¬ed the ban and expressed their intention to bless gay
couples in their churches.41 The Methodists are hardly a united front
either. As a body, they have voted to reject same-sex marriages and af-
¬rmed their belief that homosexuality is inconsistent with the Bible.
Meanwhile, many individual congregations continue to support same-sex
unions with dozens of pastors in California presiding over such unions.
In the face of that kind of internal rebellion, the church withdrew its
original decision to sanction the California pastors.42 Like the Chris-
tians, the Jews are all over the place on this issue, and one cannot always
use the believer™s denomination to be certain what they believe. Most
Reform Jews favor same-sex unions, Conservatives are split, and most
Orthodox are adamantly opposed. For instance, at the nation™s largest
gay and lesbian synagogue, Congregation Beth Simchat Torah in Man-
hattan, Rabbi Sharon Kleinbaum, issued a call to all clergy, but particu-
larly to rabbis, “to solemnize weddings without a marriage license.”43
When Conservative rabbi Jack Moline, whose synagogue is outside
of Washington, D.C., explained the contradictory outlook of his faith,
he said:

[M]y confusion about gay marriage is . . . a con¬‚ict between two sets
of values. If homosexuality is an orientation and not something that
is environmentally conditioned or a matter of choice, then there
must be a way for a sacred expression of intimacy for gays and les-
bians, as there is for heterosexuals. On the other hand, you can™t
deny that the weight of our tradition is heavily against such an
arrangement.44
60 / GOD VS. THE GAVEL


While Conservative Jews have no provisions to sanctify gay marriage,
ceremonies have been performed by individual rabbis. At the opposite
end of the spectrum, Orthodox Jewry not only prohibits such expressions,
but also supports the federal marriage and court-stripping bills.45 All of
which is to say that a so-called Judeo-Christian tradition has not led to an
ineluctable conclusion on the issue of same-sex marriage for millions of
believers in the United States. Religion simply cannot resolve this public
debate.
Those resting on the “Christian country” formula may reply that they
mean “Christian” in their sense, and that all others are not “true” Chris-
tians. Yet, that is simply incoherent in the United States™ public arena,
where the many Protestants (and Catholics) who in fact support gay
unions are Christian in any normal sense of the term. No matter how
diverse the group claiming that same-sex marriage is opposed to “Chris-
tian values,” it obviously does not speak for all Christians on this issue.
Therefore, the “Christian country” assertion is a nonstarter.

begging the question. “Christian” has so many connotations that in-
voking it leads to no particular theological and certainly no public policy
conclusion. “Christian” can refer to the set of beliefs that are Catholic, or
those that are Protestant, or those that are evangelical, or all of these beliefs
taken together. It encompasses disparate cultural worldviews. For exam-
ple, the Irish Catholics are Christian and so are the white Anglo-Saxon
Protestants. “Christian” contains within itself powerful contradictions:
The South African Dutch Reformed Church, which supplied the the-
ology on which apartheid was built, 46 is Christian, and so was the Rev.
Martin Luther King, Jr., who led the civil rights movement in the United
States in the 1960s on religious principles. Slavery in the United States was
enforced with Christian maxims, like the following by Jefferson Davis,
president of the Confederate States of America: “[Slavery] was estab-
lished by decree of Almighty God . . . it is sanctioned in the Bible, in
both Testaments, from Genesis to Revelation . . . it has existed in all ages,
has been found among the people of the highest civilization, and in na-
tions of the highest pro¬ciency in the arts.”47 Truth be told, one can
¬nd individual biblical passages that support the practice. For example,
Ephesians says:
MARRIAGE / 61


Slaves, be obedient to the men who are called your masters in this world,
with deep respect and sincere loyalty, as you are obedient to Christ: not
only when you are under their eye, as if you had only to please men,
but because you are slaves of Christ and wholeheartedly do the will of
God. Work hard and willingly, but not for the sake of men. You can
be sure that everyone, whether a slave or a free man, will be properly
rewarded by the Lord for whatever work he has done well.48

At the same time, Christians constructed the Underground Railroad that
brought thousands of former slaves and their families to freedom.49 The
term “Christian” can equally refer to the harrowing torture of the Inquisi-
tion, the impetus behind the Salem witch trials, or Mother Teresa™s work
in Calcutta. Christianity is present in every one of these examples, which
means it is an amorphous term that carries more political punch than
one identi¬able meaning. In fact, its current political force is built on an
assumption that the Unites States is a monolithic and united Christian
nation. There is no such thing “ America has always been a collection of
sects, not a homogeneous people of faith.
The United States is still not a Christian country in the sense those
using the phrase want it to mean, because even if every possible mean-
ing were packed into the term, it still would not encompass what this
republican form of government aspires to. That is the achievement of
the highest public good, which in turn, is determined by representatives
who are delegated the responsibility to consider and then determine it in
light of current knowledge and experienced problems “ not a particular
religious viewpoint or writing. It is not an overstatement to say that the
phrase “Christian country” in the same-sex marriage context is no more
and no less than a political grab for power, rather than a description of
any single set of values that could or should determine public policy.
The hard work of this republican form of government cannot be
avoided by posting a sign declaring “Christian” on the front lawn of
the White House. Representatives, in dialogue with the people, must
forge the hard policy choices for every citizen, believer or nonbeliever,
Jew, Muslim, Christian, or Wiccan. Their job is to de¬ne the social con-
struct of marriage in a way that best serves the needs of the public, and
all those who are affected by the marriage law, which is part of an in-
tricate social web. The issues are extraordinarily complex: inheritance,
62 / GOD VS. THE GAVEL


legitimacy, children™s rights, property ownership, and taxation, to name
a few, and the task is unfortunately quite dif¬cult. Resorting to phrases
like “Christian country” does not begin to answer the question.
We in the United States are sometimes blind to what the world already
sees. It is a simple fact that those fundamentalists that are insisting that
marriage be determined in whole by their religious faith are, at base, trying
to drive toleration and pluralism into an oncoming train of a one-faith
society. They advocate their own beliefs; everyone else should simply be
happy that they are Americans, or perhaps they should just move. This is
the sort of parochialism that makes what is a noble constitution in theory
the laughing stock of the world. We look hypocritical, and naive.
There is also great inconsistency in the devotion to a one-Christian
culture. Ironically, the same groups that push for their faith to determine
public policy have pushed for federal commissions to chastise foreign
governments like China for their intolerance of a wide variety of reli-
gious faiths.50 The Catholic Church, which has frequently asserted that
public policy (including public servants) should be shaped by its reli-
gious principles, expressed deep concerns about China™s suppression of
religious liberty as follows:

The tools of U.S. diplomacy need to be brought to bear in a broad
way to make China™s religious prisoners of conscience an undeniable
priority in U.S.“China relations. Forming policy to respond to China™s
violation of religious liberty is not just a matter of utilizing the sanctions
available under the International Religious Liberty Act. Rather, it is a
matter of making religious liberty a ¬rst-level concern of our whole
diplomatic effort. Our European friends should be encouraged by all
our ambassadors on a daily basis to join the U.S. initiative before the
U.N. Human Rights Commission. Trade representatives and business
travelers, under State Department or other government auspices, ought
to raise the concerns as their own in private talks with their counterparts.
The U.S. ambassador to China should pose a question in his every
meeting with the Chinese government, and so should his staff, whatever
their formal role, whether military attache or commercial of¬cer.51

Those who would de¬ne marriage solely by the light of their religious
belief clearly are not proposing, but rather are trying to impose a theoc-
racy, with their faith at the helm of public policy. Whether intentionally
or not, they are dictating a certain governing order that is antithetical to
MARRIAGE / 63


what the Constitution was intended to accomplish. There were Christian
theocracies not long before the founding of the United States, in particu-
lar in Britain, and they were the negative backdrop against which colonies
were established here.52 Queen Mary forced everyone to be Catholic and
then Queen Elizabeth I forced everyone to be Protestant, and they took
care of dissent by exterminating those who would not follow their belief
mandate. The era when the de¬nitions of Catholic and Protestant could
be so pure as to draw an either/or distinction is long past. To now seek a
“Christian” culture through the imposition of one religious viewpoint is
only a small step from the history intended to be set behind forever.
Many of the early American colonists departed Britain to escape the
either/or theological choices posed to them as well as the theocracies that
blended sovereign and religious power to control the people™s beliefs. To
claim that a set of beliefs is Christian is not to immunize oneself from
the charge of theocracy. Indeed, in this pluralist society, the pressure by
a subset of Christians to push for a single moral vision under the heading
of “Christian” cannot be characterized other than as a drive to institute
a theocracy in their own image. In short, their arguments, which are
intended to summon references to the ¬‚ag, mom, and apple pie, in fact
are quite dangerous to a free America.
In any event, it is a request no legislature in the United States can
honor, either in form or content, because the Constitution forbids elected
representatives to act solely for religious purposes. The country cannot
craft social institutions on the basis of a particular belief system, even if it is
some form of Christianity. The government has to look more broadly than
the religious views of some citizens to see whether the social construction
of marriage is consistent with the public good.
The theocratic arguments against gay marriage will not wash in the
United States, and the religious entities opposed will either learn this
through self-education or the expensive route of pursuing the issue
through the courts. This, however, is not to say that gay marriage must
be embraced as a constitutional matter across all states. The states have
wide latitude.
First, the U.S. Supreme Court, when it held that private consensual
sexual conduct between consenting adults was protected by the right
of privacy in Lawrence v. Texas,53 explicitly stated that the decision did
not extend to same-sex marriage: “[The case] does not involve whether
64 / GOD VS. THE GAVEL


the government must give formal recognition to any relationship that
homosexual persons seek to enter.”54 Justice Sandra Day O™Connor™s
concurrence also emphasized her conviction that distinguishing between
homosexual and heterosexual sexual practices violated equal protection,
because it was an irrational distinction between two similarly situated sets
of adults. But that did not “mean that other laws distinguishing between
heterosexuals and homosexuals would similarly fail.” On her reasoning,
the state may well assert a legitimate state interest in “preserving the tra-
ditional institution of marriage.”55 Justice Antonin Scalia, though, mud-
died the waters in his dissent, when he declared that “State laws against
bigamy, same-sex marriage, adult incest, prostitution, masturbation, adul-
tery, fornication, bestiality, and obscenity are . . . called into question by
[the Court™s] decision; the Court makes no effort to cabin the scope of its
decision to exclude them from its holding.”56 His apoplectic statements
triggered alarm bells across the country, and generated some rather ex-
treme claims.
Professor Brown spun Justice Scalia™s reasoning into a claim that with
Lawrence, the Supreme Court “has in effect declared the nation pagan.”57
His reasoning is a classic illustration of the religious individual who judges
public policy solely according to his own religious reference, and who
expects it to re¬‚ect his particular religious worldview. The only possible
government for him is a Judeo-Christian theocracy. On Lawrence, he
wrote:

What were those justices thinking? The man who wrote the majority
opinion [Justice Anthony Kennedy] is a Roman Catholic. Does he not
know that his church, his spiritual leader the pope, the Bible, and all of
the church fathers up to the present, consider the behavior that he now
protects an abominable sin? . . . Do the two Jewish justices not know that
their Torah rejects sodomy as an abomination? . . . And the two women
on the Court: by what perverted logic do they mock the role that God
and nature have given to their sex in conjunction with the male “ to
bring children into the world in a matrimonial union. . . . 58

Thus, religious leaders were capable of transforming the Lawrence de-
cision™s judgment regarding private, adult sexual conduct into a moral
travesty and an attack on traditional marriage. The power of state legis-
latures to demarcate the boundaries of marriage were hindered not one
iota by the decision, either explicitly or implicitly, but this sort of religious
MARRIAGE / 65


argumentation almost always sets aside the proper role of the branches
in order to impress its religious demands on the culture. When they
do that, they waste their effort, because they are speaking to the wrong
branch. The courts do not exist to set public policy.
Second, the social construct of marriage is a state law question, and
no other state constitution has been interpreted to require gay marriage.
Indeed, in decisions since Massachusetts™ landmark decision, courts have
declined to follow its reasoning.59 The states are free to have an open and
ongoing debate about the shape of marriage, which can take into account
the religious views of every citizen, but the public policy discussion cannot
be dictated solely by any religious viewpoint.
Beyond the courts and the legislature, there is also the option of a
constitutional amendment, which was attempted and failed in Congress.
The citizens of eleven states, however, voted in 2004 to amend their state
constitutions to ban gay marriage.60 It is a more extreme answer to the
political question, and may have prematurely suspended debate, but at
least it does not feature the government imposing one religious viewpoint
on the people.
In the case of same-sex marriage, a vocal coalition of religious organi-
zations has demanded that marriage be constructed to re¬‚ect their world-
view, even though they certainly do not constitute all religious viewpoints.
Far from it, but they feel entitled to have the law of marriage determined
by their own lights.
The issue of polygamous marriage presents both a different and a simi-
lar issue. In the case of polygamous marriage, there are very few religious
sects that advocate the practice. They are small in number and even
smaller in political power; they lack the close relationships with those in
power that the same-sex marriage opponents enjoy. Nor do they argue
that the law should re¬‚ect their religious teaching. They do not suggest,
as do the opponents to gay marriage, that every marriage should re¬‚ect
their particular beliefs. Rather, they argue that the First Amendment gives
them the right to practice polygamy, despite the laws against it.
In the end though, the two sets of arguments by religious entities are
quite similar. Both expect religious belief to direct public policy, and nei-
ther has a suf¬cient appreciation for the role of the legislature in achiev-
ing the public good, or in the content of the public good, for that matter.
Their horizons are de¬ned by their religious belief, and they transport
those horizons into the public square as though they should delineate
66 / GOD VS. THE GAVEL


good and bad public policy by themselves. Yet, religious belief, no matter
who holds it, or even how many hold it, cannot be the sole measuring
rod for U.S. policy. This pluralist society is the result of the Constitution™s
best aspirations and for those who claim that they share the faith of the
Framers to argue that the fruit of those aspirations “ religious diversity “
is intolerable should be treated with some skepticism. The drive to power
can wear religious garb just as easily as secular.


The polygamy question: demands for accommodation
vs. the public good
Well over a hundred years ago, when the Church of Jesus Christ of Latter-
day Saints believed that polygamy on earth paved the way to heaven, the
federal government outlawed the practice.61 Polygamy is “[t]he condition
or practice of having more than one spouse at one time.”62 The most com-
mon form of polygamy is polygyny, which is “the condition or practice
of having more than one wife at one time.”63 The laws, however, out-
lawed multiple spouses of either gender. For purposes of this discussion,
I will use “polygamy” to mean just that. It does not mean, by the way,
“polyamory,” the practice of having multiple sexual partners. When the
Supreme Court decided Lawrence v. Texas, it made it rather clear that
personal sexual relations between consenting adults were protected by
the right of privacy.64 Thus, polyamory has been left to private choice.
That does not mean it is the right choice from a moral perspective, but
it does mean it is beyond the government™s purview. “Polygamy,” by con-
trast, implicates the larger social construct of marriage, not the sexual
relations between adults. For these purposes, the two universes need to
be kept distinct.
George Reynolds, a polygamist Mormon, challenged the federal law
outlawing polygamy in the 1870s, arguing that because his actions in
taking two wives were the result of religious belief, they were outside
the force of the law. In other words, the antipolygamy law might be
okay as applied to someone who took two wives simply because he liked
two women equally, but where a man™s religious beliefs required taking
multiple wives, then the government was powerless.
Essentially, Reynolds asked the Court to interpret the First Amend-
ment to mean that belief and conduct are the same thing. That religious
MARRIAGE / 67


belief should be protected was not contested. The Court certainly had no
problem in protecting the absolute freedom of conscience, but it refused
to extend that unassailable protection to conduct.65 In Reynolds v. United
States, it uttered one of the most famous lines in free exercise cases: “Can
a man excuse his practices to the contrary because of his religious belief?
[To] permit this would be to make the professed doctrines of religious
belief superior to the law of the land, and in effect to permit every citizen
to become a law unto himself.”66 And common sense requires this rea-
soning. Religious individuals harm the public good by violating the law
no less (and no more) than any other entity breaking the law. As I will
explain in chapter 10, the touchstone in conduct cases must be harm or
damage, not the perspective of the religious entity. No proper democracy
exists that permits individuals to harm others at will simply because of
their beliefs. The principle is often repeated in federal and state cases.
One particular case comes to mind: a 1944 Utah decision upholding a
conviction for cohabitation with more than one member of the opposite
sex avowed, “when the offense consists of a positive act which is know-
ingly done, it would be dangerous to hold that the offender might escape
punishment because he religiously believed the law which he had broken
ought never to have been made.”67
As Chapter 2 shows, a parent who lets a child die of a medically treat-
able ailment does an identical harm to society as a parent who does it
out of spite. In either case, society is robbed of that child™s potential and
talents. And society™s quantum of suffering has increased, because a child
has been permitted to suffer while there were means to stop it. Just as
no parent should be permitted to act to make a child a martyr, no adult
is permitted to rede¬ne marriage unilaterally. Marriage is a social con-
struct that must be determined in light of the common good, not by the
re¬‚ection of any particular group™s religious beliefs. Here is where the
polygamists™ line of reasoning starts to look like the fundamentalists™ ar-
gument that would ban gay marriage. They expect to shape public law
according to a religious litmus test, without reference to larger public
good.
Canadian of¬cials, whose constitution typically shares U.S. free exer-
cise principles, have indirectly intimated in the last several decades that
polygamy may be constitutionally protected and therefore the polygamy
laws were unenforceable.68 “Former Prime Minister Pierre Trudeau
68 / GOD VS. THE GAVEL


told us it wasn™t the state™s business and he implied that the rest of us
shouldn™t poke our noses in either.”69
The contention raised by Reynolds was no different from the pervasive
argument in present times that religious conduct should be privileged vis-
`
a-vis the law “ simply because the cause is religious. The U.S. Supreme
Court has not embraced this precept then or now, as I will discuss in more
detail in Part Two, and it is not likely the Supreme Court of Canada ul-
timately will either.70 For present purposes, Reynolds initiated a series
of cases implementing a remarkably consistent and persistent principle:
one™s actions are measured by their effects and the law, not by their mo-
tivation. No one™s conduct, with its capacity to harm others, is immune.
In 1971, the U.S. Supreme Court in Gillette v. United States,71 stated it as
clearly as it has ever been stated: “Our cases do not at their farthest reach
support the proposition that a stance of conscientious opposition relieves
an objector from any colliding duty ¬xed by a democratic government.”72
Mr. Reynolds™s actions directly collided with the law, and the resultant
crash was not averted simply because of his beliefs.
There is no question in the United States that polygamy is not con-
stitutionally mandated, and the current challenges coming out of Utah,
where the most polygamists reside, do not change that fact.73 The argu-
ments were rejected ¬rst in 1879 and that rejection has been cemented
in multiple federal and state decisions, including in Utah, ever since.74
One 1955 Utah decision put it as plainly as possible:

It was never intended or supposed that the amendment could be invoked
as a protection against legislation for the punishment of acts inimical to
the peace, good order, and morals of society. . . . However free the exercise
of religion may be, it must be subordinate to the criminal laws of the
country, passed with reference to actions regarded by general consent as
properly the subjects of punitive legislation.75

But to say there is no constitutional right to polygamy is not to say that
the religious accommodation discussion is necessarily over. The Con-
stitution does not force the government to abandon its policy goals in
the face of individuals™ religious beliefs. It equally does not require that
polygamy (or same-sex marriage) be banned. The question is not whether
polygamists may trump the law, but rather whether polygamy can coin-
cide with the public good.
MARRIAGE / 69


To date, in the United States, the answer has been a rather resounding
“no.” There is never any harm, though, in a free society reexamining
the bases of public policy, even when that which is being examined
has been entrenched since the beginning of the country. Tradition by
itself cannot and should not determine whether the common good has
been adequately served. When polygamy was ¬rst outlawed in the United
States, it was considered, along with slavery, to be one of the “twin relics of
barbarism,”76 and there is some modern evidence that at least in religious
polygamous households, wives are servants of the husband. There was a
strong sense in that era that humankind had moved beyond it, to a better
social order,77 and that may be true. But the debate is not off limits.
In this era, the polygamists are challenging the traditional marriage
model, and saying essentially, “no harm, no foul.” If consenting adults
are willing to enter into polygamous relationships, it is a victimless crime,
the reasoning goes. It is the classic libertarian position that holds that gov-
ernment should involve itself in the lives of individuals as minimally as
possible, and is enormously attractive in an era when the Supreme Court
has recognized a private right to choose sexual practices and partners in
Lawrence v. Texas. But the link between Lawrence and polygamy is far
more tenuous than it appears at ¬rst blush. Consensual practices involv-
ing adults constitute a category decidedly distinct from the de¬nition of
marriage, which determines legitimacy, inheritance, and numerous other
legal consequences. The private sexual act can stay in the bedroom; the
shape of marriage is an external decision, far removed from the bedroom “
even if most marriages involve sex between the partners. The sex is simply
not the marriage.

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