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problems.
Second, the variety of religious faiths in the United States is enormous,
and some of them are downright scary. They had to have known that
there were religious groups that engaged in conduct that is dangerous to
others. What about the Ku Klux Klan, or the other white supremacists in
the prisons, who almost always trace their racist beliefs back to the Bible?
What about the religious militia in Montana and Idaho? Or the children
who happen to die when their faith-healing parents do not take them to
the doctor? RFRA was before September 11, so they get a quasi-pass on
thinking about terrorists, although the ¬rst bombing of the World Trade
Center was nine months before RFRA was signed into law on November
16, 1993,6 and the ongoing religious wars between Israel and Palestinians,
the Hindus and the Muslims in Kashmir, the ethnic and the Protestants
and the Catholics in Ireland were at full tilt. In 1993, the Irish Republican
Army bombed a ¬sh shop in Belfast, killing 10.7 Did they think that none
of that religious fanaticism could reach the United States? The answer is
that they simply did not think at all. One can imagine the members going
to sleep the night RFRA passed the House, secure in the knowledge that
they had done the “right thing.” Unfortunately they had not.
In the members™ defense, there were dozens of religious organizations
behind RFRA as well as most of the major civil rights organizations. Even
Americans United for Separation of Church and State loved it! It is typical
in political action that the more groups that join the bandwagon, the more
watered down the measure becomes. The members seemed to believe
that the union of religious and civil rights groups ensured that the law
178 / GOD VS. THE GAVEL


would harm no one. This is only a partial list of those who were lobbying
for the bill, which appeared in the Congressional Record:

Agudath Israel of America, American Association of Christian Schools,
American Civil Liberties Union, American Conference of Reli-
gious Movements, American Humanist Association, American Jewish
Committee, American Jewish Congress, American Muslim Council,
Americans for Democratic Action, Americans for Religious Liberty,
Americans United for Separation of Church & State, Anti-Defamation
League, Association of Christian Schools International, Association
of American Indian Affairs, Baptist Joint Committee, Coalitions for
America, Concerned Women For America, Episcopal Church, Chris-
tian Legal Society, Church of Jesus Christ of Latter-day Saints, Church
of Scientology, Evangelical Lutheran Church, Conference of Seventh-
day Adventists, Jesuit Social Ministries, Mennonite Central Committee,
National Association of Evangelicals, National Council of Churches,
People for the American Way, Presbyterian Church, Southern
Baptist Convention, Traditional Values Coalition, Union of American
Hebrew Congregations, Union of Orthodox Jewish Congregations,
United Methodist Church, United States Catholic Conference.8

The group dubbed itself the Coalition for the Free Exercise of Religion,
and by the time the coalition ¬led an amicus brief in favor of RFRA in
the City of Boerne v. Flores case, the list had expanded:
r American Association of Christian Schools
r Agudath Israel of America
r American Baptist Churches USA
r American Civil Liberties Union
r American Conference on Religious Movements
r American Ethical Union, Washington Ethical Action Of¬ce
r American Humanist Association
r American Jewish Committee
r American Jewish Congress
r American Muslim Council
r Americans for Democratic Action
r Americans for Religious Liberty
r Americans United for Separation of Church and State
r Anti-Defamation League
r Association of Christian Schools International
DISCRIMINATION / 179


r Association on American Indian Affairs
r Baptist Joint Committee on Public Affairs
r B™nai B™rith
r Central Conference of American Rabbis
r Christian Church (Disciples of Christ)
r Christian Legal Society
r Christian Life Commission, Southern Baptist Convention
r Christian Science Committee on Publication
r Church of the Brethren
r Church of Scientology International
r Coalition for Christian Colleges and Universities
r Coalitions for America
r Concerned Women for America
r Council of Jewish Federations
r Council on Religious Freedom
r Council on Spiritual Practices
r Criminal Justice Policy Foundation
r Episcopal Church
r Friends Committee on National Legislation
r General Conference of Seventh-day Adventists
r Guru Gobind Singh Foundation
r Hadassah, the Women™s Zionist Organization of America, Inc.
r Home School Legal Defense Association
r International Association of Jewish Lawyers and Jurists
r International Institute for Religious Freedom
r The Jewish Reconstructionist Federation
r Mennonite Central Committee U.S.
r Muslim Prison Foundation
r Mystic Temple of Light, Inc.
r National Association of Evangelicals
r National Campaign for a Peace Tax Fund
r National Committee for Public Education and Religious Liberty
r National Council of Churches of Christ in the USA
r National Council of Jewish Women
r National Council on Islamic Affairs
r National Jewish Commission on Law and Public Affairs
r National Jewish Community Relations Advisory Council
180 / GOD VS. THE GAVEL


r National Sikh Center
r Native American Church of North America
r Native American Rights Fund
r North American Council for Muslim Women
r People For the American Way Action Fund
r Peyote Way Church of God
r Clifton Kirkpatrick, as Stated Clerk of the General Assembly of the
Presbyterian Church (USA)
r Rabbinical Council of America
r Sacred Sites Inter-faith Alliance
r Soka-Gakkai International - USA
r Traditional Values Coalition
r Union of American Hebrew Congregations
r Union of Orthodox Jewish Congregations of America
r Unitarian Universalist Association of Congregations
r United Church of Christ, Of¬ce for Church in Society
r The United Methodist Church & The General Board of Church and
Society and The General Council on Finance and Administration
r United Synagogue of Conservative Judaism
r Wisconsin Judicare
r Women of Reform Judaism, Federation of Temple Sisterhoods9

The dynamics of the group is worth more than one sociologist™s or political
scientist™s career, as religious and civil rights groups that normally went
head-to-head in the public sphere suddenly were sitting at the same table
to empower each other.
The contrasts are stark. It is not often that the ACLU and the Tradi-
tional Values Coalition have policy goals in common. The Presbyterians
and the Methodists were pro-choice, while the Southern Baptists and the
Orthodox Jews (except in cases involving the life of the mother) surely
were not. The Unitarian Church was behind equality for gays, but that
has never been the agenda of the Church of Jesus Christ of Latter-day
Saints. The Christian Scientists believed that the law should not inter-
fere with their faith-based decision to refuse treatment for ill children,
but a plethora of coalition members would require medical treatment
in the same circumstances. The ACLU was of¬cially opposed to hous-
ing discrimination against homosexuals and unmarried adults, while the
DISCRIMINATION / 181


Christian Legal Society was pushing hard to obtain exemptions from the
fair-housing laws so that their members could discriminate against those
groups. Each group surely knew its public policy enemies, yet, the ab-
stract quality of the “right to religious liberty” in the RFRA formulation
led them to lay down their usual weapons. It was not politically ratio-
nal, actually, but they were operating under false information about the
Supreme Court™s recent rulings on free exercise (as I discuss in Part Two),
and partaking in the American myth that all religion is good religion.
In fact, each religious organization had certain public causes that they
hoped would be furthered by RFRA. But that was not the topic of discus-
sion at the table (at least that is what I am told). Rather, their attention was
trained on making it dif¬cult for the governments in the United States
to enforce their laws, where the actor was religiously motivated. Until
its invalidation at the Supreme Court in 1997, in Boerne v. Flores, the
Coalition was able to operate relatively smoothly. One of the key issues
that would cleave the organization, though, was housing discrimination.
The move for expansive religious liberty statutes did not stop in 1997,
though. After RFRA was invalidated, groups like the Rutherford Institute,
which is run and funded by attorney John W. Whitehead, fanned out to
the 50 states to try to get state versions passed. At the same time, they
asked Congress to pass another statute covering many, if not all, of the
laws in the United States, and this time they called it the Religious Liberty
Protection Act (RLPA). (One cannot fault them for their skill at choosing
names that sound a lot like “apple pie, motherhood, and patriotism.”)
The problem for the coalition with this next iteration was that RFRA had
awakened the slumbering secular groups whose interests were harmed
by religious conduct: children™s advocates, corrections of¬cials, city plan-
ners, historical preservationists, and cities, among others. They had been
caught off-guard, because a bill named the “Religious Freedom Restora-
tion Act” gave out precious few clues that their objectives were about to be
undermined. After all, they were in favor of religious liberty, too, just like
every other American. As RFRA had been applied to individual laws over
the course of its three-and-a-half year life, its power to undermine certain
policies became increasingly apparent, and these groups slowly came to
the realization that they needed to ¬ght this law, even if it did sound like
the ultimate all-American initiative. This realization literally took years,
¬rst because of the abstract quality of the statute and, second, because
182 / GOD VS. THE GAVEL


there were individual members even in these organizations so familiar
with the harm religious entities could cause that were ardent defenders
of the RFRA formulation.
Eventually, various groups lobbied against RLPA. In the beginning,
the strategy was to push for wholesale defeat of not only RLPA, but the
idea. The more effective tactic, though, turned out to be having each
group speci¬cally lobby to have their particular interest exempted from
RLPA™s reach. This posed a serious problem for the coalition, which
was viable only so long as its members operated at an abstract level.
With each request to have an area of law stripped from RLPA™s reach,
for example, children™s issues, or land use, or prison administration, or
housing discrimination, the dormant issues that normally would have
divided the members came to the fore.
To keep RLPA (and the state RFRAs) from becoming a nullity through
multiple exemptions, and to keep the coalition together, the group de-
vised an interesting strategy: if there was any attempt to peel off a law
or a category of law from RLPA or a state RFRA, the entire group
would say, “no exemptions.” They knew it was harder to kill the idea
of religious liberty than it was to obtain a single exemption, so if the
single exemption route was blocked, in all likelihood, the larger bill
could stand. The strategy did not work at the federal level, though, be-
cause the members were becoming educated about RFRA/RLPA™s likely
impacts, and legitimate concerns were starting to arise that the pend-
ing legislation did have a downside. The members therefore resisted
RLPA™s one-size-¬ts-all religious conduct formula, which it had inherited
from RFRA.
The coalition™s strategies worked in some of the state RFRAs, like
Connecticut, Florida, and Alabama, which have no exceptions. By the
time Texas took the matter under consideration in 1999, though, private
property advocates and cities were vocal, active, and effective. They suc-
ceeded in obtaining an exemption from the Texas RFRA for land-use
laws.10 The most recent one, Pennsylvania™s Religious Freedom Protec-
tion Act of 2002 (RFPA), removed a number of categories from its reach,
including criminal offenses; motor vehicles; licensing of health profes-
sionals, the health or safety of individuals in facilities operated under the
public welfare code; the safe construction and operation of health-care
facilities; health and safety in construction; and mandatory reporting of
child abuse.11 This is not to say that every entity that would have opposed
DISCRIMINATION / 183


the bill was heard; RFPA was passed quickly and without hearings, so
by the time local government and land-use interests learned of the bill,
it was too late to be relieved of its burdens. As a general trend, though,
the more legislators have learned, the less likely they have been willing
to operate at the abstract level that permitted RFRA to be enacted with
minimal discussion of its actual impact.
The burgeoning understanding that this was not such a magical for-
mula led to its defeat in states like Maryland and California in 1998, and
is one of the reasons that only thirteen states have passed such a law. In
Maryland, children™s advocates led the opposition; and in California, it
was a combination of children™s advocates and local governments.
Perhaps the most interesting story about an interest group coming to
understand what was really at stake in RFRA and then RLPA involves the
ACLU and the fair housing laws. As most people know, the ACLU is often
on the other side of religious groups and certainly goes against the social
agenda of conservative Christians. For example, it has championed the
rights of adults to have child pornography12 and of unmarried couples or
gay couples to be free from discrimination in the housing market.13 Yet, its
president in 1993, Professor Nadine Strossen, enthusiastically endorsed
RFRA at hearings in the House, saying,

The ACLU strongly supports [RFRA] because it restores religious lib-
erty to its rightful place as a preferred value and a fundamental right
within the American constitutional system. The First Amendment™s
guarantee of the ˜free exercise of religion™ has proven to be the bold-
est and most successful experiment in religious freedom the world has
known.14

But there were conservative Christian and Orthodox groups at the table
that were opposed to the ACLU™s position on the fair-housing laws, and
their interests were furthered by RFRA, while the ACLU™s was not. It took
more than ¬ve years for the ACLU to realize that it had made a colossal
mistake in supporting RFRA™s abstruse formula, and that it had, in fact,
supported a law that was directly opposed to its primary agenda. When
RLPA was considered in 1999, the ACLU testi¬ed against it, because of
its impact on the antidiscrimination laws.

[W]e are no longer part of the coalition supporting RLPA because we
could not ignore the potentially severe consequences that RLPA may
have on state and local civil rights laws. . . . We researched the issue and
184 / GOD VS. THE GAVEL


found that landlords across the country were using state religious liberty
claims to challenge the application of state and local civil rights laws
protecting persons against marital status discrimination.15

It had taken years for them to see that their core interests were
threatened by the RFRA formulation, and this is a savvy player in
the political ballgame. Other organizations that were not monitoring
Washington on a regular basis, or that failed to look beneath the surface
of the law, took even longer. For example, it took the American Planning
Association (APA) 11 years before it decided to weigh in on an RLUIPA
land-use case, and these cases almost always involve arguments that are
directly contrary to the APA™s usual principles.
One of the reasons that RLPA never became law is that the ACLU,
People for the American Way, and Americans United for Separation of
Church and State ceased to be publicly vocal supporters. This is not to
say that the ACLU got out of the business altogether; RLUIPA was drafted
by someone in the ACLU, along with assistance from the Department of
Justice. (The enthusiasm for this concept dies hard.)

Two arenas for discrimination by religious entities:
Housing and employment
Religious entities have had a prickly relationship with the antidiscrimina-
tion laws that have appeared since the 1960s. Many hold views or choose
clergy according to criteria that contravene civil rights laws, and some-
times the religious entity wins, sometimes not. For example, Bob Jones
University, which prohibited interracial dating, was noti¬ed by the Inter-
nal Revenue Service that its tax-exempt status was revoked because of its
violation of the federal civil rights laws prohibiting racial discrimination.16
The university argued vigorously that it was a private organization that
should be able to believe anything, and that tax-exempt status should not
turn on their views on racism. At the Supreme Court, it was supported by
the American Baptist Churches, Center for Law and Religious Freedom
of the Christian Legal Society, the National Association of Evangelicals,
and Congressman Trent Lott (R-Miss.).17
The Supreme Court rejected their arguments, saying that “the Gov-
ernment has a fundamental, overriding interest in eradicating racial
DISCRIMINATION / 185


discrimination in education. . . . That governmental interest substantially
outweighs whatever burden denial of tax bene¬ts places on petitioners™
exercise of their religious beliefs.”18 Taxation is not the only arena wherein
religious institutions are forbidden to discriminate on the basis of race. A
religious organization that is selling, renting, or limiting the occupancy
of property (in a noncommercial context) may choose to deal only with
those who share the same religion, unless “membership in such religion
is restricted on account of race, color, or national origin.”19
RLUIPA™s language could have been stretched to cover the fair-housing
laws, a result many conservative organizations would have hailed. Its leg-
islative history, though, disavows any intent to reach that far.20 Indeed, the
ACLU may well have been at the helm of drafting RLUIPA in order to
ensure that the new bill did not reach housing discrimination claims.
The fact that RLUIPA does not cover the fair-housing laws does not
mean that the antidiscrimination laws apply in full force against religious
entities. To the contrary, there are three ways such laws “ whether applied
in the housing or employment context “ can be disabled by competing
laws.
First, because many believe that applying RFRA to federal law is consti-
tutional, the federal antidiscrimination laws (whether prohibiting hous-
ing, race, color, religion, sex, handicap, familial status,— or national origin
discrimination) might be disabled by it.21 RFRA has yet to be amended
to reduce its scope, so it continues to have a breath taking sweep across
every conceivable federal law.
Second, one of the 13 state RFRAs (Alabama, Arizona, Connecticut,
Florida, Idaho, Illinois, Missouri, New Mexico, Oklahoma, Pennsylva-
nia, Rhode Island, South Carolina, Texas) could disable any and all state
antidiscrimination laws. While the RFRAs may be a threat to the antidis-
crimination laws, there is not a large body of law yet.
Finally, a judicially crafted doctrine, called the “ministerial exception,”
and Title VII™s exemption for discrimination on the basis of religious belief
can mitigate the antidiscrimination laws as applied to religious employees,
when they sue their religious institution for discrimination.22


“Familial status” does not mean marital status, but rather whether the prospective
tenant is a family with children. H. Rep. 100“711, 1988 U.S.C.C.A.N. 2173, 2184.
186 / GOD VS. THE GAVEL



Religious individuals and their objections to certain tenants
on religious grounds
The ¬rst fair housing law was passed in California in 1959.23 By 2005,
49 states and the District of Columbia had enacted laws prohibiting dis-
crimination in the housing market. Most mirror the federal Fair Housing
Act (FHA) and prohibit it on the basis of race, color, national origin, reli-
gion, sex, familial status, or handicap. Others are broader and encompass
age, military status, sexual orientation, genetic disposition or carrier sta-
tus, HIV status, gender identity, and source of income.24 Approximately
half of the states prohibit discrimination in housing based on marital
status, but only a handful prohibit it based on sexual orientation.25
There are many interests at stake in these cases. Like the land-use
cases discussed in Chapter 4, they implicate the right to determine how
private property is to be used. In those lawsuits, the religious institutions
are limited by the surrounding neighbors™ rights in their private prop-
erty. In these, they are limited by the government™s strong interest in
ensuring that all citizens are treated fairly in the housing market, where
shelter is a human necessity. The courts also have tended to reject the
religious landlord™s religious defense, in part because they are not re-
quired by law to rent apartments or participate in the housing market.
Thus, the law does not operate to place any burden on the landlord,
who has chosen voluntarily to become a landlord.26 They can avoid the
burden.
One principle in this context, though, has tended to work in religious
landlords™ favor, and that is they have the right to choose to sell their
noncommercial property to fellow believers, rather than outsiders. For
example, St. Monica™s Catholic parish near Milwaukee, Wisconsin, de-
cided to sell a house it owned, and Michael and Barbara Bachman, who
were Jewish, made an offer. In response, the parish pulled the house off
the market and asked if any of its parishioners were interested. When
none were, the parish sold it to a Catholic couple at a price higher than
the Bachmans had offered, but with ¬nancing terms that may have made
the Bachman deal the better offer. The Bachmans sued under the Fair
Housing Act, claiming ancestral discrimination. St. Monica™s prevailed.
The U.S. Court of Appeals for the Seventh Circuit upheld the verdict,
DISCRIMINATION / 187


because the jury had been permitted to consider two mutually exclu-
sive possibilities: either the refusal to sell rested solely on anti-Semitism
or the congregation™s decision had nothing to do with their ancestral
heritage.27
In contrast, religious landlords have found it dif¬cult to impose their
religious criteria on prospective tenants for four reasons. First, even where
the landlord succeeds in arguing that he or she has free-exercise right at
issue, some courts have found that removing discrimination in this con-
text is a compelling state interest.28 This ground, though, is not entirely
settled. With a RFRA in place (or strong state constitutional free-exercise
guarantees), courts have had to consider whether preventing marital-
status discrimination serves a compelling interest, and the results are not
consistent across the board.29
Second, the harm that results from the exercise of these beliefs di-
rectly affects the victims of the discrimination. It is neither indirect nor
insigni¬cant.30
Third, there is no substantial burden on the religious entity™s actual
religious beliefs, because there is either no burden or only a de minimis
burden.31
Finally, there is no other means of achieving the government™s goal
of eliminating discrimination on the basis of marital status, or sexual
orientation, other than imposing the laws on all “ even the religious “
landlords.32
The Fair Housing Act was enacted to ensure that individuals were
not excluded from the housing market on the basis of impermissible
categories. It was not intended to make it possible for religious groups
to force a neutral, generally applicable housing system to meet their
beliefs. For example, four Orthodox Jewish students at Yale College
brought an interesting lawsuit invoking the federal Fair Housing Act,
though in the end it was not successful. They argued that Yale™s coed-
ucational dormitories, where all unmarried freshmen and sophomores
were required to live, violated their religious belief in sexual modesty.
The U.S. Court of Appeals for the Second Circuit held that the dormi-
tory policies had been disclosed well before the students came to campus
and, moreover, the FHA was not designed to accommodate the plain-
tiffs™ unique religious beliefs. “Signi¬cantly, plaintiffs do not claim that
188 / GOD VS. THE GAVEL


defendants adopted their policy because of animus toward Orthodox Jews
or that they grant exemptions to other religious groups or to students lack-
ing a religious af¬liation in a manner different from the exemption pro-
cess for Orthodox Jews. Because plaintiffs seek exclusion from housing
and not inclusion, they do not state an FHA claim. The purpose of the
FHA is to promote integration and root out segregation, not to facilitate
exclusion.”33
There have been cases, though, where religious landlords have been
able to engage in religiously motivated discrimination “ by arguing that
the governmental interest in the free exercise of religion trumps any
state interest in protecting unmarried couples from discrimination. In
Minnesota, Susan Parsons agreed to rent a house from landlord Layle
French. Shortly thereafter, French learned that Parsons would be liv-
ing with her ¬anc´ . A member of the Evangelical Free Church, French
e
believed that living together gives the “appearance of evil” and raised
a religious defense to Parsons™s action under the Minnesota Human
Rights Act. The Supreme Court of Minnesota held that the state con-
stitution™s protection of religious beliefs exempted the landlord from
compliance with the fair-housing provisions.34 In California, a landlord
turned down two prospective tenants as soon as she learned that they
were unmarried and planned to cohabit. A devout Roman Catholic,
the landlord believed that premarital sex was a sin and believed that
renting the apartment to the couple would in itself be a sin. The
Court of Appeal of California held that the landlord was entitled to
an exemption from the fair-housing claim, because the constitutional
interest in free exercise of religion was substantially greater than the
state™s lesser interest in eradicating discrimination against unmarried
couples.35
This is an area of law in the United States that is not settled, at least with
respect to discrimination involving marital status and sexual orientation.
There is no consensus among state laws on these two categories, and the
federal fair-housing laws do not address them. But the lack of uniformity
is not necessarily a bad thing. Where the states have different regimes, it
makes it possible to assess which rules work most effectively toward the
public good, so one should expect the debate to continue. These rules
are best crafted by legislatures, which can weigh the competing social
interests implicated and learn from other states™ experiments.
DISCRIMINATION / 189



Religious institutions and their employees
There are three means by which religious entities can avoid discrimina-
tion claims in hiring. First, Section 702(a) of Title VII, which was ¬rst
enacted in 1964, grants religious organizations permission to discriminate
on the basis of religion.36 A more sensible accommodation one could not
imagine. Jews should not be forced by law to hire Baptists as clergy and
vice versa. When it is invoked, three issues tend to arise, and they all go to
the question whether the relationship and the basis for the actions taken
are in fact religious. The three include: (1) whether the defendant is a re-
ligious or really a secular organization,37 (2) whether the individual suing
works in a religious or secular capacity,38 and (3) whether the reason for
the employment action was based on religious belief, including whether
Title VII imposed a substantial or a de minimis burden on that belief.39 If
any of these three criteria are not satis¬ed, the exemption does not apply.
Once again, the doctrine makes a great deal of sense.
Second, the employment contract can impose binding antidiscrimi-
nation rules on the employer that the law does not.40 Third, there is the
“ministerial exception,” the need for which is not quite as transparent.
This judicially crafted exemption has been more elastic than Title VII™s
legislative exemption for belief though it has not given religious employ-
ers total autonomy from the law. The impetus for the doctrine is not hard
to ¬nd: the identity of the religious leader lies at the heart of any reli-
gious identity, regardless of the required characteristics. There is a good
question to ask, under the free-exercise doctrine, whether it was appro-
priate for the courts rather than the legislatures to have created such an
exemption.
Beginning in 1972, courts started to recognize what would become
known as the ministerial exception,41 which recognized the principle
that a religious organization™s right to choose clergy is so important to the
organization that it rises to the level of a constitutional right. Courts
that recognize the ministerial exception refuse jurisdiction over employ-
ment disputes between clergy and their religious institutions, where the
discrimination is religiously motivated, because, “[t]he relationship be-
tween an organized church and its ministers is its lifeblood. . . . Matters
touching this relationship must necessarily be recognized as of prime ec-
clesiastical concern.”42 This principle has covered only the relationship
190 / GOD VS. THE GAVEL


between religious employer and ministerial employee, as opposed to other
employees.
The religious institutions that have succeeded in these cases have done
so in no small part because it is intuitive, given the history of religion,
that they must be able to place restrictions on who their clergy will be.
It is dif¬cult to ¬nd a religion that does not place some kind of restric-
tion on its clergy, which a secular employer could not. Catholics have
only male priests; some conservative Christians do not permit divorced
or unwed women in the pulpit; Orthodox Jews only permit men to be-
come rabbis, though Reform, Conservative, and Reconstructionist Con-
gregations also permit women; many denominations would not permit a
homosexual to hold a clergy position, though this has been a source of
deep division in denominations like the Presbyterians, Methodists, and
Episcopalians. Thus, for the law to impose a rule that prohibits discrim-
ination on the basis of a belief that requires a particular gender, race, or
sexual orientation is to drastically alter the character of many religions.
Conversely, if the characteristic is not required under the religion™s set
of beliefs, the antidiscrimination laws can apply full force. All of which
is to say that the “ministerial exception” does not create a zone of “au-
tonomy” around religion entities. It is only legitimately invoked where
the otherwise prohibited discrimination is based in religious belief. An
underlying rationale is that an adult who voluntarily works as a reli-
gious employee has voluntarily adopted the religious entity™s religious
beliefs.
The U.S. Supreme Court has never ruled that religious entities are
immune from employment claims by their clergy, and it has never ad-
dressed the ministerial exception, which has been crafted by the lower
courts. Those courts that have adopted the exception have been relying,
and perhaps overreading, the Supreme Court™s religious institution cases.
Those cases say only that courts are not permitted to decide any solely
ecclesiastical question between members from within the organization.
That leaves a large universe of law to be applied to religious employers,
which has been restricted legislatively only by Title VII™s exemption for
discrimination on the basis of religion.
Some of the formulations of the exception have been so broad that
there have been attempts to expand it beyond the employment context.
For example, one court stated, “the First Amendment barred civil courts
DISCRIMINATION / 191


from reviewing decisions of religious judicatory bodies relating to the
employment of clergy.”43 Cases involving third-party harm, and not just
employment disputes, have tried to build on this sort of formulation to
argue that there is a general prohibition on courts taking jurisdiction over
any case involving a religious entity and its employees. This a vast over-
statement of the rule and its justi¬cation, however, which was crafted
solely to deal with the employment relationship, not issues involving
any other party. Moreover, it is an overstatement of the doctrine even
within the employment context. An increasing number of courts apply the
antidiscrimination principles to religious entities, where the discrimina-
tion is not based on a religious motivation.
There is always a risk in any particular case (and this risk is magni¬ed
because this is a judicial creation never addressed by the Supreme Court,
not a legislative rule limiting the courts to certain language, and there-
fore the variations can be signi¬cant), that the religious entity will be
permitted to engage in discrimination not actually required by its beliefs.
In a way, it makes being a clergy member one of the least secure jobs in
America. Many secular and religious employees have “at-will” contracts,
which means that their employers can ¬re them for any reason and no
reason. But the secular employer who ¬res the employee on the basis of
race, gender, sexual orientation, religion, or marital status is inevitably
bound by federal and state antidiscrimination laws. Thus, there is a legal
deterrent that drives secular employers away from discrimination. In cir-
cuits and states where the ministerial exception has been given a broad
reading, the religious employee does not have the same degree of pro-
tection from invidious or arbitrary employment decisions, and the results
can be troubling.
For example, Sandy Williams, an ordained minister in the Episcopal
Church, alleged that she was discriminated against on the basis of gender
(a brand of discrimination not mandated by the Church™s belief system).
After she told the church that she believed she was receiving disparate
treatment, she was constructively discharged “ the hostile work environ-
ment and gender discrimination and the diocese™s unwillingness to do
anything made her feel that she had no choice other than to resign.44
Looking at the facts, the whole affair seems patently unfair. This woman
pointed out an injustice, which is actually contrary to the church™s beliefs,
and then she appears to have been treated to the very treatment she had
192 / GOD VS. THE GAVEL


complained about! In a secular setting, that would be illegal. But in the
religious setting, the court held that the ministerial exception shielded
the church from any liability for retaliatory discharge.45
The award for the most despicable behavior by a religious entity toward
one of its own should go to Rosati v. Toledo, Ohio, Catholic Diocese.46
Mary Rosati, who desired to become a nun, was promoted from postulate
to novice by the Contemplative Order of the Sisters of the Visitation.
She then experienced severe health problems, including kidney prob-
lems, breast cancer, and a herniated disc that required surgery. Additional
treatment was required, including the need for a lumpectomy or mastec-
tomy, and “further cancer-related treatment.” According to Rosati, after
her diagnosis, Sister Bernard, her supervisor, told her, “Maybe God is
trying to tell you something. Perhaps you don™t have a vocation,” She was
let go after her diagnosis and lost her health insurance. When Rosati ¬led
a claim under the Americans with Disabilities Act (which would have
been effective against a secular entity), the order raised the ministerial
exception, and won.47
Religious employers who receive expansive protection “ under a broad
reading of the “ministerial exception,” and Title VII™s exemption for dis-
crimination from religious belief “ have carte blanche to engage in dis-
crimination, whether it is gender, or marital status, or sexual orientation,
so long as the discriminatory decision can be explained at least tangen-
tially by some religious belief. Narrower interpretations of the exception
have led to a rule that where the conduct is unrelated to the religious
belief or the employee does not perform a religious function, the church
or religious institution can be subject to the discrimination rules.48
One of the dividing lines in Title VII cases is whether the employee
is actually a religious employee or an employee of a religious institu-
tion performing secular duties. For example, the Southwestern Baptist
Theological Seminary won and lost its attempt to avoid an investiga-
tion by the Equal Employment Opportunity Commission regarding its
employees.49 While those performing ministerial tasks were not able
to take advantage of the antidiscrimination laws, the court found that
at least four support personnel who performed nonministerial duties
(yet were also ordained ministers) were “not entitled to ministerial sta-
tus,” and therefore their discrimination claims could go forward. In an-
other case ¬nding that accommodation was not required because the
employee was not a religious employee for these purposes, the Paci¬c
DISCRIMINATION / 193


Press Publishing Association, a nonpro¬t publishing house in California
associated with the Seventh-day Adventist Church, was accused of en-
gaging in gender and marital-status discrimination. Its policy was to pay
employees according to sex and marital status, which led an unmar-
ried secretary, Lorna Tobler, to bring charges of sexual discrimination
(and retaliation) against the company. The U.S. Court of Appeals for the
Ninth Circuit held the press liable for discrimination, because Tobler™s
duties did not go to the heart of the religious organization™s operations,
and the First Amendment was not implicated, because the impact of
applying the antidiscrimination laws in this case on its religious be-
lief was de minimis, especially when compared with the government™s
interest.50
The other criterion that can limit accommodation is whether the entity
is a religious institution or not. In 1980, Mississippi College, a Southern
Baptist-run school, sought a full-time faculty position in the department
of educational psychology, and Dr. Patricia Summers, a part-time em-
ployee, applied. While Dr. Summers had extensive quali¬cations, she
was a Presbyterian, and the school gave the position to another candi-
date who was Baptist (saying that he had more expertise in experimental
psychology). Dr. Summers claimed religious and sex discrimination, and
denied the college™s argument its was exempt under Title VII, because it
was not a church. The U.S. Court of Appeals for the Fifth Circuit agreed
it was not a religious entity, and further that the First Amendment was
not implicated, because the nondiscrimination law would only have a
small impact on religious beliefs or conduct.51
The ministerial exception is not a uni¬ed doctrine, but has an
accordion-like quality as it is interpreted by the various state courts and
federal circuits. Like Sandy Williams™s and Mary Rosati™s cases, the fol-
lowing case involves disreputable behavior against a budding clergy mem-
ber, but in this case, the ministerial exception was not permitted to bar
all claims.
Christopher McKelvey planned to be a priest in the Camden, New
Jersey, diocese, which offered to pay for his college and seminary edu-
cation and, in its papers to him, emphasized the priestly requirement
of celibacy. McKelvey made it through college and then headed for the
St. Charles Borromeo Seminary near Philadelphia, where he lost enthu-
siasm for his career path when he allegedly was on the receiving end
of repeated homosexual advances from other seminarians and priests,
194 / GOD VS. THE GAVEL


including propositions to engage in homosexual acts, to discuss mastur-
bation, and to accompany them to gay bars. According to McKelvey, he
was further demoralized when he reported the sexual harassment up the
chain of command, and expecting his supervisors to enforce the vow of
chastity, instead received hostile responses. When he did not return from
a leave of absence, the archdiocese terminated his candidacy and sent him
a bill for his education expenses in the amount of $69,002.57.52 He sued.
The Diocese argued in response only one theory: the courts were
barred from taking the case at all on the ground that the First Amend-
ment prohibited the courts from intervening in the dispute, because it
involved the relationship between a church and its clergy (or, in this
case, potential clergy). On its theory (and this tack is attempted in cases
across the country in any number of contexts, including clergy abuse),
the ministerial exception shielded the church from any claims brought by
a clergy member. The trial court agreed, and the intermediate appellate
court agreed. In a unanimous opinion, the New Jersey Supreme Court
did not agree, and ruled in favor of McKelvey. According to the court, the
problem with the lower courts™ reasoning was that it was too clumsy. The
First Amendment might preclude the courts from settling internal dis-
putes over the meaning of religious dogma, or might prohibit the courts
from getting involved in rendering interpretations of the church™s beliefs.
But the First Amendment did not stand in the way of claims invoking
neutral principles of law where the analysis could be accomplished in
secular terms. Far from creating an impenetrable wall around religious
organizations™ decisions regarding clergy, the court instructed the lower
New Jersey courts that they were required to examine each element of
each claim to determine whether the claim could be proved and ana-
lyzed using secular principles. The court quoted a decision by the U.S.
Court of Appeals for the Fifth Circuit that accurately characterizes the
law and explains why so many claims of ministerial privilege can be
adjudicated:


The First Amendment does not categorically insulate religious rela-
tionships from judicial scrutiny, for to do so would necessarily ex-
tend constitutional protection to the secular components of these
relationships. . . . The constitutional guarantee of religious freedom
cannot be construed to protect secular beliefs and behavior, even when
DISCRIMINATION / 195


they comprise part of an otherwise religious relationship. . . . To hold
otherwise would impermissibly place a religious leader in a preferred
position in our society.53


McKelvey, therefore, was permitted to go forward on theories of breach
of contract and breach of ¬duciary duty. The parties settled the case after
it was remanded for a trial.
Whistleblowers within religious organizations have not fared terribly
well. The Reverend Albert Dunn ¬led a RICO, or Racketeer In¬‚uence
and Corrupt Organizations, suit against his church, the African Methodist
Episcopal Church (AME), charging the leadership had a scheme to
fraudulently collect funds that were then used to provide a lavish lifestyle
and that it engaged in mail fraud, wire fraud, and money laundering.
After he ¬led the suit, Dunn was not assigned to a church, and therefore
he added a claim of breach of employment contract. He was barred from
bringing the RICO claim, because he lacked standing; and his breach
of contract claim was barred by the ministerial exception.54
In similar fashion, Darreyl N. Young, an African-American female who
served as a probationary minister, was denied appointment as an elder
after she was a vocal critic of the church on minority issues. The church
argued that Title VII protected it from litigation involving any employee,
an argument the court rejected. But the church still prevailed, because
Title VII did immunize a church where the employment involved workers
participating in the religious mission of the church.55 There is an irony in
this case, where the civil rights statute, Title VII, was employed to permit
an employer to ¬re an employee speaking out for civil rights, but it is a
prime example why the legislature is the appropriate body to deal with
these issues. This is social policy, and the accountable legislature needs
to weigh the many factors in the balance, something the courts are not
equipped to do.
These cases focus the reader on a fascinating anomaly regarding overly
expansive religious accommodation. The result of accommodation can
be that religious entities are free “ not to pursue their religious dictates
so much as they are free to engage in immoral or antisocial behavior. It™s
the same principle seen in the behavior of the churches in the clergy-
abuse cases. When a religious entity is sued for letting a known clergy pe-
dophile have access to children, the argument often raised is that the First
196 / GOD VS. THE GAVEL


Amendment shields it from any legal liability. In other words, its inde-
fensible behavior is insulated because of its religious status “ not because
it was acting pursuant to religious beliefs. To grant First Amendment im-
munity to the religious organizations in circumstances where its actions
were not dictated by religious belief, but rather expediency or a desire for
secrecy, is to invite misbehavior. Moreover, it seems unfair to deprive the
poorly treated and now-estranged employee of any opportunity to bring
the religious entity to account, when the institution™s decision was not
religiously motivated and violated widely accepted mores in the society.
Every institution needs some checking of its worst urges, and the case has
yet to be made that religious entities are exempt from this basic principle
of human existence (indeed, the very purpose of this book is to show how
apt it can be for religious entities).
It is not at all clear that the ministerial exception would be recognized
by the Supreme Court, in light of its Religion Clause jurisprudence in
the last couple of decades. The ministerial exception™s process raises red
¬‚ags. It is a court-created exemption from neutral, generally applicable
laws, not the result of legislative consideration in light of the public good.
The political theory behind the Court™s current doctrine requires the
legislature to make such an exemption, not the courts. This may be one of
those academic points not worth much time, because it is highly likely that
legislatures all over the country would quickly provide such an exemption.
But it is worth noting that the judicial version ¬‚ies in the face of the
legislative exemption doctrine, and that it is not at all clear that Title VII™s
exemption for religious belief should not be the ¬nal word in this arena.
The cases seem to be moving in the direction of accountability for
churches in most circumstances, but the movement is incremental.
Following the Supreme Court™s free-exercise decisions, the courts have
been increasingly willing to ¬nd that the ministerial exception precludes
jurisdiction over the religious reasons behind an employment decision,
but they have then applied neutral, generally applicable laws to the en-
tity™s conduct. For example, a female minister, Monica L. McDowell
Elvig, sued the Calvin Presbyterian Church of Shoreline, Washington,
claiming that she had been subjected to a hostile work environment.56
Elvig alleged that Will Ackles, the church™s pastor, sexually harassed her.
The church then retaliated by relieving her of certain duties, verbally
DISCRIMINATION / 197


abusing her, and engaging in intimidating conduct. After she ¬led a
complaint with the EEOC, the church terminated her and refused to let
her circulate her r´ sum´ , effectively preventing her from seeking other
e e
employment within the Presbyterian Church across the United States.
The court held that if the claims implicated the church™s right to hire
ministers and determine their duties, the ministerial exception applied
to deprive the court of jurisdiction over that issue. In other words, the
church™s religiously motivated conduct was protected, but the case was
not disposed of by that ¬nding. Rather, to the extent that she could al-
lege facts that did not implicate the ministerial exception, her lawsuit
could stand. The retaliatory harassment was not part of a protected em-
ployment decision and could therefore “be a valid basis for a retaliation
claim.” The Ninth Circuit™s reasoning is a far cry from the theory (often
espoused by religious organizations) that their hiring and ¬ring decisions
are completely secure from the force of the law. In effect, by allowing the
case to go forward the opening for the antidiscrimination laws has been
enlarged, so that the courts will not dismiss jurisdiction solely on the basis
of the belief claim, even when the relationship between the church and
the clergy member is implicated.
The rule is not brand new to the Ninth Circuit, either. Several years
earlier, a federal district court in the same circuit dismissed a lawsuit
where a Jesuit novice, John Bollard, claimed that he had been a victim of
sexual harassment, invoking the ministerial exception.57 Bollard alleged
that his superiors, three Jesuit priests, sent him explicit pornographic ma-
terials through the mail, made unwanted sexual comments and gestures,
and made unwanted solicitations and invitations for sexual acts.58 The
Ninth Circuit reversed, because the order™s actions were neither part of
an exercise of its prerogative to choose a pastor, nor motivated by any sin-
cerely held religious beliefs.59 Therefore, Bollard was permitted to pursue
his sexual harassment claim, which he ultimately settled. In a 2004 case, a
Kansas district court considered a case where a female minister, Sue Ann
Dolquist, claimed to have been sexually harassed by one of the elders,
and then when she complained, was criticized and disciplined.60 She
alleged that John Miller, the choir director and an elder, made offensive
and inappropriate sexual comments and engaged in unwanted sexual
conduct by kissing and touching her.
198 / GOD VS. THE GAVEL


The court held that the church failed to prove that either the sexual
harassment or the retaliatory harassment claim would impose on its re-
ligious beliefs or involve excessive entanglement. Therefore, the First
Amendment was not even implicated, and the case was permitted to go
forward.61
The placement of these parameters around the ministerial exception
is reminiscent of the Anglo-American history of special privileges for
religious entities that I describe in some detail in Chapter 9. In a nut-
shell, whereas the Catholic Church in England started as sovereign and
the clergy were treated to a lax form of justice, as compared to laypeople,
common law principles worked their way through the culture (and across
the Atlantic), and the special privileges that permitted religious entities
and their clergy to avoid liability lost their raison d™ˆ tre. The reason for
e
the privilege gives way to an emerging principle of fairness and account-
ability. That seems to be what is happening here as well. While courts are
nowhere near forcing religious entities to hire, retain, or supervise clergy
solely according to secular criteria, when the religious entity is acting
outside its religious beliefs, and it actions are otherwise illegal, there is a
marked trend to apply the law to it.
It must be noted, though, that the restrictions on the law™s ability to
make religious organizations accountable for their actions toward their
religious employees, have no force when the case involves a harmed third
party. The ministerial exception only applies, when it does apply, in an
employment dispute brought by the religious employee. The language
in the cases about the right of the organization to choose, hire, retain,
and ¬re whomever it pleases on religious grounds does not immunize the
churches from neutral, generally applicable laws that protect third parties.
Therefore, tort and criminal laws retain their force in clergy sexual abuse
cases brought by victims. The court is not being asked in such a case
to determine religious criteria, but rather to assess whether the actions
taken by the religious organization violate criminal or tort principles.
An organization can use any religious criteria it desires to place clergy,
but when it places anyone under its control it knows to be a pedophile
within easy reach of children, it has endangered the welfare of children,
among other crimes, and acted negligently on a number of theories.
That distinction is crucial if religious institutions are to be deterred from
putting their interests ahead of society™s interests.
DISCRIMINATION / 199


Conclusion
Discrimination issues force accommodation analysis beyond the view-
point of the believer or the institution into the arena of public concern.
And where the public™s interest is clear, as in eradicating racial discrimina-
tion or ensuring the availability of housing on an equal basis, the interest
on the part of religious entities to discriminate can shrink in comparison.
Of all the arenas where religious groups are permitted to avoid the laws
that apply to everyone else, the choice of clergy according to religious
principles is the most appropriate. Similarly, the need for legislative ac-
commodations to permit them to use their religious criteria in religious
employee relationships should be self-evident. But where the religious
entity is not acting according to its religious beliefs, but rather contraven-
ing public policy for less admirable motives, for example, engaging in
sexual harassment or creating a hostile work environment, there is strong
reason to apply the law. The attempts to stretch it to cover every conceiv-
able context involving a religious employer and employee are dif¬cult to
defend.
PART TWO


THE HISTORY AND
DOCTRINE BEHIND THE
RULE THAT SUBJECTS
RELIGIOUS ENTITIES TO
DULY ENACTED LAWS
8


BOERNE V. FLORES: THE CASE
THAT FULLY RESTORED THE RULE
OF LAW FOR RELIGIOUS ENTITIES

From the 1960s into the 1990s, law schools taught two constitutional
principles that were largely unquestioned; one might even say they were
articles of faith. First, no government could enforce a law against a reli-
gious believer unless the government could prove that its law was passed
for a compelling interest.1 Second, Congress held the power to increase
constitutional rights at will.2 A generation of law students was taught that
these principles were self-evident from the Constitution and Supreme
Court cases.
In 1990, the U.S. Supreme Court rejected the ¬rst principle, and in
1997, it rejected the second. This chapter will explain the developments
that led to what seemed to many like a revolution at the Court, but was
less of a cataclysmic doctrinal shift than a conscious choice between inter-
nally inconsistent doctrines. In fact, in both categories, the four decades

203
204 / GOD VS. THE GAVEL


between 1960 and 2000 were a time when the Court straddled sometimes
con¬‚icting doctrinal approaches. Facing an either/or choice in each cat-
egory, the Court in the 1990s did not so much invent new doctrines as
it chose to excise doctrines that were causing friction. A 1997 Supreme
Court case con¬rmed that the Court had made a de¬nitive choice in each
area. That case is City of Boerne v. Flores, Archbishop of San Antonio.3
The two issues “ free exercise protection and the power of Congress “
typically belong in separate constitutional domains. The ¬rst rests on
interpretation of the Free Exercise Clause, while the latter requires in-
terpretation of Section 5 of the 14th Amendment. Indeed, a conventional
view would place the ¬rst under the heading of “individual rights,” and
the second under “congressional power,” and therefore it is customary to
teach them in separate constitutional law classes. This is a fault line in
the law schools™ approach, because it obscures the fact that every right is
situated within a larger constitutional structure. Republican representa-
tive democracy “ not to mention much theology and moral philosophy
from John Locke to John Stuart Mill to Robert Nozick “ rests on the
assumption that no individual has the right to harm others, and therefore
it limits rights a fortiori. When law schools, and their graduates, divorce
rights from their structural context, they treat rights as a pure libertar-
ian would: without reference to the rights holders™ obligations to society.
While the nation™s law schools inculcated this mistake for decades, the
Supreme Court has not made this mistake in the vast majority of its
cases.
Free-exercise and even disestablishment theories too often have fo-
cused on religious entities by themselves, as though their well-being or
their liberty is an adequate proxy for the general public good. That is cer-
tainly how the topic is taught in most law schools. This focus on religious
entities and their corresponding interests and concerns is myopic and
antidemocratic, and has led some legislatures to grant legislative exemp-
tions for child neglect and physical abuse and some courts to refuse to
hold churches accountable for their criminal and tortious actions, which
are plainly in con¬‚ict with the public good. There is no simple equation
between the needs of religious entities and the public good.
The two domains were unavoidably united “ like the overlapping areas
in a Venn diagram “ in the Boerne case, because the congressional enact-
ment at issue involved congressional deregulation of religious conduct.
BOERNE V. FLORES / 205


The overlap required the Court, in a single opinion, to speak simulta-
neously to the scope of the rights under the Free Exercise Clause and
the power of Congress to alter those rights. The result was a remarkably
comprehensive theory of the role of religion in the polity, both as a private
force and as a political actor.


The free exercise cases before Boerne v.Flores
There have been both dominant and dissenting themes within the his-
torical sweep of the Supreme Court™s free-exercise jurisprudence. The
battle has been between republicanism and libertarianism, community
and individualism, and isolation and obligation. The dominant approach
has held that religious belief is absolutely protected, but religious con-
duct that can harm others is subject to duly enacted laws. Why not follow
the logic of libertarianism and extend the absolute freedom of belief
to conduct? While beliefs harm no one, conduct can. In the words of
Thomas Jefferson, “The legitimate powers of government extend to such
acts only as are injurious to others. But it does me no injury for my neigh-
bor to say there are twenty gods, or no God. It neither picks my pocket
nor breaks my leg.”4 This is a fundamental principle that unites the Free
Speech and Free Exercise Clauses, and that rests on the republican form
of government at the base of the constitutional order. John Stuart Mill ex-
plained it as follows: “The fact of living in society renders it indispensable
that each should be bound to observe a certain line of conduct toward
the rest.”5 Once one comes to understand the no-harm rule and its distin-
guished pedigree, autonomy, or immunity, of any institution “ including
a religious institution “ from the rule of law becomes intolerable.
The alternative “ libertarianism “ was rejected by the framing gen-
eration as licentiousness. Liberty in the Constitution is couched in the
larger concern about the public good and may legitimately be limited
when the public good so demands. On this score, the First Amendment
is no different than any other element of the Bill of Rights. Absolute,
unquali¬ed rights are the exception rather than the norm in the Consti-
tution. The Second Amendment™s right to “bear arms” does not mean
that any criminal may own any gun he or she desires. Rather, the govern-
ment has broad latitude to regulate gun ownership, especially when the
owner has a criminal record. A homeowner™s Fourth Amendment right
206 / GOD VS. THE GAVEL


of privacy, which prohibits searches and seizures without permission, is
far from absolute. Where the police have “reasonable suspicion,” they
may enter even without the homeowner™s permission. The Fifth Amend-
ment right not to be “deprived of life [or] liberty” does not mean that the
government may not take a traitor™s life or impose a prison sentence on
a criminal. When the government interest is strong enough, it can take
both life and liberty. The “right to a speedy trial” in the Sixth Amendment
does not mean the trial must take place the same day as the indictment,
but rather at some reasonable time in the future.
One of the most dif¬cult concepts to teach is that the “liberty” in the
Bill of Rights is nowhere close to absolute, but rather must give way to a
number of societal interests. Republicanism, which is the United States™s
representative form of government, is built on the belief that humans en-
tering society must agree to (1) delegate their governing decision making
to representatives and (2) create a system that is geared toward achieving
the public good. Absolute freedom of religious conduct would give clergy
carte blanche to abuse children; it would permit white supremacist pris-
oners to engage in race-based violence in the prisons; and the Church of
Heroin to open on every street corner. For all but the most libertarian,
such a culture is intolerable, and therefore liberty must be ordered liberty
and that means the public good must be able to trump the demands of
religious actors.6 The rapist that attacks a child deserves lengthy time in
prison, whether he is a priest or a layman. To paraphrase Gertrude Stein,
a harm is a harm is a harm.
If a legislature ¬nds an injury is signi¬cant enough to prohibit, religious
entities that commit the same harm are as culpable as every other citizen.
(The one exception would be where the legislature has made a considered
decision that exempting the religious entity is consistent with the public
good, an approach I will discuss in detail in Chapter 10.)
Beginning in 1963, the Supreme Court “ in a select set of cases “
turned away from republicanism and toward a more libertarian vision
wherein religious entities could argue that a law was not permitted to
affect religious conduct unless the government proved it was passed for
a compelling interest. Under ordinary constitutional doctrine, the Court
was treating every law that substantially burdened religious conduct as
presumptively unconstitutional. This introduction of strict scrutiny for
generally applicable, neutral laws did not displace the dominant view so
BOERNE V. FLORES / 207


much as it was awkwardly inserted into the jurisprudence in isolated cases.
Despite the paucity of cases that followed this reasoning and its internal
inconsistency with the Court™s primary free-exercise principles, it became
the favored approach among many academics and religious individuals
and institutions. By the time the Court righted the jurisprudence in
1990, there was a widespread fallacy that religious entities should not be
answerable to any law but the most necessary.


The dominant doctrine
When the Court decided its ¬rst case interpreting the Free Exercise
Clause in 1879, Reynolds v. United States,7 which upheld the federal anti-
polygamy laws, it articulated what would eventually become the domi-
nant doctrine for the free exercise of religion: religious belief is absolutely
protected, but religious conduct is subject to the rule of law. The Court
quoted Thomas Jefferson: “The legislative powers of the government
reach actions only, and not opinions.”8 The fact that the conduct arose
from belief did not immunize the believer from the force of the law.
The Court™s reasoning rested on a larger theory of the relationship
between a citizen and the society. Individuals could not be given an
unfettered right to act according to their own dictates, for otherwise the
society would disintegrate into a collection of narcissistic individuals, and
the sum would be decidedly smaller than the addition of its parts. In the
Court™s words:

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. Government could exist
only in name under such circumstances.9

The Court thereby relied on the long-recognized principle in repre-
sentative democracies that individual rights are crucial, but they do not
extend to harming another.10 For Jefferson, as the Reynolds Court noted,
there was a comfortable relationship between natural rights and the law,
because he was “convinced [man] has no natural right in opposition to
his social duties.”11 In other words, the rights of humans were never ab-
solute, but rather were shaped to honor the necessity of social order and
208 / GOD VS. THE GAVEL


duty. Whether or not one believes in natural rights, once the social com-
pact is in place and individuals must coexist with others, rights are to be
measured against the backdrop of the public good.
Jefferson in turn had echoed the in¬‚uential 17th century British po-
litical philosopher John Locke. As a starting point, Locke advocated a
robust right of conscience, or belief.12 He then argued that “God is the
true proprietor” and therefore human beings could not “belong to one
another, i.e., [they were] independently valuable.”13 From this precept,
Locke derived a general “no-harm” principle: individuals were not to
“take away, or impair the life, or what tends to the preservation of the
life, the liberty, health, limb, or goods of another.”14 For Locke, then, in-
dividuals joining together in society had a general liberty of conscience,
or belief, but the state legitimately restrained those actions that harmed
others. The Reynolds Court formulated the Jeffersonian/Lockean theory
of religion and government as follows: “Congress was deprived of all leg-
islative power over mere opinion, but was left free to reach actions that
were in violation of social duties or subversive of good order.”15
The Reynolds Court was not only looking backward, however. Its hold-
ing also re¬‚ects the views of the most in¬‚uential philosopher of the
19th century in the English-speaking world, John Stuart Mill, who died
only a few years before Reynolds was decided. A defender of individual
liberty, Mill set forth the following maxims:

¬rst, that the individual is not accountable to society for his actions, in so
far as these concern the interests of no person but himself. . . . Secondly,
that for such actions as are prejudicial to the interests of others, the
individual is accountable, and may be subjected either to social or to
legal punishments, if society is of opinion that the one or the other is
requisite for its protection.16

This is a precise explanation of the Court™s free exercise jurisprudence in
the main.
Another way to approach the Court™s free exercise jurisprudence is
to examine the oft-repeated concept of “ordered liberty,” which appears
across the constitutional spectrum.17 Liberty by itself was not valued at
the time of the Constitution™s framing, at the time of Reynolds, nor has it
been the focus of the Supreme Court™s subsequent rulings on religious
liberty. The framing generation feared the licentiousness and the anarchy
BOERNE V. FLORES / 209


that arises from pure liberty, and thus did not institute libertarianism, but
rather liberty anchored in the necessity of order. They believed that in
the absence of order, there is no real liberty, but rather only a clash
of individuals wills. The in¬‚uential Rev. John Witherspoon, president of
the College of New Jersey, who signed the Declaration of Independence,
served in the Continental Congress, and trained James Madison and other
Framers on governance principles,18 put it this way: the “true notion of
liberty is the prevalence of law and order, and the security of individuals,”
and therefore an “object of civil laws is, limiting citizens in the exercise
of their rights, so that they may not be injurious to one another, but that
the public good may be promoted.”19
In cases involving religious conduct, the Court has kept in view the
fact that religious individuals and institutions are ¬rmly situated within
the context of a society that entails mutual obligations.20 Isolationism or
pure libertarianism cannot be squared with this worldview.
The Court™s approach, even with all of its distinguished support in
history and philosophy, also has had lasting power, because it redounds
in common sense. Even if the Court were inclined to recognize an in-
dividualistic right to do whatever one believes in doing, the practical
result is anarchy. The strong libertarian position proposes what cannot
be accomplished: the utter solitude of a single believer or the complete
isolation of a religious group. In Board of Education of Kiryas Joel Village
School District v. Grumet, 21 the Court addressed whether a religious or-
ganization could have a school district drawn according to the boundaries
of its own community of believers. The Court refused to recognize the
right of a religious organization to determine a political boundary, and in
effect, held that religious organizations live in society, not out of it, and
the constitutional order may not treat them as though they do not.
Some would point to Wisconsin v. Yoder 22 for the proposition that
religious entities have a constitutional right to be isolated. In that case,
the Court was willing to let the Amish operate independently of the
public good by permitting them to take their children out of school after
middle school in an opinion that was a paean to their way of life. Yoder,
however, stands by itself, and is later explained by the Court as a case
that is more easily explained in terms of parental rights than in terms of
what religious entities owe to the public good.23 In fact, as I will discuss,
Yoder was wrongly decided. If religious children were to be excepted
210 / GOD VS. THE GAVEL


from the public school system, that decision belonged in the hands of
the legislature, not the courts. In any event, if there was any question that
the Court did not intend to shield the Amish in particular from the rule
of law, 10 years later the Court held that they were required to pay into
the social security system for their employees even though they did not
believe in doing so.24
Once the religious individual or institution is understood to be
shoulder-to-shoulder with fellow citizens (whether they are fellow be-
lievers or not) “ and taking into account the fallibility of humans in every
organization “ it is irrational to conclude that the interests of the society
and individuals directly affected are not necessarily relevant to the degree
or scope of liberty the religious entity can enjoy. Religious conduct is a
zero-sum game; the more liberty the religious actor has, the more at risk
are those who could be hurt by his conduct. Even the arch-libertarian
Robert Nozick has had to concede that there must be “side constraints”
on the libertarian™s behavior, because of the potential for harm to others.25
From the beginning of the U.S. experiment, the joinder of liberty and
order meant that religious liberty was not irresponsible individualism,
but rather a matter of the public good. Some liberty can and should be
absolute and still consistent with the preservation of order “ the liberty of
belief. Other liberty cannot be absolute if the right level of order is to be
preserved “ the liberty of conduct.


The two principles governing regulations affecting
religious conduct
The Court has recognized two coordinate principles in its cases that ad-
dress regulations affecting religious conduct and that turn on the concept
of ordered liberty. The ¬rst is that religious entities, just as much as any
other citizen, can be forestalled and prohibited from harming others and
thus can be made to obey a myriad of laws, including narcotics laws, bu-
reaucratic requirements, antipolygamy laws, property laws, and tax laws.
The Court simply has not recognized in the vast majority of its cases a
right to trump duly enacted laws for religious reasons.
By the same token, religious entities have not been subjected to laws
that are hostile or motivated by animus toward religion in general or any
sect in particular. “The fullest realization of true religious liberty [includes
BOERNE V. FLORES / 211


a rule that the government may] effect no favoritism among sects or
between religion and nonreligion. . . . ”26 This is really a rule within the
larger principle of the rule of law, which stands for the principle that
laws should not be arbitrary. If a law applies to all those who are capable
of the harm, the legislature has acted to ban a harm, not to single out
any particular group or individual. The cases are legion that permit the
religious entity to be subject to such laws. Where the law does not cover all
those who engender the same harm, however, questions arise regarding
whether the law was passed to prevent a particular harm or to burden
certain, speci¬c entities. Where the law targets a religious organization
or religion in general “ and animus or hostility can be discerned through
the language of the law “ the Court has been disinclined to uphold the
law. If the law discriminates against a religious organization or religion in
general, that law is constitutionally suspect, and therefore rightly subject
to close judicial scrutiny.27 Thus, the dominant approach has been to
couple the application of the rule of law to religious entities, with a
strong rule against discrimination aimed at particular religious sects or
practices, or religion in general.


The cases applying neutral laws to religious entities
In its dominant jurisprudence, the Court has been inclined to favor laws
that, on their face, have been passed for the general public good, and
without reference to religion. In Reynolds, the Court upheld the federal
antipolygamy law that governed the Northwest Territory. The law was
neutral on its face “ it outlawed polygamy by anyone, regardless of belief.
Reynolds was more complicated than the run-of-the-mill case involving
neutral, generally applicable law. While Reynolds involved a law that
applied to everyone and that was written in neutral language, it was
common knowledge that the motivation behind the law was to suppress
the Mormon growth in the Northwest.28 Some might think, then, that
the antipolygamy law violated the antipersecution principle. They would
be wrong. Under the dominant approach, had the law in its language
singled out the Church of Jesus Christ of the Latter-day Saints, the law
would have been unconstitutional under every principle the Court has
laid down since that ¬rst free-exercise case. By singling out Mormons,
the new law would have indicated Congress was not concerned about
212 / GOD VS. THE GAVEL


the harm engendered by polygamy, but rather by an intent to rid the
country of that religious group holding that particular belief. Disparate
impact, however, was not enough to scuttle the law, or even to subject it to
close judicial scrutiny. Where the language was neutral, and the sweep
of the law caught everyone now or in the future engaged in the same
conduct generating the same harm, it was constitutional. In short, harm
is harm, even when a religious entity is disproportionately responsible for
in¬‚icting that harm.
It is worth pausing for a moment to explain how the Court™s deci-
sion in Reynolds ¬ts in with its dominant free-exercise jurisprudence.
The jurisprudence has rested on a judgment regarding institutional
competence: one branch of government is best equipped to assess the
public good, and that is the legislature, because it is the most capable
of surveying and studying social issues “ a legislature can call hearings,
appoint expert commissions, and order extensive studies. Courts are inca-
pable of examining the public good in any comprehensive way, because
they are limited by the case and controversy requirement to the facts and
arguments before them.29 The executive, of course, lacks the multiple
contact with the polity that makes for a more accurate assessment of the
public™s interest (even if the public™s view is not always the equivalent of
the public good) and is too capable of acting unilaterally to ensure that
deliberation over the public good has taken place.
Because the legislature is superior to the courts and the executive in
assessing the public good, where the legislature has spoken in language
that is unambiguous, the Court has refused to look behind that language
to ferret out improper motive. If the law identi¬es a harm, and it punishes
everyone that engenders that harm, the Court has upheld the law. Indeed,
the disparate impact argument that would have scuttled the antipolygamy
law in Reynolds is a red herring. If an action is harmful to society without
reference to the identity of the one who has acted, the fact that only a
religious organization engages in that action does not change the calculus
of harm. The touchstone throughout the free-exercise cases has been
whether the legislature identi¬ed actions that led to unacceptable harm
to society.
This reasoning has led the Court to sustain a wide variety of laws. The
Amish lost their bid to avoid paying the Social Security taxes for their
employees every other employer must pay.30 Bob Jones University was
BOERNE V. FLORES / 213


not permitted to retain its tax-exempt status if it violated the racial anti-
discrimination laws, a rule that applied to all who applied for tax-exempt
status.31 The Tony and Susan Alamo Foundation, a nonpro¬t religious
foundation, was required to observe the Fair Labor Standards Act.32 A
United States Air Force captain who was also an Orthodox Jew and an
ordained rabbi, could be prohibited from wearing his yarmulke indoors
under a general regulation that banned all headgear not of¬cially part
of the uniform.33 A welfare applicant who did not believe in assigning
Social Security numbers to children was required to do so, along with all
other applicants for bene¬ts, in order to obtain the bene¬ts.34 The North-
west Indian Cemetery Protective Association did not have a constitutional
right to stop the federal government™s neutral plans for federal lands even
though it believed the land was sacred.35 Members of the Church of Sci-
entology were subjected to the tax rules regarding any and all charitable
contributions and were not allowed to claim as a deduction contributions
for which they received a quid pro quo.36 Jimmy Swaggart Ministries was
required to honor California™s generally applicable sales and use taxes on
the sale of its religious materials.37 Religious prisoners could not avoid
work detail on Friday afternoons.38 And drug counselors could be de-
nied unemployment compensation for violating the state™s laws banning
the use of the hallucinogen peyote, even though it was used as part of
a religious ritual, which was the same treatment that would have been
accorded any other employee within the state.39
Whatever one thinks of the outcome of any one these free-exercise
cases, they are remarkably consistent in their theory and the application
of that theory.— They show a dominant jurisprudence of republicanism
and ordered liberty.
The last case “ involving drug counselors who used hallucinogens
during a religious ritual, were ¬red and then denied unemployment


Under the Court™s dominant jurisprudence, any disagreement with the outcome is
an objection to be taken up with the legislature, not the courts. Thus, religious entities
in these circumstances were not without options; the question was whether they were
to approach the courts or the legislatures to obtain accommodation. See Employment
Div. v. Smith, 494 U.S. 872 at 878“79. In the case of the peyote use and yarmulkes in
the military, both were accommodated legislatively. See, e.g., William K. Kelley, The
Primacy of Political Actors in Accommodation of Religion, 22 U. Haw. L. Rev. 403, 440
n. 174 and accompanying text.
214 / GOD VS. THE GAVEL


compensation “ is Employment Division v. Smith. It is a landmark case,
in part because it generated tremendous resistance in the law schools
and among intellectuals, and therefore a great deal of publicity, but more
important, because it marked the Court™s self-conscious decision to sur-
vey its free-exercise jurisprudence and to choose the dominant approach.
According to the Court, the “vast majority” of its free-exercise cases had
deferred to legislative judgments on public policy, where the law was
“generally applicable” and “neutral.”40 The Court was positively correct
in its assessment of its own jurisprudence. Smith was the ¬rst of two nec-
essary steps to bring religious entities under the horizon of the rule of
law and in harmony with the public good. Seven years later, in Boerne
v. Flores, the Court would complete the project of returning religious
entities to account for harm to others.


The cases involving laws that treated religion
with animus or hostility
Under the dominant free-exercise jurisprudence, strict scrutiny has been
required in a small number of cases “ those involving laws exhibiting
animus or hostility toward religion. That is to say, where there is reason
to suspect invidious discrimination, the government™s actions are sub-
ject to close examination. The Court articulated the principle in 1997
as follows: “The Free Exercise Clause commits government itself to re-
ligious tolerance, and upon even slight suspicion that proposals for state
intervention stem from animosity to religion or distrust of its practices,
all of¬cials must pause to remember their own high duty to the Constitu-
tion and to the rights it secures.” In effect, the Court was describing “the
fundamental” principle of the First Amendment: the “nonpersecution
principle.”41
In point of fact, the Court has not been faced with a large number of
laws that discriminated against religious interests in the United States.
That is because the United States and its legislatures have been generous
toward religious entities. As the Court noted in Smith, “a society that
believes in the negative protection accorded to religious belief can be
expected to be solicitous of that value in its legislation.”42
The leading case addressing animus toward religion is the 1993 deci-
sion in Church of Lukumi Babalu Aye v. City of Hialeah,43 where the city
passed an ordinance outlawing the “sacri¬ce” of animals. The choice of
BOERNE V. FLORES / 215


the language made it clear to the Court that the city was not engaged in
a neutral lawmaking effort, but rather was targeting the one group in its
jurisdiction that believed in the sacri¬ce of animals as part of its religious
ritual “ the Santerians. Moreover, the law was crafted to apply to Santeri-
ans and Santerians only. The animus was patent, and the Court mandated
not only a strict scrutiny that required close judicial inspection of the law,
but also seemed to say that such animus was per se unconstitutional.
In another case, the Court found animus where the law singled out min-
isters by prohibiting them from being candidates for the state legislature;44
when a believer was forced to choose between his beliefs and a govern-
ment bene¬t;45 or the government applied its law to some religions, but
not others.46 Beyond these examples, there has been a paucity of reli-
gious persecution, at least in those cases that made their way up to the
U.S. Supreme Court.
In 2004, the Court further explained its dominant free-exercise jurispru-
dence in Locke v. Davey, a Washington state case asking whether a state
scholarship fund could exclude those studying for ministry. There were
some that had read Smith to stand for the proposition that if a law was not
completely generally applicable, that is, if it had a single exception, it was
presumptively unconstitutional, and therefore subject to strict scrutiny.
They took this from language in Smith and Lukumi, where the Court ¬rst
identi¬ed “generally applicable, neutral” laws and then distinguished the
“generally applicable” from the “neutral.” Religious groups focused on
the former term and seized the theory that the Court must have meant
that any law creating an exception for one class of bene¬ciaries and not
for religious individuals, or any law that singled out religious individuals,
would be presumptively unconstitutional. In other words, any legislative
distinction was suf¬cient to make a law constitutionally suspicious under
the Free Exercise Clause, even without government hostility or animus

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