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toward religion, and therefore the Court would defer to the legislative
judgment.
On their reasoning, the fact that the Washington scholarship excluded
ministry majors made it presumptively unconstitutional.47 The Supreme
Court would have none of it, saying, “We reject [the petitioner™s] claim
of presumptive unconstitutionality, however; to do otherwise would ex-
tend the Lukumi line of cases well beyond not only their facts but their
reasoning.”48 The Court went on to explain, repeatedly, that the gold
standard for presumptive unconstitutionality (and therefore the necessity
216 / GOD VS. THE GAVEL


of strict scrutiny) was governmental “hostility” or “animus” toward reli-
gion. A law, like the Washington scholarship program, exhibited a respect
for the state™s disestablishment clause, not hostility toward religion.
Of course, the exclusion of religious individuals or institutions from
legal bene¬ts could trigger strict scrutiny in later cases, but only when the
government was demonstrably (through the legislative language or the op-
eration of the law) hostile toward the religious group or religion in general.
When read together, Smith, Lukumi, and Locke identi¬ed pivotal
principles: (1) the courts are to apply a default rule in favor of applying
duly enacted, neutral, and generally applicable laws to religious conduct
and (2) that default rule is only overcome in the face of evidence of
persecution of religion.


The competing doctrine: Strict scrutiny for generally applicable, neutral
laws affecting religious conduct
Between 1963 and 1990, in a small number of cases, the Court departed
from its dominant approach to the Free Exercise Clause. The Warren
Court and then the Burger Court did not so much abandon the domi-
nant doctrine, as it engrafted a new doctrine onto it, introducing internal
contradictions into the doctrine. The new approach mandated that neu-
tral and generally applicable laws could be subjected to strict scrutiny.49
Thus, there were now three rules: the default position of the rule of law,
the rule against religious persecution, and a competing default rule that
required strict scrutiny of neutral, generally applicable laws. This latter
rule was ¬rst introduced by Justice William Brennan and steadfastly de-
fended by him throughout his tenure on the Court.50 Only at the very end
of his tenure on the Court, did the new analysis he introduced completely
lose traction.51
A literal handful of cases followed this new reasoning; they include four
unemployment compensation cases52 and one involving a state compul-
sory education law, Yoder.53
The Court made its ¬rst foray from its dominant free exercise jurispru-
dence in the 1963 decision in Sherbert v. Verner, which was written by
Justice Brennan and which addressed the question whether a Sabbatarian
could obtain unemployment compensation after refusing to work on her
Sabbath, Saturday. The South Carolina Unemployment Compensation
BOERNE V. FLORES / 217


Act “provide[d] that, to be eligible for bene¬ts, a claimant must be ˜able to
work and . . . available for work™; and, further, that a claimant is ineligible
for bene¬ts ˜if . . . [s]he has failed, without good cause . . . to accept avail-
able suitable work when offered [her] by the employment of¬ce or the
employer. . . . ” It appears that the “good cause” requirement is what both-
ered the Court. “Good cause” was used to permit exceptions to the law
for valid secular reasons but not for religious reasons. While some could
avoid Saturday work if needed, the Sabbatarian was forced “to choose
between following the precepts of her religion and forfeiting bene¬ts, on
the one hand, and abandoning one of the precepts of her religion in order
to accept work, on the other hand.”54 The states™ willingness to let some
avoid the law, but not others, led the Court to apply strict scrutiny and
hold the statute unconstitutional.
Sherbert controlled the next three unemployment compensation cases.
Thomas v. Review Bd. of Ind. Employment Sec. Div. involved a man who
quit his job at a foundry after being transferred to a division that manu-
factured armaments, claiming “his religious beliefs prevented him from
participating in the production of war materials.” The state denied his
unemployment claim “by applying disqualifying provisions of the Indi-
ana Employment Security Act,” which prohibited any “individual who
has voluntarily left his employment without good cause” from receiv-
ing bene¬ts.55 The Supreme Court reversed. Hobbie v. Unemployment
Appeals Com. of Fla. involved a woman whose “employer discharged
her when she refused to work certain scheduled hours because of sin-
cerely held religious convictions adopted after beginning employment.”
Florida™s unemployment compensation scheme provided bene¬ts only
“to persons who become ˜unemployed through no fault of their own.™”56
The Supreme Court invalidated the law. Frazee v. Ill. Dep™t of Employ-
ment Sec. involved a man who turned down a temporary position “because
the job would have required him to work on Sunday” and he told the
employer that “as a Christian, he could not work on ˜the Lord™s day.™”
Unlike the appellant in Sherbert, “Frazee was not a member of an es-
tablished religious sect or church, nor did he claim that his refusal to
work resulted from a ˜tenet, belief or teaching of an established religious
body.™” Even so, the Court found that “Frazee™s refusal was based on a
sincerely held religious belief” and therefore he was entitled to “invoke
First Amendment protection.”57
218 / GOD VS. THE GAVEL


Sherbert was widely criticized after it was ¬rst announced,58 because
it was such a departure from bedrock constitutional principles, but by
the late 1970s, a chorus of approval began.59 Once the academy began
to embrace the concept of treating neutral, generally applicable laws
as presumptively unconstitutional, the way was open for the later argu-
ments “ not wholly supported by the reasoning of the opinion “ that strict
scrutiny should apply in most free-exercise cases.60 This notion that all
neutral, generally applicable laws were presumptively unconstitutional
when applied to religious entities opened the door for the most extreme
libertarian arguments, including the argument that churches should be
immune from criminal liability. They raised such arguments in the cases
involving the sexual abuse of children by their clergy, even when they
knew about the abuse, permitted the abuse to continue, transferred the
perpetrator to other parishes where he could have access to further chil-
dren, and never reported the pedophile clergy member to the police. It
even led prosecutors to stand down from prosecuting clergy pedophiles,
even though they knew about the abuse. The Supreme Court, however,
only extended Sherbert-type analysis to one other scenario “ compulsory
school laws in Wisconsin v. Yoder.61
In Yoder, the religious claimants were Amish and Mennonite parents,
who argued that the compulsory education laws that required children to
attend school through the 12th grade violated their religious principles,
which required students to cease their education in eighth grade. They
also argued that the state law was a threat to their religious way of life,
which required them to be “aloof from the world” and had been in place
for 300 years. Even though the Wisconsin law was neutral on its face, the
Court held that it violated the Free Exercise Clause, because the state
had failed to prove a compelling interest in having Amish children go to
school through high school:

Wisconsin™s interest in compelling the school attendance of Amish chil-
dren to age 16 emerges as somewhat less substantial than requiring such
attendance for children generally. . . . There is no intimation that the
Amish employment of their children on family farms is in any way
deleterious to their health or that Amish parents exploit children at
tender years.62

In effect, the Court weighed public policy and carved out an exemption
from Wisconsin™s generally applicable, neutral law solely for the Amish.
BOERNE V. FLORES / 219


The new doctrine that invalidated neutral, generally applicable laws
in favor of religious conduct found enthusiastic support in the academy.
Professors Ellis West and William Marshall stood alone for a signi¬cant
period of time in their defense of the rule of law.63 In 1990, just after
the Court had chosen between the two competing approaches in its free-
exercise cases in the Smith decision, University of Chicago Law School
professor Michael McConnell published an article in the Harvard Law
Review, which set forth a historical justi¬cation for the notion of “manda-
tory exemption” from legislative enactments.64 To be fair to Professor
McConnell, I will let him describe his conclusions:

The conclusions of this [article] are (1) that exemptions were seen as
a constitutionally permissible means for protecting religious freedom,
(2) that constitutionally compelled exemptions were within the con-
templation of the framers and rati¬ers as a possible interpretation of
the free exercise clause, and (3) that exemptions were consonant with
the popular American understanding of the interrelation between the
claims of a limited government and a sovereign God. While the histori-
cal evidence may not be unequivocal (it seldom is), it does, on balance,
support Sherbert™s interpretation of the free exercise clause.65

McConnell™s assessment of the historical record has been soundly re-
jected by prominent scholars who have examined the record with his
conclusions in mind.66 Though I will not retread their potent criticisms,
it is important to note that McConnell™s thesis was deeply at odds with
the reigning theological views during the historical era he examined.
Calvinism dominated the culture at the time of the framing, and its
tenets required obedience to duly enacted laws unless the law dictated
that religious entities abandon their religious beliefs.67 Many preachers
at the time repeatedly urged their believers to obey the rule of law, to
such an extent that one can make a case that the rule of law in the United
States was instituted in large part from the pulpit.68
For the 18th-century preachers, the horizon under which legislatures
were to make legitimate law was the public good, as opposed to individual
freedom at the expense of the common good. For example, in 1747,
Charles Chauncy declared that civil “rulers . . . have an undoubted right
to make and execute laws, for the public good.”69
A separate problem with McConnell™s suggestion of mandatory accom-
modation was that it had not been applied in so many contexts for so many
220 / GOD VS. THE GAVEL


years; his thesis could not explain why his approach had been rejected
(or forgotten) until 1963. If the history supported mandatory exemption,
even if weakly, as he suggested, then what had the Court been thinking
in the raft of cases straightforwardly applying the rule of law? Before and
after 1963, the Court did not apply strict scrutiny to neutral, generally
applicable laws. The assumption in most of the cases that the rule of law
controlled was evident in each case, with the result that religious entities
were straightforwardly subject to the vast majority of laws.
McConnell™s article was the last gasp of the minority mandatory exemp-
tion approach. The Court de¬nitively chose between its two competing
rationales in the same year in Employment Div. v. Smith, and the rule of
law prevailed.70 This is the case that involved the question whether two
private drug counselors in Oregon, Alfred Smith and Galen Black, who
used peyote “ an illegal drug “ in a religious ritual, could obtain unem-
ployment compensation after they were ¬red for work-related “miscon-
duct.” This case forced the Court to choose between its two competing
threads. The enthusiastic reading of the Sherbert line of cases and Yoder
would have applied strict scrutiny to Oregon™s unemployment law, which
incorporated by reference Oregon™s narcotics laws. That is precisely what
the counselors™ lawyers argued.71 In other words, the Oregon law was
presumptively unconstitutional. But the case was more in sync with the
Court™s other free-exercise cases, where the rule of law had been applied
to the religious entity, and that argument was pressed heavily by Oregon™s
attorney general, David Frohnmayer.72 It was inconceivable to think that
the drug laws could be gainsaid by a claim to religious motivation. In the
end, the Court could not countenance the by-then overin¬‚ated reading of
Sherbert and Yoder as repudiations of the rule of law as applied to religious
entities. The Court declared: “We have never held that an individual™s
religious beliefs excuse him from compliance with an otherwise valid
law prohibiting conduct that the State is free to regulate.” Thus, neutral
and generally applicable laws with the “incidental effect” of burdening
religious conduct did not offend the First Amendment.73
The Court did not close its decision with a simple rejection of the
Yoder approach, but rather also ¬t its religion clause jurisprudence into
the larger structure of the Constitution and society. The message of the
opinion was that Galen and Black had come to the wrong institution.
Religious entities were not required to abandon their desire to engage in
BOERNE V. FLORES / 221


particular religious conduct; they could not, however, ¬nd their solution
in the courts. They were directed to the legislature, where they would
have to justify their request for exemption to the body charged with
assessing and choosing public policy. The Court explained that discourse
would not necessarily disfavor religious entities in this society:

Values that are protected against government interference through en-
shrinement in the Bill of Rights are not thereby banished from the
political process. Just as a society that believes in the negative protec-
tion accorded to the press by the First Amendment is likely to enact laws
that af¬rmatively foster the dissemination of the printed word, so also
a society that believes in the negative protection accorded to religious
belief can be expected to be solicitous of that value in its legislation as
well.74

Some decried the notion that religious entities could be thrown into
the political process,75 but the purpose of this book is to illustrate how
deeply entrenched religious entities have been in the political sphere
and especially the legislative process before and after Smith. There have
been a signi¬cant number of con¬‚icts between religious entities and
the general laws enacted for the public good, and religious entities have
not stood on the political sidelines. For the Court, that con¬‚ict was better
debated under the horizon of the public good in the legislature than in the
rari¬ed atmosphere of a courtroom. The Free Exercise Clause would not
be permitted to absolve religious entities of social and legal obligations:
“[T]he right of free exercise does not relieve an individual of the obligation
to comply with a ˜valid and neutral law of general applicability on the
ground that the law proscribes (or prescribes) conduct that his religion
prescribes (or proscribes).™”76
While the Smith Court repositioned the Court™s free-exercise reason-
ing, and ¬rmly rejected the by-then entrenched assumption that religious
entities had a constitutional right to avoid the obligations of generally ap-
plicable, neutral laws, it did not overrule any particular case. Rather, it
cast the preceding cases that had seemed to rest on a principle at odds
with the dominant approach, in a different light to show that they were
not inconsistent with the long-established principles the Court was reaf-
¬rming. Sherbert (along with its unemployment case progeny) was recast
as a discrimination case wherein the government had offered exemptions
222 / GOD VS. THE GAVEL


from the law for secular reasons, but had not offered them for religious
reasons. In effect, the Court saw the difference in treatment to be a govern-
mental retreat from any sincere devotion to deterring the harm. Indeed,
the government was demonstrating that it was willing to tolerate the harm
in some circumstances, and thus there was reason to closely scrutinize
the government™s action in failing to permit religious individuals to avoid
the law.
With respect to Yoder, the Court™s attempt to incorporate the deci-
sion into its overarching jurisprudence was less convincing. The Court
labeled it a “hybrid rights” case where the rights of parents were being
combined with the potential for free exercise rights against otherwise neu-
tral laws, giving rise to presumptive unconstitutionality. The reasoning
of Yoder was directly at odds with the reasoning in Smith, however, and
a more straightforward assessment would have overruled Yoder which
seems to have been driven by admiration or nostalgia for certain reli-
gious beliefs, including their biblical basis, as much as any neutral legal
principles:

[W]e see that the record in this case abundantly supports the claim
that the traditional way of life of the Amish is not merely a matter of
personal preference, but one of deep religious conviction, shared by an
organized group, and intimately related to daily living. That the Old
Order Amish daily life and religious practice stem from their faith is
shown by the fact that it is in response to their literal interpretation
of the Biblical injunction from the Epistle of Paul to the Romans, ˜be
not conformed to this world. . . . ™ [T]he respondents™ religious beliefs
and attitude toward life, family, and home have remained constant “
perhaps some would say static “ in a period of unparalleled progress
in human knowledge generally and great changes in education. The
respondents freely concede, and indeed assert as an article of faith,
that their religious beliefs and what we would today call “life style”
have not altered in fundamentals for centuries. Their way of life in
a church-oriented community, separated from the outside world and
“worldly” in¬‚uences, their attachment to nature and the soil, is a way
inherently simple and uncomplicated, albeit dif¬cult to preserve against
the pressure to conform. Their rejection of telephones, automobiles,
radios, and television, their mode of dress, of speech, their habits of
manual work do indeed set them apart from much of contemporary
society; these customs are both symbolic and practical.77
BOERNE V. FLORES / 223


For very good reason, the Court™s preservation of the reasoning in Yoder
and its introduction of a “hybrid rights” approach has been rejected as
unworkable in the lower courts.78 If a law does not deserve strict scrutiny
under any single constitutional provision, it makes little sense to impose
strict scrutiny simply because two constitutional claims are invoked. Two
weak rights do not amount to a strong constitutional right.
Had the Court overruled Yoder, the Amish would have had to approach
their state legislatures to avoid upper-level compulsory education for their
children. Instead of the courts imposing their views of public policy on
the people, the legislature could have considered and weighed the many
competing interests, including the value of religious liberty, the best in-
terests of children, and society™s need for a well-educated citizenry. The
Burger Court was prone to placing religion and religious reasons on a
pedestal, with little regard for society™s interests. The Court™s decision
preempted such a debate, and permitted the Amish to make their argu-
ments divorced from any serious consideration of the public good. If one
reads Yoder with some care, it becomes quite obvious that the Court took
it upon itself to preserve a religious way of life regardless of the society™s
assessment of the public good, that is, to prefer the religious to the leg-
islative. That in itself should have been reason to revisit Yoder. But this
was also the Court, after all, that decided Bowers v. Hardwick, where it
used Anglo-American religious reasons to uphold laws against sodomy.
The Rehnquist Court reversed Bowers, in Lawrence v. Texas. It should
have explicitly reversed Yoder as well.
After Smith was decided, a chorus argued that the Court had over-
turned a long-settled doctrine that required strict scrutiny of any law, no
matter how neutral, that substantially burdened religious conduct.79 That
was the belief in the law schools, to be sure. The well-known church/state
scholar, Professor Douglas Laycock, declared that Smith was “inconsis-
tent with the original intent, inconsistent with the constitutional text,
inconsistent with doctrine under other constitutional clauses, and incon-
sistent with precedent.”80 McConnell wrote that the Smith Court™s “use
of precedent is troubling, bordering on the shocking.”81 Professor Steven
D. Smith of the University of Colorado said the Smith Court “chose . . . to
promote an advocacy of intolerance.”82 Professor Harry F. Tepker, Jr., of
the University of Oklahoma said that Smith illustrated “judicial willing-
ness to distort precedents to destroy traditional concepts of individual
224 / GOD VS. THE GAVEL


liberty.”83 Professor James D. Gordon III of BYU said that “[T]he Court
wanted to reach its result in the worst way, and it succeeded” and in so
doing “˜depublished™ the free exercise clause.”84 It is not hyperbole to say
they were all wrong. Smith was no tsunami in free exercise law; it was
simply a reaf¬rmation of cornerstone constitutional principles.
The fault for the intense response to the Smith decision does not rest
entirely on those who misread the previous cases. To the contrary, the
Court invited the heated response to Smith, by reaching an issue that
was neither briefed nor argued. The petitioners Black and Smith and
their supporters in the academy believed the case only addressed how
Sherbert™s strict scrutiny applied, not whether. After all, Smith was an
unemployment case and the four preceding unemployment cases starting
with Sherbert had applied strict scrutiny to the bene¬t of the religious
entity. In the pigeonhole mentality that frequently infects constitutional
thinking, most expected the Court to reach for the prior unemployment
cases and those cases alone, and then to dispose of the case with little effort.
That the Court would look beyond the unemployment compensation
aspect of the case to its free-exercise cases in other contexts and ultimately
to the larger question of whether a generally applicable, neutral law is
binding on religious entities was wholly unexpected.
In hindsight, the Court should have laid the groundwork for the deci-
sion by asking for rebrie¬ng and reargument, which is the usual procedure
when the Justices perceive a new and potentially dispositive issue in a case
already under consideration.85 There was no emergency that blocked the
Court from holding the case over for the next term. Instead, the Court
moved forward without warning. There was not even any intimation from
the bench at oral argument that the members were preparing to realign,
or right, the entirety of its free-exercise jurisprudence.86 Even those like
Professor William Marshall, who had defended the rule of law approach
before Smith, castigated the Court: “The opinion is . . . a paradigmatic
example of judicial overreaching. The holding extends beyond the facts
of the case, the lower court™s decision on the issue, and even the briefs
of the parties. In fact, it appears that the Court framed the free exercise
issue in virtually the broadest terms possible in order to allow it to reach
its landmark result.”87
It would have been far better had the members in the majority
in Smith “ Justices Antonin Scalia, Byron White, John Paul Stevens,
BOERNE V. FLORES / 225


Anthony Kennedy, and Chief Justice William Rehnquist “ let the parties
and those watching know that they were ready to repudiate the under-
stood approach in Sherbert and Yoder in favor of a more robust dedication
to the rule of law as applied to religious entities. If there ever were a need
for the venting function of the First Amendment™s Free Speech Clause,
this was it. In the end, though, these procedural objections did not render
its substantive analysis wrong.
The problem with the hyperbolic substantive arguments against Smith
was that the Court had followed two paths of reasoning that were inter-
nally inconsistent in the free-exercise cases between 1963 and 1990, not
one. The preceding jurisprudence had employed what the critics saw as
the only approach in free-exercise cases in just a few cases “ while the
jurisprudence they found so shocking in Smith was in fact the domi-
nant rule throughout the Court™s free-exercise jurisprudence. The Smith
Court retired the anomaly ¬rst introduced in Sherbert, and little more.
Despite the in¬‚amed declarations by law professors and religious organi-
zations, the Court had not produced a doctrine out of whole cloth. It had
done no more than af¬rm its dominant doctrine and reject a bad rule
that had been applied in a bare handful of cases.
Even so, Congress listened to the religious entities and the law pro-
fessors and within four months of the Smith decision, held hearings to
castigate the Supreme Court.88 Religious groups, believing they had lost
more than they actually had, turned to Congress to deliver what they
claimed was their constitutional right: a “return” to strict scrutiny of every
law in every free-exercise case. Starting with a small number of religious
organizations in Washington, D.C. who gathered soon after Smith was de-
cided, and following the advice of Professor Douglas Laycock, the group
that would later call itself the Coalition for the Free Exercise of Religion
drafted a statute that laid the analysis of Sherbert and Yoder across all legal
domains. They named it the Religious Freedom Restoration Act (RFRA,
pronounced riff-rah), and no member of Congress found it within him
or herself to block a statute so named.89
The hearings were ¬lled with vitriol aimed at the Court, and with
members of Congress castigating the author of Smith, Justice Scalia, in
particular. The same tactic was used among academics. It was as though
Scalia had singlehandedly destroyed religious liberty. To this day, those
who despise Smith talk about it in terms of, “Scalia wrote,” or “Scalia
226 / GOD VS. THE GAVEL


said.” In fact, the justices that joined Scalia “ Chief Justice Rehnquist,
and Justices Kennedy, White, and Stevens “ had sided with the rule of
law approach even before Smith, but castigating Justice Scalia was part
of the public relations attack on Smith.
After three years of hearings in which the members of the House and
Senate denounced the Court (in over 450 pages of the Congressional
Record) for abandoning a doctrine that had never been applied across the
board, Congress passed RFRA, which established what Smith™s detractors
claimed (incorrectly) the preceding doctrine had required. It would be too
much to say that some of the United States™s most prominent church/state
scholars deceived Congress, but it is not an exaggeration to say that their
inaccurate assessment of the prior case law led Congress down the wrong
path. Congress was persuaded that it was standard free-exercise doctrine
to subject every single law to strict scrutiny, an approach the Supreme
Court had never even broached, let along reached. Under RFRA, every
law was to be subject to strict scrutiny, whether neutral and generally
applicable or not. RFRA provided that:
(a) In General. “ Government shall not substantially burden a person™s
exercise of religion even if the burden results from a rule of general
applicability, except as provided in subsection (b).
(b) Exception. “ Government may substantially burden a person™s exer-
cise of religion only if it demonstrates that application of the burden
to the person “
1. is in furtherance of a compelling governmental interest; and
2. is the least restrictive means of furthering that compelling gov-
ernmental interest.90
In Smith, the Court had reinstituted the rule of law as applied to reli-
gious entities, but it encouraged them to go to the legislatures for relief
from particular laws imposing particular burdens on religious practice.
For example, the Court pointed approvingly to state law exemptions for
the use of peyote from generally applicable drug laws.91 And, in fact,
a number of states and the federal government would follow suit after
Smith, in effect proving the ef¬cacy of the Court™s approach for reli-
gious entities. But those positive developments for religious liberty after
Smith were lost in the maelstrom of invective against it. In a move that
was fueled by the endemic misinterpretations of the Court™s pre-Smith
BOERNE V. FLORES / 227


jurisprudence and, to be frank, political opportunism, the religious enti-
ties looked to Congress to reverse the Court™s doctrine altogether. Iron-
ically, the religious organizations did precisely what Smith™s detractors
seemed to believe they either could not or should not: they petitioned a
legislature, Congress, and they obtained what they sought. In effect, they
proved the political feasibility of the Smith Court™s political theory.
With Smith, the Court had articulated the relationship between reli-
gious entities, the government, and society. Its constitutional vision was
based on fundamental principles of republican democracy, the public
good, and the rule that no one may harm another. The statute that was
generated in the wake of Smith “ RFRA “ raised the corollary question
whether Congress could unilaterally rearrange the relationship between
religious entities, the law, and the public good. If so, then the larger repub-
lican and democratic principles at the base of Smith could be abandoned
in favor of permitting religious entities to avoid most generally applica-
ble, neutral laws. It would take the decision addressing RFRA “ Boerne
v. Flores “ to vindicate the bedrock republican principles that justify and
require subjecting religious entities to the generally applicable, neutral
laws that govern everyone else.


The congressional power cases before Boerne v.Flores
From the 1930s until 1995, the Supreme Court systematically deferred
to congressional exercises of power. The result was an unaccountable,
headstrong Congress that sincerely believed it held plenary power over
all issues, despite the plain meaning of the Constitution™s structure and
language limiting its powers. The federalism component of the Consti-
tution disappeared through inattention, and Congress™s power subsumed
the states™. By 1995, the Court began to see the problems attendant upon
an unaccountable Congress, and gingerly began to draw some bound-
aries around what had become an arena with no limits. The Court™s
reinstitution of federalism brought to the foreground the inherent lim-
its of Congress™s power, vis-` -vis the states. Congress was supposed to be
a
an institution of enumerated powers, not plenary power. Initially, the
Court was accused of being insular, harsh, and unsympathetic to civil
rights.92 For others, the Court was simply power hungry,93 but in fact
the cases have been moderate in trend, with the Court striking the most
228 / GOD VS. THE GAVEL


outrageous reaches for federal power, including the Religious Freedom
Restoration Act, as it has upheld the Family Medical Leave Act94 and
Title II of the Americans with Disability Act.95 The RFRA and Boerne v.
Flores arrived at the Court in this era of revived federalism. Thus, the
Court was predisposed to ask whether Congress constitutionally held the
power it exercised. The Court™s attention in the late 1990s was trained on
two congressional powers: the Commerce Clause and Section 5 of the
14th Amendment. The latter power was a focus of Boerne.


The background behind the Section 5 cases leading up to Boerne
Beginning in the late 1950s and the 1960s, the United States witnessed an
explosive growth in federal civil rights law. Congress passed increasingly
expansive civil rights acts.96 The attorney general enforced these new
laws in the face of strong opposition in the states.97 And the Supreme
Court dramatically expanded the protections afforded under the Equal
Protection Clause in the wake of its landmark 1954 case, Brown v.
Board of Education.98 The Court struck down laws forbidding interra-
cial marriage99 and interracial cohabitation,100 and requiring ballots to
indicate the race of candidates.101 It overturned convictions for disturbing
the peace by sitting at race-reserved lunch counters,102 for refusing to sit
in a courtroom™s segregated section,103 and for murder where there was
prima facie evidence of discrimination in grand and petit jury selection.104
The Court also expanded the power of Congress under the Commerce
Clause to prohibit racial discrimination in motels,105 expanded the def-
inition of state action by de¬ning a private restaurant as a state actor
where the restaurant leased public space and was maintained with pub-
lic funds,106 and by including in the de¬nition of state action any agency
of the state taking action.107 Finally, the Court refused to permit private
discrimination in housing.108
It was a time of cataclysmic but positive social change for the rights
of minorities. As between the states and the federal government, there
was no question that the federal government was the protector of liberty.
When the federal government freed minorities from the oppressive dis-
crimination under which they had labored for two centuries in the United
States, it was a noble enterprise. The federal government was liberating
BOERNE V. FLORES / 229


an oppressed people, and in the process unmasking the depth of the
entrenched racial discrimination in the country. While the United States
deserves plenty of criticism for its Constitution™s early acquiescence in
slavery and then its failure to end discrimination for decades following
the civil war and the Reconstruction era, the 1960s civil rights era was
impressive.
Inevitably, the reasoning of expanding rights found its way into other
doctrines. It certainly in¬‚uenced Justice Brennan™s push to expand the
rights of religious entities starting with Sherbert in 1963. The equal pro-
tection issues and the free-exercise issues, though, were on completely
different planes. Minorities were demanding, and obtaining at least from
the federal government, equal rights with all others under the law. They
were asking for a level playing ¬eld, but the religious entities were starting
from equality under the law and then asking for privileges beyond equal
treatment.
The religious entities did not request equality, but rather the right to
trump the law, to be treated better than others who were similarly sit-
uated and governed by the same law. Thus, while the Court™s work for
minorities was heroic, its decision to abandon the rule of law for religious
entities was a serious mistake, for which the United States continues to
pay in terms of harm to children, the inculcation of terrorism in the
prisons, and the dilution of private property rights. Like the free-exercise
cases, the congressional power cases beginning in the 1960s sprang from
an environment conducive to altering the law and veered off the right
course until the 1990s. The deference to the federal government “ which
was earned by its valiant and successful ¬ght for civil rights for minori-
ties “ was transformed into a dogmatic belief in the unassailability of
whatever Congress attempted. The result was an engraved invitation to
congressional overreaching.
The Religious Freedom Restoration Act was invalidated in Boerne v.
Flores on the ground that Congress lacked the power to enact it. Thus,
the case posed the raw question: What precise power did Congress have
over constitutional rights? The Court™s answer shocked the academy and,
more important, Congress: Congress could enforce the guarantees of the
14th Amendment, including the incorporated bill of rights, but it could
not unilaterally create and expand upon constitutional rights. In other
230 / GOD VS. THE GAVEL


words, for the Constitution to change, it had to be amended via Article V
and its onerous requirement109 of a two-thirds vote in Congress followed
by rati¬cation by three-fourths of the states “ not by a simple majority
vote in both houses of Congress. As four members of the Court had
explained in dissent in EEOC v. Wyoming,110 at the apex of Congress™s
power, “[a]llowing Congress to protect constitutional rights statutorily
that it has independently de¬ned fundamentally alters our scheme of
government.”111
The academy was so entrenched in its belief that Congress could set
the level of constitutional rights at will, that it had coined a phrase to
explain it: Congress had the power, they said, to “ratchet” up rights.112
This novel power was defended on the ground that it was a “one-way
ratchet,”113 so no rights could be diminished by Congress, but they could
be increased at will. If that was Congress™s proper role, then RFRA was a
no-brainer. It dramatically expanded the rights of religious entities, and
certainly did not diminish them.
For that reason, RFRA™s legislative history includes precious little dis-
cussion of Congress™s power to enact it. If the prominent law professors
were not concerned about congressional power, one can be certain that
the members of Congress were even less so. The basic justi¬cation for
RFRA was provided by Professor Laycock, who described it as“[a]n at-
tempt to create a statutory right to the free exercise of religion, pursuant
to Congress™ power under Section 5 of the Fourteenth Amendment to en-
force the Fourteenth Amendment and therefore presumably to enforce
all the rights incorporated in the Fourteenth Amendment.”114
In Professor Laycock™s defense, this is what the vast majority of the
academy assumed to be the doctrine.115 As with most dogmas, it was
not open to much question, which is why Boerne, which would limit
Congress™s power under § 5, was a shock that generated the same sort of
hyperbole that dogged Smith in the free-exercise context.
Those who had invested in the ratchet theory, argued that the argument
against RFRA rested only on dissents addressing congressional power.116
To be fair, they are right, but only to a limited extent. In fact, there were
different and even con¬‚icting themes running through the cases, and in
particular, the leading case regarding Congress™s power under Section 5
of the 14th Amendment, Katzenbach v. Morgan.117
BOERNE V. FLORES / 231


Like Sherbert, which took the Free Exercise Clause astray, the contro-
versial Katzenbach v. Morgan, was written by Justice Brennan, who was
appointed by a Republican administration, but who became one of the
most libertarian Justices. He was not an ideologue, but rather pursued
his libertarian agenda pragmatically. He typically altered the Court™s di-
rection not by overruling previous precedents, but rather by doing what
he did in both Sherbert and Katzenbach: engrafting onto the existing
doctrine a new branch that sent the doctrine in a wholly new direction.
He was very good at crafting a change in emphasis that would then alter
doctrine, outcomes, and eventually the theory.
In Katzenbach, the Court addressed the constitutionality of the Voting
Rights Act of 1965, § 4, which prohibited the states from excluding any
voter on the ground that he or she could not speak or write English.
The law affected several hundred thousand immigrants from Puerto Rico
in New York. Registered voters in New York City brought suit, arguing
that Section 4 was unconstitutional, because Congress lacked the power
to override their voting laws, which required English pro¬ciency. The
question was plain, even if the answer was somewhat complicated: what
power did Congress have to pass Section 4 of the Voting Rights Act of
1965?
Justice Brennan provided two rationales to uphold the act. First,
Congress was simply enforcing constitutional guarantees against the states
pursuant to Section 5 of the 14th Amendment, which states: “Congress
shall have power to enforce, by appropriate legislation, the provisions of
this article.”118 The Constitution forbade discrimination on the basis of
race or origin, and therefore Congress was enforcing the guarantee to
equal treatment. The problem with that analysis, however, was that the
Court previously had held that there was no constitutional right that
forbade English pro¬ciency requirements.119 Therefore, Congress was
requiring the states to do more than the Constitution required, and the
states argued that such an expansive requirement violated the reserved
rights of the states in the Constitution.
Justice Brennan explained this expansion as Congress exercising its
“prophylactic” power.120 Where the states had engaged in persistent con-
stitutional violations, Congress was given broad latitude to force the states
to toe a more dif¬cult line than the Constitution required. There was no
232 / GOD VS. THE GAVEL


question that the discrimination at issue was widespread, intransigent,
and persistent. In an earlier case, the Court had characterized the con-
gressional record for the Voting Rights Act as follows:

Two points emerge vividly from the voluminous legislative history of
the [Voting Rights] Act contained in the committee hearings and ¬‚oor
debates. First: Congress felt itself confronted by an insidious and per-
vasive evil which had been perpetrated in certain parts of our coun-
try through unremitting and ingenious de¬ance of the Constitution.
Second: Congress concluded that the unsuccessful remedies which it
had prescribed in the past would have to be replaced by sterner and
more elaborate measures in order to satisfy the clear commands of the
Fifteenth Amendment.121

The prophylactic power made sense in the face of the studied recalci-
trance to equal protection guarantees in the South and parts of the North
during the 1950s. If state governments decided to ¬‚out the Constitution™s
requirements over and over again, Congress had the power to hold them
to even stricter conduct than the Constitution required in order to get
them to obey the Constitution. This reading of Congress™s power under
Section 5 was not controversial.
More controversial was the second Morgan rationale. Justice Brennan
introduced a new element to assess congressional power “ the so-called
“ratchet theory,” which would have permitted Congress to expand the
constitutional right itself by simple majority vote. The theory was criti-
cized by Justice John Marshall Harlan, in dissent, who accused Justice
Brennan of expanding congressional power too far: “In effect the Court
reads § 5 of the Fourteenth Amendment as giving Congress the power to
de¬ne the substantive scope of the Amendment.” 122 Harlan reasoned that
if Congress had unilateral power to alter the scope of constitutional rights
that it could decrease as well as increase them. Brennan dismissed in a
footnote Harlan™s logical deduction that the power to set rights included
the power to diminish them.123
From 1966 to 1990 (only three years shy of Sherbert™s reign), the Court
had available a theory that would provide Congress considerable new
power.
As indicated earlier, the ratchet-up theory became quite popular in the
law schools, and many legal scholars came to accept that Congress did
BOERNE V. FLORES / 233


indeed have such a power. Professor Archibald Cox explained the force
of the ratchet theory as follows:

The etymological meaning of section 5 may favor the narrower reading.
Literally, “to enforce” means to compel performance of the obligations
imposed; but the linguistic argument lost much of its force once the
South Carolina and Morgan cases decided that the power to enforce
embraces any measure appropriate to effectuating the performance of
the state™s constitutional duty.124

There was not universal acceptance, however. Professor William Cohen
of Stanford Law School criticized the theory in 1977 in the Stanford Law
Review as follows:

Justice Brennan™s “ratchet” interpretation of section 5 presents two prob-
lems. First, it does not satisfactorily explain why Congress may move the
due process or equal protection handle in only one direction. . . . The
second and more signi¬cant problem with the ratchet theory is the dif-
¬culty in determining the direction in which the handle is turning.125

But it also suffered from an ivory tower assessment of liberty. Increasing
the liberty to act for one almost always means a diminution of liberty for
someone else. This is a zero-sum game.
In the free-exercise context, Brennan had been able to insert the novel
reasoning of Sherbert into a small number of cases involving virtually
identical facts. While this was not a striking accomplishment, he was
less successful in propagating the ratchet theory in the Court™s cases.
Unlike Sherbert™s new rule in the free-exercise context, this new congres-
sional power theory was never the dispositive basis for any Supreme Court
decision.126 Even in Morgan, it was only an alternative basis for decision.
During the same term as Morgan, and a few months before it was decided,
the Court held that Congress could not “attack evils not comprehended
by the Fifteenth Amendment,” and therefore devalued the currency of
the ratchet theory “ at least with respect to a similar amendment “ several
months before it appeared. Five members of the Court rejected the theory
in 1970 in Oregon v. Mitchell,127 which then-Justice Rehnquist pointed
out in City of Rome v. United States.128
In Oregon v. Mitchell,129 for which admittedly one needs a scorecard to
know precisely what was held and who on the Court reached the holding,
234 / GOD VS. THE GAVEL


¬ve justices agreed to some limits on congressional power under Section
5; as was stated in the dissent to EEOC v. Wyoming, there was a “limitation
on the extent to which Congress may substitute its own judgment for that
of the states and assume this Court™s ˜role of ¬nal arbiter.™”130 Thus, by
the time Boerne arrived at the Court in 1996, there were two competing
theories in § 5 cases in circumstances where Congress forced states to toe
a line more restrictive than the Constitution.
While the ratchet theory was never as widely accepted in the academy
as the Sherbert approach to free-exercise cases,131 the bulk of law professors
assumed, like Laycock, that the Religious Freedom Restoration Act would
be upheld on the theory. And it did not appear to be wishful thinking,
but rather a conviction that the ratchet theory was impregnable. Nor is
there any indication that the members of Congress read their power any
more narrowly than the ratchet theory would have afforded.
When Congress passed the Religious Freedom Restoration Act, it
forced the Court™s hand on the § 5 issue. The petitioner™s certiorari peti-
tion speci¬cally asked the Court to answer the question whether Justice
Brennan™s prophylactic power theory explained Congress™s power under
§ 5, or whether the ratchet theory did. Once the question was posed,
academics became more circumspect than they had previously been,
and a number argued against the ratchet theory. For example, Professors
Eugene Gressman and Angela Carmella argued as follows:


[O]ne can imagine other RFRA-like statutes [justi¬ed under the ratchet
theory] that would (1) ratchet obscenity and pornography up to the
status of free speech, which the Court has refused to do, (2) ratchet
up the personal interest in reputation to the level of a constitutionally
protected liberty interest, (3) ratchet up the right to an education to
the status of a constitutionally protected right, subject to strict scrutiny,
(4) ratchet up gender and sexual orientation to the highest levels of
scrutiny, (5) de¬ne and ratchet up additional unenumerated privacy
rights as yet unrecognized by the Court, or (6) restore and ratchet up
those privileges and immunities of citizens of the United States that were
destroyed by the Slaughterhouse Cases. In short, the RFRA model can
be used by Congress to reform, destroy or restore a wide variety of the
Court™s constitutional interpretations, thus putting Congress into the
heart of the judicial function.132
BOERNE V. FLORES / 235


The ratchet theory thus was an opportunity for tremendous mischief by
a Congress that could alter constitutional rights on a sliding scale through
simple majority vote. Indeed, in light of the practice in both Houses of
Congress of using “unanimous consent,” which permits the leaders to
bring a bill to the ¬‚oor with virtually no other members present and with
no recorded vote, rights could be altered by a mere handful of the lead-
ership in either House. The Court simply could not sign on to such a
theory, because it was too far removed from the accepted constitutional
practices surrounding rights. Moreover, it sidelined the Court in consti-
tutional determinations. Accordingly, not a single member of the Court
wrote approvingly of the ratchet theory in the landmark congressional
power case, Boerne v. Flores.


Boerne v. Flores
After the sharp and even bitter criticism of Smith, the Supreme Court
might well have thought better of its reasoning and recrafted it. That did
not happen. Three years after Smith, the Church of Lukumi Babalyu Aye
case was decided, and the Court explained its approach to the plainly
discriminatory ordinance against the backdrop of Smith. With RFRA,
the Court had another opportunity to alter its free-exercise doctrine or to
cast it in a different light, but the Court held ¬rm on the rule requiring
courts to apply neutral, generally applicable laws to religious entities and
judged RFRA in light of that constitutional standard. The Court took
neither the opportunity provided by the Babalu Aye case nor the Boerne
case to adjust its free-exercise jurisprudence.
Congress™s action in passing RFRA, however, reopened the door to
religious entities that had sought to trump generally applicable, neutral
laws. Indeed, it covered far more instances than Justice Brennan™s theory
had been permitted to: It applied strict scrutiny to every law in the country,
state or federal, executive, legislative, or judicial, and past or present. It
was, as the petitioner™s brief stated, “breathtaking.” Thus, while Smith
might have reinstated with clarity the principle that religious entities are
properly subject to neutral, generally applicable laws, RFRA threatened
to alter the regime altogether and to place religious entities above a vast
portion of the law.
236 / GOD VS. THE GAVEL


This is not a book on congressional power so much as it is about
religious accommodation, so I will not describe the Court™s reasoning
in Boerne at length, but suf¬ce it to say that the Court plainly rejected
Justice Brennan™s ratchet theory:

Congress™ power under § 5, however, extends only to “enforcing” the
provisions of the Fourteenth Amendment. . . . The design of the Amend-
ment and the text of § 5 are inconsistent with the suggestion that
Congress has the power to decree the substance of the Fourteenth
Amendment™s restrictions on the States. Legislation which alters the
meaning of the Free Exercise Clause cannot be said to be enforcing
the Clause. Congress does not enforce a constitutional right by chang-
ing what the right is. It has been given the power “to enforce,” not the
power to determine what constitutes a constitutional violation. Were it
not so, what Congress would be enforcing would no longer be, in any
meaningful sense, the “provisions of [the Fourteenth Amendment].”133

The prophylactic theory was embraced, by itself. Congress could not hold
the states to standards more stringent than the Constitution required un-
less there was proof of widespread and persisting constitutional violations
in the states and the federal law was “congruent and proportional” to
the degree of constitutional overstepping by the states. Thus, entrenched
and invidious discrimination in the vast majority of circumstances across
the states against religious entities might have justi¬ed RFRA™s draco-
nian requirements, but the Court saw no such set of facts, either through
judicial notice or the congressional record supporting RFRA: “While pre-
ventive rules are sometimes appropriate remedial measures, there must be
a congruence between the means used and the ends to be achieved. . . . A
comparison between RFRA and the Voting Rights Act is instructive. In
contrast to the record which confronted Congress and the judiciary in
the voting rights cases, RFRA™s legislative record lacks examples of mod-
ern instances of generally applicable laws passed because of religious
bigotry.”134 But the record by itself was not dispositive. The central in-
quiry was whether Congress had acted in a way that was proportional to
the constitutional harm identi¬ed. “Regardless of the state of the legisla-
tive record, RFRA cannot be considered remedial, preventive legislation,
if those terms are to have any meaning. RFRA is so out of proportion to
a supposed remedial or preventive object that it cannot be understood as
responsive to, or designed to prevent, unconstitutional behavior.”135
BOERNE V. FLORES / 237


The case simultaneously rejected discordant subdoctrines in both the
free-exercise and Section 5 contexts. First, the Court upheld Smith and
refused to hold that strict scrutiny was mandated in free-exercise cases,
which meant religious entities could not go to the courts to trump gen-
erally applicable, neutral laws.
Second, the Boerne Court chose Morgan™s prophylactic theory and
held that Congress could not give religious entities the right to across-the-
board strict scrutiny in the absence of proof of widespread and persisting
discrimination against religious entities “ proof that the religious entities
will never be able to accumulate, because of their signi¬cant though often
underestimated power in the political sphere and because of the sheer
numbers in the United States who are religious. (One of the purposes of
this book is to bring to light the remarkable power of religious entities to
obtain special treatment in the legislatures.)
The net result of the Boerne decision was to foreclose religious entities™
arguments that religious motivation should absolve religious actors of
neutral laws governing their conduct.
It would be a mistake to think that Boerne was only a culmination
of U.S. legal principles, because it was also the endpoint of the larger
Anglo-American struggle between religious entities and secular authori-
ties, a struggle that that had proceeded for hundreds of years. Seemingly
unbeknownst to those lobbying for a religious liberty that undercut neu-
tral, generally applicable laws and permitted religious entities to be above
the law, the British government had long experience in the ¬eld, and had
rejected the rule they advocated. The next chapter will explain the cen-
turies of history that put Smith and Boerne in proper perspective.
9


THE DECLINE OF THE SPECIAL
TREATMENT OF RELIGIOUS
ENTITIES AND THE RISE OF THE
NO-HARM RULE
There has been an ongoing dialectic between religious entities, the law,
and the public good for centuries, and it has tended from strong privileges
for religious entities toward the application of the rule of law to them. This
play of power has yielded a construct that incorporates lessons learned.
As Justice Oliver Wendell Holmes said, “the life of the law has not been
logic: it has been experience.”
There was a time in Anglo-American history when established religious
entities were sovereign and the clergy enjoyed special treatment under
the law. It would have come as no surprise to anyone that the established
religious institution was immune to the requirements of the law or that
clergy were relieved of its requirements while all other citizens were not.
A citizen could be put to death for raping a child, while a clergy member
could commit the same crime and be sentenced to a year at a monastery.

238
THE DECLINE OF THE SPECIAL TREATMENT OF RELIGIOUS ENTITIES / 239


That era, however, was centuries ago. Today, the rule in the United States
is that every entity “ including a religious entity “ is subject to the law.
This chapter places the United States™ religious liberty principles in
historical context. The contemporary system “ reaf¬rmed in Employment
Div. v. Smith and Boerne v. Flores “ is not a 20th-century concoction, but
rather the result of centuries of development.
There are, of course, many reasons to invoke history; the purpose here
is two-fold. First, this chapter is intended to show that there are two
British antecedents that informed the U.S. system: (1) the robust “ and
then dwindling “ special treatment of clergy and religious institutions in
Britain, and (2) the burgeoning development of the common law there,
followed by the growth of republicanism and the rule of law here. Both
are critical to understanding today™s rules for religious entities. Too often
the Supreme Court™s decision in Employment Division v. Smith holding
that religious entities are subject to generally applicable and neutral laws
is treated as though Smith came out of the blue. Chapter 8 argues to the
contrary that it represented the dominant trend in the Supreme Court™s
jurisprudence; this chapter shows that it is the culmination of centuries
of legal and social development. The decision was neither ad hoc nor
accidental.
Second, this chapter is intended to put to rest the pervasive “ but mis-
guided “ belief that religious liberty at the time of the framing meant that
religious entities were to be superior to the law. The developments in the
colonies and then the states picked up where Britain left off. This is not
an originalist argument that the views of the framers are binding today, or
that intellectual history moves in a single straightforward progression. In
the Anglo-American tradition, though, there is a value set on experiment-
ing with different approaches to see what works best; that experimentation
has led both Britain and the United States to reject special privileges for
religious entities and to embrace the rule of law. The United States thus
has the bene¬t of centuries of experimentation and the capacity to learn
from past mistakes, which is the essence of the common law. The plainest
lesson to be taken from these hundreds of years of development is that
even religious reasons are inadequate to justify harming others.
Since the 12th century, when Henry II took the ¬rst steps toward a
common law by resisting a separate sphere of justice for clergy, the
justi¬cations for special treatment of religious entities have become
240 / GOD VS. THE GAVEL


increasingly hollow. Although it took centuries for Henry II™s intended
reforms to be fully effected, the logic of Henry™s attempts to place clergy
under the same justice system as all others was ineluctable: the victim of
rape or murder by a clergy member is just as injured as the victim of an
ordinary citizen. The injury demands proportional punishment, which
is determined according to the harm, not the identity of the actor. Thus,
the drive to avoid the law by contemporary religious entities is not a new
development, but it is an anachronistic one.
The internal logic of Anglo-American common law has drawn the
United States to the conclusion that the public good requires the deter-
rence and punishment of harmful actions, regardless of the identity of
the actor. I will call this the no-harm principle.
Before the common law and its equalizing principles were entrenched
and before the creation of the United States, churches did have auton-
omy from the law. The rights of religious institutions and their clergy
were above those of ordinary citizens. From the 3rd to the 16th centuries
in Britain, church autonomy was in fact the order of the day. The Roman
Catholic Church was permitted to harbor fugitives from the law under
the practice of “sanctuary.” The church was co-sovereign with the state,
and it instituted ecclesiastical courts that provided separate (and far more
lenient) justice for the criminal acts of clergy, which came to be called
the bene¬t of clergy. In more recent times, a judicial doctrine was crafted
that shielded religious institutions from civil lawsuits demanding mon-
etary damages for harm done by the institution or its employees. Each
of these tacks provided meaningful autonomy for religious institutions,
each permitted such institutions to be unaccountable to the public good,
and each has been repealed or overruled or, in the case of charitable
immunity, signi¬cantly weakened in Britain and the United States.


An introduction to the historical evolution of the no-harm rule
The modern-day claims to religious autonomy and privilege in cases in-
volving tortious or criminal behavior are in fact remnants of the long
history of the British and then the U.S. trial of various regimes whereby
religious entities were protected from the law. At the outset, going back at
least to the 12th century, the church was a co-sovereign with the Crown, so
institutional liability was not an issue. Two privileges “ sanctuary and the
THE DECLINE OF THE SPECIAL TREATMENT OF RELIGIOUS ENTITIES / 241


bene¬t of the clergy “ ensured that clergy (at least the clergy of the estab-
lished church) were either beyond the reach of the law or held to lesser
punishments than others. Experience with these immunities and the rise
of the common law led to the abolition of these two privileges by the mid-
16th century. In the 17th century, most civil and criminal matters were
transferred from the ecclesiastical courts to the common law courts and
the newly created courts of chancery. This triumph of the common law
coincided with the rise of Puritanism, the interregnum, and the Restora-
tion. During the 19th century, Parliament statutorily abolished most of
the jurisdiction of the ecclesiastical courts. They retained jurisdiction
only over discipline of clergy, certain types of sexual offenses committed
by laypersons, and minor matters concerning worship services.1
There has been an almost instinctual drive in the United States to treat
religious entities as though they can do no harm and as though they need
protection in the political sphere, but each privilege has been rolled back
when the harm caused became an obvious and incontrovertible fact. By
the mid-19th century, two forces came together. First, the logic of the
common law that all similarly situated individuals should be governed by
the same laws overtook the earlier claims to privilege.2 Second was the
concept of “ordered liberty,” and its corollary, the no-harm rule,3 each of
which opened the door to those who had been harmed to sue religious in-
stitutions for their tortious behavior.4 In response to this development, the
courts introduced the doctrine of charitable immunity, which protected
the coffers of charitable institutions “ including religious institutions “
from such lawsuits. 5 Charitable immunity was abandoned in England
before it was ever entrenched and was honored in the United States only
for a limited time.6 It is now defunct in most jurisdictions in the United
States, with some trying caps on liability, which is a movement that ex-
tends beyond charitable immunity.7 In sum, the fundamental fairness
that is at the foundation of the common law and the rule of law com-
bined to exert an inexorable logic that has led to the rejection of the
notion that religious institutions and their volunteers need not be held
accountable for the harm they cause.8
At the same time that these principles joined forces, the status of
whose who were most likely to be harmed by religious entities “ children,
women, and minorities “ improved. As women, children, and minorities
were shifted from being the property of white men to inherently valuable
242 / GOD VS. THE GAVEL


beings, the harm done to them became increasingly intolerable. It took
both the legal developments and this sociological movement to reach the
full ¬‚owering of the no-harm rule in the United States.

Historical privileges that placed clergy and religious institutions
above the law
In Britain, there have been three historical privileges that bene¬ted reli-
gious individuals and entities: sanctuary, the bene¬t of clergy, and char-
itable immunity. All three privileges have been discarded or discredited
in Britain. Analyzing this history provides crucial background for under-
standing that church autonomy today is a throwback, not a step forward.
The spirit of these three principles has been repudiated by the U.S.
Supreme Court, but they still haunt religious institution theories9 and
the legal tactics of religious institutions themselves.10 It is important to
learn and understand this history, because it formed the background for
the Framers and for the early formation of the law governing religious
institutions and individuals in the United States. It is also important
because it uncovers past experiences with church autonomy that did not,
and could not, withstand the growth of republicanism and the rule of law
in Britain and then in the United States.

The sanctuary privilege and the geographical sovereignty of the Roman
Catholic Church
As early as the third century a.d., secular authority recognized the eccle-
siastical right to provide sanctuary, or protection, for those threatened by
“private vengeance for alleged wrongdoing.”11 Sanctuary was intended to
forestall blood feuds and the vigilantism of the times. Although secular
governments tried to retain the rights of control over some categories
of wrongdoers, the ecclesiastical authorities held full sway to determine
whether and what kind of sanctuary would be made available. The church
further refused to deliver anyone who was within its sanctuary unless
promises were made that the wrongdoer would not be harmed.12
Seven centuries after the practice ¬rst appeared, the Crown created
the chartered sanctuary, a form of asylum that was backed by the king.13
Chartered sanctuaries provided greater protection than church sanctu-
ary, including a broader geographic and temporal scope, and a greater
THE DECLINE OF THE SPECIAL TREATMENT OF RELIGIOUS ENTITIES / 243


range of protected offenses. Fugitives hidden in chartered sanctuaries
were governed by the church, and lived in a fugitive community, apart
from the rest of the world.14 Such sanctuaries could be quite large geo-
graphically. Secular authorities recognized this practice well into Tudor
times. The sanctuary privilege shielded both laity and clergy, but clergy
were often given special dispensation. The power of sanctuary was forti-
¬ed by “fear of Divine vengeance,” thus “when the Church said that those
who sought her protection must be treated with leniency and mercy, and
their lives and persons spared, no state or individual was strong enough
or bold enough to refuse to comply.”15 As the Crown sought to enlarge its
jurisdiction and attitudes about the proper role of the church changed, so
too did secular deference to the practice of sanctuary. Beginning in 1467,
the Crown began to reduce the types and locations of offenses covered
by sanctuary and, by 1540, chartered sanctuary was abolished.16 Sanc-
tuary was completely repealed in 1623 by act of Parliament during the
reign of James I, though the practice persisted unof¬cially with regard to
service of process until the end of the 17th century.17 By that time, the
Crown found the separate justice system insupportable, because it made
criminal punishment nonuniform.18
Sanctuary is a good means to come to terms with the enormous power of
the Roman Catholic Church at the time. It was sovereign in the sanctuary
territories, which it ran as separate universes from the Crown™s territory.
The church created a quasi-citizenship for fugitives, determined if and
what punishment it would permit, and answered to no one.
The end of sanctuary marked the end of the church™s geographical
control in Britain. But it did not signal the end of special treatment
for the clergy, but rather was only one stage in the movement away from
church autonomy toward the rule of law under the common law. “Despite
its formal demise, the spirit of sanctuary lived on in the practice known
as ˜bene¬t of clergy,™ which did not offer outright immunity, but served,
when available, to mitigate the severity of secular law.”19


The bene¬t of the clergy privilege and the juridical sovereignty of the
Roman Catholic Church over its clergy
To understand the bene¬t of clergy principle, one must go back to 12th-
century Britain. In that era, King Henry II (1154“1189) succeeded the lax
244 / GOD VS. THE GAVEL


reign of King Stephen (1135“1154), who had permitted the barons and
the Roman Catholic Church to exercise overweening power. Henry II,
who is known as the father of the common law, took on both the barons
and the church, but ultimately failed to make the church and its clergy
accountable to the general public good.20
From 1076, when William the Conqueror established the dual court
system, until 1576, during the reign of Elizabeth I, the royal courts and
the ecclesiastical courts shared jurisdiction over criminal law,21 which
brought con¬‚ict and dissension. Henry II saw the need to standardize
criminal justice, and sought to bring clergy under the jurisdiction of
the civil courts. But the succeeding scandal with Archbishop Thomas
Becket derailed his plans and led to a system of special treatment of
clergy criminals that lasted several centuries.
Under Stephen, the clergy had become accustomed to unaccount-
ability to the civil, or royal, courts.22 Henry II thought their privilege to
be above the law was dangerous, and in 1164, he called a meeting with
the bishops to require them to agree to observe the customary powers
of the king in the area of criminal law.23 Speci¬cally, he demanded that
criminal clerics be defrocked by the church and handed over to the civil
courts:

Henry II was too astute a ruler not to perceive the immense evils arising
from [the special treatment for the church], and the limitation which
it imposed upon the royal power by emancipating so large a class of
his subjects from obedience to the laws of the realm. When in 1164 he
endeavored, in the Constitutions of Clarendon, to set bounds to the
privileges of the church, he therefore especially attacked the bene¬t
of clergy, and declared that ecclesiastics were amenable to the royal
jurisdiction.24

At ¬rst, the archbishop of Canterbury, Thomas Becket, agreed. Becket™s
approval was a victory for Henry, because the Canterbury bishopric was
the most powerful prelate in Britain, second only to the pope.25 As arch-
bishop, Becket had the power to excommunicate and was the cleric em-
powered to perform coronations in the event of a new king.26 Thus,
Becket™s approval was crucial for the king™s plans to unify the criminal
justice system. To Henry™s dismay, Becket reversed his position under
pressure from other bishops.27 As a result of the disagreement, Henry
halted Becket™s income and exiled him to France in 1164.28
THE DECLINE OF THE SPECIAL TREATMENT OF RELIGIOUS ENTITIES / 245


Six years later, and anxious to secure succession, Henry sought to have
his eldest surviving son crowned. Because Becket was in exile and there-
fore unavailable, Henry had Canterbury™s ancient rival, the archbishop
of York, preside over young Henry™s coronation. Becket was enraged at
the affront and, with papal backing, threatened to lay England under
the ban of interdict.29 He and Henry reached a truce, which allowed
Becket to return to England in the autumn of 1170. The Sheriff of Kent
accused Becket of returning to unseat Young Henry. Becket replied, “I
have not the slightest intention of undoing the king™s coronation. . . . But
I have punished those who de¬ed God and the prerogative of the church
of Canterbury by usurping the right to consecrate him.”30 Despite the
truce, just before returning to England, Becket raised Henry™s ire by ex-
communicating all of the bishops who had participated in young Henry™s
coronation. It was after this incident that Henry declared in frustration to
his assembled court, “Will no one rid me of this turbulent prelate?”31
In response to this furious statement, four of Henry™s barons murdered
Becket in Canterbury Cathedral on December 29, 1170. Although he pub-
licly disavowed involvement with the murder, Henry was subsequently
overcome with remorse and from his weakened position, acquiesced in
the ecclesiastical courts™ jurisdiction over clerics accused of crimes.32
From the aftermath of this feud, the practice known as bene¬t of clergy
became entrenched.33
The bene¬t of clergy, or privilegium clericale, was often the difference
between life and death.34 In the king™s courts, capital punishment was
mandated for all felonies.35 In contrast, capital punishment was beyond
the power of the ecclesiastical courts. Hence, clergy and laypeople could
commit the same illegal actions, and the layperson™s sentence would be
death while the cleric™s sentence would be defrocking, incarceration in
a monastery, or forfeiture of belongings other than land.36
There were also procedural advantages for clergy members. Ecclesi-
astical trials of criminal matters were conducted by compurgation “ the
accused would take a formal oath that he was innocent of the crime and
bring into court an “arbitrary” number of compurgators who would swear
to their belief in his oath.37 Acquittal was typical, because evidence was
only adduced from the defense, and perjury by the defendant and com-
purgators was routine.38 In addition, the clergy were exonerated from all
prior criminal acts upon conviction of a single crime.39 Thus, the rape
of a girl and the murder of her father “ both perpetrated by a single
246 / GOD VS. THE GAVEL


cleric “ could be reduced to a single crime and a single punishment of
suspension from ministry for two years.40 The same crimes by any other
citizen would have been tried as individual crimes and death would have
been the likely sentence for either or both. From this history, one can
draw many interesting conclusions, but “the remarkable point is that the
clergy should have been able to maintain for centuries a special privilege
in crime. This is a corollary to the magnitude and power of the church.”41
Many laypeople, as well as Henry II, viewed the privilege for clergy
as grossly unfair.42 If clergy could avoid the death penalty, why couldn™t
laymen who had committed the identical crimes? This sense of funda-
mental unfairness did not abolish the privilege, but rather caused it to be
eventually extended beyond clergy to cover all ¬rst-time offenders.43 The
extension of the privilege operated out of the same principle that would
abolish special privileges for religion: Identical actions should yield sim-
ilar punishments, the measure of which must be degree of harm, not the
identity or status of the offender.
The power of the religious institutions during the British monarchy
was also evidenced by the existence of the “high courts” of the royal and
ecclesiastical courts: the Star Chamber and its ecclesiastical counterpart,
the High Commission, the beginnings of which appeared during the
reign of Henry VIII and came to full ¬‚ower under Elizabeth I. These
were the “prerogative courts.”44 “The court of High Commission stood
to the church and to the ordinary ecclesiastical courts somewhat in the
same relation as the Council and Star Chamber stood to the state and the
ordinary courts of the state, central and local.”45 Upon declaring himself
the head of the church in England, Henry VIII used both courts to en-
force spiritual uniformity on the people, a tradition followed by his suc-
cessors (whether Catholic or Protestant), until the courts were abolished
in 1641.46
By 1576, under Elizabeth I, the bene¬t of clergy privilege had been
extended beyond clergy to all those who were literate (there was a time
when only the clergy were literate), and therefore the bene¬t of the clergy
was not only a means for the clergy to move their trials to the friendlier
ecclesiastical courts, but it also became a tool for laypeople to reduce the
likely sentence for a crime, even though they were being tried in secular
courts.47 It was assumed that a felony was “clergyable,” that is, capable
of preventing capital punishment, unless the Parliament explicitly stated
otherwise. Eventually, during the latter half of the 16th century and the
THE DECLINE OF THE SPECIAL TREATMENT OF RELIGIOUS ENTITIES / 247


beginning of the 17th, the bene¬t became inapplicable to murder, rape,
abduction, thefts of the person exceeding a shilling, burglary, highway
robbery, stealing horses, and stealing from churches.48
Also in 1576, Parliament abolished the ecclesiastical courts™ jurisdiction
over crimes committed by clergy, roughly 400 years after Henry tried and
failed to do so.49 At the same time, the “bene¬t of clergy” became a gambit
to be invoked at sentencing for laypeople and clergy alike “ that is, it was
not merely a guarantee of a particular court, with special procedural
rules, for clergy.50 Parliament removed the criminal jurisdiction of the
ecclesiastical courts because it perceived that the church had taken over
a large portion of its criminal jurisdiction.51 Moreover, the Crown was
appalled at the level of perjury and corruption in the ecclesiastical courts:

This scandalous prostitution of oaths, and the forms of justice, in the
almost constant acquittal of felonious clerks by purgation, was the oc-
casion, that, upon very heinous and notorious circumstances of guilt,
the temporal courts would not trust the ordinary with the trial of an
offender. . . . As, therefore, these mock trials took their rise from factious
and popish tenets, tending to exempt one part of the nation from the
general municipal law; it became high time, when the reformation was
thoroughly established, to abolish so vain and impious a ceremony.52

As a result, Blackstone writes, the 1576 statute abolished the practice of
purgation (and with it, the ecclesiastical courts™ jurisdiction over clergy
members who committed crimes), by directing that an offender who pled
the bene¬t of clergy “was not to be delivered to the [ecclesiastic courts],
as formerly,” but instead was to be burned on the hand to show that he
had used the privilege for a ¬rst-time felony, (a practice that became cer-
emonial in some cases) and, at the judge™s discretion, could be sentenced
to up to a year in prison.53 The 1576 statute served two purposes: Parlia-
ment did away with the corrupt practice of trial by compurgation while
it effectively enlarged the Crown™s criminal jurisdiction at the expense of
the ecclesiastical courts. The loss of ecclesiastical jurisdiction over crimes
committed by clergy was signi¬cant, though not nearly as divisive as it
had been in Henry II™s and Becket™s day.
In England and in the colonies, the bene¬t of clergy eventually became
a tool for all defendants to avoid the death penalty. It was replaced by
“transportation” away from the jurisdiction during the 18th century and
ultimately abolished in the 19th century.54 Moreover, early America did
248 / GOD VS. THE GAVEL


not recognize special, ecclesiastical courts for clergy that substituted for
secular courts in criminal matters. Rather, clergy members were subject
to the law of the secular courts as were all citizens.55 The “bene¬t of
clergy,” therefore, did not confer any special bene¬t on clergy qua clergy
in the colonies or later, the states. Instead, it was a tool for juries and
judges to avoid the death penalty as applied to ¬rst-time felonies.56
The end of sanctuary, the end of bene¬t of clergy, and the end of a polit-
ically sovereign church signaled the demise of the structural mechanisms
that had protected religious individuals or institutions from criminal li-
ability in Britain. When the colonies were ¬rst established in the early
17th century, the settlers were part of a generation that had been ruled
by Queen Elizabeth I, during whose reign the ecclesiastical courts were
de¬nitively removed from criminal jurisdiction. Neither the privileges
nor the ecclesiastical courts made it across the Atlantic. Once the United
States was established, the states did not reinvigorate the rejected British
privileges. Instead, they picked up where Britain had left off and per-
mitted the government to bring clergy under civil court authority57 and
religious institutions to account.58 Current attempts by religious organi-
zations to avoid criminal liability by invoking alleged privileges do have
their roots in history, but they lost their moral and legal underpinnings
long ago.59


The charitable immunity experiment
Charitable immunity was a rule that protected the coffers of charitable
organizations from actions in tort. Unlike sanctuary and the bene¬t of
clergy, it was not a privilege limited to churches or clergy. Rather, it was
intended to shield volunteer or charitable associations in general.60 The
doctrine of charitable immunity protected charitable organizations from
tort lawsuits, which meant that victims could not bring successful tort
claims against the employees of those organizations.61
It appears to have developed based on a variety of justi¬cations. The
doctrine, originally developed in England in 1846, was based on a trust
theory “that the funds of the charity are not to be diverted from the pur-
poses intended by their donors and applied to the payment of liabilities in
tort.”62 Another theory offered was that since charities do not gain or ben-
e¬t from the services they offer, they could not be held liable under the
THE DECLINE OF THE SPECIAL TREATMENT OF RELIGIOUS ENTITIES / 249


doctrine of respondeat superior for works done on their behalf. A third
justi¬cation was that the recipients of charity assume the risk of negli-
gence when they accept the bene¬t, thereby waiving their right to sue.
It has also been put forward that the acts of charitable organizations are
analogous to municipalities and therefore, charities deserve the protec-
tion that governmental immunity offers. Finally, public policy “ fueled
by a fear that people and institutions working to better society would
no longer contribute if they were liable for actions associated with that
work “ justi¬ed charitable immunity.63
The public policy argument was especially forceful in late 19th-century
America. When public charities ¬rst emerged in the United States, they
were foundering institutions run only on an experimental basis. Any
substantial judgment against them would have led to their demise, or
at the very least, discouraged contributions. In an effort to foster their
growth and thus bene¬t the public, most state courts adopted the policy
of shielding charities from tort liability.64
In England, the charitable immunity rule did not involve religious in-
stitutions speci¬cally. In the United States, the de¬nition of a charitable
organization eventually reached beyond the traditional nonpro¬t groups
that aided the poor to include hospitals, schools, and churches. At its
height, the immunity provided complete protection against any damage
awards and therefore made charitable organization™s coffers autonomous
from any countervailing social responsibility. In the minority of jurisdic-
tions, immunity extended only to certain persons or certain sources of
the organization™s income (trust funds and donations).65
The now disfavored doctrine entered the common law in 1846, as dic-
tum in the House of Lords™ decision in The Feoffees of Heriot™s Hospital v.
Ross: “To give damages out of a trust fund would not be to apply it to those
objects whom the author of the fund had in view, but would be to divert it
to a completely different purpose.” The case was an action for damages for
wrongful exclusion from the bene¬ts of the charity, not for any personal
injury in¬‚icted in its operation.66 Thirty years later, Massachusetts was
the ¬rst state to adopt the doctrine of charitable immunity in McDonald
v. Mass. Gen. Hosp.,67 with many other state courts following suit. By
1900, seven state supreme courts followed suit, with another 33 joining
the charitable immunity movement by 1938.68 Ironically, by the time the
doctrine became entrenched in the American courts, it was no longer
250 / GOD VS. THE GAVEL


good law in England.69 By 1871, after only 25 years experience with the
doctrine, the English courts rejected it on the ground that it made no
sense to hold charities blameless for the harm they caused. As a 1909 case
characterized it: “It is now well settled that a public body is liable for the
negligence of its servants in the same way as private individuals would be
liable in similar circumstances.”70
By the early 20th century, American scholars considered charitable
immunity a faulty doctrine based on a weak foundation.71 In George-
town College v. Hughes, one of the ¬rst American cases rejecting charita-
ble immunity, the court characterized it as an “anomaly,” stating that
“[t]he doctrine of immunity of charitable corporations found its way
into the law . . . through misconception or misapplication of previously
established principles.”72 Even defenders of limited liability for charita-
ble organizations recognize that the “traditional rationales for denying
all tort recovery against charitable organizations cannot withstand close
scrutiny.”73 The reasoning is obvious: When the law is intended to re-
dress harm, and charitable institutions are intended to assist those in need,
permitting them to avoid liability for the harm they cause is perverse. As
with sanctuary and especially the bene¬t of clergy, the driving logic of
the common law and the rule of law and the no-harm principle cannot
be squared with a special dispensation for charitable organizations when
they engender harm.
Still, some vestiges of the doctrine remain.74 While it has been thought
appropriate to hold charitable organizations accountable for the actions
of their employees, their liability for volunteers has been contested.75
Additionally, a minority of states has imposed monetary caps on dam-
age awards against charitable organizations.76 Both iterations are under
attack, because they cannot be made consistent with the no-harm rule.
Like the bene¬t of clergy and sanctuary, charitable immunity was vul-
nerable to the rule of law and its fundamental presupposition that all
citizens who act in the same way should be subject to the same law. As
in Britain, in the United States, charitable immunity was nulli¬ed by the
larger legal system within which religious and charitable organizations,
their clergy, and their employees are accountable to those they harm. The
three bene¬ts could not withstand modern beliefs in fairness, deterrence,
and accountability.
THE DECLINE OF THE SPECIAL TREATMENT OF RELIGIOUS ENTITIES / 251



The Reformation™s in¬‚uence on the rejection of special privileges
for religion
The Reformation also bolstered the arguments against special legal treat-
ment for religious entities. As co-sovereigns, the Church and the Crown

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