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continuously came into con¬‚ict throughout the medieval period over
questions of jurisdiction.77 In the 13th century, the gap between them
widened when secular lawyers replaced ecclesiastics on the benches of
the common law courts.78 Yet, they rested on similar grounds. The rival
courts were separate systems of law, differed in many of their rules and
derived their force from different sovereigns,79 but they were based on
the same philosophical foundation “ “the will of God expressed through
authority” “ whether ecclesiastical or royal.80 So long as the one ground
existed to justify each, there was little question of separate identities be-
tween Church and Crown. There was a single whole under God, though
its elements were often in tension.
All this changed with the Reformation in the 16th century. The attack
on the authority of the church was in effect an attack on the whole me-
dieval system of law. Thus, religion was no longer universally considered
the basis of civil government, and the premises of the common law ¬rmly
gained ascendancy over ecclesiastical law.81
The scope of ecclesiastical jurisdiction began to decline at the out-
set of the Reformation, re¬‚ecting a “basic shift in attitude towards the
proper role of the Church in men™s lives.”82 The end of bene¬t of clergy,
which shifted power away from ecclesiastical courts to civil courts, led
to a corresponding decline in the sovereign authority of the established
church in Britain.83 It became clear that a “shift in the balance of power”
to secular authority at the expense of the ecclesiastical “had to be carried
out in the context of legal competition and compromise.”84 The eccle-
siastical courts continued to exercise jurisdiction over some matters that
had been in their purview since the medieval period, such as tithing,
probate, marriage, defamation, and cases involving “mortal sins” such
as fornication and adultery.85 The increasing entrenchment of the com-
mon law,86 the Roman Catholic Church™s loss of moral authority during
the Reformation,87 and the subsequent growth of Protestantism with its
emphasis on accountability88 reduced the ecclesiastical courts™ power and
252 / GOD VS. THE GAVEL


undermined whatever argument the Church once had to be sovereign
or to have its clergy immune from the criminal law.


The Star Chamber and the High Commission
During the Tudor and Stuart years, 1485“1714,89 the Crown engaged in
a systematic suppression of religious dissent and the persecution of those
whose beliefs differed from those of the established church. In 1526,
Henry VIII divided his king™s council into two branches: a privy council
to consider domestic and foreign policy issues, which came to be known
as the Star Chamber, and the court of High Commission, to address
ecclesiastical issues. When Henry VIII of¬cially became the head of the
church eight years later in 1534,90 he was able to use both commissions, or
prerogative courts, to exercise control over religious belief and practice.
The uni¬cation of church and state made “any deviation from the new
religious order a threat to royal supremacy.” Thus, heresy and treason be-
came indistinguishable as the Star Chamber cases involving “sedition” or
“subversion” and the High Commission cases involving “heresy” worked
in tandem to rid Britain of religious dissenters. “Those who continued to
support the authority of the pope, Henry VIII sent to the executioner™s
chopping block; those who preached new doctrines he sent to the ¬res
at Smith¬eld.”91
Henry VIII™s successors carried on his practices. His son, Edward VI,
was only 10 years old when he ascended to the throne on Henry™s death
in 1547, but the dukes of Somerset and Northumberland ruled in his
name, and both promoted Protestantism as the established and sole re-
ligion of the realm.92 The Catholic Queen Mary (1553“58) ruled in a
country dominated by Protestants,93 whom she believed invited divine
retribution on her reign for their heresy.94 She atoned by burning hun-
dreds of Protestants at the stake, including Bishops Cranmer, Ridley, and
Latimer, during her short reign.95
Protestant Elizabeth I (1558“1603) gained control of a country divided
by religion. To reunite the country, she ruthlessly suppressed Catholicism
(she was excommunicated by the pope in 157096 ) through her enforce-
ment of the Acts of Supremacy and Uniformity, which she employed
the High Commission to institute, and through her use of the Tower
THE DECLINE OF THE SPECIAL TREATMENT OF RELIGIOUS ENTITIES / 253


of London to execute heretics.97 After centuries of sovereign control
in Britain, the Catholic Church found itself in the 1570s instructing
Catholics to avoid Anglican worship services and to attend their own
“despite the penalties for doing so.”98 James I (1603“1625) and Charles I
(1625“1649) avidly suppressed religious opposition. Only ¬ve years be-
fore the end of James I™s reign, in 1620, the May¬‚ower pilgrims sailed
for America.99 Throughout his reign, Charles I aggressively suppressed
Puritans.100 Abuses by the Star Chamber and the High Commission were
legion, and thousands of British citizens left for the American colonies
(and the Netherlands), bringing with them certain knowledge of the
consequences that result when a government joined forces with a sin-
gle religion. After refusing to convene Parliament from 1629 until 1640,
Charles I ¬nally did so, then the Puritans seized power and soon there-
after abolished the prerogative courts (the Star Chamber and High Com-
mission) and their abusive practices.101
The jurisdiction of the prerogative courts “ the Star Chamber and
the High Commission “ was repealed, because “so large a prerogative,”
as was manifested in the courts™ inquisitorial form and their arbitrary
procedures, was “no longer compatible with liberty.”102 In addition, in a
dramatic move forward for the common law, the ecclesiastical courts were
deprived of all criminal jurisdiction, the entirety of which was placed in
common law courts.103
The Crown did not respond to the Reformation by embracing religious
pluralism. Rather, each British monarch, no longer bound to share power
with one church, chose between Roman Catholicism and Protestantism,
and forced her subjects to follow suit.
The Tower of London was an essential tool for the inculcation of the
established religion of the realm. It was employed by Catholic Queen
Mary to imprison and execute Protestants, after she revived the heresy
laws at the end of 1554. The ¬rst Protestant martyr was publicly burned
in 1555.104 Between 250 and 300 were burned alive, while hundreds more
were imprisoned.105 Her successor, Protestant Queen Elizabeth I, used
similar techniques to ward off Catholic Europe and those who refused to
attend Church of England services by incarcerating bishops, archbishops,
and others for years.106 “There were as many executions of Catholics
under Elizabeth as there were Protestants under Mary, though over a
254 / GOD VS. THE GAVEL


reign nine times as long.”107 James I continued to use the Tower as a
prison, as the Tudors had done.108 This was the era of the United States™
¬rst colonization.
In 1643, Parliamentarians seized control of the Tower during the Civil
War in 1643. Throughout the Restoration, the Tower™s function as a state
prison declined and it became a military headquarters and munitions
storehouse. The last execution was in 1747, long after the ¬rst wave of
emigrants left for the New World in the late 16th and early 17th centuries.
Indeed, the ¬rst permanently established settlement in the United States,
in Jamestown Virginia, was established a mere four years after the end of
Queen Elizabeth™s reign.109
The Bloody Tower, as it is often called, is a monument to the British
history of religious dominance and intolerance. It was unquestionably
stamped on the mind-set of any British subject at the time, and scores
of them emigrated to the New World. The founding generation and the
Framers thought about organized religion in this British context and did
not have to leap to reach the conclusions that granting governing power
to religion could be dangerous and that religious individuals and entities
needed to be curbed by just laws. The signal innovation in the United
States was religious pluralism, with each state, or smaller jurisdiction,
establishing its own church or establishing multiple churches. The re-
sulting variety of religious sects was an important step on the way to the
privatization of religion in the United States, which in turn contributed
to the treatment of religious entities as accountable citizens rather than
sovereigns.


In¬‚uences on the Framers that informed the First Amendment
No one was more aware of the capacity of religious institutions to harm
the public good than the framing generation, many of whom escaped
England and its entrenched religious authorities that had suppressed
their particular faith with the aid and acquiescence of the monarchy.110
The Reformation, which spawned a multiplicity of sects in tension with
the established church, ended only 20 years before the ¬rst emigrants
started across the Atlantic.111 Thus “[w]hen English settlers ¬rst sailed
for America in 1584, they carried with them a faith worked out over ¬fty
years of religious turbulence.”112 This turbulence continued well into
THE DECLINE OF THE SPECIAL TREATMENT OF RELIGIOUS ENTITIES / 255


the next century. Religious persecution in Britain only abated when the
Puritans rose to power and disbanded the Star Chamber and the High
Commission in 1641.113 To be sure, the colonists did not swear off of
established churches or persecution of nonbelievers or false believers
immediately, but such principles were neither instituted nor praised in
the federal Constitution. Rather, the federal Constitution, including the
Bill of Rights, weighed heavily against both, in some measure because of
the framing generation™s knowledge of the abuses that had gone before.

The in¬‚uence of the Inquisition on the framers
While drafting the Constitution, Madison “ and the Framers in general “
had the despotic practices of the Catholic Inquisitors stamped on their
political consciousness, a fact proven by Madison™s direct reference to the
Inquisition in his Memorial and Remonstrance, where he argued against
state payment of certain Christian educators as follows:

Because the proposed establishment is a departure from the generous
policy, which, offering an Asylum to the persecuted and oppressed of
every Nation and Religion, promised a lustre to our country, and an
accession to the number of its citizens. What a melancholy mark is the
Bill of sudden degeneracy? Instead of holding forth an Asylum to the
persecuted, it is itself a signal of persecution. It degrades from the equal
rank of Citizens all those whose opinions in Religion do not bend to
those of the Legislative authority. Distant as it may be in its present form
from the Inquisition, it differs from it only in degree. The one is the ¬rst
step, the other the last in the career of intolerance. The magnanimous
sufferer under this cruel scourge in foreign Regions, must view the Bill
as a Beacon on our Coast, warning him to seek some other haven, where
liberty and philanthrophy in their due extent, may offer a more certain
respose from his Troubles.114

There can be no question that the excesses of the Inquisition (1184“
1834), which encompassed the Spanish Inquisition (1474“1834), as well
as the public executions of those whose faith differed from the Crown
in England (1531“1689) and the excesses generated by the unity of power
between the monarchies and organized religion, were part of the calcu-
lus the framing generation used to calibrate the need for government,
the reach of religious liberty, and the need to make religious institutions
256 / GOD VS. THE GAVEL


accountable to the public good. Nor can there be any question that
they believed in placing legal limitations on the religious institutions,
because the Framers believed at a visceral level that religious institu-
tions were not worthy of blind trust. These are complex institutions that
are run and staffed by humans, who are inherently imperfect. That is,
after all, the worldview on which the constitutional scheme is based.
According to the Framers, humans are inherently likely to abuse what-
ever power they hold. They hoped that a structured society based on the
rule of law, and a structured Constitution pitting various power centers
against each other, could forestall the inevitable temptations to abuse
power.115
Indeed, Madison™s mentor, the Rev. John Witherspoon, president of
the College of New Jersey, which later became Princeton University,
explained the history of the United States in the context of the Inquisition:

[A]t the time of the Reformation when religion began to revive, nothing
contributed more to facilitate its reception and increase its progress
than the violence of its persecutors. Their cruelty and the patience of
the sufferers naturally disposed men to examine and weigh the cause
to which they adhered with so much constancy and resolution. At the
same time also, when they were persecuted in one city, they ¬‚ed to
another and carried the discoveries of Popish fraud to every part of the
world. It was by some of those who were persecuted in Germany that
the light of the Reformation was brought so early into Britain.
[T]he violent persecution which many eminent Christians met with in
England from their brethren, who called themselves Protestants, drove
them in great numbers to a distant part of the New World where the
light of the gospel and true religion were unknown.116

Under the reign of Pope Gregory IX, in response to the spread of
“heretic” beliefs, Roman Catholic bishops conducted medieval “inqui-
sitions” designed to rid France, Germany, and Italy of non-Catholics.
Because these events in¬‚uenced the framing generation™s perception of
the qualities of religious organizations, it is important to understand their
history. Investigation of heresy was traditionally the duty of the bishops.117
The Inquisition, then known as the Holy Of¬ce, is perhaps best known for
convicting Galileo at trial in 1633 for his “dangerous” scienti¬c beliefs.118
Most Inquisition trials resulted in a guilty verdict, and those convicted
THE DECLINE OF THE SPECIAL TREATMENT OF RELIGIOUS ENTITIES / 257


faced a myriad of horri¬c punishments as well as ¬nes, imprisonment,
and death.119
The Spanish Inquisition was independent of the medieval Inquisi-
tion, but it was also part of that history the framing generation would
have known and used to judge contemporary ideas. The purpose of
the Spanish Inquisition was to discover and punish converted Jews (and
later Muslims) who were insincere.120 It was established in 1478 by King
Ferdinand and Queen Isabella with the reluctant approval of Pope Six-
tus IV.121 The institution was entirely controlled by the Spanish crown “
the pope™s only check on the Inquisition was in naming and appoint-
ing the nominees to be inquisitors.122 In 1483, the Crown created a new
royal council of the Supreme and General Inquisition to expand the op-
eration of the Inquisition throughout Spain. The notorious Tomas de
Torquemada was named inquisitor general, who was the head of the
council, responsible for creating branches of the Inquisition in various
cities by establishing local tribunals.123 The Spanish Inquisition was not
¬nally abolished until 1834, nearly 60 years after the Declaration of In-
dependence was signed.124


The early move toward religious pluralism
In Britain in 1662, during the Restoration, Anglicans and Presbyterians
attempted to form a national British church, but the effort failed. Par-
liament passed a new Act of Uniformity, and Presbyterian ministers who
refused to conform were expelled from their congregations.125 Dissent-
ing Protestant worship became legal in 1689, but the dissenters were not
allowed to hold property to construct churches unless they were subject
to the oversight of the Court of Chancery. Not until 1791 were Catholics
given parity with other Protestant dissenters. The inability of the estab-
lished Anglican Church to answer to the public good when dealing with
issues involving taxation, tithing, local government, marriage, education,
and charity led to the assumption of civil jurisdiction over those issues. It
was the measuring stick of the public good that transformed Britain from
a country with only one recognized religion to one of religious liberty.
“English pluralism was the result of a gradual wearing away of a uni-
tary system through concessions made because it seemed right to make
them.”126
258 / GOD VS. THE GAVEL


Like Britain, the United States did not begin as a fully pluralistic and
tolerant society. The early colonies and then some of the states, with
the exception of Pennsylvania, had established churches with corres-
ponding privileges for members and disabilities for dissenters. Notably
though, there was no Tower of London or Star Chamber and High Com-
mission to force the established church™s beliefs on others. Moreover, the
establishments, such as they were, gave way not long after the Constitu-
tion and then the Bill of Rights were rati¬ed.
The Establishment Clause is testimony to the founding generation™s
rational fear of overweening religious power and of the mischief that can
be fostered by religious institutions, particularly when they are sovereign.
It cannot be, as Professor Carl Esbeck argues, a rule solely intended to
protect religious entities.127 The history leading up to the founding of
United States and the Protestant cast of governance theories at the time
undermine such attempts to treat religion as though it is not a dangerous
and potent social force that must be limited, just as the state must be.


The Protestant in¬‚uence on the framing generation
The dominant mind-set of the early Americans was Protestant.128 At its
most fundamental level, all Protestantism incorporates the view that re-
ligious individuals and institutions have the capacity to stray from a holy
path into the path of evil.129 For Protestants, individuals are locked into
original sin. According to John Calvin, who, along with Martin Luther,
sparked the Reformation and Protestantism, there was never a moment
in history when humans could be blindly trusted to be, or do, good:

[L]et us hold this as an undoubted truth which no siege engines can
shake: the mind of man has been so completely estranged from God™s
righteousness that it conceives, desires, and undertakes, only that which
is impious, perverted, foul, impure, and infamous. The heart is so
steeped in the poison of sin, that it can breathe out nothing but a loath-
some stench. But if some men occasionally make a show of good, their
minds nevertheless ever remain enveloped in hypocrisy and deceitful
craft, and their hearts bound by inner perversity.130

Thus, Calvin counseled in favor of a diligent surveillance of one™s own
actions and the actions of others at the same time he endorsed the value
THE DECLINE OF THE SPECIAL TREATMENT OF RELIGIOUS ENTITIES / 259


of the law (both biblical and secular) to guide human behavior away from
its propensity to do wrong.131 Granted, no human could ever live up to
all of the law™s demands, but laws were valuable as a checking measure
nonetheless.
Protestantism equally discounted the likelihood that a religious insti-
tution could be trusted on its own to serve the public good. “[Protes-
tantism] is essentially an attempt to check the tendency to corruption
and degradation which attacks every institutional religion.”132 The early
Protestants, after all, were the Catholic dissenters who eventually rejected
the 16th-century Roman Catholic Church for its malignant ways.133 The
belief that the Catholic Church had led the Christian Church down evil
paths was a fervently held belief at the time of the framing as well, with
John Adams identifying the “worst tyranny ever invented” as “the Romish
superstition.”134
The attitude of the framing generation on this subject differed little
from Calvin™s description of the 16th-century Roman Church™s hubris
and unaccountability:

Because of the primacy of the Roman Church, they say, no one has
the right to review the judgments of this See. Likewise: as judge it
will be judged neither by emperor, nor by kings, nor by all the clergy,
nor by the people. This is the very height of imperiousness for one
man to set himself up as judge of all, and suffer himself to obey the
judgment of none. But what if he exercise tyranny over God™s people?
If he scatter and lay waste Christ™s Kingdom? If he throw the whole
church into confusion? If he turn the pastoral of¬ce into robbery?
Nay, though he be utterly wicked, he denies he is bound to give an
accounting.135

The solution for the wayward path of the Catholic Church, at least ac-
cording to Calvin, was proper government, a need the early Presbyterians
(and Calvinists), identi¬ed both in the society and the Church:

Man™s depraved apostate Condition renders Government needful.
Needful both in the State and the Church. In the former without Gov-
ernment Anarchy wou™d soon take place with all its wild and dire Effects
and Men wou™d be like the Fishes of the Sea where the greater devour
the less. Nor is Govern[ment] in the Church less needful than in the
State and this for the same Reason.136
260 / GOD VS. THE GAVEL



The framing generation and the development of the
no-harm principle
There is nearly universal agreement that a no-harm rule undergirds and
justi¬es criminal, tort, and regulatory laws (at least those laws that pro-
hibit harm to others).137 The no-harm rule was a notion articulated by
John Locke in the 17th century, widely shared by the framing genera-
tion in the 18th century, and entrenched in modern philosophy and law
by John Stuart Mill,138 who was the most in¬‚uential philosopher in the
19th-century English-speaking world. He set forth the following maxims,
which came to be known collectively as the Harm Principle:

¬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.139

Mill thereby restated the Lockean principle in a way that honed it down
to a no-harm rule itself. It is a ¬rm rejection of individual (or institutional)
autonomy from the laws that protect others from harm.
He also advocated absolute dominion over one™s mind, which entailed
tolerance of con¬‚icting beliefs: “If all mankind minus one, were of one
opinion, and only one person were of the contrary opinion, mankind
would be no more justi¬ed in silencing that one person, than he, if he had
the power, would be justi¬ed in silencing mankind.”140 The universe of
actions was divided into two categories: those that will not harm others and
those that will. The former should not be regulated, and the latter should.
In the 20th century, the no-harm principle was further elaborated by
H. L. A. Hart and Joel Feinberg. H. L. A. Hart stated in the 1960s that the
line to be drawn between legitimate laws and illegitimate laws rested on
the Harm Principle.141 Joel Feinberg further developed the theory.142 By
the latter half of the 20th century, the no-harm rule was widely accepted
as the best justi¬cation for criminal, tort, and regulatory laws. It remains
the dominant approach.
As discussed in Chapter 8, Locke believed in a robust right of con-
science, but also that belief must be coupled with the obligation not to
THE DECLINE OF THE SPECIAL TREATMENT OF RELIGIOUS ENTITIES / 261


harm others through one™s actions. The no-harm principle is part and par-
cel of the core principle of ordered liberty embedded in republicanism:
the maximal amount of liberty is calibrated to achieve the minimal
amount of harm.143 Order must be ¬tted with liberty.
Locke™s no-harm principle was taken as a commonplace during the
era of the framing. Thomas Jefferson famously explained, “the legitimate
powers of government extend to such acts only as are injurious to others.
But it does me no injury for my neighbour to say there are twenty gods,
or no God. It neither picks my pocket nor breaks my leg.”144 Freedom
of belief and “free argument and debate” were essential human rights,
but when those “principles break out into overt acts against peace and
good order” it is the “rightful purpose[] of civil government, for its of-
¬cers to interfere.”145 Jefferson articulated the same principle when he
wrote to James Madison in 1788 to outline the rights he thought nec-
essary to include in a bill of rights. He backed a bill of rights, but he
was also conscious that rights had the capacity to “do evil.” Thus, he
explained what the “freedom of religion” in the bill of rights would (and
would not) accomplish: “The declaration that religious faith shall be un-
punished, does not give impunity to criminal acts dictated by religious
error.”146
James Madison “ drafter of the First Amendment “ equally recog-
nized the right to complete freedom of belief: “Religious bondage shack-
les and debilitates the mind and un¬ts it for every noble enterprise,
every expanded project.”147 He admired the tolerance of religious be-
liefs in Pennsylvania, which exhibited a “liberal, catholic, and equitable
way of thinking as to the rights of Conscience.”148 His discussions of
“conscience” were discussions about belief, and not conduct.
Madison was particularly harsh regarding the potential abuses of power
by religious institutions and especially their clergy. When backed by state
authority, he declared, the clergy “tend to great ignorance and corruption,
all of which facilitate the execution of mischievous projects.” He casti-
gated some believers at the time: “Poverty and luxury prevail among all
sorts: pride, ignorance, and knavery among the priesthood, and vice and
wickedness among the laity. . . . That diabolical, Hell-conceived principle
of persecution rages among some, and to their eternal infamy, the clergy
can furnish their quota of imps for such business.”149 Obviously, Jefferson
and Madison envisioned the potential for great harm to the public
262 / GOD VS. THE GAVEL


good when a religious entity abuses power.150 For this reason, absolute lib-
erty for religious organizations was never contemplated by them, or their
fellow citizens. In fact, the primary assumption at the Constitutional Con-
vention “ and it is the most important principle that has contributed to
the Constitution™s success “ was that every individual and every institu-
tion holding power was likely to abuse that power and therefore must be
checked.151
Many in the framing era were also distrustful of religious organizations
and clerics. The Deists at the time, like Jefferson, believed in Christ, but
were unwilling to align themselves with the theology of any particular
organized religion because, in their eyes, most theologies were a corrup-
tion of Christianity.152 Jefferson famously excised portions of the Bible he
found unacceptable to create his own creed.153 Thus, Jefferson declared,
“To the corruptions of Christianity, I am indeed opposed; but not to the
genuine precepts of Jesus himself.”154 The Deists dominated the univer-
sities, and had a disproportionate effect on the culture compared to their
numbers. Among Christians other than the Deists, anticlericalism also
was an entrenched viewpoint.155
The Protestant mind-set, and its interpretation of the violent history of
religion in Europe, holds relevance for understanding the legal system
that emerged in early America. It is no accident that the rise of Protest-
antism, its elemental rejection of the Roman Catholic Church, and its
af¬rmation of the sinfulness of all humans “ including and especially
those who were clerics “ coincided with the demise of the ecclesiastical
courts and the bene¬t of clergy.156
Protestant theology, the reformed branch in particular, has long rested
on a deep mistrust of human nature rooted in original sin, which has
led to the necessity of government and a no-harm rule.157 In fact, the
Calvinist-Presbyterian branch of reformed theology contributed to the
construction of the U.S. Constitution™s emphasis on checks and bal-
ances, separation of power, and the necessary division of power between
state and federal governments.158 This starting point is shared by the
Framers, Catholic Social Thought, and reformed theology. All three
equally value the rule of no harm, that is, the necessity of deterring all cit-
izens and institutions from harming others. For Protestant theology, gov-
ernment rightly exists to serve the common good, and that good is served
best when the potential to do harm is restrained through duly enacted
laws.
THE DECLINE OF THE SPECIAL TREATMENT OF RELIGIOUS ENTITIES / 263


One particularly relevant idea in Protestant theology is the theory
of “sphere sovereignty” introduced by a reformed theologian, Abraham
Kuyper, in the late 19th century.159 Under sphere sovereignty (or author-
ity as some have suggested), church and state (and the arts and business,
among other social organizations) each have their own sovereign base,
but each also has a distinctive role. “[T]he telos of the state is the common
good.” Thus, the distinctive role of the state is to “prevent the spheres
from infringing upon one another, and it may use compulsion when
necessary to maintain order.”160 He further explained:

The cogwheels of all these spheres engage each other, and precisely
through that interaction emerges the rich, multifaceted multiformity of
human life. Hence also rises the danger that one sphere in life may en-
croach on its neighbour like a sticky wheel that shears off one cog after
another until the whole operation is disrupted. Hence also the raison
d™ˆ tre for the special sphere of authority that emerged in the State. It
e
must provide for sound mutual interaction among the various spheres,
insofar as they are externally manifest, and keep them within just
limits.161

This oversight role includes the power to protect the powerless in every
sphere.162 Thus, no sphere is considered immune from the sovereignty
or power of another, but rather each sphere is to exercise its authority
according to its own telos. Moreover, the state holds the authority to
“intervene when the authorities in other spheres are manifestly abusing
their power.”163
The just criticism of the sphere sovereignty theory is that it is fuzzy
at the boundaries, and it does not fully articulate the speci¬c role of
either the state or the religious institution.164 Its value, however, lies in
its articulation of the role of government vis-` -vis the church. It is not at
a
all a stretch to claim that the powers identi¬ed are those undergirding
the no-harm doctrine: the state is a neutral arbiter that ensures peace
and protects the powerless. The state that chooses church autonomy is at
odds with this notion.

Religious attitudes toward obedience to the rule of law
in the framing generation
The dominant view at the time of the framing was that the rule of
law was to be applied to religious individuals and institutions.165 As the
264 / GOD VS. THE GAVEL


experiments with democracy around the world in the last 30 years have
taught, the rule of law cannot operate without the widespread accep-
tance of this principle among the people.166 During the latter half of the
18th century, such acceptance in this country was signi¬cantly furthered
by sermons in a wide range of Protestant churches “ Baptist, Presbyterian,
Congregational, and Episcopalian.167
Whether religious believers would be subject to the general laws of
the new country was a topic that was frequently on the minds of preach-
ers in the latter half of the 18th century. Their sermons, as well as
governing documents of their churches, show the religious leaders of
18th-century society articulating a fairly cohesive vision for the coexis-
tence of God™s law and civil law. I do not intend to overstate the con-
sistency of their claims, because there are dissenting, minority views
and not every preacher adopts every tenet discussed here. Nevertheless,
there is a generally accepted view that is suf¬ciently repeated to justify
the claim that it was an important and formative element in the social
mix.
To be sure, the ideas that the various sermons set forth are consistent
with and can even plausibly be traced to not only theology but also
to political philosophy of the time. In particular, many of the sermons
reference the work of John Locke. In any event, religious leaders at the
time of the formation of the Constitution conveyed a vision to their
members: Congregants were urged by their religious leaders to follow
the rule of law on a number of grounds.
The discussion of religion and the rule of law in the pulpit usually
proceeded by an acknowledgment of the existence of two concurrent
realms, one civil, one religious, each with a rightful pull on the citizen.
While the argument for the superiority of God™s obligations is made, a
number of ministers assert that the civil law is, in fact, a form of God™s
law. Believers were not to focus solely on their private understanding of
what God asks of them individually, but rather, as part of their Christian
practice, to take into account the good of the whole in their obedience to
the law. Preachers also argued, in the larger picture, that obedience to the
civil law is necessary for the realization of true liberty and that the free-
dom of religion does not extend to conduct beyond worship. Far from the
overly simpli¬ed assumption that con¬‚icting laws automatically should
give way to religious claims, 18th-century religious leaders cautioned
THE DECLINE OF THE SPECIAL TREATMENT OF RELIGIOUS ENTITIES / 265


their members of the perils to the broader society of failing to follow
the law.
Respected clergymen tended to be well-educated, and were the polit-
ical and social leaders of their day. There was no national government
or identity, so elected of¬cials were limited geographically to a particular
state or city. But many of the clergy were itinerant, often crossing state
boundaries and delivering political and social news from state to state.
The two elements “ travel across state lines and high regard “ made them
formidable in¬‚uences immediately before, during, and after the Revolu-
tion up till the Constitutional Convention. Thus, it is well worth one™s
time to examine what they had to say about the law and religious entities
at the time.
In 18th-century sermons, there was a repeated emphasis on the exis-
tence of two concurrent and distinguishable realms of power: church and
state. Each was to have its rightful, limited claim on human conduct and
mutual boundaries.168
Civil law made legitimate claims on religious believers when civil
law operated in the proper realm. For example, Elisha Williams in
1744 stated that “obedience is due to civil rulers in those cases wherein
they have power to command, and does not call for it any farther.” In
other words, according to Williams, “[t]he ground of obedience cannot
be extended beyond the ground of that authority to which obedience
is required.”169 The proper ground included the preservation of “life,
liberty, money, lands, houses, family, and the like.”170 Three years later,
Charles Chauncy echoed that civil “rulers . . . have an undoubted right
to make and execute laws, for the publick good.”171 The horizon under
which legislatures were to make law was the public good. According
to John Lathrop, “[I]f the essential parts of any system of civil govern-
ment are found to be inconsistent with the general good, the end of
government requires that such bad systems should be demolished, and
a new one formed, by which the public weal shall be more effectually
secured.”172
The two domains were coterminous and mutually exclusive. Thus,
civil government™s proper realm ended when it attempted to “establish
any religion” by instituting or requiring “articles of faith, creeds, forms of
worship or church government [in part because] . . . these things have no
relation to the ends of civil society.”173
266 / GOD VS. THE GAVEL


To be sure, the clergy did not intend to rubber stamp the rule of any civil
government per se, but rather only that government that ¬‚ows directly or
indirectly from the people and that is obligated to the public good. The
law that binds is the law derived as follows:

[R]eason teaches men to join in society, to unite together into a com-
monwealth under some form or other, to make a body of laws agreeable
to the law of nature, and institute one common power to see them ob-
served. It is they who thus united together, viz. the people, who make
and alone have right to make the laws that are to take place among
them; or which comes to the same thing, appoint those who shall make
them, and who shall see them executed. For every man has an equal
right to the preservation of his person and property; and so an equal
right to establish a law, or to nominate the makers and executors of the
laws which are the guardians both of person and property.174

For at least one preacher in 1784, the fact that citizens legitimized the
government by choosing their rulers led to the conclusion that such rulers
were to be obeyed.175
Part of this shared vision depends on a notion of differentiation between
church and state. But it is not a total separation that forces the believer to
choose one sphere over the other, but rather a distinction of spheres, each
with a legitimate, concurrent, and strong pull on the believer™s allegiance.
Thus, the free exercise of religion was to be pursued not in isolation but
rather in “so far as may be consistent with the civil rights of society.”176
Taking the image of concurrent but distinguishable realms to its logical
end, Isaac Backus reasoned that when each is functioning properly within
its own realm, “the effects are happy, and they do not at all interfere with
each other.” The key to such happiness lies in their separate spheres, with
“mischiefs” ensuing whenever “these two kinds of government . . . have
been confounded together.”177
The one realm reinforced allegiance to the other, and thus the obliga-
tion to obey the civil law was treated as part of the Christian™s obligation.
Peace was to be achieved when men lived under these two authoritative
regimes, because Christians “are taught to obey [civil] magistracy.”178
Thus, the allegiance to the Christian Church carried with it an alle-
giance to laws duly enacted by those who were appointed by the people
and entrusted with serving the public good.179
THE DECLINE OF THE SPECIAL TREATMENT OF RELIGIOUS ENTITIES / 267



The 18th-century preachers™ reasons to obey the civil law
Far from urging civil disobedience, many 18th-century sermons exhorted
believers to obey the civil law. There are three reasons offered by the
clergy to obey the law. First, the law is given by God and therefore the
believer must obey. Second, the rule of law serves the good of the whole.
Third, which is a subset of the second justi¬cation, true or real liberty
cannot be achieved in the absence of the rule of law functioning in a
system appointed by the people.
First, for many of the preachers in the 18th century, God was present in
both types of government “ civil and ecclesiastical “ in the sense that God
has instituted government and that reason is founded in God. In a strong
challenge to the notion that church and state are completely separate,
Charles Chauncy in 1747 rejected the notion that civil government is
purely a “humane constitution.” Rather, civil government arises out of
reason and therefore is “essentially founded on the will of God. For the
voice of reason is the voice of God.” Indeed, God™s hand is in the very
institution of civil government.180
Applying these grounding principles, Elizur Goodrich preached in
1787 that “transgress[ing] the laws of society . . . [will] expose ourselves to
the high displeasure of Almighty God.”181 In other words, the obligation
to obey the law is not merely based on principles of reason, but rather is
a directive from God.
Second, in contemporary debate, the argument is oft raised that
churches and their believers have a right to be left alone by the law,
to isolate themselves from the community, in effect. Indeed, one of the
most common justi¬cations used to defend mandatory judicial exemp-
tions is that the law should leave religious believers alone. In other words,
no regulation affecting religion should be the baseline.182 That was not
the framing generation™s vision.
This is a world view that would have been alien to the religious leaders
of the latter half of the 18th-century. It is as though history is being read
through the anachronistic prism of Brandeis™s famous 20th-century argu-
ment for the “right to be let alone.”183 By contrast, in the 18th-century ser-
mons, there was a strong focus on the importance of believers contribut-
ing to the greater good and the community at large. In Nathaniel Eells™s
words in 1743, “We are not made for our selves alone, but we are made to
268 / GOD VS. THE GAVEL


help in making the World better.”184 Parishioners were exhorted to “pro-
mot[e] the public peace and happiness,” not just their private salvation.
The failure to submit to the “just commands of the civil authority” was
contrary to God™s will and worked “an injury . . . to the community.”185
On these terms, there would be no true liberty, but rather only anarchy,
in the isolationist Brandeis-like vision. Thus, “[p]ublic good is not a term
opposed to the good of individuals; on the contrary, it is the good of every
individual collected.” The Protestant preachers rejected the notion that
Christians can live apart from society, isolated and not responsible for the
common good. “˜Let regard be had only to the good of the whole™ was
the constant exhortation by publicists and clergy.”186
To secure true liberty, Christians were to be part of the tapestry of
the society, contributing to its highest ends: peace, welfare, and security.
“True liberty was ˜natural liberty restrained in such manner, as to render
society one great family; where every one must consult his neighbour™s
happiness, as well as his own.™”187 Isaac Backus further explained the
principle as follows: “Each rational soul, as he is a part of the whole
system of rational beings, so it was and is, both his duty and his liberty to
regard the good of the whole in all his actions.”188
As parts of the fabric of society, Christians had obligations to ensure that
the greater good was secured to the society as a whole in many categories.
In Jonas Clarke™s words,

In a word, as by the social compact, the whole is engaged for the pro-
tection and defense of the life, liberty and property of each individual;
so each individual owes all that he hath, even life itself, to the support,
protection and defence of the whole, when the exigencies of the state re-
quire it. And no man, whether in authority or subordination, can justly
excuse himself from any duty, service or exertions, in peace or war, that
may be necessary for the publick peace, liberty, safety or defense, when
lawfully and constitutionally called thereto.189

The alternative to this vision was anarchy, division, and war. Thus, God™s
directive to seek peace was to be achieved by the body of Christians
operating as a community together pursuing the common good.
Late in the 18th century, Jonathan Edwards reaf¬rmed this view of
Christian community with an obligation to the common good: “it espe-
cially becomes this [Christian family], visibly to unite, and expressly to
THE DECLINE OF THE SPECIAL TREATMENT OF RELIGIOUS ENTITIES / 269


agree together in prayer to God for the common prosperity.”190 Under this
understanding, believers were obliged not simply to look after their own
interests and to follow duly enacted law, but rather to embrace the needs
of the polity as a whole as part of the Christian mission here on earth.
Third, real liberty was to be achieved through obedience to law as
well as the good of the whole. John Witherspoon taught his students,
a number of whom later became Framers, including James Madison,
at the Presbyterian College of New Jersey, now Princeton University,
that the “true notion of liberty is the prevalence of law and order, and
the security of individuals.”191 The various 18th-century sermons state
that liberty from the law of a legitimate government is no liberty at all.
Government is necessary and obedience to just laws is necessary for there
to be “real liberty.” Indeed, “it is so far from being necessary for any man
to give up any part of his real liberty in order to submit to government,
that all nations have found it necessary to submit to some government in
order to enjoy any liberty and security at all.”192
The peace and good order imposed by a just government, that is, one
chosen by the people, was not to be undermined by the religious believer.
“[W]hen a man adopts such notions as, in their practice, counteract the
peace and good order of society, he then perverts and abuses the original
liberty of man, and were he to suffer for thus disturbing the peace of the
community, and injuring his fellow-citizens, his punishment would be
in¬‚icted not for the exercise of a virtuous principle of conscience, but
for violating that universal law of rectitude and benevolence which was
intended to prevent one man from injuring another.”193
Thus, the laws ensuring peace, tranquility, and order obligated the
believer and trumped counterinstincts for the purpose of achieving the
fullest liberty. “It is true, the interests of society require subordination,
but this deprives none of liberty, but helps all to enjoy it better.”194
Finally, the framing generation believed that conduct, even when reli-
giously motivated, was regulable by the state in the interest of others. One
of the most interesting aspects of the sermons, taken as a whole, is that
they are consistent in naming the arenas over which the church has com-
plete control as they leave the achievement of peace and order to the civil
government. The churches™ domain included the “power to make or or-
dain articles of faith, creeds, forms of worship or church government.”195
Conversely, “[t]he duty of magistrates is not to judge of the divinity or
270 / GOD VS. THE GAVEL


tendency of doctrines”196 but rather to constrain actions that harm others
and the public good. “[D]isturbers . . . ought to be punished.”197
The ecclesiastical domain ended and the civil domain appropriately
held sway when the beliefs, faith, worship, and church governance turned
into “overt acts of violence [or effect].”198 So even when overt acts involved
the subject areas of ecclesiastical government, the civil authority permis-
sibly dominated. Thus, religious defenses to a wide range of antisocial
conduct, such as “murder, theft, adultery, false witness, and injuring our
neighbor, either in person, name, or estate” were immoral or irreligious
or both.199 One sermon explained as follows:

A Shaking-Quaker, in a violent manner, cast his wife into a mill-pond
in cold weather; his plea was, that God ordered him so to do. Now the
question is, Ought he not to be punished as much as if he had done the
deed in anger? Was not the abuse to the woman as great? Could the
magistrate perfectly know whether it was God, Satan, or ill-will, that
prompted him to do the deed? The answers to these questions are easy.
In the year of 1784, Matthew Womble, of Virginia, killed his wife and
four sons, in obedience to the Shining One . . . to merit heaven by the
action. . . . Neither his motive, which was obedience, nor his object,
which was the salvation of his soul had any weight on the jury.200

In other words, actions taken in contravention of public peace and safety,
under a civil government chosen by the people, left the perpetrator, even
if a religious believer, vulnerable to civil action.201 “The subjects of the
kingdom of Christ, claim no exemption from the just authority of the
magistrate, by virtue of their relation to it. Rather they yield a ready and
cheerful obedience, not only for wrath, but also for conscience sake. And
should any of them violate the laws of the state, they are to be punished
as other men.”202
The portrait of society painted by the sermons of the 18th century
brought Christians from a wide sweep of denominations under a shared
horizon of working toward the public good in concert with the govern-
ment, a task that required obedience to duly enacted law governing ac-
tions. Backus captured this worldview when he explained that religious
believers had “an unalienable right to act in all religious affairs according
to the full persuasion of his own mind, where others are not injured
thereby.”203
THE DECLINE OF THE SPECIAL TREATMENT OF RELIGIOUS ENTITIES / 271


In sum, the no-harm principle was widely accepted, especially among
religious believers, clergy, and political leaders at the time of the framing.
The arguments204 that have been made for a mandatory constitutional
right to avoid the application of the law to religious conduct simply cannot
be supported.205 Religious autonomy “ in the sense of an independent
power to act outside the law “ was not part of the Framers™ intent or of the
framing generation™s understanding, not to mention the vast majority “
and the best “ of the Supreme Court™s free-exercise jurisprudence.206
As Justice Scalia reasoned in Boerne, the most plausible reading of
early free-exercise enactments is a “virtual restatement of Smith:”207 He
correctly pointed to the many state constitutional provisos that imposed
the public interest in safety, health, and welfare on religious conduct.
These important public safeguards transcended absolute liberty from the
beginning in the United States:

Religious exercise shall be permitted so long as it does not violate general
laws governing conduct. The “provisos” in the enactments negate a li-
cense to act in a manner “unfaithful to the Lord Proprietary” (Maryland
Act Concerning Religion of 1649), or “behave” in other than a “peace-
able and quiet” manner (Rhode Island Charter of 1663), or “disturb
the public peace” (New Hampshire Constitution), or interfere with the
“peace [and] safety of the State” (New York, Maryland, and Georgia
Constitutions), or “demean” oneself in other than a “peaceable and or-
derly manner” (Northwest Ordinance of 1787). See post, at 8“12. At the
time these provisos were enacted, keeping “peace” and “order” seems
to have meant, precisely, obeying the laws.208

In fact, “[e]very breach of law is against the peace.”209

Conclusion
The notion of religious autonomy starts at the wrong end when it begins “
and certainly when it ends “ with only a discussion of what the church or
religious individual needs or demands.210 That was the focus in Britain
between the 12th and 16th centuries, but it has long been rejected, except
by those few who would return the United States to a system of preferences
for religious entities.
The elimination of religious sovereign power by de¬nition made reli-
gious institutions private, and therefore on a more equal footing with other
272 / GOD VS. THE GAVEL


private entities. As such, they must be checked by the law. The constitu-
tionally relevant question is not what is best for any church “ indeed that
question is forbidden by the neutrality principle underlying the Estab-
lishment Clause.211 The proper question instead is whether the liberty
accorded is consonant with the no-harm principle. If so, the public good
has been properly served, because both liberty and order have been taken
into account. If not, the public good “ and therefore the constitutional
order “ has been subverted. As the no-harm principle has developed over
the centuries, it has become an insuperable barrier for the claim that the
Constitution can or should place religious entities above the law.
The current revelations of worldwide childhood sexual abuse by clergy,
when combined with the concomitant secret knowledge of their individ-
ual religious institutions, reinforces what the founders of this country
knew in the 17th and 18th centuries: religious entities often will abuse
what power they have. To set aside the law for them without consideration
of the public good is to choose liberty at the expense of order and to make
society responsible for the harm they can cause. The right free exercise
doctrine gives a wide berth to religious belief, but follows the rule that
no American may act in ways that harm others without consequence.
10


THE PATH TO THE PUBLIC GOOD




Were all religious institutions and individuals always bene¬cial to the
public, this book would not be needed. The rule would be plain: Religious
liberty is absolute. Religious entities would not need to be deterred from
criminal or tortious behavior. The purpose of this book has been to explain
why even religious individuals and institutions must be governed by duly
enacted laws.
The logistics of the landmark Boerne v. Flores1 case, discussed in chap-
ter 8, brought me into contact with the many groups in this society that
lobby against damaging religious conduct, like the American Academy
of Pediatrics, Children™s Healthcare Is a Legal Duty (CHILD), district
attorneys, and state regulatory agencies. Getting to know them educated
me in two ways. First, I learned that my original theory of free exercise
that would have excused religious entities from the vast majority of laws

273
274 / GOD VS. THE GAVEL


was patently absurd. It was a product of the ivory tower “ a theory based
on ignorance of religious conduct. As I soon came to recognize, I (like
many Americans) was a Pollyanna when it came to religion.
Second, I came to see what I could not see before. Religious conduct
in the United States (and around the world) had an underbelly few knew
about, fewer discussed, and even fewer discussed publicly. It was Aristotle
who said: “We have to learn before we can do . . . we learn by doing.”2 My
experience with RFRA “ which covered every law in the United States
and therefore affected every possible victim of religious entities “ forced
my eyes open and led me to comprehend that the widespread cultural
presupposition that religion is inherently and always good for society is
baseless. The “religion” that should be freed from legal constraints was
a chimera: beautiful and comforting, but distinct from reality. In the
¬nal analysis, a theory of religious liberty cannot sustain itself unless it
factors in the possibility of heinous harms by religious individuals and
institutions, some of which are detailed in Part One.
It is a simple fact that religious entities are not invariably bene¬cial. As
Part One shows, religious entities can be responsible for lethal medical
neglect of children, childhood sexual abuse, the takeover of neighboring
property owners™ rights under the zoning laws, and the undermining of
civil rights laws, among other conduct. Unfortunately, religion is often
used (or misused) to harm others. These behaviors are intolerable in a
civil and civilized society, and the state must have the power to deter and
punish them. The proper default rule subjects the religious to general
constraints on harmful behavior.
In essence, I am arguing for the application of the rule of law to re-
ligious entities as it is applied to all others. The governing law should
not be one that any one individual decides according to his or her own
perspective, but rather a set of laws created by duly enacted legislatures
charged with consideration of the public good. It is a simple and a pro-
found principle, but in this context it has been muddied by legal battles
and special interests.
The hard question that has been at the heart of the religious debate
since the 1960s is when, if ever, a religious individual or institution should
be given freedom from the general law. As explained in chapter 8, the
typical rule at the Supreme Court has been that neutral, general laws
apply to everyone, religious or not. And that is the right default rule.
THE PATH TO THE PUBLIC GOOD / 275


Many, however, have argued that the law should not encumber re-
ligious conduct unless it is an extremely important law. For them,
Wisconsin v. Yoder3 was rightly decided, and the courts should scrutinize
the legislature™s enactments to determine whether they are important
enough to trump religious conduct. The net result is unacceptable: reli-
gious entities have broad sway to violate the vast majority of laws and the
courts determine which legislation is important and which is not, accord-
ing to their own lights. For those who understand the capacity of religious
individuals and institutions to hurt others, the notion that religious en-
tities ought to trump all but the most necessary laws is unacceptable.
Moreover, the courts are not equipped to make relative determinations
about social policy regulating conduct.
Even so, it is the rare individual who would jettison religious liberty
altogether. Some modern scholars have tried, by reducing religious liberty
to equality. Nonetheless, that approach fails to take into account the
potent and distinctive drive of religious belief in every human society
and its distinctive value for society. While the courts should not have the
power to pick and choose between the laws that affect religious conduct,
there should be some mechanism where the government can take into
account the inherent value of religious liberty and weigh that value against
the impact on the public good of letting the religious entity avoid the
law. If an exemption will not harm others, it should be provided “ by a
legislature.
This ¬nal chapter lays out the three necessary conditions for legitimate
religious accommodation. Exempting religious conduct from neutral,
general laws must be (1) duly enacted by a legislature, not decreed by a
court; (2) must be debated under the harsh glare of public scrutiny; and
(3) must be consistent with the larger public good. Where the burden on
religious conduct can be lifted by the legislature with only de minimis
harm to the public, there is good reason to accommodate the religious
conduct. But where the religious conduct harms others, accommodation
is not consistent with the public good, and the exemption is likely a leg-
islative sellout that shortchanges important interests in society and that
violates the Establishment Clause. This is the permissive accommodation
rule that ¬ts with the larger constitutional scheme and honors both reli-
gious liberty and the obligation of the government to protect citizens from
harm.
276 / GOD VS. THE GAVEL



Religious conduct in the context of the Constitution™s structure
Freedom of religion is an integral part of the Constitution, not a principle
somehow divorced from the rest of the document. The same underlying
principles that drove the Framers™ other choices also set in motion their
placement of religion within American society. Any theory of the First
Amendment that fails to take into account the Constitution™s larger struc-
ture is not complete.
One principle infused throughout the Constitution is distrust of the
powerful. The Framers believed that every individual and every institu-
tion holding power was likely to abuse that power.4 They did not trust the
King, the executive, the legislatures, and even the people, and therefore
no single entity could be trusted to govern. Distrust led the Framers to
the checks and balances that are now so familiar. The three branches “
legislative, executive, and judicial “ were to check each other, and the
federal and state governments were mutual checks.5
It should come as no surprise that the Framers started from a posi-
tion of distrust. The years between the Declaration of Independence
and the Constitutional Convention were years of disillusionment. The
Declaration was an ebullient Enlightenment document that re¬‚ected
the freed colonists™ optimism about the future after breaking ties with
the British monarchy and Parliament. There was widespread hope and
expectation that they would institute the ¬rst truly successful republican
form of government the world had seen. The Articles of Confederation
established 13 separate states, asserting “Each state retains its sovereignty,
freedom, and independence, and every power, jurisdiction, and right,
which is not by this Confederation expressly delegated to the United
States, in Congress assembled.”6 Because the Continental Congress had
no power to force states to do other than they desired, the Articles recog-
nized 13 wholly independent sovereigns. To say that the state governments
that followed did not deliver on the Declaration™s hopes is to severely un-
derstate the matter. Because of their distrust of the king, the newly formed
states disabled their governors and therefore placed virtually all governing
authority into the hands of the state legislatures.
That move would teach them the hard lesson that unchecked power
is abused power. In the face of crushing trade and monetary problems,
the states were incapable of acting in the interest of the public and even
THE PATH TO THE PUBLIC GOOD / 277


more incapable of coordinating themselves, thus provoking the ineffec-
tual Continental Congress to eventually disband in the mid-1780s.7 The
result was that the unchecked state legislatures descended into vortices
of corruption that rendered laws for individuals but failed abysmally to
address the pressing needs of the times, from mass forfeitures to a lack of
stable currency to a failure of trade or military coordination.8 The result
was a descent into discord between the states, as the new citizens came
to distrust the governing structures they had built. The fall from high
hopes to failure led to desperate measures. The famous Shays™ Rebellion
(where distinguished Revolutionary veterans took up arms against their
own relatively new state governments) was just one symptom of the se-
vere failure of governance.9 The Framers gathered at the Constitutional
Convention because a more suitable government was necessary, and the
focus of the debate was on how to stem the human impulse to abuse
power in ways that harm the public interest.10 The Constitution™s repub-
lican, or representative, structure was chosen and crafted for the purpose
of making representatives accountable to the public good.11
As if the post-Revolutionary disappointments would not have been
enough, the framing generation was predisposed to distrust the exercise
of power by humans, because so many were Protestant and a signi¬cant
percentage of those were Calvinist. Protestantism rested on the premise
that governing institutions, even the Church, were capable of being cor-
rupted. The Calvinists, whose theological worldview was dominant at the
time,12 held the paradoxical belief that all men were corrupt but that their
inclinations to abuse power could be deterred by well-crafted governing
structures. Calvin himself suggested ¬xing the corrupt Catholic Church
in the 16th century by transforming it from an absolute monarchy into
a representative structure, where the people would have some say over
their ministers.13
When the First Amendment was amended to the Constitution, the
same principle of distrust found its way into the document. The First
Amendment™s Establishment Clause, which states: “Congress shall make
no law respecting an establishment of religion . . .”14 is an explicit check
on the power of religion in the political sphere. At a very minimum, it
means no religious institution will hold governing power.
Following the historical developments detailed in chapter 9, the
Framers made a conscious decision that religion and the state could not
278 / GOD VS. THE GAVEL


be co-sovereigns.15 The combination of their power was the de¬nition of
tyranny.16 This principle has crossed national boundaries and become a
bellwether for freedom. Leading Middle East scholar Bernard Lewis ex-
plained it as follows: “Separation [of church and state] . . . was designed
to prevent two things: the use of religion by the state to reinforce and
extend its authority and the use of state power by the clergy to impose
their doctrines and rules on others.”17
By denying religion the constitutional authority to rule, the Constitu-
tion privatized religion. There would be two sovereigns, but they were
secular governments: the state and the federal. That does not mean that
religion lost social power. It could and would still occupy the bully pulpit
and use its in¬‚uence among the people and in the legislatures to shape
public policy, but it could not be government itself.
The Establishment Clause™s prohibition of religious sovereignty is in-
adequate by itself to ensure that religious entities do not undermine
the public good. By privatizing religion and protecting the right of con-
science, the First Amendment instigated a teeming marketplace of be-
lief. Religious views compete with other religious views in the public
square, and in¬‚uence not only the people but also government and pub-
lic policy. The privatization of religion also raised an important issue.
If they were not sovereign and therefore could not be checked by the
Constitution™s internal structures (like the three branches and the two
sovereigns “ state and federal “ established), what would keep any one or
any group of religions from harming others? The answer is that religious
entities must be checked as are all other private entities “ by the rule
of law.
The end, perhaps the inexorable, result of the privatization of religion
in the United States is the rule that religious conduct is properly subject
to “neutral principles of law.”18 The Supreme Court in 1971 explained the
principle as follows: “Our cases do not at their farthest reach support the
proposition that a stance of conscientious opposition relieves an objector
from any colliding duty ¬xed by a democratic government.”19 In other
words, when a democratic government passes a law, that law is as binding
on religious conduct as it is on secular conduct.
Some will persist in asking: If religious freedom is a precious right in
the United States, why force religious believers to be governed by laws
that con¬‚ict with their beliefs? The answer is that the duties created
THE PATH TO THE PUBLIC GOOD / 279


by a democratic government “ the law “ are created for the purpose
of furthering the public good, which is served when bad actors are
deterred from harming others and punished if they do. When reli-
gious believers avoid laws enacted in light of the public good, they
undermine the public policy that led to the law. Every civilized so-
ciety recognizes the rule of no harm, and none can afford to give
individuals the right to harm others just because they are religiously
motivated.
Those who would place religious believers above or outside the law
start at the wrong end when they begin their analysis “ and certainly when
they end it “ with only a discussion of what the religious entity needs or
demands.20 The constitutionally relevant question is not what is best for
any church. Indeed that question is forbidden by the neutrality princi-
ple underlying the Establishment Clause.21 Instead, representatives must
consider whether the liberty accorded is consonant with the no-harm
rule. If so, the public good has been properly served. If not, the public
good, and therefore the constitutional order, has been subverted. Both
values “ liberty and no harm to others “ are absolutely necessary elements
of any First Amendment calculus. The no-harm rule is a restatement of
the Supreme Court™s rule “ from Reynolds v. United States to Gillette
v. United States to Employment Division v. Smith, Boerne v. Flores, and
Locke v. Davey “ that religious entities are subject to neutral, generally
applicable laws.
The typical answer to this analysis is that legislatures often pass laws
that are nonsensical, unnecessary, and just plain political, so why should
religious entities have to subvert their religious conduct in the face of
such laws? Moreover, the explosive growth in regulation since the time of
the framing surely argues against applying the law to religious believers,
because there is a lot more law now than there was then. Therefore
religious believers are far more burdened by laws today than they were
in the past, or so the argument goes.
The questions are fair and deserve a response, but they do not under-
mine the argument for applying duly enacted laws to religious entities.
In a perfect world, with legislatures operating as the Framers intended
them to, legislatures are focused only on the public good and only en-
act laws to serve the public good. In that perfect world, legislators make
independent judgments in the interest of the public good. Moreover,
280 / GOD VS. THE GAVEL


they only enact laws that actually serve a public interest. Were the world
and legislators perfect, the application of neutral laws to religious entities
would be justi¬ed in every instance.
This is far from a perfect world, however, and legislatures have passed
laws that are ill-conceived. Moreover, the impact of a law often cannot be
assessed until the law is in place, so a well-intentioned law may generate
effects that were not considered when it was passed. For these reasons,
religious believers who ¬nd their religiously motivated conduct substan-
tially burdened by a law should be able to ask for relief. That is not to say
they have a constitutional right to relief. Most laws are intended to pre-
vent or deter some harm, so letting a religious entity violate the law may
well harm others. It is up to the discretion of the legislature, which has
the tools “ including the power to commission studies, investigate issues,
and hold public hearings “ to consider the accommodation request in
light of the public interest.
When approached by the religious believer or institution, the legis-
lature can consider anew the need for the law, including what harm it
was intended to prevent, and then assess the impact a religious believer™s
exemption would have on others and society as a whole. It is a matter of
line drawing. When the harm to others is de minimis with the exemption,
religious believers should be granted the exemption.
There are numerous exemptions that pass this test. The peyote exemp-
tions are an excellent example of well-crafted relief. State and federal ex-
emptions lift the drug laws to permit individuals to use peyote for religious
purposes. Peyote is used during Native American Church ceremonies,
and was the conduct at stake in Smith. The Smith Court condoned peyote
exemptions as it made clear they were not constitutionally required.22
The Drug Enforcement Agency™s dossier on the drug notes that, “While
peyote produced rich visual hallucinations that were important to the
native peyote cults, the full spectrum of effects served as a chemically
induced model of mental illness.”23 If used recreationally, users could be
a danger to others if they operated machinery, or drove a car, or cared
for children. Therefore, both the federal and state governments are well
within their power to prohibit it, and therefore it can be applied to reli-
gious entities. That was in fact the holding of Smith.
At the same time, peyote is a drug that is not widely abused, because it
frequently fails to produce the desired effect and not infrequently leaves its
THE PATH TO THE PUBLIC GOOD / 281


users with a headache or nausea. Nor do small amounts trigger addiction.
The dif¬culty involved in peyote cultivation makes it highly unlikely that
its use could become widespread. Unlike heroin, cocaine, or crack, an ex-
emption for peyote is unlikely to increase the number of addicts or to foster
an illegal drug trade independent of the religious purpose. Moreover, it
is used for religious purposes in overnight ceremonies, and therefore it
is unlikely religious users will drive while impaired. By permitting reli-
gious believers to use it for their ceremonies, the state is still adequately
protecting others from harm.
A second example of a praiseworthy exemption is the exemption for
the sacred use of communion wine during the United States™ doomed-to-
failure attempt to prohibit alcohol use during Prohibition.24 The small
amounts of wine used during communion did not introduce the harm to
society that Prohibition was designed to prevent. Proponents of the 18th
Amendment such as Carry Nation and East Coast industrialists pointed
to improved worker reliability, morals, and family life to justify the total
prohibition on alcohol.25 The religious use of wine was no threat to those
principles.
A third example involves the armed services. There was a time when
no member of the military could wear any headgear other than that pre-
scribed by the government. Orthodox Jewish men found that it substan-
tially burdened their belief in wearing a yarmulke. When the Supreme
Court was asked to invalidate the law under the Free Exercise Clause,
it refused to do so, saying “The desirability of dress regulations in the
military is decided by the appropriate military of¬cials, and they are un-
der no constitutional mandate to abandon their considered professional
judgment. . . . [T]he First Amendment does not require the military to ac-
commodate such practices in the face of its view that they would detract
from the uniformity sought by the dress regulations.”26 The Orthodox Jews
turned to Congress and asked for an exemption. Clearly, the addition of
a yarmulke to a serviceman™s uniform, conceivably the most unobtrusive
headgear available, would not severely impact on the operation of the
military. Congress weighed the necessity of the rule against the potential
harm to the public if an exemption was created for religious headgear,
and quite rationally chose the exemption and enacted a nuanced response
that accommodated religious liberty to maximum extent while serving
the public good as much as possible. It was a solution to the problem that
282 / GOD VS. THE GAVEL


would have been beyond the courts™ ability. Members of the armed forces
were permitted to wear “religious apparel” with exceptions where there
was a determination that the item interfered “with the performance of the
member™s military duties” or if it is not “neat and conservative.”27 Today,
Orthodox Jewish males in the military routinely wear yarmulkes. Where
the headgear interferes with combat uniforms, however, as in the case of
a Sikh turban, the Navy was permitted to ban it.28
With Title VII in 1964, Congress crafted an exemption for religious
personnel engaged in “religious activities” from the antidiscrimination
laws.29 The law prevents ridiculous results. For example, Orthodox Jews
can not be forced to hire Baptists to be rabbis nor can Pentecostalists be
forced to hire Islamicists as pastors, etc. Without the exemption, religious
institutions™ very belief systems are at risk of the anti-discrimination laws.
Nor does the exemption breach the public good, because there is a small
likelihood that a Baptist would even want to be a rabbi, let alone be
interested in taking legal action if not hired.30
The exemption was expanded beyond clergy in 1972, raising closer
questions of constitutionality and the public interest.31 A building en-
gineer at a facility run by the Church of Jesus Christ of Latter-Day
Saints challenged the exemption as the lead plaintiff in a class action. He
claimed discrimination when the Mormons ¬red him because he could
not qualify as a member in good standing of the Church. The intui-
tive point was that janitors are not clergy. The Supreme Court, though,
upheld the exemption, ¬nding that it did not violate the Establishment
Clause, because there was more danger of violating the separation of
church and state if the state imposed such laws on religious entities than
if it did not.32 On this ground, the decision made sense, especially in
light of the huge variety of religious practices. Hierarchical churches
were well-protected under the ¬rst exemption, but religious entities that
recognize all or some of their members as clergy, (e.g., the Quakers, the
Jehovah™s Wittnesses, or the Mormons) could force the courts to deter-
mine whether the employee was “really” a clergy member, which is an
inquiry into solely ecclesiastical belief, and that is forbidden under settled
Supreme Court precedent.33
Finally, the federal government has provided an exemption from the
military draft since the earliest years of the republic, for those who have
a conscientious objection to war.34 Quakers during the earliest con¬‚icts
THE PATH TO THE PUBLIC GOOD / 283


dissented from military duty.35 The exemption has been upheld for reli-
gious as well as nonreligious objectors.36 Such objectors are not relieved
of government service during wartime altogether, but rather are required
“to perform . . . such civilian work contributing to the maintenance of the
national health, safety, or interest as the local board pursuant to Presi-
dential regulations may deem appropriate.”37 Congress™s determination
is respectful of religious beliefs that have long been a part of U.S. culture,
but more importantly it is also a conclusion that is consistent with the
larger public good. Religious entities are not permitted to use their reli-
gious beliefs to avoid their obligation to serve the war effort, but rather
are moved to other positions that will accomplish the same end through
different work. That is good for the religious believer, but it also is good
for the country.


Contrary to popular belief, in the United States, the legislature
is not a majoritarian institution
The most common objection to the scheme I am advocating is that
the legislature will do nothing for minority religions. That objection,
though, stems from a pervasive, but false understanding of representative
democracy in the United States and from an underestimation of the
power religious entities have wielded. So-called minority religions are
not necessarily or even usually consigned to a life of belief divorced from
action under a republican form of government. To understand why, it is
necessary to explain the main features of the U.S. representative form of
government.
At the Constitutional Convention, Pennsylvania™s James Wilson, per-
haps the most brilliant man there, opined that he could not abandon
“his judgment to any supposed objections that might arise among the
people” because he had been charged with doing what was in their in-
terest. His frame of reference in crafting the Constitution was the public
good, not public sentiment. He wondered aloud, “what he should say
to his constituents in case they should call upon him to tell them why
he sacri¬ced his own judgment in a case where they authorized him to
exercise it?” If he told them he was simply “¬‚atter[ing] their prejudices”
he expected them to “retort: did you suppose the people of Penn[sylvania]
had not good sense enough to receive a good Government?”38 In short,
284 / GOD VS. THE GAVEL


he was sent to the Convention to reach a result in the public™s interest,
not according to the public™s predilections at the time.
The system simultaneously frees the representatives to do what is best
for the country “ even if the people do not fully comprehend the issues
or agree on the course taken “ but it also imposes the dif¬cult burden
on elected representatives to make independent decisions in the larger
public interest. For the representative, it would be far simpler to follow
the dictates of his or her constituents. Because representatives are the
trustees of the people™s interest, and are supposed to take into account
far more than the majority™s preferences, history “ not numbers “ is the
ultimate judge of any elected of¬cial in the United States.
Majorities elect representatives, but after the election, those represen-
tatives have substantial latitude to listen to minority interests, and in fact
do.39 The legislature is constructed so that legislators are not subject to
the unfettered will of the people, but rather free to do what they believe is
right, even when the majority disagree. “Republican liberty signi¬es gov-
ernment in pursuit of the common good, where no citizen is subjected to
the unfettered will of another. The central meaning of republican govern-
ment since Cicero has been legislation for the ˜res publica™ or common
good of the people.”40
As proof that U.S. citizens continue to believe in republicanism, one
of the most common complaints about Congress is that it is “captured”
by special interests, which are not representative of the people and which
operate within their own narrow self-interest. This objection is commonly
raised by those who believe their representatives have a duty to consider
a larger public good than any one entity™s entreaties.
For example, a signi¬cant majority of the American public in the
1960s was prejudiced against racial minorities. The South practiced an
entrenched racism that is shocking to our children. Blacks were rele-
gated to particular restaurants, restrooms, and occupations. Numerous
states imposed “poll taxes,” “grandfather clauses,” or literacy require-
ments for the very purpose of excluding racial minorities from the voting
booth.41 In the wake of Brown v. Board of Education,42 in which the
Supreme Court required the desegregation of public schools, public of-
¬cials and townspeople took extreme measures, including closing down
public schools, to avoid the Court™s mandate.43 The racial war was played
out on the television every night. Racism was not limited to the South,
THE PATH TO THE PUBLIC GOOD / 285


of course. Desegregation had to be court-ordered in Boston,44 Denver,45
and Detroit,46 and Hispanics found themselves blocked from the voting
booth in New York, because they did not speak English.47 Many states
had bans on interracial marriage until these laws were declared unconsti-
tutional in 1967.48 Race-based housing discrimination was given a judicial
imprimatur in 1948,49 and was not declared unconstitutional for nearly
two decades.50 The majority was prejudiced, but the federal government
still fought discrimination, as discussed in chapter 8.
There is a form of democracy where legislation is driven by majorities,
but it is not the constitutional order in the United States. It is called di-
rect or pure democracy. The most familiar example is the town-meeting
style government of some New England towns, for example, Marsh¬eld,
Massachusetts.51 The Framers were certainly familiar with such a brand
of democracy, in New England as well as Greece. But this form of govern-
ment was de¬nitively rejected by them, because they deeply distrusted
what they considered “mob rule,” a view that was informed by the expe-
riences under the Articles of Confederation and the state constitutions
that gave the people the right to instruct their representatives. Instead,
they opted for representative democracy, wherein the people choose rep-
resentatives, but do not control their public policy decisions during the
term of of¬ce.52
To be a representative in the U.S. system requires courage and vision,
because it is the representative who is responsible for the quality of the
common good, and who will be judged accordingly. They have to choose
between popularity and good results, which is a real choice, because good
results will make them popular even if in the short term they are not. In
fact, the work of the brilliant political scientist Mancur Olson showed
that cohesive minorities with a clear message fare signi¬cantly better in
the legislature than do amorphous majorities “ a political fact that is now
widely accepted.53 This political fact is why lobbyists representing the
disabled, and homosexuals, and racial minorities have done as well as
they have at both the state and federal level. If majorities of citizens drove
legislative results, none of those reforms would have been likely, because
each places a burden on some powerful element in the majority. “The
purpose of popular sovereignty is not to subject individuals to the will of
the nation, but to protect all citizens from subjection to anyone™s will, by
coordinating the whole in pursuit of the common good.”54
286 / GOD VS. THE GAVEL



Why representative democracy opens the door for small
as well as powerful religions
For the following reasons, the oppressed minority religion argument is
a red herring. First, the use of the term “minority,” which conjures up
invidious discrimination, is somewhat misleading. In the United States,
there is no majority religion. Protestantism, taken as a whole, which
would encompass a vast number of faiths, is a dwindling majority, and
will not be the majority religion in the very near future.55
Second, as Part One illustrated, smaller religions have done quite well
in obtaining exemptions in the legislatures “ sometimes too well “ which
would seem to weaken the argument signi¬cantly.56 The often-stated
concern that the courts are the better institution to secure religious liberty
because they are better than legislatures at protecting minorities has not
been proven as an empirical matter.
Third, as discussed above, it is a misconception of the U.S. republican
form of government to think of it as a majoritarian system. A majority of
the people chooses their rulers, but those rulers are then set free from the
majority to rule in the public good.57 There is communication throughout
the term of service to be sure, but citizens only directly affect government
when they choose their representatives.
During the term of representation, majority views do not necessarily
prevail, and small groups do quite well. Political scientists now accept as
fact that minorities with a coherent message even tend to fare better in
the legislative process than unorganized majorities.58
Fourth, the argument seems to be that small religions will be subject
to covert and inevitable discrimination, but that is already redressed by
the Religion Clauses, which discourage legislatures from acting on such

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