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motives. For example, any law speci¬cally singling out a particular reli-
gious organization for detrimental treatment is unconstitutional. Besides,
as a matter of fact, in the legislative process, the scale has de¬nitely been
weighted on the side favoring smaller religions, who have obtained the
various exemptions and special treatment detailed in Part One. In ad-
dition, there is some insurance against discrimination under the Smith
formulation favoring neutral, generally applicable laws, which drives leg-
islatures toward general prohibitions. Where the legislature has decided
that particular actions are unacceptable, because they generate certain
THE PATH TO THE PUBLIC GOOD / 287


harm, and issued a blanket prohibition on the action, there is some insur-
ance that the legislature has not acted out of discriminatory motive. The
willingness to burden all actors with the law means that the legislature is
concerned about the harm, not the identity of the actor.
Fifth, the constitutional culture weighs against such discrimination, at
least as compared to other Western democracies. The most entrenched
constitutional right in the United States is the absolute right to believe
anything at all. The result is the most pluralistic religious culture in his-
tory, with new faiths appearing all the time.59 In that context, unusual
faiths are a commonplace in the American experience, and hardly an
automatic target for negative treatment by the legislature. Add to that a
history that never recognized a national established religion and such
discrimination seems even less likely. In the United States, no particular
religion has ever been able to obtain singular privileges for itself, and
therefore all religions are “outside” the government. The same cannot
be said for Europe, where new or upstart religions have experienced dif¬-
culties. “Although many European constitutions ostensibly grant rights to
religious minorities, the existence of dominant religions in the European
States forces the remaining confessions into a hierarchy, the bottom tier
of which may only legally exercise those rights by engaging in practices
that conform to the doctrines of the dominant religions.”60
Even then, perhaps there is a risk that some small, politically powerless
religions that are incapable of putting together a coherent message for the
legislature or incapable of enlisting the support of mainstream religions
may well have problems obtaining exemptions. The system does not
generate perfect results, no matter how exemptions are handled. In the
end, the Smith Court correctly weighed the alternatives in this scenario
as follows:

It may fairly be said that leaving accommodation to the political process
will place at a relative disadvantage those religious practices that are not
widely engaged in; but that unavoidable consequence of democratic
government must be preferred to a system in which each conscience is
a law unto itself or in which judges weigh the social importance of all
laws against the centrality of all religious beliefs.61

The legislature is institutionally competent to hear the concerns of
the burdened religious entities and to make the determination whether
288 / GOD VS. THE GAVEL


relieving them of an obligation to a particular law is consistent with the
public good. Thus, the route for those individuals and institutions that
¬nd their religious conduct at odds with the prevailing law lies beyond the
courts. The Supreme Court in Smith made it clear that religious entities
may ask for legislative exemptions narrowly tailored to their religious
practices.62 If a religious entity can persuade a legislature (that is doing
its job and serving the public good) that exempting it from the law will
not harm the public good, then an exemption is consistent with ordered
democracy.63 If not, then the religious entity is rightly prevented from
doing the harm proscribed by the legislature.


The arguments raised in the wake of Employment
Division v. Smith
Many scholars and religious organizations roundly criticized the Smith
Court™s reaf¬rmation of the rule of law for religious entities. Smith said
“Our decisions reveal that the [correct] reading [of the Free Exercise
Clause] is . . . [that] [w]e have never held that an individual™s religious
beliefs excuse him from compliance with an otherwise valid law prohibit-
ing conduct that the State is free to regulate.”64 For Professor Douglas
Laycock, the architect of RFRA, replies:

The most important religious con¬‚ict in the United States is not the
con¬‚ict of one religion against another, but of the secular against the
religious. On one side are all those people who take religion quite seri-
ously, for whom religion still makes a substantial difference in their lives.
On the other side are all those people who do not take religion seriously,
who cannot imagine why these superstitions persist, and who cannot
understand why religious minorities are demanding special treatment
from the secular administrative state.65

Laycock, however, has manufactured religion™s enemies. Everyone in
this culture takes religion seriously, because they must. There is no deny-
ing it “ religious belief led to 9/11; was the force behind Alabama Justice
Roy Moore, who, at his own expense, placed a granite monument to
the Ten Commandments in a public courthouse; and is the basis for
the most important rites of passage “ baptisms, weddings, and funerals.
THE PATH TO THE PUBLIC GOOD / 289


Eighty-¬ve percent of the country professes some sort of religious belief.66
Even atheists, agnostics, and humanists have to take it very seriously, be-
cause it affects so many elements of their lives.
Laycock is also fundamentally wrong about the con¬‚ict between reli-
gions. On the one hand, this society has done a remarkable job of wel-
coming an ever-growing and enormous collection of religions “ literally
tens if not hundreds of thousands. But on the other hand, because of the
nature of religious faith and its truth claims, there is always the potential
for con¬‚ict between religious believers. In fact, those con¬‚icts are height-
ened as religious entities are given more power to trump the laws that
govern everyone else. For example, the Religious Land Use and Institu-
tionalized Persons Act (RLUIPA) has led to the sort of religious tension
Professor Laycock, and probably many others, believes has been stilled.
When a religious landowner in a residential neighborhood decides to
install a homeless shelter, a large day-care center, or an additional story
that will block the homeowner™s views, frequently the religious landowner
takes one or both of the following tacks during the zoning process: (1) the
project must take priority over its neighbors™ interests, because it has been
directed by higher forces, that is, the project™s purposes are superior to the
concerns of the average homeowners; or (2) the neighbors objecting are
simply anti-fundamentalist Christian, -Semitic, -Muslim, and so forth.
The claims lead to deep divisions between neighbors, because the odds
are overwhelming that the neighbors objecting are religious in their own
right and resent being told that their values are necessarily in con¬‚ict
with “higher principles” or that they are opposed to any particular reli-
gion simply because they value their neighborhood™s relative peace, safety,
and aesthetics “ all elements of the American dream. The bad feelings
do not disappear once the case has been concluded, and too often, the
religious division that was not there before the religious landowner in-
voked RLUIPA to trump his neighbor™s property rights becomes a marked
characteristic of the neighborhood. The likelihood in these scenarios “
given the depth of the feeling on both sides “ is that the neighborhood will
become mono-religious or that an invisible divide between one religion
and every other will make itself visible in times of political upheaval.
Professor (now federal appellate Judge) Michael McConnell re-
sponded to Smith with a full-dress parade of horribles, which are worth
290 / GOD VS. THE GAVEL


repeating here, because they bring into focus the Chicken Little quality
of the post-Smith criticism:

Consider the fact that employment discrimination laws could force
the Roman Catholic Church to hire female priests, if there are no free
exercise exemptions from generally applicable laws. Or that historic
preservation laws could prevent churches from making theologically
signi¬cant alterations to their structures. Or that prisons will not have
to serve kosher or hallel food to Jewish or Moslem prisoners. Or that
Jewish high school athletes may be forbidden to wear yarmulkes and
thus excluded from inter-scholastic sports. Or that churches with a reli-
gious objection to unrepentant homosexuality will be required to retain
an openly gay individual as church organist, parochial school teacher,
or even a pastor. Or that public school students will be forced to attend
sex education classes contrary to their faith. Or that religious sermons
on issues of political signi¬cance could lead to revocation of tax exemp-
tions. Or that Catholic doctors in public hospitals could be ¬red if they
refuse to perform abortions. Or that Orthodox Jews could be required
to cease and desist from sexual segregation of their places of worship.67

Fifteen years into Smith™s reintroduction of the rule of law for religious
entities, his list is more imagination than fact. Not only that, but it is
based on a false assumption that this culture is hostile to religion. It is
not, and the sky has not fallen. To my knowledge, no conservative church
has been required to hire an organist or music director who was openly
gay, and religious institutions have been permitted to deny employment
to homosexuals.68 Nor has the government entered orthodox temples and
required the men to sit with the women. Churches have avoided land-
marking laws that affect liturgy.69 State legislatures have permitted chil-
dren to opt out of sex education courses.70 Courts have held that prison
of¬cials™ refusal to provide kosher or Muslim diets was unreasonable.71
No yarmulke-wearing athletes have been barred from the ¬eld. And since
2000, federal law exempts doctors with religious objections from being
required to perform abortions.72
The issue regarding whether churches should be able to support par-
ticular political candidates and retain their tax-exempt status does not
involve the impact of Smith. Rather, there is a federal law that does deny
tax-exempt status when churches support political candidates.73 The pur-
pose of the law was to ensure that political action committees could not
THE PATH TO THE PUBLIC GOOD / 291


avoid taxes under the ruse of being a nonpro¬t, charitable organization.
While the purpose made some sense, the impact on the political speech
of religious institutions is not good for them or for society. U.S. citizens
are better off knowing which candidates are being backed by particular
religious powers, because religious entities are extremely active in the
political process, and the people deserve to know which interests in the
society are pressuring which representatives and on which issues. If noth-
ing else, this book should make clear why backroom deals for religious
institutions are just as inconsistent with the public good as backroom
deals that favor businesses or interest groups.
In 1990, Stephen Carter published The Culture of Disbelief: How
American Law and Politics Trivialize Religious Devotion, which argued
that religious interests were being sidelined in the United States. He
stated: “there is much depressing evidence that the religious voice is re-
quired to stay out of the public square.”74 The book was an in¬‚uential
bestseller, and even appears in the hand of President William Jefferson
Clinton in Yale University™s portrait of him. The problem with Professor
Carter™s thesis was that religious institutions were not politically powerless,
but his thesis permitted them to exercise political power while appear-
ing to be socially weak. Carter, of course, is not the only person who
has argued that U.S. culture has been “secularized.”75 It™s a dominant
theme in contemporary culture, and one that fosters religious entities™
political agendas rather nicely. In the midst of the rhetoric regarding
secularization, it is easy to assume that religious institutions are either
politically dormant or that they are politically ineffective, and therefore
to think they need exemptions from the law, or for representatives to think
they deserve special treatment. Neither is accurate. Jerry Falwell™s Moral
Majority in the 1970s was just one example of the many efforts by religious
entities to in¬‚uence the process. More recently, Catholics have formed
Catholic Citizenship, which is intended to mobilize Catholic citizens.
In the words of their executive director:


Utilizing the Internet, the Catholic Citizenship network will be able
to interact more effectively with our public of¬cials. Thus, when vital
issues arise, our network will be prepared to provide an immediate
response to legislators “ on the state or national level “ and thereby more
effectively strengthen the Catholic in¬‚uence on the political process.76
292 / GOD VS. THE GAVEL


In light of the political realities, I would back a Sunshine Law that
would repeal the prohibition and encourage religious institutions to make
their political agendas as public as possible, for reasons that should be
apparent from Part One.77
The basic problem with McConnell™s analysis is that it assumes that
legislatures are inclined to suppress religious liberty, that religious lobby-
ists are weak in the legislative process, and that there are strong lobbies to
achieve the anti-religion ends he cites. In fact, the contrary is true. Reli-
gious entities are uncannily able to obtain what they seek in the legislative
context. As the Smith Court stated, “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.”78 Thus, the assumption among
those opposing Smith that legislative accommodation would result in
no accommodation was simply inaccurate. That is why Senator Hatch™s
declaration that without RFRA there would be no “basis to challenge
Government regulations which infringe on the rights to the free exercise
of religion” cannot be taken seriously.79 It is hyperbole, and no more.
Also in response to Smith, McConnell further argued that the legis-
lative process would be inimical to religious interests. According to
McConnell, the Free Exercise Clause provides protection for those who
lack “the ability to protect themselves in the political sphere” and for any-
one who might ¬nd him or herself “caught in con¬‚ict with our secular
political culture.” The religious entity as weakling in the legislative pro-
cess is simply not persuasive for all the reasons presented in this chapter,
but McConnell makes a further mistake. In a claim typical of those who
argue for expansive rights for the religious to avoid legal obligations, he
talks about “our secular political culture.”80 What exactly is that? In the
United States, the culture is not divorced from religion. Religion informs
the beliefs of the vast majority of citizens and their leaders; the history of
ideas that fed the culture™s political institutions are rooted in no small part
in theological constructs; and there is a healthy and vital public debate
about religion and its role in society. Major newspapers have religion
pages and religion news reporters, the radio air waves and cable televi-
sion are ¬lled with religious messages, and the war on terror has trained
our attention “ whether we like it or not “ on the radical Islamicists™
fanaticism and their theological worldview. Religion is quite literally in-
escapable. Some “ the most prominent being Columbia™s Professor Kent
THE PATH TO THE PUBLIC GOOD / 293


Greenawalt “ have argued that religious reasons should not be part of
the debate over public policy.81 It™s an interesting theory, but utterly im-
possible. Religion cannot be avoided. There is no community without a
house of worship, and typically there are many in any one town. There
are approximately 325,000 houses of worship in the United States,82 and
just over 280 million people.83 That is roughly one house of worship for
every 860 people. Religion is everywhere, and any atheist will tell you
that it is impossible to inhabit a “secular” political environment in the
United States.
For Professor Steven Smith, “Smith reaches a low point in modern
constitutional protection under the Free Exercise Clause” and results
in the “withdrawal of constitutional protection for the free exercise of
religion.”84 This is an exaggeration that underestimates the critical value
of the anti-persecution principle and the existing legislative drive to pro-
vide for religious entities.
In sum, the passionate objections to Smith have turned out to be more
passion than persuasion. Fifteen years later, there has been no decline in
religious liberty or in religion™s political power.


Religious liberty is not simple (or even complex) equality
Permissive legislative accommodation has not been the only theory that
has led to a rejection of the special privileges for religion. With their
typical eloquence, Professors Christopher Eisgruber and Lawrence Sager
argue that religious liberty cannot mean privilege:

At its core, religious liberty is about the toleration “ the celebration “
of the divergent ways that members of our society come to understand
the foundational coordinates of a well-formed life. To single out one of
the ways that persons come to understand what is important in life, and
grant those who choose that way a license to disregard legal norms that
the rest of us are obliged to obey, is to defeat rather than ful¬ll our com-
mitment to toleration. Yet that favoritism is precisely what the privileging
view of religious liberty requires. . . . The problem lies not with religious
liberty but with the paradigm of constitutional privilege and with the
principle of unimpaired ¬‚ourishing that paradigm sponsors.85

To this point, we are in complete agreement. They turn from this ap-
proach, however, to a concept of equality that is inadequate to the task
294 / GOD VS. THE GAVEL


of guiding legislatures and courts on the parameters of religious liberty.
They advocate “equal regard,” which requires “that government treat
the deep, religiously inspired concerns of minority religious believers
with the same regard as that enjoyed by the deep concerns of citizens
generally.”86 At some level, their theory sounds like the Golden Rule:
Do unto others as you would have them do unto you. The principle is
strong in Western culture, but it does not provide adequate guidance to
legislatures and courts faced with the question whether the right balance
between religious liberty and order has been preserved.
For them, “[g]overnment betrays the ideal of equal regard when it treats
religious interests less favorably than secular ones, when it treats some
religious interests better than others, and when it treats religious interests
more favorably than secular ones.”87 The ¬rst two principles are essential
to the Religion Clauses, but the third brings legislative accommodation
into question.
Equality fails on two grounds. First, as a matter of cultural description,
religion is simply different from other deeply held convictions, because it
is an illogical belief that de¬nes an individual™s entire worldview. Religion
is about the search for the meaning of existence itself. History and fact
show that it is capable of engendering the most passionate and the most
violent positions. For this reason, it is accorded speci¬c attention in the
First Amendment, and needs to be addressed speci¬cally.
Second, equality is a principle that is capable of taking the law to the
lowest common denominator. For example, each of the Eisgruber/Sager
principles stated above is satis¬ed by a law that throws all believers in
jail, because they are all treated equally, but that surely is not the sys-
tem of liberty envisioned by the Framers, current culture, or the authors.
Equality simply is not enough. There must be a further principle, and
I believe that principle is the republican form of government, which
entails maximal liberty in light of the public good and the no-harm
rule.
The equality position is more likely to result in less religious liberty,
because the law must stay at the level of general applicability and cannot
take into account the religious practices that are substantially burdened
by the law. Religious exemptions from generally applicable, neutral laws
do not treat religious and nonreligious reasons equally, because they only
exempt the religious conduct, and therefore they violate the equal-regard
THE PATH TO THE PUBLIC GOOD / 295


principle. In the end, the Eisgruber/Sager thesis is in fact an argument for
giving secular entities the same exemptions as the religious, and vice versa,
and they have followed that tack in suggested legislation. In contrast, the
public good analysis in this chapter leaves room for the religious entity to
be free, as it ensures that that freedom is not had at the expense of others.
Because of religion™s authoritarian force in so many people™s lives,
religion deserves separate treatment, and legislatures should be able to
take that into account. Religious liberty needs to be a balance between
liberty and the public good. Equality loses a great deal in translation,
because it tends toward rote application of a single principle in a context
where complex legislative judgment is necessary and the public good
must be the polestar.

The best path for religious liberty that preserves the public good:
Permissive legislative accommodation
There are three principles that make permissive legislative accommoda-
tion legitimate and worthy of the Constitution™s system of ordered liberty.

(1) Religious accommodation is a legislative, not a judicial, function.
There are some who see little functional difference between law made
by a court and law made by a legislature. That is particularly true in the
religious liberty context. For example, Judge Michael McConnell, when
he was a law professor, papered over the constitutional distinctions be-
tween the legitimacy of legislative decisions and judicial decisions. For
him, there was no meaningful distinction between an exemption granted
by a court and one granted by a legislature: “If there is nothing wrong
with statutory commands of the sovereign that make exceptions from
generally applicable laws in cases of con¬‚ict with religious conscience,
then there should be nothing wrong with constitutional commands of the
same sort.”88 McConnell makes one of the cardinal errors of those who
argue for religious liberty beyond legislative accommodation: his touch-
stone is what the religious believer requires. In effect, the only relevant
question is whether the religious believer gets the accommodation. The
right process, though, is just as important, especially in this context.
Under the Constitution™s structure, the legislative process is de¬ni-
tively different from a court™s, and legislative statutory commands are
296 / GOD VS. THE GAVEL


dramatically different from a judicial decree. The judicial process is a
packaged affair with strict limitations on the latitude of the judge to
make policy determinations. In contrast, the legislative process is at its
very best when it engages in wide-ranging debate and investigation that
can determine social policy out of a universe of options.
Courts may only consider the claims of the parties before them, and
only their arguments. To a signi¬cant degree, the parties control the
court™s (and especially the less experienced clerk™s) worldview. Their
facts “ and only their facts “ are relevant in the case. That is why ac-
tivists look for “test cases,” that is, those cases that present the facts as they
would like the court to think they are usually. It is true that in some cases,
outside interests can expand the judge™s understanding of the underlying
social issues by ¬ling amicus, or friend of the court, briefs, but that is
rarely done at the trial level, and the practice does not give the amicus
standing to engage in brie¬ng on the merits or oral argument.
Nor does the court have the prerogative to choose the law it is to apply.
It is constrained in its examination of the law by the issues raised by the
parties and prudential issues, such as standing or jurisdiction. A judge is
not supposed to decide legal issues that are not presented in that particular
case (as much as he might like to do so).
Judges are also in a fundamentally different position than are legislators.
A judge is required to be open-minded, to be evenhanded, and to read
the law as the legislator intended. The symbol of the judicial system, seen
in courtrooms throughout the United States, is blindfolded Lady Justice.
According to the ABA Model Rules of Professional Conduct and Code
of Judicial Conduct, “A judge shall perform judicial duties without bias
or prejudice. A judge shall not, in the performance of judicial duties, by
words or conduct manifest bias or prejudice, including but not limited to
bias or prejudice based upon race, sex, religion, national origin, disability,
age, sexual orientation or socioeconomic status, and shall not permit staff,
court of¬cials and others subject to the judge™s direction and control to
do so.”89 Thus, “[e]ach justice or judge of the United States shall take
the following oath or af¬rmation before performing the duties of his
of¬ce: ˜I, , do solemnly swear (or af¬rm) that I will administer justice
without respect to persons, and do equal right to the poor and to the rich,
and that I will faithfully and impartially discharge and perform all the
duties incumbent upon me as under the Constitution and laws of the
THE PATH TO THE PUBLIC GOOD / 297


United States. So help me God.™”90 And where there is a particular case
raising the specter of a judge™s bias, there are rules that demand recusal:
“Any justice, judge, or magistrate [magistrate judge] of the United States
shall disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.”91 By comparison, the legislature has unlimited
latitude to frame the issues over which it has power, to determine the
extent of its investigation, and to take a position. Both fact-¬nding and
lawmaking are at the prerogative of the legislator.
Assuming it is making law within its constitutional powers, Congress
can consider laws already in place, laws enacted by other legislatures, and
laws never before imagined by anyone else. Indeed, members may even
decide to investigate a social problem in depth before deciding whether
any law is needed. They have at their disposal the power to subpoena
witnesses, to hold extensive hearings, to commission studies, and to elicit
the views of any expert. The legislative power to study the social welfare is
so large that members also have the power to reject the facts and theories
presented to them. In contrast, no court can ignore the facts of a case, if
only to determine whether the party has standing, but a legislature sets
its own parameters for consideration.
When the public good must be considered, the only legitimate branch
is the legislature. It is not that the courts are somewhat less quali¬ed to
make determinations of the public good, but rather that they are incompe-
tent to do so. The courts may not make law by “judicially decreeing what
accords with ˜common sense and the public weal.™ Our Constitution vests
such responsibility in the political branches.”92 Because religious liberty
must be determined in the context of the public good, it is the legislature
that is in the best position to decide on exemptions. The legislator™s task is
one of balancing the value of religious liberty over and against the harm
to others if a religious individual or institution is permitted to act contrary
to the law. No court has the tools to make the determination.93
The legislator bears the burden of assessing the public good in light
of all the circumstances and facts, and weighing social goods and harms.
In this context, the task is no different. When considering whether to
relieve a religious entity of a legal duty, the legislature should weigh, on
the one hand, the importance of respect and tolerance for a wide panoply
of religious faiths, and on the other hand, whether the harm that the law
was intended to prevent can be tolerated in a just society.
298 / GOD VS. THE GAVEL


A further value of enlisting legislative judgment here (as opposed to
judicial judgment) is that the legislature has tremendous power to repeal
the laws that it ¬nds are noxious in practice. Precedent has not nearly the
pull that it has in the judicial arena. Thus, judgments about relative harm
can be revisited and reweighed. The power to repeal legislation re¬‚ects
the human nature of regulation “ it is always based on imperfect under-
standing and always capable of being viewed through different lenses at
a later time.94 After a generally applicable law is passed, those burdened
by it in practice can still request an exemption, and can show how the
law operated in fact. Conversely, when an exemption renders more harm
than originally understood, it can be rescinded.

(2) The accommodation must be consistent with the public good. Hav-
ing shown that the legislature is the branch most ¬t to consider exemp-
tions leaves open the question whether legislators will in fact consider the
public good. An exemption is not legitimate unless it is the product of
balancing religious liberty and the public interest. Yet, the very latitude
that permits legislators to make judgments about the public good also
creates the conditions for them to act without taking into account the
public good. Representation is an enormous power and responsibility.
The legislator receives the power from the people to make laws without
popular veto and without mindless deference to the majority, so that he
can consider the public good. The question is whether he will. We know
he will listen to the religious entity.
This is the typical image of the legislator: captured by special interests
and incapable of acting in the public™s interest. It is a caricature, to be
sure, but it is also too often true. As discussed above, legislatures are engi-
neered to hear messages from cohesive groups even if they are small. The
lobbyist for a minority, therefore, is not necessarily at the disadvantage of
large majorities. This quality in the legislative process in fact supports per-
missive legislative accommodation, because there is no reason to assume
minority religions will not be heard. As discussed above, plenty have been
heard and accommodated.
Their implicit argument, however, is that other, and possibly less savory,
interests will drown out the religious lobbyist. This rests on an assumption
that religious liberty is not valued by elected representatives. That cannot
be supported. The very existence of RFRA and its progeny “ which affect
every law and therefore a vast majority of the interests in the United
THE PATH TO THE PUBLIC GOOD / 299


States “ disproves the point, as do many of the exemptions examined in
Part One. As Justice Antonin Scalia said in Smith, “a society that believes
in the negative protection accorded to religious belief can be expected
to be solicitous of that value in its legislation.”95 Such a large percentage
of Americans attest to religious belief “ nearly 85 percent “ the objection
of weakness in the political process is based more on social myth than
reality.96
In part, that myth is constructed by indefensible presuppositions about
religious entities in the political sphere. There is a widespread, though of-
ten undeveloped, assumption that religious entities are above the dirtiness
of the legislative, political process. They supposedly operate at a higher
and purer level. In point of fact, religious entities are a potent and vocal
presence in the legislative and political process, and know how to oper-
ate the levers as well as any other lobbyist. Their success in obtaining
exemptions, e.g., that immunize from prosecution those faith-healing
parents who let their children die of treatable medical ailments, speak
for themselves. They pressure legislators on abortion, the death penalty,
welfare, tax issues, foreign affairs, and the environment, to name only a
few. Moreover, many religious leaders wield the kind of social power that
makes them just as desirable A-list invitees as any member of Congress or
a state legislature, meaning that politicians and religious leaders associate
outside the legislative arena. That familiarity greases the way for them to
request and obtain exemptions. But, even those without A-list status have
the capacity to in¬‚uence the legislative process.
Representatives hear the religious entities™ requests (sometimes be-
cause they share the same religion), and they respond eagerly. The phe-
nomenon deserves further study. It is dif¬cult to fully explain their eager-
ness to grant requests for exemptions from general laws that they would
never entertain had the request come from a secular source. What legis-
lator would even grant a meeting with a group asking for the right to avoid
prosecution if they let children die or for the right to avoid liability for
putting children within reach of known pedophiles? Is there a legislator in
the country that would entertain a proposal to permit secular motion pic-
ture theaters to avoid land use laws? There is an element of recklessness to
these legislative decisions, as the results I described in Part One illustrated.
The real question is whether they will consider the larger public inter-
est. To reach a legitimate exemption, the legislature may not merely hear
the religious entities™ request and grant it. That would be the essence of
300 / GOD VS. THE GAVEL


the establishment of religion “ the government ceding its responsibility
to the people to religious interests. Instead, the legitimate exemption
should be a product of the legislature exercising its power and responsi-
bility to consider the effect on the public if the religious entity is permitted
to avoid the law.
All legislative judgments should include consideration of the public
interest in order to achieve the ideals of a republican form of government.
But such consideration is essential for exemptions, because it proves that
the exemption is not a handout to religion that sells out the public™s
interest. The Establishment Clause forbids blind exemptions “ those
that are granted because the recipient is religious and not because the
larger public good is bene¬ted by it.

(3) The legislative determination must be debated under the harsh glare
of public scrutiny. The mechanics for legislative religious exemptions
are in place. Legislatures are competent to grant them and many religious
entities are well-schooled in the legislative process. But the public good
is often sacri¬ced in favor of religious entities, as can be seen in the
over thirty states that provide religious exemptions to excuse the death
of a child from the failure to obtain medical treatment. Too often, the
determination is made in the back halls of the legislative rotunda, rather
than in the harsh glare of public scrutiny. This is what I will call silent
accommodation.
As I discussed in Chapter Two, the Followers of Christ Church in
Oregon allowed three infants to die of medical neglect in 1998. When
authorities investigated and they discovered a large cemetery of children,
both prosecutors and the public became concerned.97 When prosecutors
sought to bring them to justice, only then did they learn about the religious
defenses to felonies in their state.98 The original exemption had been
granted without publicity. Once the consequences were made real and
in the newspapers (consequences that could have been easily imagined
had legislators done their job and considered the larger public good in
the course of granting the exemption in the ¬rst place) and children
were dead, the public discussion that should have taken place in the ¬rst
instance began.
The result, however, was astounding. The power of the religious inter-
ests “ even in the face of the numerous deaths of children “ prevailed,
THE PATH TO THE PUBLIC GOOD / 301


and spiritual exemptions still stand in the way of children™s interests in
life in Oregon. The proposed amendment would have repealed religious
defenses in homicide and child abuse cases, so that every parent shared
equal responsibility to ensure that their child did not suffer and die from
a treatable medical ailment.99 Initially, the Oregon State Senate and
House of Representatives bills were popular among representatives, re-
gardless of party lines, but that did not last for long. When it appeared
that a single bill, combined from the original bills, had a ¬ghting chance,
the faith-healing lobbyists went into action. What was their argument?
That the Constitution guaranteed their right to religious freedom, and
that freedom entailed a right to choose prayer over medical treatment for
their ill children. They confused constitutionally ill-informed legislators
who were already predisposed to follow the requests of religious orga-
nizations. Thus, legislative incompetence is why Oregon™s faith-healing
exemptions for murder and ¬rst-degree manslaughter remain in place.100
The silver lining, however, is that the issue was brought to light, and those
concerned about children at risk can now pay close attention.
The states have required professionals to report child abuse to civil
authorities. Many states, unbeknownst to the public at large, also granted
clergy an exemption from the requirement “ even though clergy are often
in a good position to know whether a child is in trouble. Subsequently,
those who had the most knowledge about childhood sexual abuse at the
hands of trusted clergy were under no obligation to report it, and the
abuse continued with further abuse and new victims. It is an issue that
was not a part of the public debate until thousands of Catholic Church
victims were revealed between 2002 and 2004. Once again, had legisla-
tures asked what best served the public good under the public spotlight
rather than provide a silent exemption, some of this harm might have been
prevented.
The Religious Freedom Restoration Act (RFRA) is probably the best
example of the phenomenon of silent (as well as blind) exemption. A
bill that disabled the vast majority of laws in the United States as they
applied to religious entities prompted next to no concern in the House
or the Senate. Late in the process, there was some passing concern about
its impact on prisons, but no investigation was initiated to determine the
likely actual impact on prison order. There was no debate about children
who died from religiously motivated medical neglect, or from physical
302 / GOD VS. THE GAVEL


abuse in fundamentalist work camps, or in unlicensed child care centers.
Or, about fair housing laws, or schools. Because Congress did not ask the
hard questions about the public good, it and the public did not understand
that so many potential victims were in harm™s way.
RFRA™s progeny also spawned numerous silent exemptions. The
Pennsylvania Religious Freedom Protection Act of 2002, for example,
was passed without hearings and as quickly as possible so as to avoid
opposition. Holding a single hearing would have prompted a public de-
bate, because by the time it was passed, a great deal was known about the
negative impact of RFRA and its progeny.
The legitimate exemption has three characteristics: it is enacted by
a politically accountable legislature charged with consideration of the
public good; it is not a blind exemption, but rather one that takes into
account the public™s interest; and it is not a silent exemption, but occurs
in the crucible of public debate.


Conclusion
Some might respond to this book by asking why the entire system of
religious liberty should be built on a presumption that religious organi-
zations and individuals will harm the public good. That™s just perverse,
they would say. And they might add, while the examples in the ¬rst part
of this book are disturbing, to be sure, they are the exceptions that prove
the rule. A few bad apples are no reason to burden every religious group
with the vast number of laws in the United States, or so the argument
would go. The instinct is understandable. Because if religion is capable
of enough immoral or evil acts that it deserves only limited liberty, then
it may seem like there is little hope for society.
The instinct is too dangerous to the helpless to be the basis of the law.
When self-deception leads the United States to give religious conduct a
berth that results in intolerable harm were it perpetrated by any other en-
tity, this country proves that religion can be the “opiate of the masses.”101
The Marxist wholesale jettisoning of religion was a doomed social ex-
periment, but Marx was indisputably correct that religion is too often an
excuse for sloppy thinking and delusional optimism. Such blind trust is
an abdication of social responsibility that will in the end undermine the
culture altogether.
THE PATH TO THE PUBLIC GOOD / 303


Others might not take such an extreme position in defense of reli-
gion. Even if they conceded my factual claims, they would argue that I
have gotten the default rule wrong. Instead of placing the default rule at
the rule of law, and then permitting exceptions in extraordinary circum-
stances, they would place the default rule at religious liberty but with
ample room for government regulation. That is, in fact, the approach
taken by Justice Sandra Day O™Connor. She has favored strict scrutiny of
laws that burden religious conduct, but she has identi¬ed a broad range
of government interests that are suf¬cient to trump the claim to religious
liberty. In Smith, she concurred in the majority™s upholding of Oregon™s
narcotics and unemployment compensation laws, on the theory that they
were of suf¬cient government importance to justify the regulation. Truth
be told, there is not a large difference between Justice O™Connor™s ap-
proach and the one advocated in this book in terms of results. Our main
disagreement is on institutional competence. While she would have the
courts weigh the public interest, I believe the legislatures are better suited
to the inquiry.
Still others “ like the Smith dissenters “ will argue for a more robust
version of Justice O™Connor™s approach, and demand that the government
interests that can trump the religious conduct be narrowly circumscribed.
They are the supporters of Sherbert and Yoder, the detractors of Smith, and
the believers in the RFRA laws “ federal and/or state. Like O™Connor,
they would have the courts determine what is in the public™s interest,
but they also weigh the interests of religious believers so heavily that the
scale naturally tips toward religious interests. Instead of using the public
good as the governing principle, religious interests would be presumed
to trump duly enacted laws. That is not a neutral treatment of religion,
but rather a biased perspective that guarantees the public good will not
be served in many instances. It creates too much space for the mischief
of religious conduct in too many circumstances.
The rule of law is a canopy of mutual protection reached through
legitimate legislative processes, under which all members of the society
must abide by the same rules and observe the rule of no harm to others.
The rule of law is diminished when individuals may use their personal
beliefs to avoid the law and to harm others. That is a system wherein
individuals are permitted to be laws unto themselves, the very anathema
to a rule of law regime, and the approach that was rejected more than
304 / GOD VS. THE GAVEL


125 years ago by the Supreme Court in Reynolds v. United States. The
methodology advocated in this book is the only approach that is consistent
with the high ideal of republicanism “ to yield the greatest good possible
for the people. Unlike the narcissism that has become an integral part of
American morality, the rule of law recognizes the dignity of the “other.”
Those who sacri¬ce the interests of women and children in the name
of religion, or the rights of homeowners to religious landowners have
imposed a system that demotes the public good to a secondary value.
They have subverted the rule of law.
The burden rests on the religious believer demanding exemption from
a law to prove that his conduct is not harmful to the society and individu-
als within it. To date, the primary obstacles to the proper function of these
principles have been judicial activism and overly deferential legislatures.
Too many ill-considered exemptions have been granted, solely because
the one demanding the exemption was religious and the legislator ab-
dicated his or her responsibility to ask whether the exemption might in
turn harm others. The result has been all manner of harm to women and
children and property interests “ and to the public good in general.
When most Americans learn the details of the exemptions that have
been granted, for example, to protect parents who medically neglect their
children, they are shocked, because the core instinct in the United States
is not to harm others and there is an assumption that the legislatures are
doing their appointed job of ensuring there is as little harm as possible.
The United States™ system, though it started on the right track, has been
derailed in recent decades into a system of possessive individualism “ the
“conception of the individual as essentially the proprietor of his own
person or capacities, owing nothing to society for them.”102 Religious
entities have argued either that the laws are too onerous for them or that the
default rule should be complete deregulation. They have coined a phrase
to describe their view of religion and the society within which it resides:
Church Autonomy.103 This libertine agenda has persuaded legislatures to
permit religious entities to trump the public good by permitting them to
avoid accountability. It is a triumph of the urge to power, in Nietzsche™s
sense, not a sacred right.104
Professor Ira Lupu has described the phenomenon beautifully:

Recognizing . . . claims of autonomy will, by de¬nition, insulate from
regulation behavior that the political branches have decided needs
THE PATH TO THE PUBLIC GOOD / 305


regulating. As the autonomy cloak spreads, the quantity of such other-
wise illegal behavior, and the harms it causes, will presumably increase.
And as the scope of autonomy moves farther away from the special ac-
tivities that legitimate the autonomy claim, tolerance of those harms
becomes increasingly dif¬cult to justify.

Moreover, assertions of autonomy may be as likely to cloak economi-
cally self-interested behavior as they are to protect ideological purity. Be-
cause institutional autonomy claims will provide this cloak for behavior
that is self-interested and otherwise unlawful behavior, their availability
will create incentives for organizations to hide a variety of non-religious
or non-speech activity behind the cloak. This, in turn, will tend to
debase activities which we have come to respect as constitutionally spe-
cial, turning them into easily accessible havens for economic and social
outlaws.105

The mindset in the United States regarding religion must change if
there is ever to be true liberty as the framing generation rightly understood
it. The culprits in the cases that I described in Part One are not only the
religious entities lobbying for privileges without regard to their victims,
but, more importantly, the legislatures that have failed to ask whether a
religious exemption might hurt anyone, or, worse, when they knew of the
harm, still enacted the exemption. Indeed, in the U.S. scheme of gov-
ernment, the latter are the more culpable. There is an expectation that
lobbyists pursue their own narrow interests, regardless of public good or
the needs of others. Part One of this book demonstrated that this princi-
ple applies emphatically to religious entities. Legislators are supposed to
stand between lobbyists and individual self-interest. Elected representa-
tives make the law that mediates those interests, and they owe the people
the duty of investigating who will be harmed by any lobbyist™s demand.
The point of this book is to show that a vigorous legislative investigation
is just as crucial, and sometimes more crucial, in the context of religious
demands, as it is in any secular context. The United States must abandon
its adolescent belief in the inevitable goodness of every religious entity and
instead demand an accounting when religious entities seek to avoid the
laws that govern everyone else. This is not so much a matter of distrusting
religious entities as it is an invitation for the public good to re-enter the
religious liberty calculus.
EPILOGUE

After the late 2004 Asian tsunami took more than 150,000 lives and brought
devastation to the survivors, many religious relief organizations sprang
into action and provided necessary assistance to the suffering. It was a
reminder of the great good that religious entities regularly and frequently
contribute to the global community. No one and no theory, least of all
this book, can take that away from them. God vs. the Gavel, however,
brings balance to the assessment of religion in society by acknowledg-
ing the great contributions of religion as it reveals religion™s capacity in
some instances to harm individuals and the public good. The truth is that
religious organizations are staffed by humans, who are by nature imper-
fect and too often driven by the pursuit of power, prestige, and personal
pleasure rather than the good of their neighbors and fellow citizens. The
correct legal system takes into account both sides. The Religion Clauses
prohibit any law that is hostile to religion, but they do not mandate naivete
on the part of legislators and the citizens they serve.
That is why duly enacted criminal and civil laws must be enforced
against conduct even when it is religiously motivated.
The 2004 Presidential election brought home the fact that religion, pol-
itics, and power are intimately connected in the United States. Religious
entities are not above the political fray at all, but rather delivering potent
blows within it. Anyone who believes that religion has been marginalized
or trivialized in the United States has not been paying close attention.


306
EPILOGUE / 307


Before the election, the U.S. Conference of Catholic Bishops distributed
a ¬‚yer to Catholics declaring that

[a]s we approach the elections of 2004, . . . some Catholics may feel po-
litically homeless, sensing that no political party and too few candidates
share a consistent concern for human life and dignity. However, this
is not a time for retreat or discouragement. We need more, not less
engagement in political life.1

And its urgings may well have bene¬ted Republicans, with 52 percent
of Catholics choosing President Bush. The ¬‚yer was silent on the clergy
abuse scandal “ as one might have expected given that the scandal has
been a nearly lethal blow to the Church™s public and moral authority “ but
it urged believers to focus primarily on opposing abortion and euthanasia,
and then the destruction of human embryos, and human cloning, just to
name a few of the 26 political issues prescribed. Even in the face of the
widely publicized, ongoing lawsuits and criminal investigations into the
Church™s role in the childhood sexual abuse of thousands of children,
the Conference soldiered on as though its power over its believers could
not be questioned.
After the election, when conservative Christians were credited (rightly
or wrongly) with delivering the election to President Bush, they wasted
no time ¬‚exing their political muscle. The Rev. Richard Land of the
Southern Baptist Convention said it best, “As we say in Texas, [President
Bush] is going to dance with the one who brung him. We haven™t come
to this place to go home and not push our values and our beliefs.”2 Their
ambitious agenda included overturning Roe v. Wade, legalizing absolute
bans on partial-birth abortion, blocking same-sex marriage, increasing
the federal government™s faith-based spending, and “the welcoming of
faith perspectives in public policy,” to quote Land again.
The silence of the conservative Christians on the extraordinary harm
done to children by trusted clergy in the Catholic Church, the Jehovah™s
Witnesses, and others, reinforced the Catholic Church™s silence. Both
groups have placed the abolition of abortion at the top of their policy
lists, and they therefore expended considerable political capital on the
unborn child, but the real-life suffering of living children within U.S.
borders elicited no position in the political fray.
308 / GOD VS. THE GAVEL


At the same time the election was dominated by political viewpoints,
the Rev. Jerry Falwell (who established the Moral Majority in 1979)
opened a law school at his Liberty University, where students were to
be educated as “Christian lawyers” with the goal of increasing the politi-
cal in¬‚uence of conservative Christians in the courts and the legislatures.
In Falwell™s own words, the mission of the school is to produce “Christian
activists” who “understand the Bible is the infallible word of God, that
the American Constitution is a sacred document and that the Christian
worldview is their matrix of service.”3 There is hardly a more succinct
summary of any religious group™s drive to political power.
Further evidence that conservative Christians currently feel entitled to
control the culture from their religious perches appeared in December
when Judge Ashley McKathan entered his chambers in judicial robes on
which the Ten Commandments were embroidered. According to him,
he would use the Commandments for the purpose of deciding cases,
which should trouble every freedom-loving American. The ¬rst four are
religious mandates, and one can only wonder how the mandate to believe
in only one God will play out in a courtroom where he may well have
defendants who believe in multiple gods or no God.
In this climate, it is rather hard to take seriously the prevalent com-
plaints about secularization or the purported removal of religion from
the public square. Instead, the facts dictate a fresh appraisal of who is
operating the levers of power, what the political process has produced
for religious entities, and how the courts have interpreted these enact-
ments. It is just as important to divine what is ¬‚ying under the radar. And
that will require the media to swear off of its squeamishness on religion.
Well-known commentator Andy Rooney clearly articulated the problem
(without acknowledging it requires a solution) when he said that there
were many topics not reported in the United States because the people
did not want to hear about them. “Religion is the best example of that.
People don™t want to talk about religion if it™s negative.”4 That is quite an
indictment of the media, which must share responsibility for the suffering
of many of the victims detailed in this book, especially the children.
The Religious Freedom Restoration Act (as applied to federal law)
showed its true colors when the U.S. Court of Appeals for the Tenth
Circuit enjoined the federal government from enforcing the Controlled
EPILOGUE / 309


Substances Act against the O Centro Espirita Bene¬ciente Uniao Do
Vegetal, which uses the illegal substance hoasca in its religious cere-
monies. RFRA™s strict scrutiny standard meant that the court overtook
Congress™s role in crafting religious accommodation and decided that
the group had to be permitted to use the drug. Without hearings or stud-
ies on the short or long-term effect of this drug, the court found itself
competent under RFRA™s power to carve hoasca out of the Controlled
Substances Act. The case may well create an opportunity for the Supreme
Court to rule on RFRA™s constitutionality as applied to federal law. In the
same legal fold, the Supreme Court will decide in 2005 whether the
prison side of the Religious Land Use and Institutionalized Persons Act is
unconstitutional.
While one cannot say that clergy abuse has been ¬‚ying under the me-
dia radar, it has not received the sort of concentrated attention from the
state or federal legislatures it deserves. The need becomes more appar-
ent everyday, and the victims are not just children, but also emotionally
disabled adults. Religious organizations obviously need the law™s guiding
hand on these issues. New York Orthodox rabbi, Mordecai Tendler, was
accused of sexual harassment by a number of women who had turned
to him for help with their failing marriages. The Rabbinical Council of
America, the most important organization of Modern Orthodox rabbis,
hired an outside ¬rm to investigate the charges, and then without contact-
ing the victims, the RCA immediately shared the report, which included
the names of the victims, with the alleged perpetrator and his attorney.5
The investigation is ongoing, but without clearer legal guidelines re-
garding a religious organization™s obligations, the pattern of assisting the
perpetrator and re-victimizing the victim is going to perpetuate itself.
Despite the desperate attempts by conservative Christians to exercise
a quit-claim deed on United States culture, pluralism cannot be wished
away. NonChristian citizens are here for the long haul; indeed, many have
been here for generations. Peter Gilmore, High Priest of the Church of
Satan, has said that “[i]t™s a very good time for Satanism these days.”6
The U.S. Armed Services has recognized Satanist believers, and now
the British Royal Navy has followed suit. While Gilmore asserted that
Satanists were forbidden from illegal activities, the focus is on dark magic.
According to him, “Halloween is amateur night, because people are trying
310 / GOD VS. THE GAVEL


to reach down and see the dark side of themselves and Satanists do that
365 days of the year.”7 The mix of religions is not going to homogenize
anytime soon.
The case against fundamentalist polygamy from a woman™s rights per-
spective has been strengthened. A former polygamist, John R. Llewellyn,
has revealed that in some sects, not only do the men take multiple
wives, but their belief that only a church-sanctioned marriage is legit-
imate has led them to pursue women in marriages from other faiths.
According to him, “it is considered an act of righteousness for a fun-
damentalist man to indoctrinate and seduce the wife of another man.
By taking her as a plural wife, he is saving her, exalting her, and
he will be the one who resurrects her into the celestial kingdom.”8
The inherently abusive quality of the many polygamous marriages he
witnessed has led him to urge legislation that would make criminal
“coerced sexual exploitation by a person of trust, power, and authority.”
Given the utter inability of the existing legal system to save children
from being sexually abused by clergy who had their trust or to pro-
tect the girls who have been lured into polygamous marriages, this is
a worthwhile and interesting path for state legislatures to consider “
once they come to understand that a legal system that holds religious
entities unaccountable can be neither just nor safe.
Finally, there is the recently published story of the Family Interna-
tional, a cult initiated in the 60s, which practiced routine incest, rape,
and physical child abuse. Ricky Rodriguez, 29, who was designated by
his parents as the group™s messiah when he was a child, and publicly
seduced, raped, and abused, recently murdered a former nanny in the
context of searching for his biological mother to avenge the crimes against
him. In 1986, the group instituted a new rule threatening excommuni-
cation for members who engaged in childhood sexual abuse, but that
did not redress the harm already done, which had not been forestalled
by either the law or the media. If one has any lingering doubt that the
United States prescribes rose-colored glasses for religious conduct “ the
group™s musicians, the Family Singers, have performed at the White
House.9
Each day there are more reasons to embrace the Supreme Court™s rea-
soning in Employment Division v. Smith and the principle that religious
EPILOGUE / 311


conduct must be governed by the same laws that govern the rest of
us. At the same time, the argument for permissive accommodation re-
mains strong “ so long as the legislature takes into account the larger
public good. Forbidding religious exemptions altogether would be
tyranny, but granting them as of right is anarchy.
NOTES

1. The Problem
1. Winnifred Fallers Sullivan, Religious Freedom and the Rule of Law: Exporting
Modernity in a Postmodern World, 22 Miss. L. Rev. 173, 174 (2004).
2. See American Association of Fundraising Council, 2003 Contributions:
$240.72 Billion by Type of Organization, in Giving USA 2004, also available at
http://www.aafrc.org/bytypeof67.html (last visited Aug. 5, 2004).
3. See generally Harold Koenig, M.D., The Healing Power of Faith (1999).
4. See U.S. Department of State, Country Reports on Human Rights
Practices “ 2001: China (Includes Hong Kong and Macau) (Mar. 4, 2004),
available at http://www.state.gov/g/drl/rls/hrrpt/2001/eap/8289pf.htm (last visited
Aug. 5, 2004).
5. Annual Report of the United States Commission on International
Religious Freedom (May 2004), available at http://www.uscirf.gov/reports/
12May04/¬nalReport.php3# china (last visited Oct. 15, 2004).
6. Friends of Falun Gong U.S.A., What Is Falun Gong?, at http://www.fofg.org/
about/about what is fg.php (last visited Aug. 5, 2004).
7. See Freedom House Center for Religious Freedom, China Moves to
Crush Millions-Strong Christian House Church, May 19, 2004, at http://www.
freedomhouse.org/religion/news/bn2004/bn-2004-05-19.htm (last visited Aug. 20,
2004).
China™s crackdown on Falun Gong has affected U.S. interests regarding inter-
national religious freedom, human rights, trade relations, and the treatment of
U.S. permanent residents and citizens. P.L. 105“292, the Freedom from Religious
Persecution Act of 1998, created a U.S. Commission on International Religious
Freedom and authorizes the President to impose sanctions upon countries that
violate religious freedom. On the basis of the Commission™s ¬ndings, the De-
partment of State has identi¬ed China as a “country of particular concern.” P.L.


313
314 / NOTES TO PAGES 5“6


106“286 (H.R. 4444) extends permanent normal trade relations (PNTR) status to
the PRC but criticizes China™s denial of religious, spiritual, and other freedoms,
including the government™s persecution of Falun Gong adherents, and establishes
a special commission to monitor human rights in China.
8. Thomas Lum, China and “Falun Gong” 6 (Cong. Research Serv. 2001),
available at http://www.globalsecurity.org/military/library/report/crs/RS20333.pdf
(last visited Aug. 23, 2004).
In 2002, the commission reviewed a second report on Falun Gong, which included
updates on events in China including the self-immolation of six practitioners in
Tiannanmen Square, new tactics of practitioners to bolster recognition of their
cause, and the continuing crackdown by the Chinese Government. These events
led Congress to institute two resolutions “condemning China for its poor human
rights record, and . . . calling upon the PRC to cease its persecution of Falun Gong
practitioners.
Id. at 4“6. In 2003, the Congressional Report noted that, “Government authorities
continue to repress spiritual groups, including the Falun Gong spiritual movement,
chie¬‚y through the use of anti-cult laws.” Congressional-Executive Comm. On
China, 108th Cong., Annual Report 2003 1 (Comm. Print 2003).
9. See Anatoly Andreevich Krasikov, Church State Relationships in Russia:
Yesterday, Today, and Tomorrow, in The Law of Religious Identity 168 (Andras
Sajo & Shlomo Avineri, eds. 1999); Cf. Dr. Slavi Pachovski, The Real Reason for
the Fall of Communism, in Global Voice (May 2000), available at http://www.
advocatesinternational.org/site/gv3.htm (last visited Aug. 5, 2004) (Pachovski was
the ambassador of Bulgaria to the United Nations from 1992 to 1997).
10. See Ivan Andreyev, The Catacomb Church in the Soviet Union,
Orthodox Life, Mar.-Apr. 1951, available at http://www.holycross-hermitage.com/
pages/Orthodox Life/CatacombChurch.htm (last visited Aug. 20, 2004); see also
Anatoly Andreevich Krasikov, supra note 9, at 161“68.
11. See generally Ronald A. Christaldi, The Shamrock and the Crown: A
Historic Analysis of the Framework Document and Prospects for Peace in Ireland, 5
J. Transnat™l L. & Pol™y 123, 124“52 (1995).
12. W. Ward et al., The Cambridge Modern History 650 (1934); Charles
H. Lea, A History of the Inquisition of Spain 173“74 (1907), also available at
http://libro.uca.edu/lea1/1lea.htm (last visited Sept. 13, 2004).
13. See J. H. Hexter, Parliament and Liberty from the Reign of Eliz-
abeth to the English Civil War 4“5 (1992) (“During the century long rule
of [the Tudors] a few hundred martyrs or zealots lost their lives by hang-
ing, burning, or beheading. More numerous were the victims who had taken
up arms on religious grounds against their Tudor rulers of whatever religious
persuasion.”).
14. Amit Gupta & Kaia Leather, Kashmir: Recent Developments and U.S.
Concerns 2 (Cong. Research Svc. 2002), also available at http://www.fas.org/
man/crs/RL31481.pdf (last visited Aug. 23, 2003).
15. Unlike similar trials in Europe that were run by the Church itself, the Salem
witch trials were handled in ostensibly secular courts. See Richard Weisman,
NOTES TO PAGES 6“15 / 315


Witchcraft, Magic, and Religion in Seventeenth-Century Massachusetts
12“14 (1984). Nevertheless, Puritan beliefs and colonial clergy played an important
role in the witchcraft statutes, trials, and subsequent executions. Id. at 23“29.
16. The Muslim Brotherhood was founded in Egypt in 1928 by Hassan al-Bana.
See Stephen Kinzer, Muslim Scholar Loses U.S. Visa as Query is Raised, N.Y.
Times, Aug. 26, 2004, at A14.
17. See generally Andrea Moore-Emmett, God™s Brothel (2004).
18. See Janna C. Merrick, Symposium, Spiritual Healing, Sick Kids and the
Law: Inequities in the American Healthcare System, 29 Am. J. L. & Med. 269, 273
(2003) (“Christian Science deaths from diabetes and malignancy were twice the
national average.”).
19. Stephen Carter, The Culture of Disbelief: How American Law and
Politics Trivialize Religious Devotion (1994).
20. Religious Freedom Restoration Act of 1993, 139 Cong. Rec. S 14461, 103rd
Cong., 1st Sess. (statement of Sen. Hatch).
21. See Marci A. Hamilton, The Belief/Conduct Paradigm in the Supreme Court™s
Free Exercise Jurisprudence: A Theological Account of the Failure to Protect Religious
Conduct, 54 Ohio St. L.J. 713, 794 (1993).



2. Children
1. Kathleen Alaimo, Historical Roots of Children™s Rights in Europe and the
United States, in Children as Equals: Exploring the Rights of the Child 3
(Kathleen Alaimo & Brian Klug eds., 2002) (“If adults take responsibility for the
protection of children, doesn™t that potentially limit their freedom?”).
2. For purposes of this book, I will use “pedophile” as a term encompassing both
pedophiles and ephebophiles. Technically, a pedophile is de¬ned as “[a] person
who over at least a 6 month period has recurrent, intense sexually arousing fan-
tasies, sexual urges, or behaviors involving sexual activity with a prepubescent child
or children (age 13 years or younger).” American Psychiatric Association, Diag-
nostic and Statistical Manual of Mental Disorders (4th ed. 1994). “Adults
who sexually interact with adolescents are called ephebophiles. However, there is
neither a medical de¬nition nor a medical diagnosis for this group.” Gene G. Abel,
M.D., & Nora Harlow, The Abel and Harlow Child Molestation Prevention Study
4 (updated 2002), in The Stop Child Molestation Book (2001), also available
at http://www.stopchildmolestation.org/pages/about.html (last visited October 2,
2004).
3. See Bill Bowen, Is There a Problem?, at http://www.silentlambs.org/
answers/Isthereaproblem.htm (last visited Oct. 2, 2004) (hereinafter Is There a
Problem?).
4. Rev. Michael Peterson, F. Ray Mouton, & Rev. Thomas P. Doyle, The Prob-
lem of Sexual Molestation by Roman Catholic Clergy: Meeting the Problem in
a Comprehensive and Responsible Manner 2, 10 (1984) (con¬dential report on
Catholic clergy abuse directed to bishops) (on ¬le with author), also available
316 / NOTES TO PAGES 15“16


at http://natcath.org/NCR Online/archives2/2002b/051702/051702a.htm (last vis-
ited Sept. 30, 2004) (hereinafter Problem of Sexual Molestation by Roman Catholic
Clergy).
5. Id. at 3, 4, 11, 88.
6. Estimates range from 10,000 to 100,000. Sociologist and Catholic priest
Andrew Greeley predicted that there are probably 100,000 clergy-abuse victims
in the United States. See Andrew M. Greeley, How Serious Is the Problem
of Sexual Abuse by Clergy?, America, Mar. 20, 1993, at 6, also available
at http://www.bishop-accountability.org/resources/resource-¬les/timeline/1993-03-
20-Greeley-HowSerious-1.htm (last visited October 2, 2004) (hereinafter Greeley)
(“A not unreasonable estimate of the victim population would then be well in excess
of 100,000, each one a human being who has suffered a terrible personal tragedy.”);
National Review Board for the Protection of Children and Young
People, A Report on the Crisis in the Catholic Church in the United
States 23 (2004) (hereinafter Report on the Crisis in the Catholic Church),
also available at http://www.usccb.org/nrb/nrbstudy/nrbreport.pdf (last visited
Sept. 30, 1994).
7. Mark Donald, Judging Amy?; Jehovah™s Witnesses Sued for Allegedly Protecting
Members Who Abuse, 20 Texas Lawyer 1 (May 3, 2004) (quoting Fort Worth lawyer
Kimberlee Norris, who said she “talked to my 1,500th alleged victim in March 28,
2003 . . . After I reached 2000, I stopped counting.”) (hereinafter Judging Amy?); see
also www.silentlambs.org (website that assists survivors of Jehovah Witness abuse,
run by a former church elder, Bill Bowen).
8. In 1980, two news organizations won Pulitzer Prizes for their reporting
about the ¬nancial misdealings of religious institutions. Bette Swenson Orsini
and Charles Stafford of the St. Petersburg (Fla.) Times won the Pulitzer for
National Reporting “for their investigation of the Church of Scientology,” which
is available at http://www.lermanet.com/scientologynews/sptimes/spt-series-index.
htm (last visited Sept. 29, 2004). The same year, the Gannett News Service
won the Pulitzer for Public Service for “its series on ¬nancial contributions to
the Pauline Fathers.” The Pulitzer Board Presents, The Pulitzer Prize Winners
of 1980, available at http://www.pulitzer.org/cgi-bin/year.pl?type=w&year=1980&
FormsButton2=Retrieve (last visited Sept. 29, 2004). In 1988, The Charlotte (N.C.)
Observer won the Public Service Pulitzer “for revealing misuse of funds by the
PTL television ministry through persistent coverage conducted in the face of
a massive campaign by PTL to discredit the newspaper.” The Pulitzer Board
Presents, The Pulitzer Prize Winners of 1988, available at http://www.pulitzer.org/cgi
-bin/year.pl?type=w&year=1988&FormsButton2=Retrieve (last visited Sept. 29,
2004).
9. See Jason Berry, Lead Us Not into Temptation: Catholic Priests and
the Sexual Abuse of Children (1992); Jason Berry & Gerald Renner, Vows
of Silence : The Abuse of Power in the Papacy of John Paul II (2004).
10. See Susan Hogan-Albach, Years of Con¬‚ict, Dallas Morning News, June
10, 2002, at 10A.
NOTES TO PAGES 16“18 / 317


11. Frank Bruni & Elinor Burkett, A Gospel of Shame: Children, Sexual
Abuse, and the Catholic Church 98“101 (1993).
12. Problem of Sexual Molestation by Roman Catholic Clergy, supra note 4, at 7
(detailing press outlets actively pursuing the issue at the time).
13. See generally Bill Wright Dziech & Judge Charles B. Schudson, On
Trial: America™s Courts and Their Treatment of Sexually Abused Children
10“11 (1989).
14. Federal Assistance to States to Prevent the Abuse of Children in Child Care
Facilities: Hearings on S. 521 and S. 1924 before the Senate Judiciary Committee,
98th Cong. 30 (Apr. 11 and Sept. 18, 1984) (statement of Melvin D. Mercer and
Kenneth V. Lanning).
15. Melinda Beck & Tessa Namuth, An Epidemic of Child Abuse, Newsweek,
Aug. 20, 1984, at 44.
16. Russell Watson, et al., A Hidden Epidemic, Newsweek, May 14, 1984, at 32.
17. Glen Martin & Del¬n Vigil, Study Reveals Clergy Abuse Figures, S. F.
Chron., Feb. 2, 2004, at A1.
18. Greeley, supra note 6.
19. Report on the Crisis in the Catholic Church, supra note 6, at 23.
20. The American Academy of Pediatrics (AAP) has been a staunch advocate
for children at risk of medical neglect. See American Academy of Pediatrics,
Religious Exemptions from Child Abuse Statutes, 81 Pediatrics 169 (1988).
The AAP has a Child Abuse and Neglect home page, available at http://www.
aap.org/sections/scan/ (last visited Oct. 18, 2004). AAP also ¬led an amicus brief,
along with other health organizations, opposing Medicare and Medicaid reim-
bursement for institutions run primarily by Christian Scientists (because the prac-
tice encourages faith healers to deny children appropriate medical care). See Brief
Amicus Curiae of the American Academy of Pediatrics, the American Medical
Association, the Iowa Medical Society, and the American Nurses Association in
Support of Petitioners, Children™s Healthcare Is a Legal Duty, Inc. v. Min De
Parle, 212 F.3d 1084 (8th Cir. 2000). AAP is also on the record opposing state ex-
emptions for parents who have denied medical care to their children for religious
reasons. See Press Release, American Academy of Pediatrics, Pediatricians File
Brief in Prayer vs. Medical Care Case (Dec. 29, 1998) (on ¬le with author), also
available at http://www.aap.org/advocacy/washing/prayer.htm (last visited Oct. 18,
2004).
21. See Memorandum in Support of Plaintiffs Motion for Summary Judgment,
Bronson v. Swenson, No. 02:04-CV-0021 (TS) (D. Utah ¬led Apr. 27, 2004).
22. Federal Assistance to States to Prevent the Abuse of Children in Child Care
Facilities: Hearings on S. 521 and S.1924 Before the Senate Judiciary Committee,
98th Cong. 29 (Apr. 11 and Sept. 18, 1984) (statement of Melvin D. Mercer and
Kenneth V. Lanning); Federal Assistance to States to Prevent the Abuse of Children
in Child Care Facilities: Hearings on S. 521 and S.1924 Before the Senate Judiciary
Committee, 98th Cong. 29 (Apr. 11 & Sept. 18, 1984) (statement of Melvin D. Mercer
and Kenneth V. Lanning); see also id. at 26 (oral testimony).
318 / NOTES TO PAGES 18“21


23. Id. at 31.
24. Id. at 30 (according to Dr. Ann Burgess). See also Kenneth V. Lanning,
Child Molesters: A Behavioral Analysis 18“19 (3d ed. 1992), also available at
http://www.skeptictank.org/nc70.pdf (last visited Sept. 26, 2004).
25. Ralph Ranalli, A Curious Twist in Geoghan Case, Boston Globe, Oct. 25,
2003, at B3.
26. Ralph Ranalli, Priests in Church Scandal Barred, Boston Globe, May 7,
2004, at B1.
27. Leary v. Geoghan, No. 2001-J-0688, 2001 WL 1902391, at — 1 (Mass. App. Ct.
Dec. 21, 2001) (af¬rming trial court decision that First Amendment did not bar
discovery of Church ¬les).
28. Videotape: “Jennifer Chapin Detailing Childhood Sexual Abuse by
Monsignor Francis” (on ¬le with author).
29. See William Lobdell & Jean Guccione, Church to Pay $3 Million in Rape,
L.A. Times, Jan. 24, 2004, at B1.
30. Glen Martin & Del¬n Vigil, Study Reveals Clergy Abuse Figures, S.F.
Chron., Feb. 2, 2004, at A1.
31. Charles Burress, CA Woman Makes Plea to Victims of Clergy Abuse, S.F.
Chron., Jan. 26, 2004, at B2.
32. Id.
33. Ralph Ranalli, Reardon Victims Still Wait for Help: Diocese Yet to Pay for
Sex Abuse Care, Boston Globe, June 16, 2003, at B1.
34. Eric Convey, Reardon Victim Settles YMCA Claim for $35G, Boston
Herald, July 19, 2003, at 10.
35. Kevin Cullen & Stephen Kurkjian, Church in an $85 Million Accord,
Boston Globe, Sept. 10, 2003, at A1.
36. Fernanda Santos, Parishioners: Priest Heard about Abuse, Eagle-Tribune
(Haverhill, Mass.), Feb. 1, 2002, at 1; Tom Mashberg, Records: Molesters Advised
other Abusers, Boston Herald, June 6, 2002, at 28.
37. Parks v. Kownacki, 193 Ill. 2d 164, 168“70, 181 (2000).
38. Wis. Stat. Ann. § 990.06 (2003) provides:

In any case when a limitation or period of time prescribed in any act which shall
be repealed for the acquiring of any right, or barring of any remedy, or for any other
purpose shall have begun to run before such repeal and the repealing act shall
provide any limitation or period of time for such purpose, such latter limitation
or period shall apply only to such rights or remedies as shall accrue subsequently
to the time when the repealing act shall take effect, and the act repealed shall be
held to continue in force and be operative to determine all such limitations and
periods of time which shall have previously begun to run unless such repealing
act shall otherwise expressly provide.

39. Laurie Goodstein & Jodi Wilgoren, 2 Paths, No Easy Solution on Abusive
Priests, N.Y. Times, Mar. 3, 2002, at 1 (hereinafter 2 Paths, No Easy Solution).
40. Robert Goodrich, Retired Priest Named in New Sex Abuse Case, St. Louis
Post-Dispatch, Sept. 26, 2003, at B1.
NOTES TO PAGES 21“23 / 319


41. Sarah Barringer Gordon, The Mormon Question 1 (2002). The federal
law banning polygamy, 12 Stat. 501, passed by Congress in 1862, was upheld against
attack by a Mormon man in Reynolds v. United States, 98 U.S. 145, 167 (1879).
42. See The Doctrine and Covenants: Section 132, in the Church of Jesus
Christ of Latter-day Saints, the Scriptures (Internet Edition), available at
http://scriptures.lds.org/dc/132 (last visited Oct. 1, 2004). See also John Krakauer,
Under the Banner of Heaven 255 (2003) [hereinafter Under the Banner of
Heaven] (Fundamentalist Mormons “pointed out that D&C 132 was still an ac-
cepted part of the Mormon scripture (and indeed still is today).”).
43. Complaint, Jeffs v. Jeffs, et al., at ¶ 22, ¶ 2, 23“24 (Utah 3d Jud. Dist. Ct. 2004)
(on ¬le with author).
44. Karen Brooks, Polygamists Accused of Rape, Dallas Morning News, July
31, 2004, at 5A.
45. Complaint, Jeffs v. Jeffs, at ¶¶ 25“28.
46. Andrea Moore-Emmett, God™s Brothel 33 (2004) (hereinafter God™s
Brothel); Lucinda Dillon, Graham Deputy is Seeking to Suceed Her, Deseret
News (Salt Lake City), Oct. 12, 1999, at B1.
47. See Fabian Dawson, 13 Year Old Sent to B.C. for Husband, Province
(Vancouver, B.C.), Dec. 16, 2000, available at http://www.rickross.com/reference/
polygamy/polygamy50.html (last visited Sept. 26, 2004); The Canadian Home of
Polygamy, CBC News, Jan. 15, 2003, transcript available at http://www.rickross.
com/reference/polygamy/polygamy99.html (last visited Sept. 26, 2004).
48. 18 U.S.C. § 2423 (2003); Complaint to BC Human Rights Tribunal, Regarding
Polygamous Practices in Bountiful, British Columbia (May 19, 2004) (¬led by Jancis
M. Andrews) (referring to Ruth Chatwin, who at 13 was “traded into Bountiful from
the States”).
49. Id.; see also God™s Brothel, supra note 46, at 125“27.
50. Referred to in Estimates: Ministry of Families and Children: Of¬cial Re-
port of Debates of the Legislative Assembly 36th Parl., 4th Sess. 16,937“38 (B. C.
Hansard) (June 28, 2000) (statement of Hon. G. Mann Brewin, questioned by
B. McKinnon), available at http://www.legis.gov.bc.ca/2000/hansard/h00628p.
htm#16937 (last visited Oct. 1, 2004).
51. Id. at 16,938.
52. See Ending a Half Century of Exploitation, Economist (London), July 8,
2004, also available at http://www.economist.com/displayStory.cfm?story id=
2907136 (last visited Oct. 1, 2004) (“[I]nertia stems from a case in 1992 when po-
lice recommended that two Bountiful men be charged with polygamy. But the
crown attorney™s of¬ce declined to do so, following legal advice that conviction
was impossible because the guarantee of religious freedom in Canada™s Charter of
Rights and Freedoms renders the law against polygamy unconstitutional.”); see also
Complaint to BC Human Rights Tribunal (May 19, 2004) (describing Canadian
government of¬cials™ failure to enforce the law against polygamy, because it “may
be unconstitutional”).
53. Letter from Seven Complainants, former wives or concubines at Bounti-
ful commune, to Tribunal Members, B.C. Human Rights Tribunal 1 (May 19,
320 / NOTES TO PAGES 23“26


2004) (on ¬le with author). The complainants request anonymity as a condition
of participation in tribunal proceedings. For that reason, I will not publish their
names.
54. Id.
55. God™s Brothel, supra note 46, at 172; see also Under the Banner of
Heaven, supra note 42, at 25 (quoting the polygamous police chief of Colorado
City).
56. Allison Hanes, I Married 10-year-old, Says Man, 52, Gazette (Montreal),
Aug. 19, 2004, at A1.
57. Connie Chung Tonight: Witnesses Abused? Church Accused of Failing Chil-
dren (CNN television broadcast, Aug. 24, 2002), transcript available at http://
www.watchtowerinformationservice.org/chung.htm (last visited Sept. 29, 2004).
58. See, e.g., Judging Amy?, supra note 7 (“According to scripture [Deuteronomy
19:15], for a person to be disciplined, there needs to be at least two witnesses to
substantiate the charge or an admission of sin.”); Dennis O™Brien, Another Church
Facing Charges of Sexual Abuse: Former Jehovah™s Witness Leader to Be Tried on
Sex Offenses, Attempted Rape, Balt. Sun, May 21, 2002, at B1 (hereinafter Another
Church Facing Charges of Sexual Abuse).
59. Cal. Code Civ. P. § 340.1 (1999). In fact, the window was opened for civil
and criminal statutes alike, but the Supreme Court held the retroactive effect of
the revival of the criminal charges was unconstitutional in Stogner v. California,
539 U.S. 607 (2003). California opened a second year-long window for victims who
had pressed criminal charges before Stogner forced their cases to be dismissed,
so that they can ¬le civil claims against those who caused and aided and abetted
childhood sexual abuse. Cal. Code Civ. P. § 340.1(c) (2003).
60. Complaint, West v. Watchtower Bible & Tract Society of New York, Inc.,
at ¶ 30 (¬led Cal. Sup. Ct. Yolo County), also available at http://www.silentlambs.
org/Novemberlawsuit.htm (last visited Oct. 1, 2004).
61. Connie Chung Tonight: Witnesses Abused? supra note 57.
62. Meyer v. Lindala, 675 N.W.2d 635, 641 (Minn. Ct. App. 2004), review denied,
2004 Minn. LEXIS 308 (Minn., May 26, 2004) (quoting Lundman v. McKown,
530 N.W.2d 807, 826 (Minn. App. 1995)).
63. See Bowen, Is There a Problem?, supra note 3.
64. Another Church Facing Charges of Sexual Abuse, supra note 58.
65. See Bowen, Is There a Problem?, supra note 3.
66. See Bryan R. v. Watchtower Bible & Tract Soc™y of New York, 738 A.2d 839
(Me. 1999); Rees v. Watchtower Bible & Tract Soc™y of New York, No. CV-98“60,
1998 Me. Super. LEXIS 211 (Me. Super. Ct. Aug. 18, 1998); see also Swanson v.
Roman Catholic Bishop, 692 A.2d 441 (Me. 1997) (involving sexual activity between
a priest and an adult woman).
67. Decorso v. Watchtower Bible & Tract Soc™y of New York, 829 A.2d 38 (Conn.
App. Ct. 2003).
68. Abrams v. Watchtower Bible and Tract Soc. of New York, Inc., 715 N.E.2d 798
(Ill. App. Ct. 1999), appeal denied, 186 Ill.2d 565 (1999) (holding that the court was
NOTES TO PAGES 26“32 / 321


deprived of jurisdiction to adjudicate a complaint involving ecclesiastical principles
and doctrines).
69. Bryan R., 738 A.2d at 848.
70. Gibson v. Brewer, 952 S.W.2d 239, 243“44 (Mo. 1997).
71. Id. at 247.
72. Michael Wilson, Judge Orders Mormons to Provide Sex-Abuse Records,
Oregonian, Feb. 9, 2001, at D1.
73. Gustav Niehbur, Mormons Paying $3 Million to Settle Sex Abuse Case, N.Y.
Times, Sept. 5, 2001, at A14.
74. Andrea Albright, Minister Pleads Guilty in Second County, Topeka Capital
J. (Kan.), Dec. 11, 2001.
75. Chris Grenz, Minister Sentenced to Five Years, Topeka Capital J. (Kan.),
Dec. 6, 2001.
76. Franco v. The Church of Jesus Christ of Latter-day Saints, 21 P.3d 198 (Utah
2001).
77. Man Jailed on Internet Sex Charges, Pittsburgh Post-Gazette, Aug. 28,
1995, at D2.
78. Sentence in Molestation, Wash. Post, Feb. 1, 1996, at B3.
79. Miss. Code Ann. § 41-23-27 (1972) (upheld as constitutional in the face of
free exercise challenge in Brown v. Stone, 378 So. 2d 218 (Miss. 1979), cert. denied,
449 U.S. 887 (1980)); W. Va. Code § 16-3-4 (2004); see also State v. Riddle, 168 W.
Va. 429, 439) (1981) (upholding conviction of parents for failing to send children
to school in face of free exercise challenge, and citing for support the mandatory
immunization statute as an “urgent public policy.”).
80. See CHILD, Inc., Religious Exemptions from Healthcare for Children, at
http://www.childrenshealthcare.org/ (last visited Oct. 1, 2004).
81. P.L. 93“247 (Jan. 31, 1974) did not, on its face, require an exemption. However,
it was interpreted to mean that by the Department of Health and Human Services.
This was corrected when Congress subsequently amended the Bill in 1983. See 48
Fed. Reg. 3698 (Jan. 26, 1983) (codi¬ed at 45 CFR § 1340.2). 42 U.S.C. § 5106i(a)(2)
(2004), enacted in 1983, provides: “Nothing in this Act . . . shall be construed . . . to
require that a State ¬nd, or to prohibit a State from ¬nding, abuse or neglect in
cases in which a parent or legal guardian relies solely or partially upon spiritual
means rather than medical treatment, in accordance with the religious beliefs of
the parent or legal guardian.”
82. See, e.g., In re Green, 448 Pa. 338 (1972) (refusing to appointment a guardian
for a boy suffering from paralytic scolios, whose Jehovah™s Witness mother refused
to consent to corrective surgery that would require a blood transfusion and holding
that “as between a parent and the state, the state does not have an interest of
suf¬cient magnitude outweighing a parent™s religious beliefs when the child™s life
is not immediately imperiled by his physical condition.”) (emphasis in original).
83. Prince v. Massachusetts, 321 U.S. 158, 170 (1944).
84. Religious Exemptions for felonies: Ariz. Rev. Stat. Ann. §§ 8-201.01, 8-
531.01 (1974) (exemption from child or vulnerable adult abuse); Colo. Rev. Stat.
322 / NOTES TO PAGES 32“33


§ 19-3-103 (2003) (from child neglect, but not an absolute defense to child
abuse charges, People v. Lybarger, 790 P.2d 855 (Colo. App. 1989)); Conn.
Gen. Stat. Ann. § 17a-104 (1992) (exemption from Endangering the Welfare
of a Child (“EWOC”)); Del. Code Ann. tit. 11, § 1104 (1987) (EWOC);
Fla. Stat. Ann. §§ 39.01(30)(f), (45), 984.03(37) (Abuse, aggravated abuse,
and neglect of a child); Ga. Code Ann. § 15-11-2(8) (2004) (neglect); Idaho
Code § 16-1602(24)(a) (2004) (neglect); Iowa Code Ann. § 726.6(1)(d) (2004)
(child endangerment); Ind. Code §§ 35-46-1-4(c), -5(c) (2000) (neglect); La.
Rev. Stat. Ann. tit. 14, § 93(B) (cruelty); Me. Rev. Stat. Ann. tit. 22, §
4010(1) (abuse or neglect), tit. 17-A, § 557 (2004) (EWOC); Mich. Comp.
Laws Ann. § 722.634 (2004) (abuse); Minn. Stat. Ann. § 609.378(a)(1)
(2004) (neglect and endangerment); Miss. Code Ann. § 43-21-105(l)(i) (2004)
(neglect); Mo. Ann. Stat. § 210.115(3) (2003) (EWOC); Nev. Rev. Stat. Ann.
§ 200.5085 (abuse or neglect); N.M. Stat. Ann. 1978, § 32A-4-2(E)(5) (2004)
(same); N.D. Cent. Code § 50-25.1-05.1(2) (2003) (same); Ohio Rev. Code Ann.

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