The case for holding religions to account.

God vs. the Gavel: Religion and the Rule of Law Marci A. Hamilton (Cambridge University Press, 2005, 397pp) 0-521853-04-4, $28.00

CONGRESS SHALL MAKE NO LAW respecting an establishment of religion, or prohibiting the free exercise thereof....

Law professor Marci A. Hamilton believes that, though religious conduct often benefits society, "it is not always benign" and in fact "is capable of great harm." She also believes that anyone who harms another person should be governed by the laws that govern everyone else. In God vs. the Gavel, she argues for the uniform application of neutral laws to religious and non-religious institutions alike, with carefully crafted exceptions for religious practices only where a particular need is demonstrated and where no harm to others will result. She supports, for example, the well-conceived federal statute that overrode the military's application of its uniform dress requirements to prohibit the wearing of yarmulkes while on duty--a prohibition that the Supreme Court had held to have a secular purpose and therefore not to violate the Constitution.

It was in Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 US 872 (1990), that the Supreme Court held that the government may ordinarily enforce neutral, generally applicable laws, even when they incidentally burden a religious practice. But, even if such laws are entitled to no constitutional protection, many receive statutory protection. Hamilton marshals evidence of horrendous abuses occurring in both major and lesser known religions and sects (citing silentlambs.org), many of which occur because the religious entities that commit them are exempted from various laws of conduct. It makes for chilling reading. Hamilton writes: "A total of 32 states provide a defense for felonious child neglect, manslaughter, or murder, where the child's life was sacrificed for religious reasons." She is apparently referring not to literal human sacrifice, but rather to refusal to provide medical care to a child, which can amount to the same thing. There are also many cases of corporal punishment that, coupled with medical neglect, lead to death. Yet, because they are religiously motivated, the perpetrators are not criminally punished. Hamilton also criticizes legislative favoritism for religious land use and for discrimination in favor of religion in schools, prisons and the military.

Hamilton puts flesh on her arguments. In City of Boerne v. P.F. Flores, 521 US 507 (1997), Hamilton represented the city of Boerne, Texas, before the US Supreme Court. City of Boerne arose when a Catholic diocese contested a zoning ordinance that restricted structural changes to historical buildings--in this case a church. The Court found that the diocese had not been targeted as a religion and that the ordinance was a neutral, generally applicable law intended to preserve historic sites. The diocese, however, cited the federal Religious Freedom Restoration Act (RFRA), which provides that the government may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability, unless the burden furthers a compelling governmental interest and uses the least restrictive means to do so. In City of Boerne, however, the Supreme Court declared RFRA to be unconstitutional as applied to states, holding that the statute exceeded Congress's power under Section 5 of the 14th Amendment, which grants Congress the power to enact legislation to prevent or remedy state and local violations of the Constitution.

In response to City of Boerne, Congress, using its authority under the Spending and Commerce Clauses (which were unavailable as underpinnings for RFRA) enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA). This statute concerns land-use regulation and also provides that no state or local government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, unless the burden furthers a compelling governmental interest and does so by the least restrictive means. Hamilton opined that the law was unconstitutional, but, on May 31, 2005, after publication of God vs. the Gavel, the Supreme Court held otherwise. In Cutter v. Wilkinson, 125 S. Ct. 2113, inmates who were adherents of what the Court called "'nonmainstream' religions: the Satanist, Wicca, and Asatru religions and the Church of Jesus Christ Christian" complained that Ohio prison officials had failed to accommodate their religious exercise. The state defended under the Establishment Clause, arguing that RLUIPA favored religious over secular inmates. In a unanimous decision, the Court found that RLUIPA strikes a balance that "protects institutionalized persons who otherwise are unable freely to attend to their religious needs," but "does not elevate accommodation of religious observances over an institution's need to maintain order and safety." The Court did not address the section of RLUIPA that exempts religious land usage from state and local regulation, and so Cutter did not affect City of Boerne.

Hamilton believes that "vigorous legislative investigation" is crucial to assure that religious preference legislation does not cause harm. She finds a troublesome new "welcoming of faith perspective in public policy" and an added threat in religious entities that "are not above the political fray" but rather are "delivering potent blows within it." In making her case for countering these forces, Hamilton cites a cleric of a small religious sect that practices polygamy and who reformed after seeing the "inherently abusive quality of the many polygamous marriages he witnessed." He now urges legislation that would make criminal "coerced sexual exploitation by a person of trust, power and authority." Hamilton agrees, and is convinced of "the utter inability of the existing legal system to save children from being sexually abused by clergy who had their trust or to protect girls who have been lured into polygamous marriages." She also advocates additional remedies that she finds are needed to protect victims of abuse after the fact. A leader of a religious community was sexually exploiting women who sought marriage counseling. The community investigated and then disclosed its findings, which identified the women to the cleric and his attorney, thereby assisting the perpetrator. Hamilton sees a need for "clearer legal guidelines regarding a religious organization's obligations" to avoid assisting perpetrators and re-victimizing victims. She is also concerned about abuses that may be "flying under the radar," in part because, as a news commentator advised her, people do not want to hear anything negative about religion. Hamilton comments: "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."

Professor Hamilton's target audience is the entire legislative community. She hopes that her book will educate national, state and local legislators to stop protecting abusive religious conduct, and to make criminal laws applicable to all, including members of religious clergies. Though its tone at times is disarmingly strident, God vs. the Gavel is an important work that legislators ought to read, even if only for its informative encyclopedic content. It would be even better, however, if they heed Hamilton's thesis and act accordingly.

RICHARD L. SIPPEL is the chief administrative law judge at the Federal Communications Commission. The views expressed are his alone and not the Commission's. This review appears concurrently in the Federal Lawyer, a publication of the Federal Bar Association.