Focus 580; God VS. the Gavel: Religion and the Rule of Law

I expect most people would agree that anyone who hurts another person should be held accountable under the law. However our guest for this part of focus 580 constitutional scholar Marcy Hamilton says that in recent years a number of religious groups have used the First Amendment to avoid prosecution for crimes things like child abuse by clergy or medical neglect of children by faith healers. This morning in this part of focus 580 Marci Hamilton will talk with us about religion and the rule of law. It is the subject of her recent book which is entitled God versus the gavel. It's published by the Cambridge University Press and he's out just now so if you're interested in the book you can seek it out at a bookstore near you. Our guest is one of the nation's leading constitutional law scholars who publishes and lectures frequently on the topic of the relationship between church and state. She's professor of law at the Benjamin Cardozo School of Law a university that's in New York. She's also been visiting scholar at Princeton Theological Seminary visiting professor of law at to New York University School of Law and

Emory University School of Law and she's joining us this morning by telephone she is in Chicago by the way she's spending some time traveling talking of. The issues in the book and if there are people listening this morning up that way she will be giving a talk at the cemetery co-op at 57 57 south University Avenue in Chicago Seven o'clock tonight and I'm sure that anyone who would be interested in hearing what she would have to say should feel welcome and as I mentioned course if you'd like to read the book you can head out to the bookstore and look for it God versus the gavel and of course also here on the program. Questions are welcome. We welcome people in with questions comments. The only thing we ask is that people just brief so that we can keep going and get as many people as possible. But anyone listening is welcome here in Champaign Urbana 3 3 3 9 4 5 5. That's the number. We do also have a toll free line good anywhere that you can hear us. And that is 800 to 2 2 9 4 5. Professor Henson Hello.

Hello. Thank you for talking with us today. Oh I'm delighted to be here. Appreciate it. Just at the very top here as people listen to what you have to say and we get into the subject I do want to say and give you an opportunity to say right off that people should understand that this is not intended as an attack on religion. It is not. Not at all. In fact I'm actually a very religious person my family is religious. My husband Catholic I'm Presbyterian. It's got nothing to do with religion bashing. But I do think that there's a way that American society has ordered itself and it's good for everybody and when religious entities hurt other people they have to be held accountable. You explain that you perhaps that the reason that you were drawn into this issue although this field is your field but it specifically had to do with your involvement in a case that went to the Supreme Court involving the Religious Freedom Restoration Act and in which you argued that in fact you argued

that it was unconstitutional and the court found it. In your favor perhaps that's that is the place to start. We could talk a little bit about your your entry into this subject. Well the Religious Freedom Restoration Act which ends up being called a referral was a law that was passed by Congress in 93 and it basically said with respect to every law in the country whether it was federal or county or state. Every law in the country could not be applied to someone who was religious unless it was absolutely necessary. And so it opened a lot of doors for religious individuals to get outside the law that of course were not open to anyone else. I was asked to come into the case because I do a lot of work on federalism and there was a strong argument that the federal government couldn't do this to the states they couldn't disable the state law in this way. And we did win. But with respect to the book what's most interesting about the case is that. I found myself despite being

religious I found myself on the other side of virtually every organized religion in the country and I'll never forget the day that 32 Amica spree friend of the court briefs were dropped off at my front door and I started going through them and they were every major faith in the country. And here I was being against them for a moment made me pause. But then I thought I knew that the principle was right. And as a result I became I was introduced to all of these entities in our society that actually lobby against religion. Who would have known it. Their children group. Many children's groups and local governments and states also our prison authorities I mean all sorts of entities that I normally would have had no contact with I ended up meeting them all at once as part of that litigation. I guess I have a hard time on the one hand I did. I guess I understand I suppose I understand the idea that the Constitution says that you can't pass a law that will

inhibit someone's free expression of their religion. On the other hand I don't see how it is that you can make the argument that. That merely being a member of a religious organization means that you would be exempt from laws that cover everybody else. Well I completely agree but I'm definitely in the minority in the legal academy. The vast majority of scholars at least since the 60s when Justice Brennan introduced this concept believe that you ought to give the benefit of the doubt to the religious entity and if there's a fight between the law and that religious conduct in general they're willing to say well the law has to give way. In my experience now that I know what I do it's just it's the wrong balance here. Is there a way to explain why it is that the court started thinking that way. Well I think what happened is in the 60s we were in the heyday of improving civil rights for

African-Americans and others. And it was a time when it looked like if you increase someone's rights it has to be a good thing. But what was happening in that context was we were increasing right to bring them to equality with everybody else. But what happened when we increased religious and of these rights in the first case was sherbert v. Verner and Justice Brennan introduces new idea when you increased religious entities right. They were already starting from equality. Now they were going to have more rights than anybody else. That was the big mistake. But in this culture it's hard to talk against white rights holders are supposedly always right and so it has taken quite a bit to find a way to talk about it as though it and conclude that's not really such a great thing that they got that expose extra rights. The book basically is divided into two sections in one where you look at six areas to quote as

you write about here six areas where religious individuals and institutions have insisted on the right to avoid the law as they have harmed others and they are children marriage schools land use in neighborhoods prisons in the military and civil rights. And you say that sometimes that that was a good thing. But often it was. Not and perhaps we could take a couple of these areas and you could give an an example of a kind of a case study to show what it is that we are talking about and maybe we just start with the first one and talk about the area of children. Absolutely the children for me is the primary issue here and there are really three arenas where children have been at risk from religious entities. One is clergy abuse which we know a lot more now than we did in 2000 or 2001 and in the clergy abuse context. What happens is you have the individual that a child is taught to trust the most in the world. They may even be the representative of God and

that individual has the capacity to use the cloak of religion to worm their way into this child's trust. And those who go after children tend to be nice guys because that helps them achieve their goals. They tend to help everybody around them. But sometimes those guys are not good for children and what happens is we have horrific stories of child abuse. And let me just tell you one just part of one story because it is so shocking I think it's worth reading the extended version in the book but Jennifer Chabon was brought to me as an example because she's agreed to do a taped interview which as part of a settlement with the Catholic Church in California. And the reason she wanted to do the taped interview is she wanted that tape to be used to teach Archdiocese what they need to do and what they need to guard against.

But what happened to her is that at the age of five their local parish priest the friend of the family the friend in her enjoyed taking her out. But within a very short time I started to take her to a hotel almost every weekend on Saturdays. And while in the hotel not only did he rape her but he also ritualistically abused her. And that's a category that's hardly ever talked about because the rape he said made her Satan and therefore now she had to be raped by a scepter a religious scepters. So that's the kind of horrific abuse that happened not just in her case. It happened too often but the problem with the law is that in that very case when she sued and said look at what you've done to me please let's have some justice here. The response from the church was we are not producing any of

the files that have anything to do with this particular priest. And we have a First Amendment right not to show anybody anything. And that is happening in cases around the country not in not just the Catholics. This is a problem in many denominations but the the tendency as you see them waving the First Amendment and saying you can't get me because I have the First Amendment and I don't have to show you anything in here despite the harm that everybody you know knows has happened. So that's a classic example of the abuse of trust. She was abused for five years which is not an unusual length of time. And it was devastating for her for more ways than one. So how I guess I I'm not quite sure I understand how you would use the First Amendment to make an argument that you are exempt from producing that for that somehow you would not be guilty of withholding evidence in a criminal case. Well their argument is that if the government comes in to see their records on employment the government is interfering somehow with the

relationship between the priest and the institution. And the general argument is that they have something that they call church autonomy they're completely autonomous from the law whenever anything has to do with the priest and therefore they don't have to show any employment records. Now the courts have been very impatient with that since 2002. They say they're not interested in a First Amendment argument. If in fact it looks like the religious institution really has done some horrible things. But there are still states where if you're dealing with a priest or you're dealing with a member of the clergy and the victim sued in some states the answer will be we're sorry but you can't do any discovery because we can't interfere with the church in another area and that you deal with in this action and this seems to me perhaps to become a little bit more problematic because it gets into the area of religious practice and that is medical neglect. Say that you have a case where you have parents of a child the child is ill and for whatever reason the parents believe

that the most effective way to deal with the illness of the child is to pray or to do a laying on of hands or something like that anything other than. Conventional medical treatment and the end say the child dies here I would imagine that the U. If you're arguing on the side of the parents and on the religious institution you would say here truly this is a matter of their belief their religious practice. And if we then intervene in that case and said because you didn't take your child to the doctor you did the wrong thing and then you're guilty of neglect then then truly we are stepping into the area of belief and practice and that that's one of those areas that we're supposed to stay out of. Well that's exactly why I wrote this book because that is precisely what I think every American including me until about 10 years ago believed that if you've got believe that somehow the belief we're focusing on the belief you you lose focus on the harm. If a child dies because they have been medically neglected child dies of diabetes for example because they've never received treatment it's a

very agonizing death. The result is that child died and those parents were permitted to make a martyr of that child before the child had any ability to choose whether or not the child was going to choose laying on of hands or prayer over life. And that's the point of the book. We need to be a lot more hard headed because we're not just weighing whether to leave religious entities alone to have their own beliefs and a kind of beautiful world against an evil government. We are weighing the lives of children over and against religious belief. And there are a number of circumstances where you have to go with the life of the child and not with the religious belief as sincere as it is. And I think the government's job is to deter parents from letting their children die even if it does force those parents into the hospital. And have there been cases where generally speaking the law has tended to favor parents

in this particular kind of situation. Well in over 30 states we have a circumstance where the laws create exemptions and so if you medically neglected your child because you were out smoking cocaine and weren't doing the right things you go to jail. But if you medically neglected your child because of your religious beliefs you would be let off. So for example in Oregon in the late 90s there was a group that the local authorities found three children died within a very close period of time three infants and all of them could have lived had they received minimal medical treatment. And the prosecutors were beside themselves that three children that this could happen to them in such a short period of time they wanted to prosecute the parents who let these children die and could have saved them. It turned out they couldn't because in Oregon the law at that time gave the religious believer who believed in faith healing and

exemption from even felony murder and from any kind of criminal liability. Let me introduce Again our guest with this part of focus 580 We're talking with Marci Hamilton she is an. Internationally known constitutional expert who specializes in church state relations. She's a leading national authority on the Religious Freedom Restoration Act has been involved in some cutting edge first amendment litigation both for clergy abuse and land use. She's professor of law at the Benjamin Cardozo Law School at the University of New York City and has spoken widely and written widely on this particular subject and she is the author of a book. If you're interested in reading more on the subject you can look for the book it's titled God versus the gavel religion and the rule of law. It's published by the Cambridge University Press. So it should be available in bookstores. And as I mentioned the beginning of the program she is today in Chicago and will be giving a talk at the seminary co-op bookstore. That's at 57 57 south University in Chicago it's in the University of Chicago sort of

environs. And she'll be talking tonight at 7 o'clock and anybody up that way who would like to hear her I think should feel welcome to stop by on the program this morning of course questions are welcome as always. 3 3 3 9 4 5 5 that's the champagne Urbana number we do also have a toll free line go to anywhere that you can hear us and that is eight hundred to 2 2 9 4 5 5 we have an Indiana caller here on the line someone to talk with on our. Lie Number 4 0 0 2 questions 1. It's God's will. They were sorry the little girl was raped. But God had a better picture of what's going on in the future. So that's the way it is. Does anyone deal with that in a court situation. And number two if you know anything about it how in the world these kind of laws get presented in state legislatures I mean you know I'm accustomed to industry lobbyist and stuff do we have fundamentalists lobbyist out there are turning the pages for the

legislatures to make these kind of laws or was there some general legal principle that good sense got mishandled and ran away from its roots. Thanks. Well that's an excellent question. And actually 10 years ago my answer would have been don't refer to anybody who is religious as a lobbyist. But I can tell you now that religious lobbyists are dreamily active in every state legislature and in Congress. They have been permitted to lobby and to ask for this special treatment under the law behind the scenes because members of the various state legislatures and Congress just it hasn't occurred to them to ask themselves. Geez it's a bad idea to create an exemption for this individual. But they're going to not treat a child or is this a really good idea to have an exemption at the federal level across every law in the country when in fact some of these laws we

actually like like the laws against murder and the laws against rape. So what's happened is religious entities have been behind the scenes very active very effective. And the point of the book actually is to out them. I want to society to debate these issues and not lead a decision about whether or not the law is going to let off religious groups. I don't want that decision behind closed doors that needs to be in the sunshine and needs to be debated. And the truth is hardly anybody knows about the exemptions let alone what's really going on in the state legislatures. I just want to tell other people who are listening and certainly other questions comments are welcome 3 3 3 9 4 5 5 toll free 800 to 2 2 9 4 5 5. Maybe we move on to talk a little bit about a different area. And again I just as a way of sampling some of the sorts of examples and case studies another area that you talk about is in the area of schools and I guess

I'm not sure if daycare falls in this area as well but I'd be interested to know perhaps people also will be interested to know that there are a lot of places and this state is one of them where daycare centers that are run by religious organizations are exempt from the regulations that cover other daycare centers if you have your. If you're not a religious entity you know one of the most shocking stories for me at least was when I learned that the Florida legislature found out that there were summer camps in which there was intensive of both physical and sexual abuse of children. And the question the legislature was what should they do to regulate these camps. And the final answer in the legislature as a result of intense lobbying behind the scenes was that they decided to completely deregulate them to completely step out of the picture and leave those children at risk. And that is for me just the paradigm example of what's wrong with the way we're handling religion in this society and there are plenty of states that

do not regulate religious entities. And the argument is almost always the religious entity needs to use whatever funds it has for its mission and shouldn't be forced to do things like expensive fire protection systems or they shouldn't have to have accreditation of teachers on and on and on. I can I I I I'm tuned into the argument that we've got too much regulation and a lot of areas but complete deregulation where children are involved is a disaster. Another area that I special I think a special interest of yours is in land use. Give us an example. Comes out of that category. Well what's happened with land use is that Congress in 2000 and then President Clinton signed what's called the religious religious land use and institutionalized Persons Act which if it sounds like sausage It is our Lupul we call it. And basically what it says is that local governments

are constrained from applying their local zoning laws to landowners just because they're religious. And that law applies to every zoned district in any community. But what I found in my experiences with it which is pretty extensive is that it is causing tremendous heartache and problems in residential neighborhoods because churches that would have never requested for example in a residential neighborhood never would have requested in Wyoming could they have 100 child secular day care in the church and then have an extra parking lot in order to put to put everybody when the children are dropped off. That's the sort of project that you wouldn't expect in a residential neighborhood daycare center of that size would need to be in a different zone area. And then we have arenas where full scale synagogues and churches are being permitted to come into lot that are far too small and clearly

impinge on the neighbors and change the character of the residential neighborhood. So for me it's been taken on kind of a mythic proportion because what our Lupa has done is literally threaten the American dream. The quiet residential neighborhood and in my view it's unconstitutional it will be here forever. But for the time being religious entities are using it to get around land use laws that were intended to make everybody else get along. Let's talk with someone else. We have a caller in Eureka. Why number four. Hello good morning. Very interesting program. Everything is filled with paradoxes but one often hears the the drumbeat almost a propagandist accused of we are martyrs we are victims. The state is against us yet some of these and I guess one needs to be specific like the camps you describe in Florida or the horrible horrible abuses of some of the Roman Catholic clergy those that

have been convicted and brought before a real court of law that they seem to know no bounds in terms of their living in a fantasy world because I was talking to a friend this morning that's a nurse and IF IF IF IF. If any of the clergy I have known or a teacher or a nurse were guilty of some of these. Child abuse they would be they would be thrown out of their jobs so fast and prosecuted their head would spin yet some of these groups seem to do they want to have it both ways. Your comment. Well absolutely and what I'm finding is because I'm heavily involved with helping clergy abuse victims around the country both in and some litigation but also in helping them in the state legislatures. Just yesterday I heard someone an evangelical representative argue that Ohio should have no requirement for reporting child abuse for clergy. If a clergy person knows about child abuse they shouldn't have to report it because it might ruin the career of the minister if there was a false accusation. And

that's just the wrong balance. It's actually I mean it's and it's outrageous. And I it's typical. It is and it's like a Jimmy Swaggart or a banker you know they'll rant and rave about the sexual sins but yet as being the worst perverts but yet when they themselves are caught they're somehow exempted or this whole issue of homosexuality there is no one that rants and raves more about the sin of homosexuality than some of these same group. But yet when caught by themselves somehow they're above it all. Thank you thank you. Let's go to. Bill next line number one. Hello. Thank you. Excellent excellent conversation here. I guess the question that I have are we seeing the rise and all of the because not only of course of the abuse and exemptions and so forth the churches have but also just the political power and club that is being developed over the last few years here. Are we seeing the rise in what could be described as the American Taliban.

Well I'm not sure I'd call it that but I sure would call it a theocracy. There is a every human is tempted to abuse their power in fact our Constitution is based on that important insight. And religious institutions are no less susceptible and with the root with the political power that various religious institutions are now wielding the temptation to abuse that power is huge. But what's so fascinating is at the time when we are at the apex just of an enormous amount of plainly visible political power we hear arguments that they have they are discriminated against and that this is a secular society. That's just not true. Secular in what sense. The number of atheists is tiny almost everybody is a believer in the United States we have the highest church attendance of any country in the world and we've got lots of religion going on but it's at this point is it. It's exercising a tremendous amount of political power

but what political power does as we all know is it tempts people to go over their bounds. And I think we have seen some of that recently. Well we've also seen them really go after people with a vengeance too. I mean just you know to actually destroy them politically economically etc.. The other thing too I don't know and I'm sure plays into this a lot but you know over the last over years we've also had this huge interest in Revelation and the Left Behind series and so forth is going great Come popularity and all this fantasy land question in the you know hang up and listen to your comment. But in the what we're seeing is a vast number of people who are practicing predestination and I don't have to be responsible for anything I do because I'm not going to you're to suffer the consequences. Well what's so fascinating about this movement is that it echoes the movements that were around at the time of the framing of the Constitution. And when the United States started there was a sense that we were a noble people we were above

the crass Europeans even the Europeans believe that for a while. And then it turned out that over here it was more licentiousness than anybody had imagined. And there were arguments that licentiousness was forgiven because either the world was going to end or there was always forgiveness. That is a convenient way to be unaccountable. But in a republican form of democracy like we have no one has a right to be unaccountable regardless of their beliefs. You touch on something it seems that something that I feel that I have heard increasingly in recent years and that is the complaint from some people that they feel that people of faith are actually not only are they simply being discriminated against not allowed the free expression of their religion but people actually do use the word persecuted. And in talking. Not just about other countries but talking about the United States and they they tend it seems that they tend to be conservative Christians who are saying this that they think that somehow Christians here in the United States today are being

persecuted. Well what's so interesting about that claim is that they have never had more access to the public square. They are their voices are loud. They're on TV they're on the radio. They're politically affective. And so to argue that this is a group that's being persecuted just as a factual matter is a little troubling. But what's really going on is that when anyone holds tremendous amount of political power it's much more convenient to argue that you really don't have much power because there's going to be less force against you. And I think that these arguments that there's persecution really arises from their being upset about the growth of the establishment clause which requires the separation of church and state in the public school. They're upset about the public schools being so-called secularized but in truth in the public square they have never been more powerful and so there's there's great irony there.

Let's talk with someone in Chicago on our law. And for the low. Oh yes I think you're playing a double standard when you talk about the abuse cases and you know no there's quite a bit of abuse in the public school system and for instance you're from New York and I understand it in New York City alone. They were forced to actually reinstate teachers who had committed sex abuse under under the teachers union contract and so you have this problem which is pervasive through all society and to kind of use it as a way of attacking religion I think is you know to be unfair in that sense. Well well but be careful my argument is not that those teachers ever should have been put back in the schools in New York that's outrageous. My argument is that the rule has always been that if a teacher abuses a child that teacher should get into trouble we never question that rule that that's just we've expected that to happen. But we have questioned if it was a religious teacher or if it was a religious clergy person.

My argument is you better regulate and the interest of the children respected those secular public school teachers. But at the same time we need to regulate the teachers and the clergy that also the capacities of her children. So it's not a double standard. It's the same standard for everybody. Well I think though it's more of a problem that pervades society as a whole rather than a problem of religious institutions and I think basically it's actually a lack of religious values in society that causes that problem. And you know it gets back to the point where you always hear people saying that religious people are trying to impose their values on society but actually if you look at the legal you know history recently it's actually courts that are really pushing the envelope so to speak with you know the homosexual rights and with other issues such as you know prayer and it's really the ACLU and the courts that are really pushing this agenda. And it may simply a reaction if there is anything on a religious bias a

reaction against what's going on in the courts and in the actually in the public school systems too. Well statistically there are just as many crimes within religious organizations against children as there are in the secular institutions. So any argument that the religious groups should be treated differently when there is harm that occurs just doesn't wash. Well I think they're treated worse I think they're treated more. I don't think they're treated different I think if you look at the publicity against the Catholic Church in the last few years it's there actually get worse treatment in the public school system in regular So far more cases than a public school system than in the. But nobody's you know attacking the public schools the way that they're attacking the Catholic Church. I mean I can tell you it would respect in New York it was the headline every day regarding the abuse of children by these teachers in the public school system I completely disagree about any notion that there's any kind of persecution of religious entities. The problem for the Roman Catholic Church is not just that individuals who are

engaged in child abuse which is bad enough but the institution. Permitted it knew about it and knew that it was being repeated over and over. The institutional protection of child abuse is the problem and that's why it's gotten a fair amount of press but as someone who deals with victims almost every day the press coverage has not nearly been as hard hitting as it ought to be. Well my only point is that it's a double standard because while you know the church has done done things to remove people from you know if it albeit late there was there was problems with the church I agree to that but right now they have taken steps and perhaps it's you know not completed yet but you still see something like a New York City where the public schools were actually forced to reinstate teachers who had committed sexual abuse by union contracts and I'm just saying it's a pervasive Sassoon societal problem that I think the attention it was focused on the Catholic Church was not focused on this case you didn't hear national headlines about this as much as you did against the Catholic

Church in recent years. Well I mean once again I my view is that it's across the board treatment if someone harms a child I don't care who they are. They should be held accountable. And the fact they are religious should not get them out from under that accountability when the harm is that severe. And the what my book is explaining is that the law has in fact treated religious entities better made it easier for them to avoid accountability than secular entities. So in reality unfortunately religious entities have gotten better treatment and to tell you the truth ten years ago I would have been saying what you're saying very loudly but I've been educated by those who've been harmed by religious entities to such a degree that equal treatment across the board is the only thing that's going to work. I need to jump in here becoming into a last 15 minutes we have another caller I want to get to in one invite others too if you'd like to join the conversation. We are talking this morning in this part of focus 580 with Marci Hamilton she is one of the nation's leading constitutional law scholars who publishes

and lectures frequently on the topic in a particular area of interest of hers is the relationship between church and state. She's professor of law at the Benjamin Cardozo School of Law in view of Yeshiva University in New York City. She's also been visiting scholar at the Princeton Theological Seminary and visiting professor of law in New York University School of Law and Emory University School of Law is frequently asked to advise Congress and state legislatures on the constitutionality of pending legislation. She's author of a book. It touches on the subject and not just touches on it but covers it in depth. And if you're interested in reading more you should look for the book it's titled God versus the gavel religion and the rule of law and it's published by the Cambridge University Press. Welcome back you're too urban for another color next and that's line number one. Hello. Yeah. So it's so good to hear somebody arguing your point of view it's so seems so lacking

and yet it so seems so basic. You know and I mean isn't it weren't you were not a lot of these aren't the the arguments you're making basic very very basic to to visit entire governments I mean they we present evidence that trials we don't merely look to believe. It seemed very clear that they wanted the founders wanted a rule of law created by men and not not taken lifted from from sacred texts. And I'm just I'm just wondering why is it that how is it that. People trained in law. Anybody trained in law could possibly be one over to the idea that

you know they should. They should be be giving religion some sort of pass. I'd like to hang up and listen thanks. OK well the problem in our society has been not facing up to what religious entities have actually been doing. It's not citizens fault in part it's because legislators have been willing to give special treatment for religious entities without anybody finding out and then the harm follows. But it's hard for citizens to understand with respect to legal academics and lawyers in general not. You don't look for religious entities breaking the law. I think it was Andy Rooney who said you know nobody wants to hear anything negative about religion so they don't even report it. That's the truth. We don't want to hear anything negative about religion because if you take religion away from a lot of people you've taken what is their anchor in life. The problem is is that religion involves

humans and humans are fallible and they have to be held accountable. And this is James Madison's vision of the United States that we would have religious entities that would have every right to believe whatever they wanted but they had to be accountable for their conduct. That's been the role of the Supreme Court since the late 19th century except for a very short period of time when Justice Brennan test was used which gave religious entities more power but anybody who starts to examine the facts and that's why have the six chapters in my book detailing case after case after case of harm. Once you know the facts it just it's ineluctable you have to conclude of course we have to apply the rule of law. Well if legislators legislature or doors or legislators are passing laws somehow exempting religious organizations from. The same kinds of laws and regulations that anybody else has to abide by. Is that do you think that it is because those legislators favor those religious

bodies or that they are afraid of opening themselves up to the charge that they are somehow anti-religion. Oh I think I think that's a big chunk of it in this society to be opposed to religion. As a politician is very dangerous. But the mistake politicians are making is they're assuming that if they don't do something that this particular religious lobbyist asked that all the members of that religion are now going to turn against that politician. But it's been my experience that it's there's a vast silent majority that believes that it's crazy to give religious entities a tremendous amount of power to break laws. That's just it doesn't make any sense in the American context. And politicians need to stand up for what's right. The big problem here for me is the legislators the members of Congress who could pass a law like the Religious Freedom Restoration Act that gave religious entities an out from every law in the country. And you know in three years of hearings saying that no one was once

asked cheek could this harm children or would this be a bad thing for residential homeowners they didn't ask any of those questions. They spent the three years actually talking about how they knew a lot more about religious liberty than the Supreme Court. So the problem in our society is we're too prone to look at the rights holder and we forget that sometimes if you increase those rights it's zero sum game and you're going to hurt someone else. It seems that over the last couple of decades at least we have been talking a lot about the First Amendment and what it says about religion and what that means and it seems that it's something that we were not quite sure about we really don't quite understand. And you know perhaps people have been on and off since that was written people have been having this argument but it seems we're in a period where it's particularly intense and it seems that maybe what what people are choosing to do is to err on one side and not the other. So saying A for we're not quite sure what it means either to allow

people to express their religious faith or to infringe on that we're going to we're going to lean over to one side and we're going to say well we don't want to do anything that. Makes it look at in any way that we're doing anything to make to infringe on people's exercise of their religious beliefs. Oh I think that's right and that's been the reason for that is this concept of the sacred quality of religious beliefs and conduct and how rights are more important than the government interest. But if you compare the right to avoid discovery in a clergy abuse case with the interests of the government in getting out to the public. Exactly how these children have been treated the interest of the government is very heavy but it has for at least since 1963. It has been a minority voice that's been arguing what I'm arguing is that let's let's hold everybody up to a standard of accountability. But we're coming around the more we learn about religious entities hurting other people and I think

the Roman Catholic Church has problems. I've been a trigger for thinking more carefully about these issues. I think the tendency to say well maybe we should just give them the benefit of the doubt is going to come into question and maybe we'll get some legislators that will say when they're asked to provide an exemption they'll say well but who's going to get hurt if I let you have to exemptions. That's the question they should have been asking all along let's hope they start asking it. Are there are there particular cases any particular cases though you can cite where you think where you actually would support a an exam. In say a particular case where this there was a law that we would say yes it's appropriate This applies to everybody else. However in this particular case with this religious organization in its exercise of its beliefs we would say actually we would support in that case an exemption. Oh absolutely I think there are a number of exemptions that don't harm anybody. A great example is the exemption that many states and also the

federal government has for the Native American Church that permits them to use what is illegal pay OT. It's an illegal drug but they're permitted to use it in their worship services. Now pay only the really crummy drug as I'm told gives you headaches sometimes it doesn't work it gives you a stomach ache. It's not the kind of drug that's going to be used recreationally. So giving them an exemption solely for the purpose of their worship service that doesn't hurt anybody. But the heroin Church in Los Angeles they should not be getting an exemption. And it's up to our legislators to weigh the public good in the public interest against what can we do for religious liberty and that's where we ought to be. And is that always is that always such an easy thing to do. No I think. But legislators every single day have hard hard choices but we give them the power to make the hard choices we delegate our authority to them. They're supposed to be making the hard choices. What they're not supposed to do is to fail to

ask the question about the public good. If they don't ask the public good question too often the result in this arena is that people get hurt. And I think your argument is that what legislatures have done is they have abdicated their responsibility and they have sense dumped in the lap of the judiciary and said Well you know we really don't want to deal with this is too hot let somebody else create isolation. Where where do you think that we're headed now with this and whether there are do you think that there will be more people who would at least want to give someone like you who makes this kind of argument. A fair hearing. Well the United States always works on a pendulum. I think we are at the very top of the swing of the pendulum arguing for expansive religious liberty without considering the consequences. I do find that as I'm been talking to people that there is real eagerness and to try to come to articulate what it is that's been missing from the debate for about

20 years and what's been missing is this concept that even religious entities even religious believers they're not isolationist they're not non-Americans they're Americans and therefore in the system they're subject to the law too that is being I'm trying to reintroduce that I've been reintroducing it through my litigation. I think that the American people are ready for it and looking for it because the abuses of power by religious entities in our era are are getting clearer and clearer and the more that happens Americans. They require oil from them. We have another caller here someone listening in Kankakee line for. Hello. Do you know if many of the problems for a few discussed have their roots in an old and Rose dabblers proforma which might go by the name of prevalence of perjury which has Rose dabbler spin wranglers common law.

And that along with the First Amendment and adjustment of contemporary American society to the room ring or the very snow from a successful application of church courts having coarse First Amendment to contribute to this preserve. Well actually in chapter 9 I lay out the historical development of that very issue starting from the benefit of the clergy which actually was started in the 12th century when the dispute between Henry the Second and Thomas Becket by the the history what the history shows you was we started by saying in England that clergy were above everybody else. So if you had a clergy person who raped someone they might get a year at a monastery whereas if you weren't a member of the clergy you were just someone a commoner and you rape someone you'd be put to death almost immediately. That's how different the treatment was

and the clergy had that preferred treatment over a number of centuries. But. As the common law and the concept of the rule of law evolved in Britain by about the 17th century that was it was just it was simply indefensible that just because someone was religious they didn't have to do the time for serious crimes. And so the result is that by the time people are migrating over to the early American colonies the concept that religious entities are unaccountable under the law was no longer strong. Now it has lived on in religious institutions. Certainly the Catholic Church our oldest Christian institution continues to operate from that worldview in a lot of ways. But but it is no longer the law. And in the United States it's never been the law that religious entities. Just because they were religious or clergy just because they were clergy wouldn't have to abide by the law. And as I said earlier since

an end of the 19th century it's been very clear if a religious person breaks the law unless the legislature said they get an exemption they have to obey it. I think at that we're going to have to stop because we've come to the end of the time. I want to mention once again that people who are listening this morning up in the Chicago area would be interested in hearing more from our guest. She'll be giving a talk at the seminary co-op bookstore. That said 57 57 south University Avenue in Chicago. That's tonight at 7:00 o'clock and for anybody else if you're interested in reading more on the subject you should look for the book that we mentioned it's titled God versus the gavel. It's published by the Cambridge University Press by our guest Marci Hamilton She's professor of law at the Benjamin Cardozo School of Law in New York City and Professor Hamilton thank you very much. Thank you.