God Vs. The Gavel: Religion and the Rule of Law by Marci A. Hamilton

“Religion is under assault by secularism in America.”

You’ve heard it so often that it even sounds true to many liberals. However, like so much the Right says these days, it is just rhetorical covering fire for a political manuever with exactly the opposite objective.

In reality, politicians are far to eager to give religious activity and organizations special treatment not afforded to others. Our political institutions have been so solicitous of religion, that they have put in place a formidable array of legal protections and exemptions for religious practice and organization without questioning whether the general welfare is harmed thereby.

Like any other human endeavor, religion, when unshackled from a common social contract and protected from the consequences of behavior, can become destructive to the common welfare. Marci Hamilton’s book explores exactly what has gone wrong in the American legal system’s handling of religious activity and organizations that impose costs and cause harm to others. She finds that religious organizations have systematically freed themselves from the social contract under the banner of religious freedom. The catalog of abuses her book records is long and ranges from the distortion of local land use laws that protect the heath and welfare of our families, to the lawless response of the Catholic church to predatory abuse of our children.

Hamilton’s indictment is stern stuff, but it is not anti-religious. Indeed,
Professor Hamilton makes clear she has a deep and abiding respect
for all the good works which religious organization do in this nation,
and a personal as well as professional respect for the greatest
possible freedom to exercise one’s religious conscience. She has
traveled a long road from one side of this debate to the other in her
career as a legal advocate and scholar: she once wrote:

“Having engaged in my own weighing of the value of religious diversity
against the potential for anarchy and having determined that religious
diversity is highly valuable while the fear of anarchy is without basis
at this time in history, I would push the line to be drawn in these
case to farthest extreme compatible with the viability of a living
democracy, which is to say that the exercise of religion should trump
most governmental regulation.”

Hardly the words of anti-religious crusader. However, with greater
maturity and more facts, Professor Hamilton has reversed course and now
advocates that rather than hewing to the current constitutional
analysis of strict scrutiny for all regulation materially affecting
religious practice, we should instead require that religious
organizations prove that exempting them from laws of generally
applicability would not
cause any harm to the general welfare or individuals. Placing the burden on religion to ensure that special
privileges will cause no harm ensures that the factual inquiries will
be done to discover the sorts of stories Professor Hamilton recounts in
her book before they become systemic and widespread, as they have done in so many case Professor Hamilton recounts.

No person can be trusted to hold power without some check on it; this
is why we are a society of laws. The inevitable result of
unaccountability is abuse, even if the unaccountable resides in the
vestments of moral authority. This is the lesson of the Catholic clergy
abuse scandal. There was no single law that one can point to as the
source of the more than 20 years of neglect of this problems by the
Church, prosecutors, and the media. Rather it was a cultural resistance
to the idea that a religious organization could systematically do
something as evil as abet and hide the crimes of pedophiles preying
upon their own parishioners children in a systematic way. This utter
and contemptible crime of omission and active conspiracy serves as a
wake-up call to any who has ears to hear it that unless actively and
rigorous constrained by law, even the Catholic Church can do great
evil: the Church is composed of men, and men are no angels – even if
they be saints.

Hamilton recounts a wide range of harms to people’s interests,
pocketbooks, and lives caused by the growing exemption of religion from
the social contract. The problem is legion, appearing in areas as
diverse as medical neglect and abuse of minors, land use regulation,
school curricula, discipline and safety, prison and military discipline
and prosthetylization, and employment discrimination.

We need to open our eyes to the real harm that allowing anyone, even if
they wear vestments, to be above the law. It is imposing real and
measurable harms on our people. It should be incumbent upon religion to
prove that exempting them from laws of general application does not
carry the cost of harming others.