[Paleopsych] CHE: Conservative Legal Scholar Takes an Unexpected Stance on Religion and Constitutional Rights
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Sat Apr 16 22:34:50 UTC 2005
Conservative Legal Scholar Takes an Unexpected Stance on
Religion and Constitutional Rights
The Chronicle of Higher Education, 5.3.25
By PETER MONAGHAN
CHURCH AND STATE: Widely known as a conservative legal scholar, Marci
A. Hamilton hardly shrinks from taking what sound like leftist stances
on emotionally charged issues of the day.
Ban flag burning? Unconstitutional, she says. That much-debated "under
God" in the Pledge of Allegiance? Illegal. Legal protection for
religious organizations? Sometimes illegal, too, declares the
professor of law at Yeshiva University. Or at least overreaching, she
argues in God vs. the Gavel: Religion and the Rule of Law (Cambridge
University Press), due to be published in May.
In her new book, as in her provocative columns on FindLaw.com, she
argues that the law affords too many protections to religious figures
who commit acts that should be considered, and prosecuted, as
She contends that the Constitution's "no harm principle" -- that
anyone who harms another person should be governed by the laws that
govern everyone else -- should compel the question: "What does sexual
abuse by clergy have to do with the free exercise of religion?" Why,
she asks, are priests, ministers, and other religious personnel able
to dodge prosecution by arguing that the state has no right to intrude
upon church affairs? Similarly, how can it be right that Christian
Scientists may permit their children to die rather than receive
Ms. Hamilton's arguments, which she often presents to federal and
state legislatures debating religious-freedom bills, take on an added
urgency in a time when courts and politicians commonly accept a
"ministerial exception" that allows religions to largely police
themselves when questions arise about sexual assaults on minors in
church or the firing of employees on grounds of race or religious
Why? The reasoning goes: If the courts entertained criminal,
antidiscrimination, and other claims, they would be interfering with
the internal procedures of religious institutions.
"For whatever reason, nobody has taken up the point that you can
actually go too far in protecting religion," says Ms. Hamilton, who
clerked for U.S. Supreme Court Justice Sandra Day O'Connor and for the
U.S. Court of Appeals for the Third Circuit before entering academe.
As a junior professor, Ms. Hamilton argued in an article that the
Religious Freedom Restoration Act of 1993, then recently passed, rode
roughshod over the Supreme Court's "core function of interpreting the
Constitution" by amending the Constitution by majority vote, thus
violating clearly stated procedures for such changes.
That article was used by a judge in Boerne, Tex., to rule that a
church could not use the concept of religious freedom to circumvent
the city's historic-preservation ordinance and replace its building
with a much larger one. When the case reached the Supreme Court, Ms.
Hamilton represented Boerne, and prevailed.
Ms. Hamilton's win was a mighty accomplishment. She has also litigated
cases in federal appeals and state supreme courts. She is handling
cases on both clergy abuse and zoning laws that are headed for the
But with prominence comes suspicion, a fact of which she has remained
keenly aware. Testifying before a Congressional committee in 1998,
when Ms. Hamilton decried a successor bill to the legislation she had
defeated in the Supreme Court as "a slap in the face of the framers
and the Constitution," she added: "For the record, I am a religious
"I try not to bring my faith up," Ms. Hamilton says, "but I've found
it necessary in certain fora to make it very clear that I'm hardly
antireligion, but I am opposed to abuses of power by religion."
If most religious Americans knew the extent of those abuses, and how
the courts serve to protect them, she says, "they would say, We had no
idea that those who said they were guarding our interests were harming
others, and that's not part of our set of beliefs."
She believes that Americans' attitudes toward abuses of church power
may be changing because of the emergence of "pockets in the United
States that were not before opposed to religious entities."
Homeowners, for example. Since the advent of the Religious Land Use
and Institutionalized Persons Act, passed by the U.S. Congress in
2000, Ms. Hamilton has been deluged with requests from property owners
to help defend them against religious organizations attempting to
build large church complexes that transform the character of their
Still, Ms. Hamilton acknowledges, some readers "will be offended that
anyone would ever say something in an extended, 500-page book about
the problems that religion has caused in society. The response to them
has to be, well, if you'd like to take a public position in favor of
harming others, be my guest. To me that's just incoherent, but it's
precisely what has been argued now for about 35 years."
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