Religious Institutions, the No-Harm Doctrine, and the Public Good

[When] principles break out into overt acts against peace and good order [it is the] rightful purpose [] of civil government, for its officers to interfere.

Thomas Jefferson[dagger]

[F]or such actions as are prejudicial to the interests of others, the individual is accountable, and may

John Stuart Mill[double dagger]

Our cases do not at their farthest reach support the proposition that a stance of conscientious opposition relieves an objector from any colliding duty fixed by a, democratic government.

Employment Division v. Smith

I. INTRODUCTION

The only legitimate goal of a republican form of government is the public good, and the Constitution, including the Bill of Rights, sits firmly under this horizon.1 If the public good is the end of government, all laws should contribute to the public good. The question this Article addresses is how to incorporate religious liberty into a system that is aimed at the public good. This Article situates the religion clauses in this constitutional context and answers that two principles define the parameters of religious liberty: (1) religious belief must be absolutely protected, and (2) religious conduct that harms others must be capable of being regulated. This second concept, which I call the no-harm rule, has become entrenched in Anglo-American culture after centuries of experience with religion as sovereign, separate ecclesiastical courts and legal spheres, and legal immunities. Each of those regimes has been rejected, because religious entities have not been unwavering servants of the public good.

This Article's focus on regulating harm caused by religious entities may well seem perverse in the United States, because "[t]here is a long history in this country of religion being reduced to Sunday school morality in service of the common good."2 The reality, however, is that religious entities, like all other human institutions, are capable of great harm to others,3 and the fact that their conduct is religiously motivated does not alter the fact of the harm. Like every other human institution, they are capable of being tempted to abuse their power. Fortunately, the Framers were a pragmatic and disillusioned group that instilled into the United States' republican form of government a healthy distrust of any entity that holds power. The Constitution grants limited powers to each branch of government and pits governing powers against each other to limit their overreaching.4 The mechanism that restrains private entities and fosters their social responsibility is the rule of law.5 When it comes to the public good, the rule of law needs to govern religious institutions, just as it does other private entities.

Since its inception, the United States' constitutional system has been one of ordered liberty, not license.6 Accordingly, the principles of republicanism have informed the Supreme Court's Religion Clause7 jurisprudence, with the Court in the vast majority of cases requiring obedience to legislative determinations of the public good, unless there is evidence of animus or hostility towards religion.8 "There is one condition attached to all exercises of freedom: that the use of the freedom will not breach minimal responsibilities owed to the larger society as those responsibilities are embodied in legitimate laws."9 This principle is as valid for religious entities as it is for nonreligious entities.

The corollary-that religious persecution is unconstitutional-can also be analyzed as part of the republican matrix. Religious persecution shifts the focus from the public good to a single entity. The legislature's responsibility to engage in a broad-ranging examination of the public good has been subverted by prejudice, ignorance, or both.10 Thus, the rule against religious persecution does not stand outside the republican form of government, but rather contributes to it.

Yet, theoreticians of the First Amendment at times fail to advert to this larger, republican calculus. Instead, the focus of free exercise and even disestablishment theories is too often on the religious entities themselves, as though their well-being is an adequate proxy for the general public good.11 This focus on religious entities and their corresponding interests alone is myopic and antidemocratic. The needs of religious entities and the public good are not necessarily equivalent.12 Constitutional analysis is therefore inevitably faced with the question of how to square religious liberty with the public good.

Scholars and religious entities have suggested two paths to achieve religious liberty. One is judicial, and the other is legislative. Some have suggested that religious entities have a right to obtain exemptions from generally applicable, neutral laws in the courts.13 In the face of a long tradition of treating religious actors as responsible social actors that must obey laws governing conduct, the Court experimented with this approach between 1963 and 1990, during which it subjected some general, neutral laws to strict scrutiny, thereby rendering those laws presumptively unconstitutional.14 The doctrine required the courts to determine whether the conduct burdened by the law was central to the believer's religious universe and then to assess whether the government had a compelling interest in the purpose of the law. The first inquiry would appear to be a violation of the Establishment Clause, with courts put in the position of assessing religious doctrine. The second put the judiciary in the position of second-guessing legislative judgment, as opposed to identifying invidious discrimination or religious persecution. Normally, when strict scrutiny is applied in the constitutional arena, it is because the law bears indicia of unconstitutional purposes-and therefore the courts need to look closely at the law to determine whether in fact the Constitution was violated. In these cases, the court was addressing neutral, generally applicable laws that bore no outward indication of any improper legislative purpose. The strict scrutiny operated not to smoke out constitutionally suspect purposes, but rather to place the religious entity in a position generally superior to the law.

The approach was intolerable, however, because it threatened to make religious entities laws unto themselves and to undermine the rule of law, and therefore only a handful of neutral, generally applicable laws were subject to strict scrutiny. In 1990, the Court definitively rejected the approach in favor of general application of the laws governing conduct to religious entities.15 In response, religious entities urged Congress to pass the Religious Freedom Restoration Act (RFRA), which made all laws in the United States that substantially burdened religious entities presumptively illegal.16 At least as applied to state law, RFRA was held invalid in 1997, and the approach remains only in the small number of states that have passed state-level RFRAs and as applied to federal law. The religious entities' preferred means of securing religious liberty weighed the religious interest considerably more than the public good and came into serious conflict with the no-harm principle.

The second path religious entities have followed is to lobby the federal and state legislatures to obtain exemptions from generally applicable, neutral laws. They have been quite successful.18 Under a republican form of government, this second approach is more legitimate, because the legislature is the most competent branch to consider and determine the public good. But while this approach is more sound theoretically, it has been implemented in an imperfect manner. The lobbying for religious exemptions has tended to occur behind closed doors, and legislators have been inclined to consider only the religious entity's interest, rather than the larger public good. The problem is that legislatures have abdicated the public interest in favor of religious interests. In effect, the legislatures have acted as rubber stamps for religious interests, rather than as an independent body responsible for assessing and serving the public good. In a properly functioning republican system, the legislature weighs the claim for religious liberty against the harm that will ensue if an exemption is granted.

The liberty that is consonant with the public good is ordered liberty,19 which takes into account both liberty and the public good. Ordered religious liberty in the United States is grounded in pragmatic experience,20 the history of abandoned religious privileges in Britain,21 and the early Americans' experience of religious tyranny in Europe, all of which were viewed through the lens of the framing generation's Protestant worldview.22 There was a time when churches did have autonomy from the law, and when the rights of religious institutions and their clergy were above those of ordinary citizens, but that was hundreds of years ago-before the common law was entrenched and before the creation of the United States.

The current revelations of worldwide sexual abuse of children by clergy, when combined with the concomitant secret knowledge of their individual religious institutions reinforces what the Founders of this country knew in the seventeenth and eighteenth centuries: religious entities often will abuse what power they have.23 To set aside the law for them without consideration of the public good is to choose liberty at the expense of order and to make society responsible for the harm religious institutions can cause. To be sure, religious institutions are no different from any other individual or institution on this score-all are human entities-but there has been a tendency in recent decades to forget or suppress this principle when it comes to religious entities.

The drive to avoid the law by contemporary religious entities is not a new development, but it is an anachronistic one. There was a time in Western culture when established religious entities were sovereign and the clergy occupied a favored category under the law, and it would have come as no surprise to anyone that the institution was immune to the requirements of the law and that clergy were relieved of its requirements while all other citizens were not.24 For example, a citizen could be put to death for raping a child, for example, while a clergy member could commit the same crime and be sentenced to a year at a monastery.25 That, however, was centuries ago. Since the twelfth century, when the concept of the common law was first introduced by Henry II, the justifications for that special treatment have become increasingly hollow.26 The logic of Henry II's attempts to place clergy under the same justice system as all others was ineluctable: the victim of rape or murder by a clergy member is just as injured as the victim of an ordinary citizen, though it took centuries for Henry's intended reforms to be fully effected.

The internal logic of the common law, which has been worked out through Anglo-American history, has brought the United States to the understanding that the public good requires the deterrence and punishment of harmful actions, regardless of the identity of the actor. As the Court announced in its first free exercise case, well over a century ago, "Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."27 This principle was reiterated by the Court when it stated in 1971 and then again in 1990 that "[o]ur cases do not at their farthest reach support the proposition that a stance of conscientious opposition relieves an objector from any colliding duty fixed by a democratic government."28 The "vast majority" of free exercise cases have recognized the principle that religious entities are subject to generally applicable, neutral laws,29 because otherwise the public good will be sacrificed.

This is not to say that every religious institution has conceded its obligation to obey the secular law or that the logic of the common law has met no resistance. When the Supreme Court reiterated in Employment Division v. Smith the familiar doctrine that the rule of law applies to religious entities, the response by religious entities-spurred on by law professors-was to publicly proclaim their right to act above generally applicable, neutral laws.30 Their outcry resulted in RFRA.31 RFRA was a brash repudiation of the principle that laws governing conduct apply to United States citizens, regardless of identity, whether that identity is based on religion, or race, or gender. It was Congress's most expansive benefit for religion in United States history, and in City ofBoerne v. Flores,32 the Court held RFRA unconstitutional as applied to the states because it was beyond Congress's power.33 In that decision, the Court also adhered to the rule that unless a legislature indicates otherwise, every person, including every religious person, will be governed by generally applicable, neutral laws.34

The most coherent reading of the Supreme Court's Religion Clause cases shows that there is no defensible rule that would permit a religious defense to laws that govern conduct injuring third parties.35 There is an absolute right to believe,36 but at the same time there can be no constitutional right to harm others in the name of religion.37 If a legitimate legislature has duly enacted a law that makes certain conduct illegal because it harms particular individuals or the public as a whole, that determination cannot be overturned in the courts by claims that the motivation for the illegal conduct was religious. Nor can it be overturned based on the contention that the religious institution is naturally autonomous from the law.38 The noharm principle is at the core of the Court's Religion Clause jurisprudence.

"Church autonomy," the focus of this Conference, simply does not make sense in the context of the larger republican theoiy of the Constitution. "Republican liberty signifies government in pursuit of the common good, when no citizen is subject to the unfettered will of another."39 Yet church autonomy would permit religious entities to avoid being legally accountable for the harm they have caused.

While this is not the article to provide an extended discussion of republicanism in the United States, a brief history should help the reader to understand the explanation of the religion clauses in this Article. Prior to the Constitutional Convention, the American experiment in government was a failure. Neither the Declaration of Independence nor the Articles of Confederation generated governing structures that had the capacity to serve the public good. The Declaration established thirteen states that were separate from Great Britain. Under the Articles, this federation of states was incapable of being coordinated to serve the larger good. At the same time, the state legislatures became vortices of corruption and unresponsive to the public crises of the day.40 The Framers gathered because a more suitable government was necessary, and the focus of the debate was on how to stem the human impulse to abuse power to the detriment of the people's interest.41 The Constitution's representative structure was chosen and crafted for the purpose of making representatives accountable to the public good.42

"Autonomy," which means that an institution holds "[t]he right of self-government, of making its own laws and administering its own affairs,"43 stands in stark contrast to the relationship between citizens and the public good contemplated by republicanism. As participants in this Conference have used the term at times, and at base, autonomy means that the entity creates its own legal universe. That is a notion that cannot be reconciled with the entrenched principle of ordered liberty embodied in the United States' republican system.44 There is no legitimate independent legal universe and no entity that exists completely divorced from the society. A purely libertarian state is an abstraction, because humans live as a society, which entails the inevitability that one entity may harm another.45 John Stuart Mill explained it as follows: "Though society is not founded on a contract . . . the fact of living in society renders it indispensable that each should be bound to observe a certain line of conduct toward the rest."46 Once one comes to understand the no-harm rule (and its distinguished pedigree), autonomy, or immunity, of any institution-including religious institutions-from the rule of law becomes intolerable.47

"Church autonomy" is not and should not be a doctrine recognized in the United States. In fact, the Supreme Court has never recognized a doctrine of "church autonomy," notwithstanding the title of this Conference or the use of the term in other articles.48 It is an unfortunate term that does not begin to describe the actual or proper relationship between religious institutions and the law and was ill-chosen when it was coined by a 1952 New York appellate court, not for the purpose of immunizing religious institutions from legal accountability, but ironically rather for the purpose of explaining that courts may investigate ecclesiastical questions when "necessary ... to determine the civil or property rights of the parties."49 The Supreme Court has never used the phrase to describe its jurisprudence,50 and it appears in the Supreme Court's cases only twice, solely as footnote references to law review articles.51 The phrase was delivered to the academic mainstream in 1981 by Douglas Laycock, who popularized the use of the phrase in his article, Towards a General Theory of the Religion Clauses: The case of Church Labor Relations and the Right to Church Autonomy.52 While some have tried to transform the phrase into a notion of church freedom from the law, such an interpretation has not gained traction in the courts, which is as it should be.

The courts have not approached the issue of religious institutional liability or responsibility from the standpoint of rightful autonomy, but rather have divided cases involving religious institutions into three categories that have been crafted in light of the larger principles of republicanism, order, and liberty.

The courts' religious institution jurisprudence can be summed up under three fundamental principles: First, religious individuals and institutions are absolutely protected in the creation and observance of their beliefs, including self-governance that is driven by ecclesiology.53 Following this principle, the Court has declined jurisdiction over "solely" ecclesiastical disputes, that is, intraorganizational disputes over belief.54 These are the cases often cited as proof of church "autonomy," but they do not stand for independence from the law, but rather the legal principle that government may not determine belief-a principle that appears throughout First Amendment cases, whether they are religious institution cases, free exercise cases, or free speech cases.55

Second, there are cases in which the courts have declined to mediate church employment disputes, on the ground that the adult employee voluntarily shouldered the church's belief system. These are the judicially crafted "ministerial exception" cases. Under this reasoning, the relationship between a voluntary, adult religious employee and a religious employer has been shielded in some, though not all, instances from judicial intervention.56

This Article focuses primarily on the third category of cases-those involving (1) conduct rather than belief and (2) harm to third parties. The cases in this third group involve the conduct of religious institutions or individuals that harm innocent and unconsenting third parties, and they present instances in which the religious institution's arguments for freedom from the law are at their lowest ebb. They are properly governed by '"neutral principles of law'"57 and have been explained by then-Justice Rehnquist as follows:

There are constitutional limitations on the extent to which a civil court may inquire into and determine matters of ecclesiastical cognizance and polity in adjudicating intrachurch disputes. But this Court never has suggested that those constraints similarly apply outside the context of such intraorganizational disputes. Thus, Serbian Orthodox Diocese and the other cases cited by applicant are not in point. Those cases are premised on a perceived danger that in resolving intrachurch disputes the State will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrinal beliefs. Such considerations are not applicable to purely secular disputes between third parties and a particular defendant, albeit a religiously affiliated organization.58

The Supreme Court's religious institution cases operate from the principle of no-harm, which is part and parcel of the core principle of ordered liberty embedded in republicanism-the maximal amount of liberty is calibrated to achieve the minimal amount of harm.59 They reflect the Constitution's larger orientation towards republican democracy, which rests on the no-harm rule, not a principle of autonomy.

This Article makes the case that the Supreme Court has taken the proper approach in its Religion Clause cases by (1) favoring legislative determinations of the public good, which entails the exclusive power to craft exemptions from generally applicable, neutral laws, over judicially crafted exemptions; and (2) recognizing the obligation to obey neutral principles of law in the religious institution cases under the Establishment Clause.

Both sets of cases rest on the same principles. Both recognize an absolute right to believe anything, and both demand the accountability of religious institutions to the public good when they act. The Court has allowed for expansive religious liberty in the context of an ordered society.

This Article shows that the no-harm principle is a long-held moral and legal principle that history, philosophy, and theology support. It is the primary justification in Anglo-American culture for criminal law, tort law, and a significant amount of regulatory law.60 It is so well respected and entrenched that attempts to avoid it by contemporary religious entities cannot and should not succeed. Ultimately, the no-harm principle dictates that religious entities be treated and regulated as any other entity in society-that is, under the no-harm doctrine. There can be no church autonomy in a society that values citizens equally.

This Article is divided into six Parts. Part II makes the case through history, philosophy, and theology that church autonomy is deeply at odds with ordered liberty and long-entrenched constitutional principles. The Framers of the Constitution and the First Amendment worked from within a republican frame of reference so that religious entities were not seen as beyond the boundaries of the law but rather as integral to society and therefore subject to the principle of no harm. This Part is subdivided into three sections. First, it describes the history of three abandoned religious privileges: the benefit of clergy, sanctuary, and charitable immunity. Second, it describes the Protestant and republican mindset at the time of the framing, a mindset that cannot be squared with church "autonomy." Third, it introduces the no-harm rule articulated by John Locke, which informed the Framers and was later refined and made a pillar of modern democracies in the philosophy of John Stuart Mill.

Part III explores possible philosophical and theological theories in the religious institution context and demonstrates their inconsistency with church autonomy and their consonance with the no-harm rule.

Part IV describes the Supreme Court's Religion Clause jurisprudence as it relates to religious institutions. This Part demonstrates that the same principles undergird the Free Exercise Clause and the Establishment Clause in the Court's cases-belief is absolutely protected, but conduct may be regulated by the legislature in the interest of the public good.61 The courts may not exercise jurisdiction when the issue is solely a matter of belief or ecclesiology, but they may and indeed must when the issue involves the application of neutral principles of law to a religious institution. Part IV further defines the no-harm principle. Part V employs the clergy abuse era in the United States Catholic Church as a case study to illustrate the necessity of a no-harm rule to deter abuses of power that undermine the public good. Part VI offers a short conclusion.

II. THE HISTORICAL, PHILOSOPHICAL, AND THEOLOGICAL BACKGROUND OF THE NO-HARM RULE

Modern-day claims to church autonomy and the myriad privileges invoked in cases involving tortious or criminal behavior by religious individuals and institutions are remnants of the now-discredited practices in Anglo-American history. There have been regimes during which religious entities were protected from the law. Their raison d'etre, however, has been overtaken by the growth of the common law, the rule of law, and the no-harm principle, which can be traced from John Locke through the Framers, John Stuart Mill, and his philosophical successors.

The logic underlying the common law is that all similarly situated individuals should be governed by the same laws.62 In sum, the fundamental fairness that is at the foundation of the common law,63 the rule of law, and the no-harm rule combined to impose an inexorable logic that has led to a rejection of the notion that religious institutions deserve special immunity from laws that prohibit harm.64

From the third to the sixteenth centuries in Britain, church autonomy was in fact the order of the day. The Roman Catholic Church was cosovereign with the state, which means it was itself immune from prosecution. The Church was permitted to harbor fugitives from the law under the practice of "sanctuary,"65 and it then instituted the benefit of clergy, ecclesiastical courts that provided separate (and far more lenient) justice for clergy.66 After these privileges were rejected in favor of civil law, and after the Catholic Church lost its sovereign power in Britain, the Crown imposed legal liability on clergy and religious institutions. The spirit of the earlier privileges reappeared with the crafting of a judicial doctrine that shielded charitable, including religious, institutions from civil lawsuits demanding monetary damages for harm done by the institution or its employees. Britain has rejected this charitable immunity doctrine, and the United States has diluted it.67

Each of these tacks provided significant autonomy for religious institutions. These also permitted such institutions to avoid accountability to the public good. Eventually, each was overtaken by the interrelated dynamic of the common law, the rule of law, and the no-harm principle. These bedrock principles were fostered in the United States by the views of John Locke, James Madison, Thomas Jefferson, and John Stuart Mill, as well as others.68

There are no longer the social practices, institutions, or widely accepted principles that at one point in time supported the notion that a criminal or tortious religious entity should be treated differently from one that is secular. The dispositive question is whether the entity's conduct has led to illegal harm. Where it has, the courts should hold the perpetrator liable-unless the legislature has provided an exemption upon a determination that permitting the religious entity to avoid the law will not harm the public good.

A. Historical Privileges That Permitted Clergy and Religious Institutions To Stand Above the Law

One might ask why history is relevant to the calibration of individual liberty and the public good. Contemporary legal debate often divides between those advocating an originalist approach and those opposing it. That fault "line is not relevant here. Rather, the history of special privileges for religion is being recited for the purpose of explaining the evolution of the relationship between religious entities and the law. There has been an ongoing dialectic between religious entities, the law, and the public good for centuries, and it has shifted from strong privileges for religious entities toward the persisting application of the rule of law. This play of power has yielded a construct that incorporates lessons learned. As Justice Holmes said, "the life of the law has not been logic: it has been experience."69 It is not uncommon for United States constitutional theory to reach only as far back as the Constitutional Convention, but the forces that have brought the United States to the no-harm principle began long before the Framers were born.

There were three historical privileges directly benefiting religious individuals and entities in Britain: sanctuary, benefit of clergy, and charitable immunity. Britain has since discarded all three privileges. Analyzing this history provides crucial background for understanding that church autonomy is incongruous with the centuries-long development of the relationship between religious institutions and the law.

The United States Supreme Court has repudiated the spirit of these three historic principles, but they still haunt religious institution theories70 and the legal tactics of religious institutions themselves.71 It is important to learn and understand this history, because it was the background for the Framers and for the early formation of the law governing religious institutions and individuals in the United States. It is also important because it uncovers extended experience with church autonomy and shows how it became incongruous with the growth of the common law, republicanism, and the rule of law in Britain and then in the United States.

1. The sanctuary privilege

As early as the third century AD, secular authority recognized an ecclesiastical right to provide sanctuary, or protection, for any person threatened by "private vengeance for alleged wrongdoing."72 Sanctuary permitted the Church to harbor fugitives-clergy and laity alike-from the law. The Church, in effect, was a separate universe above the law. The privilege was intended to forestall blood feuds and the vigilantism of the times.73 Although secular government tried to retain rights of control over some categories of wrongdoers, the ecclesiastical authorities held full sway to determine whether and what kind of sanctuary would be made available.74 The Church further refused to deliver anyone within its sanctuary unless promises were made that the wrongdoer would not be harmed.75

Seven centuries after the practice first appeared, the Crown created the chartered sanctuary, a form of asylum that had its force by virtue of a charter from the king.76 Chartered sanctuaries provided greater protection than Church sanctuary, including broader geographic and temporal scope, and a greater range of protected offenses.77 The fugitives hidden in chartered sanctuaries, which could be quite large geographically, were governed by the Church and lived in a fugitive community, apart from the rest of the world.78 Secular authorities recognized this practice well into Tudor times. The sanctuary privilege shielded both laity and clergy, but clergy were often given special dispensation.79 The church fortified the power of sanctuary by teaching the "fear of Divine vengeance." Thus, "when the Church said that those who sought her protection must be treated with leniency and mercy, and their lives and persons spared, no state or individual was strong enough or bold enough to refuse to comply."80

As the Crown sought to enlarge its jurisdiction and attitudes about the proper role of the Church changed, so too did secular deference to the practice of sanctuary. Beginning in 1467, the Crown began to reduce the types and locations of offenses covered by sanctuary, and by 1540, chartered sanctuary was abolished.81 Sanctuary was completely repealed in 1623 by act of Parliament during the reign of James I. However, the practice persisted unofficially with regards to service of process until the end of the seventeenth century.82 By that era, the Crown found the separate justice system insupportable because it made criminal punishment inconsistent.83

The end of sanctuary did not signal the end of special treatment for the clergy, but rather only one stage in the progression from church autonomy through the common law to the rule of law. "Despite its formal demise, the spirit of sanctuary lived on in the practice known as 'benefit of clergy,' which did not offer outright immunity, but served, when available, to mitigate the severity of secular law."84

2. The benefit of clergy privilege and the sovereignty of established religion

The triumph of the common law over Church sovereignty coincided with the rise of Puritanism, the interregnum, and the Restoration, each of which contributed in some way to reduce the ruling power of the Roman Catholic Church.85 By the end of the seventeenth century, the ecclesiastical courts retained jurisdiction only over discipline of clergy, certain types of sexual offenses committed by laypersons, and minor matters concerning worship services.86 The history of a second religious privilege mirrors that of sanctuary-they both eventually disappeared-and provides useful insight into the emergence of the common law, the waning of ecclesiastical jurisdiction, and the end of church autonomy.

The second privilege was the "benefit of clergy." This privilege permitted clergy to avoid capital punishment and even conviction for crimes by (1) mandating lesser penalties for clergy in the secular, royal courts and (2) permitting clergy cases to be heard in the more lenient ecclesiastical courts.87 The benefit of clergy principle, at least from the time of Henry II (1154-1189) until the era of Elizabeth I (1558-1603), placed clergy members above the royal law, creating two distinct classes of criminals-clergy and ordinary citizens. The clergy were quite literally a privileged class with a separate justice system and special punishment privileges; all other citizens were subject to the general laws in the secular royal courts. The benefit of clergy eventually lost its religious character and evolved into a rule of lenity for all first-time felony offenders.88

To understand the benefit of clergy principle, one must go back to twelfth-century Britain. In that era, King Henry II (1154-1189) succeeded the lax reign of King Stephen (1135-1154), who had permitted the barons and the Roman Catholic Church to exercise overweening power.89 Henry II, who is known as the father of the common law, took on both the barons and the Church but ultimately failed to make the Church and its clergy accountable to the public good.90

From 1076, when William the Conqueror established the dual court system, to 1576, during the reign of Elizabeth I, the royal courts and the ecclesiastical courts shared jurisdiction over criminal law.91 The question of jurisdiction brought conflict and dissension for centuries. Although Henry II saw the need to standardize criminal justice and sought to bring clergy under the jurisdiction of the civil courts, the scandal with Archbishop Thomas Becket derailed his plans and led to a system of special treatment of clergy criminals that lasted several centuries.

Under Stephen, the clergy became accustomed to unaccountability to the civil, or royal, courts.92 Henry II viewed their privilege of being above the law as dangerous, and in 1164, he called a meeting with the bishops of England to require them to agree to observe the customary powers of the king in the area of criminal law.93 Specifically, he demanded that criminal clerics be defrocked by the Church and handed over to the civil courts.

Henry II was too astute a ruler not to perceive the immense evils arising from [the special treatment for the church], and the limitation which it imposed upon the royal power by emancipating so large a class of his subjects from obedience to the laws of the realm. When in 1164 he endeavored, in the Constitutions of Clarendon, to set bounds to the privileges of the church, he therefore especially attacked the benefit of clergy, and declared that ecclesiastics were amenable to the royal jurisdiction.94

At first, the Archbishop of Canterbury, Thomas Becket, agreed. Becket's approval signaled a victory for Henry, because the Archbishop of Canterbury was the most powerful prelate in Britain and was second only to the Pope.95 As Archbishop, Becket had the power to excommunicate and was the cleric who would perform coronations in the event of a new king.96 To Henry's dismay, Becket reversed his position under pressure from other bishops.97 As a result of the disagreement between the King and the Archbishop, Henry halted Becket's income and exiled him to France in 1164.98

In June of 1170, anxious to secure his succession, Henry sought to have his eldest surviving son crowned. Because Becket was in exile, and therefore unavailable, Henry had Canterbury's ancient rival, the archbishop of York, preside over young Henry's coronation. Becket was enraged at the affront and, with papal backing, threatened to lay England under the ban of interdict.99 He and Henry reached a truce, which allowed Becket to return to England in the autumn of 1170. The Sheriff of Kent accused Becket of returning to unseat young Henry. Becket replied, "I have not the slightest intention of undoing the king's coronation. . . . But I have punished those who defied God and the prerogative of the church of Canterbury by usurping the right to consecrate him."100 Despite the truce, just before returning to England, Becket further raised Henry's ire by excommunicating all the bishops who had participated in young Henry's coronation. It was after this incident that Henry commented out of frustration to his assembled court, "Will no one rid me of this turbulent prelate?"101

In response to this furious statement, four of Henry's barons murdered Becket in Canterbury Cathedral on December 29, 1170.102 Although he publicly disavowed involvement with the murder, Henry was subsequently overcome with remorse and agreed to permit the ecclesiastical courts to exercise jurisdiction over clerics accused of crimes.103 From the aftermath of this feud, the practice known as benefit of clergy emerged in the common law.104

The benefit of clergy, or privilegium clericale, was often the difference between life and death.105 In the king's courts, capital punishment was mandated for all felonies.106 By contrast, capital punishment lay beyond the power of the ecclesiastical courts.107 Hence, clergy and laypeople might commit the same illegal actions, but the layperson's sentence would be death while the cleric's sentence would be defrocking, incarceration in a monastery, or forfeiture of belongings other than land.108

There were also procedural advantages for clergy members. Ecclesiastical trials of criminal matters were conducted by compurgation-the accused would take a formal oath that he was innocent of the crime and bring into court an "arbitrary" number of compurgators who would swear to their belief in his oath.109 Acquittal was typical, because evidence was only adduced for the defense and perjury by the defendant and compurgators was routine.110 Additionally, the clergy were exonerated from all prior criminal acts upon conviction of a particular crime.111 Thus, the rape of a girl and the murder of her father-both perpetrated by a single cleric-could be reduced to a single crime and a single punishment of suspension from ministry for two years.112 The same crimes by any other citizen would have been tried as individual crimes and death would have been the likely sentence for either or both.

Many laypeople, as well as Henry II, viewed this privilege for clergy as grossly unfair.113 This negative response to preferential treatment eventually moved the privilege beyond the clergy, so that others could receive the benefit of this doctrine. First, it was extended to those who were literate (when it was first instituted, only the clergy were), and then to laypeople in general.114 From this history, one can draw many interesting conclusions, but "the remarkable point is that the clergy should have been able to maintain for centuries a special privilege in crime. This is a corollary to the magnitude and power of the church. . . ."115

The power of religious institutions during the British monarchy was also felt through the operation of what might be considered the "high courts" of the royal and ecclesiastical courts: the Star Chamber and its ecclesiastical counterpart, the High Commission, the beginnings of which appeared during the reign of Henry VIII and came to full flower under Elizabeth I. These were the "prerogative courts."116 "The court of High Commission stood to the church and to the ordinary ecclesiastical courts somewhat in the same relation as the Council and Star Chamber stood to the state and the ordinary courts of the state, central and local."117 Upon declaring himself the head of the Church in England, Henry VIII used both courts to enforce spiritual uniformity on the people, a tradition followed by his successors (whether Catholic or Protestant) until these courts were abolished in 1641.118

By 1576, under Elizabeth I, the benefit of clergy privilege had been extended beyond clergy to those who were literate (the original logic being that only the clergy were literate). Therefore, the benefit of clergy was not only a means for the clergy to move their trials to the friendlier ecclesiastical courts, but it also became a tool for laypeople to reduce the likely sentence for a crime, even though they were being tried in secular courts.119 It was assumed that a felony was "clergyable," i.e., capable of preventing capital punishment, unless Parliament explicitly stated otherwise.120 Eventually, during the latter half of the sixteenth century and the beginning of the seventeenth, the benefit was inapplicable to murder, rape, abduction, thefts of the person exceeding a shilling, burglary, highway robbery, stealing horses, and stealing from churches.121

Also in 1576, Parliament abolished the ecclesiastical courts' jurisdiction over crimes committed by clergy.122 At the same time, the "benefit of clergy" became a gambit to be invoked at sentencing for lay and clergy alike-that is, it was not a guarantee of a particular court, with special procedural rules, for clergy.123 Parliament removed the jurisdiction of the ecclesiastical courts because it perceived that the Church had taken over a large portion of its criminal jurisdiction.124 The Crown was appalled at the level of perjury and corruption in the ecclesiastical courts:

This scandalous prostitution of oaths, and the forms of justice, in the almost constant acquittal of felonious clerks by purgation, was the occasion, that, upon very heinous and notorious circumstances of guilt, the temporal courts would not trust the ordinary with the trial of the offender . . . . As, therefore, these mock trials took their rise from factious and popish tenets, tending to exempt one part of the nation from the general municipal law; it became high time, when the reformation was thoroughly established, to abolish so vain and impious a ceremony.125

As a result, Blackstone writes, the 1576 statute abolished the practice of purgation (and with it, the ecclesiastical courts' jurisdiction over clergy members who committed crimes) by directing that an offender who pled benefit of clergy "shall not to be delivered to the [ecclesiastic courts], as formerly," but instead was to be burned on the hand to show that he had used the privilege for a first-time felony (a practice that became ceremonial in some cases) and, at the judge's discretion, sentenced to up to a year in prison.126 The privilege was not available in later trials of the same individual.127 The 1576 statute served two purposes: (1) Parliament did away with the corrupt practice of trial by compurgation, and (2) it effectively enlarged the crown's criminal jurisdiction at the expense of the ecclesiastical courts. The loss of ecclesiastical jurisdiction over crimes committed by clergy was significant, but it was not nearly as divisive in its era as Henry II's proposals in his era had been. One can detect in the British society a gradually developing assumption that the same crime deserved the same punishment, regardless of the actor.

The Church and the Crown continually came into conflict throughout the medieval period over questions of jurisdiction.128 In the thirteenth century, the gap between them widened when common lawyers replaced ecclesiastics on the benches of the common-law courts.129 Although the rival courts were separate systems of law, differing in many of their rules and deriving their force from different sovereigns,130 they were based on the same philosophical foundation-"the will of God expressed through authority," whether ecclesiastieal or royal.131 All this changed with the Reformation-the attack on the authority of the Church was in effect an attack on the whole medieval system of law.132 Religion was no longer universally considered the basis of civil government, and the premises of the common law gained ascendancy over ecclesiastical law.133

It became clear that a "shift[] in the balance of power" to secular authority at the expense of the ecclesiastical "had to be carried out in the context of legal competition and compromise."134 The ecclesiastical courts continued to exercise jurisdiction over some matters that had been in their purview since the medieval period, such as tithing, probate, marriage, defamation, and cases involving "mortal sins" such as fornication and adultery.135 Ecclesiastical jurisdiction over most matters, however, had already begun to decline at the outset of the Reformation, reflecting a "basic shift in attitude towards the proper role of the Church in men's lives."136 The increasing entrenchment of the common law,137 the Roman Catholic Church's loss of moral authority during the Reformation,138 and the subsequent growth of Protestantism with its emphasis on accountability139 undermined whatever argument the Church once had for sovereignty or to have its clergy immune from the criminal law. By 1641, one year after the Puritans gained control of Parliament, the jurisdiction of the prerogative courts-Star Chamber and the High Commission-was repealed, because "so large a prerogative," manifested in the courts' inquisitorial form and their arbitrary procedures, was "no longer compatible with liberty."140 Additionally, in a dramatic move forward for the common law, the ecclesiastical courts were deprived of nil criminal jurisdiction; the entirety of which was placed in common law courts.141

The rejection of the prerogative courts, whose abuses were attributed to the monarchs (who governed both the state and established church), was an early step toward the overthrow of the monarchy in 1649.142

In England, the benefit of clergy eventually became a tool for all first-time offenders to avoid the death penalty.143 In the eighteenth century, the benefit of clergy was gradually replaced by the "transportation" of convicts from England to the American and Australian colonies, and was ultimately abolished in the nineteenth century.144 In the American colonies, the benefit of clergy never functioned as a special privilege for clergy. The states never recognized ecclesiastical courts for clergy that substituted for secular courts in criminal matters. Rather, clergy members were subject to the law of the secular courts as were all citizens.145 The "benefit of clergy," therefore, never conferred any special benefit on clergy qua clergy in the colonies or the states. Instead, from the outset, it was merely a tool for juries and judges to avoid applying the death penalty to first-time felonies.146

This history is crucial for understanding the treatment of religious institutions under the First Amendment. Were there competing ecclesiastical courts for bringing clergy criminals to justice in the United States, there would be a stronger argument for the civil courts to abstain from jurisdiction over claims relating to the crimes of clergy (and their religious institutions). Although the justice meted out to clergy in England was lopsided in favor of religion, at least the possibility of trying a member of the clergy in the ecclesiastical courts existed for crimes committed until 1576. The only forum available for vindication of the state and federal laws in the United States, by comparison, has always been the civil courts.147 Thus, a claim of clergy benefit-or clergy autonomy-lacks support in the United States' legal history.

United States history suggests that not only is there no basis for clergy autonomy, but religious institutions are subject to the law in civil courts as well. In England, clergy benefited from special tribunals, while religious institutions were not held to account under the rubric of secular law, because the Church was a separate sovereign whose jurisdiction overlapped with that of the Crown.148 The decision in the United States, expressed in the Establishment Clause, to forbid religious institutions from holding sovereign power was a radical departure from British history, where to this day there is a state-established church. The elimination of religious sovereign power by definition made religious institutions private and therefore on more equal footing with other private entities.

The primary assumption at the Constitutional Convention-and it is the most important principle that has contributed to the Constitution's success-was that every individual and every institution holding power was likely to abuse that power and therefore must be checked.149 This principle led the Framers to structure the government so that each level and each branch would check the others.150 With respect to religion, the First Amendment's Establishment Clause made it clear that religious institutions would not be cosovereigns by prohibiting them from holding governing power.151 The question then was how religious institutions were to be checked; it would have been inconceivable to think that no check was necessary, either from the Framers' world view or the dominant Protestant world view. While religious institutions would not be directly checked by the structures of the Constitution, the Establishment Clause relegated them to the private sphere, where they would be checked like other private entities-by the rule of law. Thus, the end, perhaps even the ineluctable, result of the privatization of religion in the United States is the Supreme Court's current doctrine that religious institutions are properly subject to "neutral principles of law."152

The end of benefit of clergy shifted power away from ecclesiastical courts to civil courts and led to a corresponding decline in the sovereign authority of the established church in Britain.153 The structural mechanisms that had protected religious individuals and institutions from criminal liability in Britain no longer protected them, as the common law gained ascendancy. That is the milieu from which the colonies and then the states drew their own churchstate arrangements. The seventeenth-century settlers in what would become the United States were part of a generation ruled by Queen Elizabeth, during whose reign the ecclesiastical courts were definitively removed from criminal jurisdiction. Neither the clergy's privileges nor the ecclesiastical courts made it across the Atlantic. At the time the United States was established, both the privileges and the ecclesiastical courts had given way in Britain to a system that permitted the government to bring clergy under civil court authority154 and religious institutions to account for wrong doing.155 Thus, the current attempts by religious organizations to avoid criminal liability by invoking alleged privileges have their roots in history, but they have long lost their moral or legal underpinnings.156

3. Charitable immunity

After religious institutions lost their immunity to civil lawsuits, the British courts, followed by the American courts, experimented with protecting the coffers of charitable institutions subject to liability. Charitable immunity was a rule that protected the financial holdings of charitable organizations from actions in tort. Unlike sanctuary and the benefit of clergy, it was not a privilege limited to churches or clergy. Rather, it was intended to shield volunteer or charitable associations in general.157 The doctrine of charitable immunity protected charitable organizations from being sued in tort, which meant that victims could not bring successful tort claims against the organization or its employees.158

Charitable immunity gave way to the dynamic force of the rule of law, which demands similar accountability for people wrongfully acting in the same way and rendering the same harm. The concept of "ordered liberty" and the principle of no-harm opened the door to those who had been harmed to sue religious institutions in tort.159 The charitable immunity rule lasted for a very short period in Britain and has fallen out of favor in the United States, though it has been revived to a limited extent in the growth of limits on liability for charitable institutions.160 This section examines the transformation.

In England, the doctrine of charitable immunity did not involve religious institutions specifically, but rather only shielded those organizations that provided aid to the poor.161 In contrast, in the United States, the definition of charitable organization eventually reached beyond the traditional nonprofit groups that served the poor to include hospitals, schools, and churches.162 At its height, the immunity provided complete protection against any damage awards and therefore made charitable organizations' coffers autonomous of any countervailing social responsibility.163 In the minority of U.S. jurisdictions, immunity extended only to certain persons (e.g., actual recipients of charity) or certain sources of the organizations' income (trust funds and donations).164

Charitable immunity appears to have been based on a variety of justifications. The doctrine, originally developed in England in 1846, was based on a trust theory "that the funds of the charity are not to be diverted from the purposes intended by their donors and applied to the payment of liabilities in tort."165 Another theory offered was that since charities do not gain or benefit from the services they offer, they could not be held liable under the doctrine of respondeat superior for works done on their behalf.166 A third justification was that the recipients of charity assume the risk of negligence when they accept the benefit, thereby waiving their right to sue.167 It also has been put forward that the actions of charitable organizations are analogous to municipalities, and, therefore, charities deserve the protection that governmental immunity offers.168 Finally, public policy-fueled by a fear that people and institutions working to improve society would no longer contribute if they were liable for actions associated with that work-justified it.169

The public policy argument was especially forceful in late nineteenth-century America. When public charities first emerged in the United States, they were foundering institutions run only on an experimental basis.170 Any substantial judgment against them would have led to their demise, or, at the veiy least, it would have discouraged contributions.171 In an effort to foster their growth and thus benefit the public, most state courts adopted the policy of shielding charities from tort liability.172

The now largely disfavored doctrine entered the common law in 1846 as dictum in the House of Lords' decision in Feoffees of Heriot's Hospital v. Ross: "To give damages out of a trust fund would not be to apply it to those objects whom the author of the fund had in view, but would be to divert it to a completely different purpose."173 The case was an action for damages for wrongful exclusion from the benefits of the charity, not for personal injury inflicted in its operation.174 Thirty years later, Massachusetts was the first state to adopt the doctrine of charitable immunity in McDonald v. Massachusetts General Hospital,175 with many other state courts following suit.176 By 1900, seven state supreme courts had followed Massachusetts' lead, with another thirty-three joining the movement by 1938.177 Ironically, by the time the doctrine was entrenched in the American courts, it was no longer good law in England.178 By 1871, after only twenty-five years experience with the doctrine, the English courts rejected it on the ground that it made no sense to hold charities blameless for the harm they caused.179 As a 1909 case characterized the doctrine, "[i]t is now well settled that a public body is liable for the negligence of its servants in the same way as private individuals would be liable under similar circumstances. . . ."180

By the early twentieth century, American scholars considered charitable immunity to be a faulty doctrine based on a weak foundation.181 In Georgetown College v. Hughes, one of the first American cases rejecting charitable immunity, the court characterized concept as an "anomaly," stating that "[t]he doctrine of immunity of charitable corporations found its way into the law . . . through misconception or misapplication of previously established principles."182 As one defender of limited liability for charitable organizations states, the "traditional rationales for denying all tort recovery against charitable organizations cannot withstand close scrutiny."183 The reasoning is obvious: when the law is intended to redress harm, and charitable institutions are intended to assist those in need, permitting them to avoid liability for the harm they cause is perverse. As with sanctuary, and especially the benefit of clergy, the driving logic of the common law and the rule of law could not be squared with special dispensation for charitable organizations when they engendered harm.

Some vestiges of the doctrine remain, however.184 While it has been thought appropriate to hold such organizations accountable for the actions of their employees, the institutions' liability for volunteers has been contested.185 A minority of states, in addition, have imposed monetary caps on damage awards against charitable organizations.186

Like the benefit of clergy and sanctuary, charitable immunity largely gave way to the rule of law and its fundamental presupposition that all citizens are equal under the law. As in Britain, the United States nullified charitable immunity by the larger legal system within which religious and charitable organizations, their clergy, and their employees are accountable to those they harm.

B. Te Protestant Mindset and the History of Abuses of Power by Religious Institutions Preceding and Informing the First Amendment

Were all religious institutions invariably beneficial to the public, this Article would not need to be written. The rule would be plain: religious institutions need not be deterred from tortious or criminal behavior, and therefore they are immune from suit. While many religious institutions supply important benefits to society, the notion that they are invariably beneficial and therefore need not be subject to society's general constraints on behavior cannot be supported either by history or experience.

No one was more aware of the capacity of religious institutions to harm the public good than the framing generation, many members of which had escaped England and the entrenched religious authorities that had persecuted particular faiths with the aid and acquiescence of the monarchy.187 Only decades before the first emigrants started across the Atlantic, the Reformation initiated the pitched struggle for sovereign power between the Catholic Church and the Protestant churches.188 Thus, "[w]hen English settlers first sailed for America in 1584, they carried with them a faith worked out over fifty years of religious turbulence."189 This turbulence continued well into the next century; religious persecution finally abated when the Puritans rose to power and disbanded the Star Chamber and the High Commission in 1641.190

During the Tudor and Stuart years, 1485-1714,191 which encompasses the years immediately preceding and during the colonization of America, the Crown engaged in a systematic suppression of religious dissent and persecution of those whose beliefs differed from the established church. For example, in 1526, Henry VIII divided his King's Council into two branches: a privy council to consider domestic and foreign policy issues, which came to be known as the Star Chamber, and the court of High Commission, which was to address ecclesiastical issues. When Henry VIII officially became the head of the Church eight years later in 1534,192 he was able to use both commissions, or prerogative courts, to exercise control over religious belief and practice. The unification of church and state made "any deviation from the new religious order a threat to royal supremacy."193 Thus, heresy and treason became indistinguishable as the Star Chamber, in cases involving "sedition" or "subversion," and the High Commission, in cases involving "heresy," worked in tandem to rid Britain of religious dissenters. "Those who continued to support the authority of the pope, Henry VIII sent to the executioner's chopping block; those who preached new doctrines he sent to the fires at Smithfield."194 Henry VIII's successors carried on his practices. His son, Edward VI, was only ten when he ascended to the throne on Henry's death in 1547, but the Dukes of Somerset and Northumberland ruled in his name, both promoting Protestantism as the established and sole religion of the realm.195 The Catholic Queen Mary (1553-1558) ruled in a country predominated by Protestants,196 whom she believed invited divine retribution on her reign for their heresy.197 She atoned for this sin by burning hundreds of Protestants at the stake, including Bishops Cranmer, Ridley, and Latimer, during her short reign.198

Protestant Elizabeth I (1558-1603) gained control of a country divided by religion. To reunite the country, she ruthlessly suppressed Catholicism (she was excommunicated by the pope in 1570)199 through her enforcement of the Acts of Supremacy and Uniformity, which she employed to institute the High Commission, and through her use of the Tower of London to execute heretics.200 After centuries of sovereign control in Britain, the Catholic Church found itself in the 157Os instructing Catholics to avoid Anglican worship services and to attend their own "despite the penalties for doing so."201 James I (1603-1625) and Charles I (1625-1649) avidly suppressed religious opposition. Only five years before the end of James I's reign, in 1620, the Mayflower pilgrims sailed for America.202 Throughout his reign, Charles I aggressively suppressed the Puritans.203 Abuses by the Star Chamber and the High Commission were legion, and thousands of British citizens left for America (and the Netherlands), bringing with them certain knowledge of the consequences of a government dominated by a single religion.204 After Charles I refused to convene Parliament from 1629 until 1640, in part because of his fear of the Puritans' growing power, the Puritans seized power and soon thereafter abolished the prerogative courts and their abusive practices.205

In 1662, during the Restoration, Anglicans and Presbyterians attempted to form a national church, but their effort failed and Presbyterian ministers were expelled.206 Parliament passed a new Act of Uniformity, and Presbyterian ministers who refused to conform were expelled from their congregations.207 Dissenting Protestant worship became legal in 1689, but the dissenters were not allowed to hold property to construct churches unless they were subject to the oversight of the Court of Chancery.208 Not until 1791 were the Catholics given parity with other Protestant dissenters.209 The inability of the established Anglican Church to answer to the public good when dealing with issues involving taxation, tithing, local government, marriage, education, and charity led to the state's assumption of jurisdiction over those issues. Thus, the public good was the measuring stick that finally transformed Britain from a country with only one recognized religion into one of religious liberty. "English pluralism was the result of a gradual wearing away of a unitary system through concessions made because it seemed right to make them."211

The United States, of course, did not begin as a fully pluralistic and tolerant society either. The early colonies and then some of the states, with the notable exception of Pennsylvania, had established churches with corresponding privileges for members and disabilities for dissenters, though there was no Tower of London or Star Chamber and High Commission to force the established church's beliefs on others. The establishments, such as they were, gave way not long after the Constitution and the Bill of Rights were ratified.212

The Establishment Clause is testimony to the founding generation's rational fear of overweening religious power and of the mischief that religious institutions can foster, particularly when they hpld sovereign power. It cannot be, as Carl Esbeck argues, a rule solely intended to protect religious entities.213 Neither the history leading up to the founding of America nor the Protestant cast of governance theories at the time of the framing supports his conclusion. Indeed, they argue against it.

The dominant mindset of the early Americans was Protestant,214 and among Protestants, Calvinism predominated.215 At its most fundamental level, all Protestantism incorporates the view that religious individuals and institutions have the capacity to stray from a holy path onto an evil one.216 For Protestants, individuals are locked into original sin. According to John Calvin, who along with Martin Luther sparked the Reformation and Protestantism, there was never a moment in history when humans could be trusted blindly to be or do good:

[L]et us hold this as an undoubted truth which no siege engines can shake: the mind of man has been so completely estranged from God's righteousness that it conceives, desires, and undertakes, only that which is impious, perverted, foul, impure, and infamous. The heart is so steeped in the poison of sin, that it can breathe out nothing but a loathsome stench. But if some men occasionally make a show of good, their minds nevertheless ever remain enveloped in hypocrisy and deceitful craft, and their hearts bound by inner perversity.217

Thus, Calvin counseled in favor of a diligent surveillance of one's own actions and the actions of others; he also endorsed the value of the law (both biblical and secular) to guide human behavior away from its propensity to do wrong.218 Granted, no man could ever live up to all of the law's demands, but it was necessary as a checking measure nonetheless. Calvin's view of human nature was powerfully transmitted to a significant number of Framers-for example, James Madison and Reverend John Witherspoon, who was president of the College of New Jersey, the leading Presbyterian college at the time and now Princeton University.219

Protestantism equally discounted the likelihood that a religious institution could be trusted on its own to serve the public good. "[Protestantism] is essentially an attempt to check the tendency to corruption and degradation which attacks every institutional religion."220 The early Protestants, after all, were the Catholic dissenters who eventually rejected the sixteenth-century Roman Catholic Church for its malignant ways.221 The belief that the Catholic Church had led the Christian Church down evil paths was a fervently held belief at the time of the framing as well, with John Adams identifying the "worst tyranny ever invented" as "the Romish superstition."222

The attitude of the vast majority of the framing generation on this subject was little different from Calvin's description of the sixteenth-century Roman Church's hubris and unaccountability:

Because of the primacy of the Roman Church, they say, no one has the right to review the judgments of this see. Likewise: as judge it will be judged neither by emperor, nor by kings, nor by all the clergy, nor by the people. This is the very height of imperiousness for one man to set himself up as judge of all, and suffer himself to obey the judgment of none. But what if he exercise tyranny over God's people? If he scatter and lay waste Christ's Kingdom? If he throw the whole church into confusion? If he turn the pastoral office into robbery? Nay, though he be utterly wicked, he denies he is bound to give an accounting.223

The solution for the wayward path of the Catholic Church, at least according to Calvin, was proper government, a need the early colonial Presbyterians (and Calvinists), identified both in the society and the Church:

Man's depraved apostate Condition renders Government needful. Needful both in the State and the Church. In the former without Government Anarchy wou'd soon take place with all its wild and dire Effects and Men wou'd be like the Fishes of the Sea where the greater devour the less. Nor is Government] in the Church less needful than in the State and this for the same Reason.224

While drafting the Constitution, Madison-and the Framers in general-had the despotic practices of the Catholic Inquisitors stamped on their political consciousness, a fact proven by Madison's direct reference to the Inquisition in his Memorial a-nd Remonstrance,225 in which he argued against state payment of certain Christian educators as follows:

Because the proposed establishment is a departure from the generous policy, which, offering an Asylum to the persecuted and oppressed of every Nation and Religion, promised a lustre to our country, and an accession to the number of its citizens. What a melancholy mark is the Bill of sudden degeneracy? Instead of holding forth an Asylum to the persecuted, it is itself a signal of persecution. It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority. Distant as it may be in its present form from the Inquisition, it differs from it only in degree. The one is the first step, the other the last in the career of intolerance. The magnanimous sufferer under this cruel scourge in foreign Regions, must view the Bill as a Beacon on our Coast, warning him to seek some other haven, where liberty and philanthrophy in their due extent, may offer a more certain respose from his Troubles.226

There can be no question that the excesses of the Inquisition (1184-1834), the later Spanish Inquisition (1474-1834), the public executions of those whose faith differed from the Crown in England (1531-1689), and the excesses generated by the unity of power between the monarchies and organized religion were part of the calculus that the framing generation used to calibrate the need for government, the reach of any religious institution's power, and the need to make religious institutions accountable to the public good. Nor can there be question that they believed in placing legal limitations on the religious institutions, because they believed at a visceral level that religious institutions were not worthy of blind trust.

Indeed, Madison's mentor, the Reverend John Witherspoon, explained the history of the United States in the context of the Inquisition:

[A]t the time of the Reformation when religion began to revive, nothing contributed more to facilitate its reception and increase its progress than the violence of its persecutors. Their cruelty and the patience of the sufferers naturally disposed men to examine and weigh the cause to which they adhered with so much constancy and resolution. At the same time also, when they were persecuted in one city, they fled to another and carried the discoveries of Popish fraud to every part of the world. It was by some of those who were persecuted in Germany that the light of the Reformation was brought so early into Britain.

[T]he violent persecution which many eminent Christians met with in England from their brethren, who called themselves Protestants, drove them in great numbers to a distant part of the New World where the light of the gospel and true religion were unknown.227

This historical background informed the framing generation of the qualities of religious organizations under the reign of Pope Gregory IX (1227-1241). At that time, and in response to the spread of "heretic" beliefs, Roman Catholic bishops conducted medieval "inquisitions" designed to rid France, Germany, and Italy of non-Catholics.228 Investigation of heresy was the duty of the bishops.229 The Inquisition, by then known as the Holy Office, is perhaps best known for convicting Galileo at trial in 1633 for his "dangerous" scientific beliefs.230 Most Inquisition trials resulted in a guilty verdict, and those convicted faced a myriad of horrific punishments, including fines, imprisonment, and death.231

The Spanish Inquisition was independent of the medieval Inquisition but was also part of that history the framing generation would have known and used to judge contemporary ideas. The purpose of the Spanish Inquisition was to discover and punish converted Jews (and later Muslims) who were insincere.232 It was established in 1478 by King Ferdinand and Queen Isabella with the reluctant approval of Pope Sixtus IV.233 The institution was entirely controlled by the Spanish kings; the Pope's only check on the Inquisition was in appointing the nominees.234 In 1483, the Crown created a new royal council of the Supreme and General Inquisition to expand its operation throughout Spain. The notorious Tomas de Torquemada was named Inquisitor General-the head of the council-and was responsible for creating branches of the Inquisition in various cities by establishing local tribunals.235 The Spanish Inquisition was not finally abolished until 1834, nearly sixty years after the Declaration of Independence was signed.236

The first permanently established English settlement in the United States, in Jamestown, Virginia, was established in 1607, a mere four years after the end of Queen Elizabeth's reign. Only fifty years before, the Tower of London was employed by Catholic Queen Mary (1553-1558) to imprison and execute Protestants, after she revived the heresy laws at the end of 1554.237 The first Protestant martyr was publicly burned in 1555.238 Between 250 and 300 were burned alive, while hundreds more were imprisoned.239 Queen Mary's successor, Protestant Queen Elizabeth I (1558-1603) attempted to ward off Catholic Europe and those who refused to attend Church of England services by incarcerating bishops, archbishops, and others for years.240 "There were as many executions of Catholics under Elizabeth as there were Protestants under Maty, though over a reign nine times as long."241 James I (1603-1625) continued to use the Tower as a prison, as the Tudors had done.242 In 1643, Parliamentarians seized control of the Tower during the Civil War in 1643. Throughout the Restoration, the Tower's function as a state prison declined and it became a military headquarters and munitions storehouse. The last execution was in 1747,243 long after the first wave of emigrants left for the New World in the late sixteenth and early seventeenth centuries.244 The Bloody Tower, as it is often called, is a London monument to the British history of religious dominance and intolerance. It was unquestionably stamped on the mindset of any British subject at the time, and scores of those subjects emigrated to the New World. The founding generation and the Framers thought about organized religion in this British context and did not have to leap to reach the conclusions that granting governing power to religion was dangerous and that religious individuals and entities needed to be curbed.

C. John Locke, Thomas Jefferson, James Madison, and John Stuart Mill on the No-Harm Rule

There is nearly universal agreement that the no-harm rule undergirds and justifies criminal law, tort law, and regulatory laws (at least those that prohibit harm to others).245 The no-harm rule was a notion articulated by John Locke in the seventeenth century, widely shared by the framing generation in the eighteenth century, and entrenched in modern philosophy and law by the influential John Stuart Mill in the nineteenth century.246 It was further elaborated in the twentieth century by H.L.A. Hart and Joel Feinberg.247

John Locke believed in a robust right of conscience, or belief.248 He then argued that "God is the true proprietor" and therefore human beings could not "belong to one another."249 From this precept Locke derived a general "no-harm" principle. Individuals were not to "take away, or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another."250 For Locke, then, individuals joining together in society had a general liberty of conscience, or belief, but the state legitimately restrained those actions that harmed others.

Locke's no-harm principle was taken as commonplace during the framing era. Thomas Jefferson famously explained, "the legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no God. It neither picks my pocket nor breaks my leg."251 Freedom of belief and "free argument and debate" were essential human rights, but, when those "principles break out into overt acts against peace and good order," it is the "rightful purpose[] of civil government, for its officers to interfere."252 He articulated the same principle when he wrote to James Madison in 1788 to outline the rights he thought necessary to include in a bill of rights. On the one hand, he backed a bill of rights, but he was also conscious that rights had the capacity to "do evil." Thus, he explained what the "freedom of religion" in the bill of rights would (and would not) accomplish: "The declaration that religious faith shall be unpunished, does not give impunity to criminal acts dictated by religious error."253

Many in the framing era were distrustful of religious organizations and clerics.254 Deists at the time, like Jefferson, believed in Christ but were unwilling to align themselves with any particular organized religion, because in their eyes most organized religions were a corruption of Christianity.255 Thus, he declared: "To the corruptions of Christianity I am indeed opposed; but not to the genuine precepts of Jesus himself."256 Among Christians other than Deists, anticlericalism also was an entrenched viewpoint.257

James Madison-drafter of the First Amendment-equally recognized the right to complete freedom of belief: "Religious bondage shackles and debilitates the mind and unfits it for every noble enterprise every expanded prospect."258 He admired the tolerance of religious beliefs in Pennsylvania, which exhibited a "liberal catholic and equitable way of thinking as to the rights of Conscience,"259 but discussions of "conscience" were discussions about belief, and not conduct.260 His mentor, the Reverend John Witherspoon, articulated the principle of no-harm in his Lectures on Moral Philosophy as follows: "[A]nother object of civil laws is, limiting citizens in the exercise of their rights, so that they may not be injurious to one another, but that the public good may be promoted."261

In the Memorial and Remonstrance, Madison expressed apprehension about the impact of religious institutions on society:

What influence in fact have ecclesiastical establishments had on Civil Society? In some instances they have been seen to erect a spiritual tyranny on the ruins of the Civil authority; in many instances they have been seen upholding the thrones of political tyranny: in no instance have they been seen the guardians of the liberties of the people. Rulers who wished to subvert the public liberty, may have found an established Clergy convenient auxiliaries.262

These concerns dogged him through his distinguished career in public service. At the end of his presidency, he worried publicly that "[t]he danger of silent accumulations & encroachments by Ecclesiastical Bodies have not sufficiently engaged attention in the U.S."263

James Madison was particularly harsh regarding the potential abuses of power by both religious institutions and especially the clergy. When backed by state authority, he declared, the clergy "tend to great ignorance and corruption, all of which facilitate the execution of mischievous projects."264 He castigated the state of liberty at the time: "Poverty and luxury prevail among all sorts: pride, ignorance, and knavery among the priesthood, and vice and wickedness among the laity. . . . That diabolical, Hell-conceived principle of persecution rages among some, and to their eternal infamy, the clergy can furnish their quota of imps for such business."265

Jefferson and Madison envisioned the potential for great harm to the public good when a religious organization abuses power.266 Thus, neither they nor their fellow citizens ever contemplated absolute liberty for religious organizations. Indeed, absolute liberty (religious or otherwise) was anarchy and called licentiousness. The early Americans' notions were reasonable in light of their knowledge of the excesses of religious dominance in Europe, including the Inquisition, the Spanish Inquisition, the clash of power between the Catholic and Protestant churches immediately preceding the founding of the New World colonies, and the years of bloody executions at the Tower of London.

As I have documented in a previous article, the dominant view at the time of the framing was to apply the rule of law to the actions of religious individuals and institutions.267 In other words, the no-harm principle was widely accepted, even among religious believers. The arguments some have made for a mandatory constitutional right to avoid the application of the law to religious conduct, or for the application of strict scrutiny to neutral, generally applicable laws that substantially burden religious entities268 simply cannot be supported.269 Church autonomy-in the sense of an independent power to act outside the law-was not part of the Framers' intent, the framing generation's understanding, or the vast majority-and the best-of the Supreme Court's free exercise jurisprudence.270

As Justice Scalia explained in Boerne, the most plausible reading of early free exercise enactments permitted the application of laws protecting the public good to religious institutions:

Religious exercise shall be permitted so long as it does not violate general laws governing conduct. The "provisos" in the enactments negate a license to act in a manner "unfaithfull to the Lord Proprietary" (Maryland Act Concerning Religion of 1649), or "behav[e]" in other than a "peaceabl[e] and quie[t]" manner (Rhode Island Charter of 1663), or "disturb the public peace" (New Hampshire Constitution), or interfere with the "peace [and] safety of th[e] State" (New York, Maryland, and Georgia Constitutions), or "demea[n]" oneself in other than a "peaceable and orderly manner" (Northwest Ordinance of 1787). At the time these provisos were enacted, keeping "peace" and "order" seems to have meant, precisely, obeying the laws.271

In fact, "[e]very breach of a law is against the peace."272

However, the no-harm principle was not only advocated in the framing era, but rather has continued to be persistent in American political thought. The most influential philosopher of the nineteenth century in the English-speaking world was John Stuart Mill, who further developed the principle of no-harm. He set forth the following maxims, which came to be known collectively as the Harm Principle:

[F]irst, that the individual is not accountable to society for his actions, in so far as these concern the interests of no person but himself. . . . Secondly, that for such actions as are prejudicial to the interests of others, the individual is accountable, and may be subjected either to social or to legal punishments, if society is of opinion that the one or the other is requisite for its protection.273

Mill thereby refined the Lockean principle. It is a firm rejection of individual (or institutional) autonomy from the laws that protect others.

Mill also advocated absolute dominion over one's mind,274 which entailed tolerance of conflicting beliefs: "If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind."275 The universe of actions was divided into two categories: those that will not harm others and those that will. While the former category should not be regulated, the latter category should be.

Where the legislature outlawed actions that harmed no one, Mill's moral philosophy demanded liberty and would have voided the law. But where the legislature outlawed actions that did harm others, the law was valid.

In the 1960s, H.L.A. Hart elaborated upon Mill's views. Hart also believed that the line to be drawn between legitimate laws and illegitimate laws rested on the Harm Principle.276 Joel Feinberg further developed this theory.277 By the latter half of the twentieth century, the no-harm rule was widely accepted as the best way to explain the legitimacy of criminal, tort, and regulatory laws. It remains the dominant approach.278

The no-harm reasoning as it developed over the centuries brings the Supreme Court's Religion Clause jurisprudence into better focus. Reynolds v. United States was decided soon after Mill's passing.279 The Reynolds decision reflects two of the crucial elements of Mill's reasoning. First, Reynolds explicitly recognized the absolute right to believe.280 Second, it granted the legislature the power to make religious conduct illegal, at least where the religious conduct harmed others.281 There was no question in the Court's reasoning that the federal antipolygamy statute prevented and punished a severe societal harm.282

Mill's third category-that it is immoral to regulate actions that hurt no one else-is not a doctrinal factor in the Supreme Court's religion-clause doctrine, but is implicit in its political theory. The Court in Employment Division v. Smith saw a natural limitation on the enactment of laws burdening religious conduct in United States' values:

Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process. Just as a society that believes in the negative protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so also a society that believes in the negative protection accorded to religious belief can be expected to be solicitous ofthat value in its legislation as well.283

III. PHILOSOPHICAL AND THEOLOGICAL THEORIES IN SUPPORT OF THE NO-HARM RULE AND AGAINST CHURCH AUTONOMY

Even though history supports the general application of the noharm principle to religious institutions, various theories might be advanced to justify church autonomy. But an examination of each of these theories leads to the conclusion that the no-harm rule is more grounded and better supported in these theories than the less nuanced notion of church autonomy. Scholars have argued the existence of church autonomy based on various theories, including utilitarianism, deterrence, Catholic thought, and Protestant thought, among others. However, each of these philosophical/theological theories supports the application of the no-harm rule to all individuals in society, including religious institutions and clergy.

One of the missing voices in the discussions concerning the regulation of religious institutions in this conference is a philosophical or theological defense of church autonomy. The defenders of church autonomy tend to assume without explanation that "church autonomy" is a good thing, without delving into a more nuanced defense. As opposed to a notion of church autonomy, the no-harm rule has a lengthy and distinguished philosophical pedigree, as discussed above, and can be justified on both a utilitarian and deontological basis.

Utilitarianism is a branch of consequentialist philosophy284 by which one judges the Tightness of an action according to whether the action leads to the greatest public good.285 Utilitarianism has been broken down into act utilitarianism and rule utilitarianism. Act utilitarianism analyzes the consequences of each individual act in light of the larger good, weighs those consequences, and then determines the utility of individual actions.286 Rule utilitarianism, in contrast, focuses on particular rules and asks which rule, if always followed, would produce the greatest good.287 In fact, for purposes of legal analysis, these two approaches are virtually identical, and therefore I will use the generic term "utilitarianism" to analyze religious institutions. In either case, ethical choices are made in light of their consequences. Ultimately, church autonomy cannot be defended on utilitarian grounds.

Deontology, or libertarianism, asks a separate question: whether a choice is intrinsically good.288 For the deontologists, the correct action is not linked inextricably to the question of the public good. Rather, the moral question turns on individual rights and whether the moral choice is good in itself, without reference to a general outcome. Robert Nozick prescribes a libertarian theory that attempts to move beyond anarchy to Utopia by identifying "side constraints" on individual action, which are constraints defined by harm done to another individual.289 Thus, the deontologist asks what would be the best action taken by the church,290 not whether the church's action is good for society. Nozick includes in the calculation of what is the best action some consideration of "side constraints," a telling and necessary caveat for those libertarians who must live in society (which is all of them). Even under a deontological theory, church autonomy cannot be justified in many circumstances because the intrinsic value of the civil right, for example the protection of children from physical abuse, weighs more heavily in the balance than the intrinsic value of an autonomous religious institution. The rule that forbids harm to others-even at the expense of some autonomy for religious institutions-is favored over autonomy under both philosophical approaches.

A. Utilitarianism Supports the No-Harm Rule and Does Not Support Church Autonomy

The Supreme Court has operated primarily out of a utilitarian framework in its religious institution cases. Following the guiding principle of no-harm, the Court has permitted religious institutions the broadest rights when the likelihood of involuntary harm to others is at its least-in the belief cases.291 But the Court also has permitted restrictions of religious institutions when the likelihood that others will be harmed is at its greatest-in the conduct cases.292 When religious institutions are capable of harming others, the Court has deferred to the legislature's determination of the cost to society and followed the legislature's dictate to restrict the liberty of religious institutions to act.293

The use of a utilitarian framework is in fact the best explanation of the Court's decision in Jones v. Wolflo permit the application of "neutral principles of law" in contested church property cases.294 In that case, the Court provided legal guidance for churches in the future to avoid the sort of dispute that prompted the Jones litigation:

Through appropriate reversionary clauses and trust provisions, religious societies can specify what is to happen to church property in the event of a particular contingency, or what religious body will determine the ownership in the event of a schism or doctrinal controversy. In this manner, a religious organization can ensure that a dispute over the ownership of church property will be resolved in accord with the desires of the members.295

By sketching this legal map, the Court rejected church autonomy in favor of a system in which all of society-including the church and its members-would benefit. If churches followed the Court's principles from the beginning, there would be fewer conflicts, fewer cases, and more stability in terms of church property ownership. The impulse was utilitarian, not autonomy.

The utilitarian asks whether in the legal system the greater good is achieved through more or less restriction of a given institution or practice. Church autonomy, in contrast, would permit religious institutions to operate with a bare minimum of government regulation, on the theory that the public good is best served under such a regime. Church autonomy would argue against imposing a negligence standard on hiring decisions.296 This conclusion, however, cannot be squared with the utilitarian's question regarding the greater good.

The no-harm rule would tend to support laws that reduce the likelihood that religious institutions will harm others. Its utility lies in its ability to decrease suffering and therefore increase the public good. Examples include torts, regulatory laws, and criminal laws. The no-harm rule has two prongs: belief and conduct, which I will analyze under utilitarianism.

1. Utilitarian analysis of the absolute protection of belief

The absolute protection of belief grants an unlimited right to individuals to believe whatever they choose. The question for utilitarianism is whether such absolute protection also serves the greater good. The absolute protection of belief serves a number of social ends. First, it increases the likelihood that there will be a variety of beliefs from which to choose. In a society of imperfect humans, each with different and limited views, the absolute protection of belief fosters the search for truth.297 When that belief is translated into speech or political action, religious belief "can be a resource for alternative human visions that challenge and enrich discussion of public policy."298 Second, it prevents the situation in which those with unusual beliefs are driven to rebel against society, a phenomenon sometimes called the "venting function."299 Third, it increases the collective creativity of the culture, which furthers industry, the arts, and scholarship.300

Failure to absolutely protect beliefs severely undermines society by reducing the robustness of the marketplace of ideas, by creating incentives for original thinkers to violently rebel, and by stifling creativity, and therefore industry, the arts, and scholarship. One might argue, however, that permitting the absolute protection of belief contributes to the dissemination of beliefs that are dangerous if they persuade others to act. It also permits individuals and groups to harbor antisocial beliefs, including racist, violent, and sexist views. However, in the absence of action (in the form of speech or conduct), those beliefs do not harm their targets.

For the utilitarian, these concerns are to be weighed against each other, and while the threat to the culture of dangerous beliefs is not negligible, the benefits to society are enormous. On a utilitarian analysis, it is difficult to fault the rule favoring the absolute protection of belief.

2. Utilitarian analysis of the regulation of conduct that harms others

I will now apply a utilitarian analysis to a particular legal situation governing religious institutions. It is obvious that under a utilitarian analysis, the most serious crimes, even when done by religious entities, must be capable of regulation. These include murder, rape, theft, kidnapping, and assault. Many have believed that the closer questions arise in the tort context-in particular, liability for negligent hiring where a religious institution failed to do background checks on particular clergy, and the clergy subsequently sexually abused children. I have chosen this example not only because it has contemporary application, but also because the result may not be as crystal clear as issues involving criminal law or regulatory rules affecting safety and health.

If religious institutions were liable for negligent hiring, their liberty to choose clergy would be incrementally reduced by the requirement that they engage in background checks for every eligible clergy. Under utilitarian analysis, then, one must weigh the diminution in liberty against the good arising out of churches having the information provided by background checks.

In this era, the burden on the religious institution of doing a background check on a potential clergy member is not substantial. Businesses routinely do background checks on employees.301 Day care centers, hospitals, and nursing homes and services are required to do similar background checks.302 Even families typically do background checks on those working in the home.303 Criminal background checks are relatively inexpensive,304 and because there is so much demand for them, the paths to such information are fairly clear.305 It is true that criminal background checks will not capture some pedophiles, so in order to avoid being found negligent, the religious institution may have to do more. This could include old-fashioned methods of checking potential employees, such as contacting references and asking about character, or more specifically, asking why a seminarian or priest was reassigned from a previous position. Even these old-fashioned methods are not particularly onerous, and they present a negligible burden compared to the harm that the duty is intended to prevent. Psychological testing is also likely to be necessary to avoid charges of negligence. Many religious institutions already impose such testing on their candidates.306

On the other side of the scale and weighing against requiring background checks are the cost to the religious institution's freedom to choose whomever it wishes to be a clergy member and the financial cost of the background checks. As discussed above, the financial cost is de minimis. The restriction on freedom posed by background checks is also minimal. Negligent hiring liability, especially when the concern is to prevent criminal child abuse does not dictate who can be chosen as clergy, but rather only requires that the religious institution know the background of those it places in positions of authority in proximity to children. The religious institution remains free to place its clergy where its theology directs, but it assumes the risk if harm results when it either fails to obtain the information that was available regarding the danger of the individual to children and certainly when it knowingly ignores such information. The knowledge gleaned from the background check-if used-is likely to save the religious institution money in the long run. Because the potential liability would encourage religious institutions to place fewer individuals who abuse children in positions of power, the cost to the institution of litigation arising from child abuse would decline. The cost of litigation following clergy abuse is likely to be far higher than the cost of the background check and more costly than the de minimis restriction on the religious institution's actions. Weighing the benefits that flow from the restriction against its costs, it would appear that negligent hiring liability is not contrary to the best interests of religious institutions and is clearly in favor of children's welfare.307

The religious institutions, however, are likely to respond that the cost of background checks may be de minimis, but there are other elements of the tort law governing employment that do not impose such a small cost. For example, religious organizations are fighting the imposition of punitive damages in clergy abuse cases.308 While the monetary cost of a background check is small, punitive damages can be quite large. The benefit of the damages lies in their power to deter future bad behavior and to punish the person for their wrongful action.309 In the case of imposing punitive damages against the Catholic Church for the tortious actions of abusive priests, the justification is the same as that of any other master/servant relationship: "the imposition of punitive damages upon the employer serves as a deterrent to the employment of unfit persons for important positions."310

Opponents argue that such funds were never intended for abuse victims, and that they should go toward the good works for which they were originally intended. In effect, they are arguing that the funds' intended purposes are greater in value than the deterrence value of a punitive damage award. They are asking the courts to weigh more heavily in the balance their contributing members than their victims. The cost being claimed is that the institution cannot choose at will where its funds are directed. The institution, however, created the choice by permitting the victimization of children, so to now argue that punitives burden the choice is specious. Indeed, if that is their world view, deterrence is even more necessary than it might have been thought previously. This argument is attractive to many on its surface, but it shows how important it is to hold the institution liable to punitive damages in these cases. If the institution is culpable, and believers know that their donations are at risk, then perhaps they will monitor their own institution better and discard the blind trust that permits their institution to operate in such a reprehensible way that its actions justify punitive damages.

Even if a religious institution could show that the cost of the background check or of the punitive damages would bankrupt the church and even put it out of existence, the religious institution cannot win under a utilitarian analysis. It is difficult to imagine a more important social interest than protecting children from physical and sexual abuse. The interest is even higher when the children are likely to trust the individuals who would abuse them, as in the case of clergy. Clergy hold special places of privilege in their religious circles, which means that negligently letting a pedophile into the circle puts children at greater risk than if the individual were a clerk at a store. Even when weighing the interest of the children in being protected from pedophiles in positions of trust against the continued existence of a particular religious institution, the religious institution loses. Indeed, it would be unconstitutional for a legislature to take a position on whether a religious institution flourishes or expires. In the United States, religious institutions are part of a public market in belief, and it is the people, as believers, that choose whether a church will flourish or not, not the government. The government has no legitimate interest in choosing public policy based on the religious ins