A Law Unto Himself

          The Supreme Court decided a very important and controversial Free Exercise of religion case in 1990, Employment Division, Department of Human Resources of Oregon v. Smith. Justice Antonin Scalia explained that religious believers are not automatically exempt from state and federal laws, but must, like everybody else, obey neutral laws of general applicability. To suggest that the Free Exercise Clause allowed religious believers to disobey the law, wrote Scalia, misinterpreted the First Amendment. Laws, he wrote, are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . 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.

          If Smith were taken seriously, churches would be held to the same legal standards as everyone else. In the sexual abuse crisis that has plagued the Roman Catholic Church, for example, criminal law should have imprisoned the abusers as well as the clerics who hid molesters from the law. Tort law should have found the abusers and their employers--including bishops and popes--liable for malpractice, negligent hiring, negligent retention, infliction of emotional distress and fraud. Bankruptcy law should have focused on distributing the church's assets to victims. The church should have been treated no better--or worse--than any other wrongdoer.

          Instead the church repeatedly hid behind the First Amendment, citing pre-Smith law to argue that the church was exempt from legal oversight as a matter of religious freedom.

It argued that its communications with errant priests were privileged by Free Exercise and so could not be released to courts of law. It claimed that its confidential communications about clergy were sacred and did not allow reporting crimes to police. It insisted that its hiring and firing decisions about clergy were absolutely protected from court review by the First Amendment. It argued that its assets could not be claimed in bankruptcy proceedings because only the church could decide the disposition of its own property.

          Because of Smith, the courts gradually rejected absolute constitutional protection for the churches and allowed the churches to be held accountable in courts of law. Without Smith, the extent of the abuse crisis would still be unknown as the church would have freely exercised a religion of crime and abuse without accountability.

          Amazingly, defenders of organized religion have attacked Smith since the day it was decided and achieved great political success in undermining its holding. Congress, and then many states, passed Religious Freedom Restoration Acts in order to keep religious organizations exempt from the law that governs everyone else. Congress also enacted the Religious Land Use and Institutionalized Persons Act, which gives every religious landowner and prisoner the opportunity to challenge the same laws that apply to everyone else. Religious landowners get special exemptions from the zoning laws, for example, that other citizens do not. Despite Smith, moreover, some courts have held that the church, the bishops and the pope cannot be sued because the courts have no authority to review ministerial decisions by the churches.

          The trail of documents implicating church officials in decisions to keep abusive priests near vulnerable children has almost reached the pope, who waited six years until taking any action against an Oakland, California priest because he believed the good of the Universal Church had to be considered in any decision to defrock the priest. The law for everyone else, of course, puts priority on protecting children from abusers.

          Justice Scalia was right to warn against religious believers who make the professed doctrines of religious belief superior to the law of the land, as the pope and bishops did when they became a law unto themselves in the sex abuse crisis. Now it is time for courts and politicians to take Smith seriously and end the popular practice of exempting religious believers from the laws. Without Smith, there is no hope to build a nation of law.