Professor Marci A. Hamilton, THE “LICENTIOUSNESS” IN RELIGIOUS ORGANIZATIONS AND WHY IT IS NOT PROTECTED UNDER RELIGIOUS LIBERTY CONSTITUTIONAL PROVISIONS, 18 Wm. & Mary Bill of Rts. J. 953 (2010)

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There is no doubt that the sexual abuse of children occurs within religious organizations and that these organizations too often operate to perpetuate cycles of abuse. There was a time when such a statement was counter-intuitive, but it is now merely a statement of fact. One difficult question to answer is how the law has failed to protect the vulnerable in religious organizations. Misguided reliance on the First Amendment is partly to blame.

There are many reasons why the law has been insufficient to protect children in religious organizations, some more obvious than others. First, children have not had the legal capacity until relatively recently to challenge their abusers. 1 Second, the statutes of limitations for child sex abuse have been constructed in a way to make it virtually impossible for the vast majority of victims to get to a prosecutor and/or civil courts before their claims have expired. 2 Third, as a society, we have tended to adopt a “romantic attitude” and trust most religious organizations, which gave them latitude to hide abuse. 3 That changed in 2002 when the Boston Globe revealed that the Boston Archdiocese of the Roman Catholic Church had covered up horrendous abuse by serial pedophiles, including Father Paul Shanley and Father John Geoghan. 4  [954]  While there had been trickles of information to the public before then, 5 it was not until the larger picture of the Catholic hierarchy’s handling of abuse that the public started to comprehend that its practices were uniform across dioceses, and even other countries, 6 and then that such practices were not peculiar to the Catholic Church. 7

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There have been two other hurdles to adequate legal protection for children at risk in religious organizations, both of which have originated from religious groups themselves. One important reason for the law’s ineffectiveness has been the intentional opacity, or secrecy, of religious organizations on these issues. 8 For a number of religious organizations, there are built-in theological or religious rules that keep child abuse in particular secret. 9 When that dynamic is combined with the fact that most perpetrators against children abuse more than one child, 10cycles of abuse become entrenched within the organization and far more children are abused than would have been had the organization not kept abuse internal. Sealing off abuse from the legal and social forces constructed to protect children disables legal efficacy in this field and creates a system within which more children are abused.

The second way in which religious organizations have impeded the capacity of the law to protect children is the perverse decision to defend their actions establishing the conditions for abuse by invoking federal and state religious liberty guarantees. 11  [956]  Typically, the sexual abuse practices are not supported by the religious beliefs of these organizations. 12 Fundamentalist polygamous groups, though, raise a slightly more interesting issue under religious liberty theory, because their sexual abuse of children and child bigamy are rooted in the religious edicts of powerful spiritual leaders. The purpose of this Article is to show that even when abuse is rooted in such religious sources, conduct involving illicit sex, including child sex abuse, was never meant to be constitutionally protected and should be categorically excluded from religious liberty protection.

It was widely understood by English and American society before and when the First Amendment and state constitutions were drafted that there can be too much liberty, which they called “licentiousness.” 13 They tended to view certain actions as beyond any religious liberty guarantee. This means that certain actions were never intended to receive protection under religiousliberty guarantees. Among the liberties that were never intended to be protected, clearly, were polygamy and sexual abuse. They were consciously excluded from free exercise protection.

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In this Article, I will first briefly examine the beliefs and practices of the fundamentalist polygamists, primarily but not exclusively the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS), which have led to a cycle of severe and entrenched child sex abuse. The point of focusing upon the fundamentalist polygamists is that their sexual abuse of children is grounded in their religious scriptures and beliefs. Therefore, if there is any religious liberty defense to furthering child sex abuse, they arguably would have the most powerful arguments.

Second, I will survey the rich history that establishes that “licentious,” or illicit, sexual behavior was never intended to be protected by free exercise protections in the history of the United States (or Canada), even if religiously motivated. It is beyond the reach of free exercise guarantees, whether in the state or federal constitutions. I will also look to First Amendment doctrine, which further supports categorical exclusions. Free speech cases already recognize this principle in the context of child pornography and exploitation, which are constitutionally unprotected activities. If the First Amendment was not designed to protect the act of creating images of children engaging in sex, it follows that neither should it protect the acts that lead to child sexual abuse itself. Third, I will extend this reasoning to contemporary cases and explain why carving out licentiousness from religious liberty’s reach can keep these cases from negatively affecting other aspects of the doctrine.

I. The Fundamentalist Polygamists and the Beliefs and Conduct that Have Contributed to Cycles of Child Sex Abuse

The United States has struggled with religiously motivated polygamy for well over a century. Though there are exceptions, in the main, religiously motivated polygamy has elevated men to positions of nearly absolute power, demeaned and disabled women, and harmed children. Despite popular cultural propaganda like the television show Big Love, those women who have escaped from such marriages, which are often initiated when they are under-age, reveal lives of desperation and great sadness. 14 If there was ever a religiously motivated practice that should be outside the bounds of constitutional protection, this is it.

A. Historical Background

There are a number of fundamentalist polygamist groups whose history traces back to the early decades of the Church of Jesus Christ of Latter-Day Saints (LDS  [958]  Church or Mormon). 15While the LDS Church practiced polygamy for some decades during the nineteenth century, its leaders issued two later manifestoes that, first, rejected the practice, 16 and, second, instituted excommunication for those who continued to engage in polygamy. 17 A small number of Mormons, though, rejected these new revelations and continued to practice polygamy in Mexico and the United States, 18 and later Canada. 19 “Every fundamentalist group has its own particular rules and mode of dress, and the members blindly follow their leader. Though some of their practices differ concerning the act of procuring wives, every group is convinced that they are a ‘peculiar people.'” 20 Thus, they have broken into separate sects, but continue to practice polygamy.

Laws against polygamy were in place well before the United States was founded, 21 and existed in every state during the nineteenth century through today. 22 They blanketed the states before Congress took up the Morrill Anti-Bigamy Act of 1862 and the Edmunds-Tucker Act of 1887, which extended the ban on polygamy to the Utah  [959]  Territory (and all territories under the jurisdiction of the United States) before the states in those areas were established. 23 Thus, the extension of anti-polygamy laws to the territories followed the law in the states. None of the anti-polygamy laws were limited to Mormons, or any other religious group, but were applicable to all who engaged in polygamy, secular or religious. 24

The Republican Platform of 1856 situated polygamy in the same moral universe as slavery:

Resolved: That the Constitution confers upon Congress sovereign powers over the Territories of the United States for their government; and that in the exercise of this power, it is both the right and the imperative duty of Congress to prohibit in the Territories those twin relics of barbarism-Polygamy, and Slavery. 25

The Republicans were committed to “humanitarian reform” in both arenas and to ending the “enslavement of women in Utah.” 26

When the United States Supreme Court was asked to rule on whether there is free exercise protection for polygamy, it reiterated the phraseology of the twin relics of “barbarism” 27 and described polygamy as a violation of historical practices and equality between women and men: [960]

In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or less extent, rests. Professor Lieber says, polygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy. . . . An exceptional colony of polygamists under an exceptional leadership may sometimes exist for a time without appearing to disturb the social condition of the people who surround it; but there cannot be a doubt that, unless restricted by some form of constitution, it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion. 28

The Court thus acknowledged that there might be instances of polygamy that do not result in oppression, but that in the main, the practice tended to generate severe harm to women and children. This acknowledgment has been borne out on the international stage with the United Nations identifying polygamy and plural marriage as violations of the human rights of women. 29That oppression, in fact, has been visited repeatedly  [961]  upon the vulnerable in the Mormon-derived polygamous societies in the United States. In order for the men to have numerous brides, they have drawn from girls and adolescents, 30 and they have discarded rebellious boys.31 While these practices have been widespread, there have been relatively few prosecutions, 32in part because so much of the abuse occurs under mandatory layers of secrecy, but also because FLDS leaders claim that the enforcement of the laws against statutory rape and child bigamy and polygamy violate their free exercise rights. 33

B. The Religious Beliefs and Conduct that Have Contributed to Child Sex Abuse in Fundamentalist Mormon Communities

The fundamentalist Mormons actually view the LDS Church as the true church, though its leaders abandoned the mandate of polygamy. 34 Thus, there are beliefs and practices within the LDS Church that cast light on FLDS practices. (They also cast light on the origins of the serious child sex abuse occurring within the LDS Church itself.) 35  [962]

1. Principles from the Mainstream Mormon Church

LDS texts establish beliefs and practices that operate to keep child sex abuse secret. First, there is a commitment to keep the image of the LDS Church pure. There is a belief that “[i]t is our great mission . . . to be a standard to all the world.” 36 This requires measures that “safeguard the purity, integrity, and good name . . . or moral influence of the Church.” 37 The Church’s image, therefore, is a driving force permeating the faith, and operates even with respect to instances of child sex abuse.

Leaders are discouraged from cooperating in cases involving abuse as detailed in the 1998 Church Handbook of Instructions:

To avoid implicating the Church in legal matters to which it is not a party, leaders should avoid testifying in civil or criminal cases reviewing the conduct of members over whom they preside. A leader should confer with the Church’s Office of Legal Services or the Area Presidency:

1. If he is subpoenaed or requested to testify in a case involving a member over whom he presides.

2. Before testifying in any cases involving abuse.

3. Before communicating with attorneys or civil authorities in connection with legal proceedings.

4. Before offering verbal or written testimony on behalf of a member in a sentencing hearing, parole board hearing, or probationary status hearing.

Church leaders should not try to persuade alleged victims or other witnesses either to testify or not to testify in criminal or civil court proceedings. 38

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Second, while there is no hierarchy in the sense of a monarchy, there is leadership, and it is made up of “prophet[s]” who “speak[] for God.” 39 These first two principles have situated the Church and its leaders as barriers between victims, perpetrators and legal authorities.

Third, believers are required to be obedient to the commands of the prophets, and if they are obedient, “[g]reat [b]lessings [f]ollow.” 40 “When a prophet speaks for God, it is as if God were speaking.” 41 Members are told to do that which the prophets tell them to do, because a “prophet will never be allowed to lead the Church astray.” 42 Therefore, believers “should follow his inspired teachings completely.” 43

Although there is a general proposition that members should obey authorities and the law, 44there are only two crimes that believers are required to report to the authorities: murder and theft. 45 Instances of adultery, in contrast, “shall be tried  [964]  before two elders.” 46 In cases of abuse, there is no requirement that the authorities be contacted on behalf of the victims. Rather, conduct is shaped in a way that keeps abuse internal. “Church leaders should be sensitive to such [abuse] victims,” 47 but the primary focus of the section on “Abuse and Cruelty” revolves around how to handle the perpetrator: he or she is required to be disciplined within the Church, but later may be “restored to full fellowship or readmitted by baptism and confirmation.” 48 If either the victim or the perpetrator needs counseling, leaders and bishops are supposed to call LDS Social Services, so that counseling will be “in harmony with gospel principles.” 49 The strongest suggestion regarding reporting abuse requires urging an abuser to turn him or herself in: if a bishop or stake president learns of a “member’s abusive activities,” they “should urge the member to report these activities to the appropriate government authorities.” 50 There is an implicit acquiescence to reporting of abuse to the authorities by the leadership if there is mandatory reporting in the state, but no directive. 51 If reporting is legally mandated, the leader is required to “encourage  [965]  the [abusing] member to secure qualified legal advice.” 52 The same advice is not given to victims.

The LDS Church thus has created an opaque system when it comes to child sex abuse. While polygamy, child brides, and sex abuse are not permitted or encouraged, the structure of the organization, its self-image as a leader of virtue in the world, and its patent intent to protect the Church from liability, have yielded a cycle of abuse not unlike that widely documented in the Roman Catholic Church. 53

2. Practices Within the FLDS

The fundamentalist groups are less devoted to securing a pure public image, no doubt because they are engaging in a great deal of illegal conduct (from polygamy to statutory rape to child abandonment), but they observe with fervor the mainstream LDS principles of deference to leaders and the disinclination to involve legal authorities in cases of abuse. 54 The fundamentalist polygamous communities that split off from the LDS Church to sustain their beliefs in divinely- mandated polygamy have followed strict patriarchal principles. Their leaders have fought each other for control and have claimed that they are God or have the most direct relationship with God. 55 This has meant that their edicts have been treated as orders from God. Power is typically secured through the mandate of communal property controlled by the leadership. 56 [966]  Warren Jeffs, who is now incarcerated for a series of charges involving statutory rape and child abuse, is the most notorious polygamous sect prophet in recent years. 57 He has directed which men would have which women and girls, and even has broken up marriages and families to rearrange them to his edicts. 58 Jeffs exercised exclusive power to choose who would live on the Yearning for Zion Ranch near Eldorado, Texas, and handpicked each of the men, women, and children from other enclaves, putting asunder pre-existing families to put together the most righteous among his flock, according to his lights. 59 Secrecy has been central to the FLDS’s practices, and has been furthered by prohibitions on filing birth or death certificates, 60 on obtaining medical care outside their enclaves, 61 and on reporting child sex abuse or statutory rape  [967]  to outside authorities. 62 The result has been entrenched and widespread child sex abuse, statutory rape, and child bigamy within a significant number of these organizations. 63

Along with the Catholic hierarchy, the LDS leaders, and other religious organizations, 64 the fundamentalist polygamists have invoked the First Amendment and state free exercise guarantees to defend against liability for under- age marriages and child sex abuse. 65Intuitively, such claims seem meritless on their face, but courts have  [968]  struggled with free exercise doctrine and apply it to institutions responsible for creating opportunities for and constructing cycles of child sex abuse. By now, most courts to address the issue have rejected such constitutional defenses using contemporary doctrines. 66 A few states, however, have reached the counter-intuitive conclusion that religious liberty guarantees apply as defenses to child sex abuse claims, most notably Missouri, Utah, and Wisconsin. 67 The next section argues that history confirms intuitions: licentious, or illicit sexual, behavior was never intended to be protected by religious liberty guarantees.

II. The History and Doctrine Support Categorical Exclusion of Licentious Behavior (Especially Involving Children) from Religious Liberty Guarantees

Contemporary discourse treats liberty as though it is impossible to have too much. Such reasoning, though is a perversion of the history behind religious liberty, which limited liberty by incorporating the concept of “licentiousness.” The epitome of  [969]  licentiousness was illicit sexual behavior. This history as well as the references to conduct involving “licentiousness” found in a number of state constitutions, Canadian law, and in United States cases, strongly argues for an exception from religious liberty guarantees for claims involving sex abuse. It was an activity not intended to be encompassed.

This historically grounded principle of excluding licentious behavior (particularly involving children) from religious liberty guarantees is also reflected in free speech doctrine, where child pornography is an unprotected category of speech because of its link to child sex abuse. 68

A. “Licentiousness” Was Understood to Be Too Much Liberty

If one looks carefully into the history of religious liberty, contemporary presumptions that incorporate no internal limitation turn out to be unfounded and ahistorical. There was a widely shared view that too much liberty is as bad as no liberty. Nineteenth and early twentieth century writings 69 and cases equated “licentiousness” with the variety of illicit sex activities- adultery,70 child sex abuse, 71 and polygamy or bigamy. 72 Dictionaries also defined “licentious” as “dissolution” or “sexual  [970]  immorality.” 73 In the 1850s, Canada also enacted a law that protected religious liberty but explicitly excluded acts of licentiousness. 74

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According to historian John Philip Reid, those in the eighteenth century “had as great a duty to oppose licentiousness as to defend liberty.” 75 Historian Bernard Bailyn explained that

[t]he very idea of liberty was bound up with the preservation of this balance of forces. For political liberty, as opposed to the theoretical liberty that existed in a state of nature, was traditionally known to be “a natural power of doing or not doing whatever we have in mind” so long as that doing was “consistent with the rules of virtue and the established laws of the society to which we belong”; it was “a power of acting agreeable to the laws which are made and enacted by the consent of the PEOPLE, and in no ways inconsistent with the natural rights of a single person, or the good of the society.” Liberty, that is, was the capacity to exercise “natural rights” within limits set not by the mere will or desire of men in power but by non- arbitrary law-law enacted by legislatures containing within them the proper balance of forces. 76

A number of state constitutions exclude “licentiousness,” or illicit sex, from religious liberty protections along the lines of the language in the California Constitution:

Free exercise and enjoyment of religion without discrimination or preference are guaranteed. This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace or safety of the State. The Legislature shall make no law respecting an establishment of religion. 77

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This exclusion from free exercise protection first appeared in the Charter of Rhode Island and Providence Plantations of 1663, which stated:

That our royall will and pleasure is, that noe person within the sayd colonye, at any tyme hereafter, shall bee any wise molested, punished, disquieted, or called in question, for any differences in opinione in matters of religion, and doe not actually disturb the civill peace of our sayd colony; but that all and everye person and persons may, from tyme to tyme, and at all tymes hereafter, freelye and fullye have and enjoye his and theire owne judgments and consciences, in matters of religious concernments, throughout the tract of land hereafter mentioned; they behaving themselves peaceablie and quietlie, and not useing this libertie to lycentiousnesse and profanenesse, nor to the civill injurye or outward disturbeance of others. 78

The exclusion of “licentiousness” was reflected in a few other early state constitutions besides Rhode Island’s Charter, 79 but it became most prevalent during the nineteenth century. 80 Most early constitutions also included a provision that made laws protecting peace and safety an exception to free exercise. 81

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Laws prohibiting illicit sex were among those laws expected to be enforced throughout society. 82As I have discussed previously, ministers and pastors themselves during the founding era preached the rule of law for religious believers from their pulpits. 83 Influential Baptist preacher John Leland removed “licentious indulgence of the carnal appetite” from the sphere of religion, placing it squarely under control of “human law”:

It is not designed to defend the religious opinions of any, but the persons and rights of all; so that Jews, Turks, Pagans and Christians, with all their subdivided opinions, may peaceably live together in the same domain-each one enjoying the free exercise of his religious opinions, and all impartially protected by the law. Should any one man, or one sect, attempt to force another to believe, act or support, what they themselves believe in, with this plea, that the others were licentious and heretical, the assailants would be the offenders, to be punished by the law; for when a  [974]  man’s religion leads him to commit overt acts, he should be punished for his actions and pitied for his delusion. 84

This exclusion of illicit sex from the universe of religious liberty protections is consistent with the leading philosopher to influence the founding and framing generations, John Locke, who distinguished licentiousness from protectable religious belief and conduct as follows:

I will not here tax the pride and ambition of some, the passion and uncharitable zeal of others. These are faults from which human affairs can perhaps scarce ever be perfectly freed; but yet such as nobody will bear the plain imputation of, without covering them with some specious colour; and so pretend to commendation, whilst they are carried away by their own irregular passions. But, however, that some may not colour their spirit of persecution and unchristian cruelty with a pretence of care of the public weal, and observation of the laws, and that others, under pretence of religion, may not seek impunity for their libertinism and licentiousness; in a word, that none may impose either upon himself or others, by the pretences of loyalty and obedience to the prince, or of tenderness and sincerity in the worship of God; I esteem it above all things necessary to distinguish exactly the business of civil government from that of religion and to settle the just bounds that lie between the one and the other. 85

This view of licentiousness as beyond free exercise guarantees was further confirmed in the United States Supreme Court’s earliest application of the Free Exercise Clause, in the Mormon polygamy cases. In Davis v. Beason, 86 the Court clearly identified polygamy as licentious: “The constitutions of several States, in providing for religious freedom, have declared expressly that such freedom shall not be construed to excuse acts of licentiousness, or to justify practices inconsistent with the peace and safety of the State.” 87 In Reynolds v. United States, 88 the Court did not use the term licentious itself, but its reasoning plainly fit polygamy and bigamy into the category of illicit sexual and family arrangements and, therefore, also the concept that they are unprotected by the First Amendment:

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From that day to this we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. 89

The descriptions of illicit sex in the context of religious organizations or by religious actors are consistent with these assumptions and world views. 90

The history of freedom of the press also included a parallel debate about the mutual parameters of liberty and licentiousness. 91 Thus, the notion that free exercise  [976]  necessarily encompasses all possible conduct is simply wrong. The intuition that child sex abuse cannot be constitutionally protected conduct is firmly grounded in history.

B. The Free Speech Cases Have Already Incorporated the Principle of Excluding a Category of Licentious Speech from Constitutional Protection

The principle that a category defined by illegal sexual behavior is unprotected by a liberty guarantee is not a new doctrinal element within First Amendment jurisprudence. First Amendment free speech doctrine supports the categorical exclusion from free exercise of licentious acts. Under the Free Speech Clause, several types of speech are not protected, or protected to a scant degree. 92 For example, obscenity is not protected, 93 and pornography receives low-level protection. 94 Defamation and incitement to illegal conduct are also beyond the reach of the Free Speech Clause. 95  [977]  Nor are fighting words protected 96 or advocacy to illegal action if violence is imminent. 97 Most important for purposes of this Article is the Supreme Court’s persistent refusal to provide free speech protection for child pornography that involves actual children. 98 Child pornography, and not just child obscenity, is categorically unprotected speech. These free speech categories of excluded speech-which involve sex and/or violence-provide further support for the proposition that free exercise guarantees appropriately exclude illicit sexual behavior, especially child sex abuse.

The Supreme Court steadfastly has refused to extend constitutional guarantees to the category of child pornography, because of the overriding governmental interest in protecting children from sex abuse and exploitation. 99 In 1982, the Court explicitly recognized that “the exploitative use of children in the production of pornography has become a serious national problem.” 100 The members of the Court have accepted “[t]he legislative judgment, as well as the judgment found in relevant literature . . . that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child,” 101 as well as the need to censor child pornography because it is used “to seduce other children into sexual activity.” 102  [978] Child pornography involving actual children, therefore, has been afforded no protection under the Free Speech Clause, starting with New York v. Ferber, which contains the first and most detailed explication of the Court’s reasoning:

Like obscenity statutes, laws directed at the dissemination of child pornography run the risk of suppressing protected expression by allowing the hand of the censor to become unduly heavy. For the following reasons, however, we are persuaded that the States are entitled to greater leeway in the regulation of pornographic depictions of children.

First. It is evident beyond the need for elaboration that a State’s interest in “safeguarding the physical and psychological well-being of a minor” is “compelling.” Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982). “A democratic society rests, for its continuance, upon the health, well-rounded growth of young people into full maturity as citizens.” Prince v. Massachusetts, 321 U.S. 158, 168 (1944).

The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance. The legislative findings accompanying passage of the New York laws reflect this concern:

“[T]here has been a proliferation of exploitation of children as subjects in sexual performance. The care of children is a sacred trust and should not be abused by those who seek to profit through a commercial network based upon the exploitation of children. The public policy of the state demands the protection of children from exploitation through sexual performances.” 1877 N.Y. Laws, ch. 910, § 1.

The legislative judgment, as well as the judgment found in the relevant literature, is that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child. That judgment, we think, easily passes muster under the First Amendment.

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Second. The distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children in at least two ways. First, the materials produced are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation. Second, the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled.

Respondent does not contend that the State is unjustified in pursuing those who distribute child pornography. Rather, he argues that it is enough for the State to prohibit the distribution of materials that are legally obscene under the Miller test. While some States may find that this approach properly accommodates its interests, it does not follow that the First Amendment prohibits a State from going further. The Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State’s particular and more compelling interest in prosecuting those who promote the sexual exploitation of children. Thus, the question under the Miller test of whether a work, taken as a whole, appeals to the prurient interest of the average person bears no connection to the issue of whether a child has been physically or psychologically harmed in the production of the work. Similarly, a sexual explicit depiction need not be “patently offensive” in order to have required the sexual exploitation of a child for its production. In addition, a work which, taken on the whole, contains serious literary, artistic, political, or scientific value may nevertheless embody the hardest core of child pornography. “It is irrelevant to the child [who has been abused] whether or not the material . . . has a literary, artistic, political or social value.” Memorandum of Assemblyman Lasher in Support of § 263.15. We therefore cannot conclude that the Miller standard is a satisfactory solution to the child pornography problem.” 103

The rationale for excluding child pornography from free speech guarantees has been the compelling and actually extraordinary interest in protecting children from harm. As JusticeO’Connor pointed out in concurrence in Ferber, the audience’s assessment of the “social value” of child pornography is “simply irrelevant to New  [980]  York’s asserted interest in protecting children from psychological, emotional, and mental harm.” 104 Thus, the state’s “special and compelling interest, and the particular vulnerability of children, afford the State the leeway to regulate pornographic material, the promotion of which is harmful to children, even though the State does not have such leeway when it seeks only to protect consenting adults from exposure to such material.” 105

The child protection rationale for divorcing pornographic speech from free speech rights applies just as powerfully, if not more so, to excluding child sex abuse perpetrated by religious organizations and clergy from free exercise rights. Victims of child sex abuse also suffer lifelong debilities, 106 and those that would permit such abuse need to be strongly deterred in order to protect future children. 107 Affording religious organizations and clergy constitutional protection for their acts involving child sex abuse is as contrary to society’s fundamental interest in the protection of children  [981]  as protecting child pornographers. Therefore, the exclusion of child sex abuse from free exercise doctrine is not novel and is both historically and doctrinally sound.

III. Religious Liberty Guarantees Today Offer No Protection for Conduct Contributing toLicentiousness, Especially Child Sex Abuse

State decisions granting free exercise rights in cases where children have been sexually abused are the Dred Scott 108 decisions in the emerging movement of civil rights for children. 109 There is no element of contemporary religious liberty doctrine that contradicts the plain intent to excludelicentiousness from religious liberty guarantees and no element that argues in favor of bringing acts related to illicit sex under the umbrella of religious liberty guarantees. As the states have worked out these issues, the vast majority have interpreted modern-day doctrine to exclude First Amendment shields in these cases, without reference to this history. 110 Those few states that persist in protecting religious actors with respect to illicit sex 111 have unwittingly reversed the original intent of such guarantees.

The states that have concluded that the First Amendment bars liability for religious organizations dealing with licentiousness have treated the claims as ones that  [982]  require courts to determine the characteristics of a reasonable member of the clergy, and, therefore, concluded that the claims mandate excessive entanglement between courts and religious doctrine. 112There is not a shred of evidence that proves that  [983]  religious liberty guarantees in the states or at the federal level were ever intended to immunize religious organizations or individuals from their actions related to illicit sexual behavior. The states going down the wrong path and other religious organizations that have led them down that path have mischaracterized the issue, which is not whether there should be a standard for the reasonableness of clergy. The question is who has acted in a way that is reasonable and decent, with no constitutional carve-out for religious actors in the arena of illicit sex.

Those religious organizations arguing for free exercise immunity in child sex abuse cases would be well served to embrace the history and doctrine that support exclusion of such cases from free exercise doctrine. They have expressed concern that such cases will erode the doctrine that forbids courts from deciding intra- organizational disputes over doctrine, ecclesiology, or governance. 113 While their concerns have not been realized in the many states that have permitted such claims to go forward, 114 any concerns they do have would be mitigated if child sex abuse cases were not part of free exercise jurisprudence. By excising child sex abuse from the constitutional doctrine, the cases cannot create a slippery slope within the existing jurisprudence. When the issue is schism or property ownership between warring factions or who should be in leadership, the child sex cases simply will not apply. 115 In any event, the protection of children from child sex abuse is so compelling that any incidental burden on religious groups from receiving no free exercise protection is an acceptable price, just as publishers must organize their speech to avoid using children for child pornography or creating child obscenity. Moreover, religious groups have demonstrated no superiority to secular organizations in protecting children and have harmed their own reputations through these failures. 116 Courts do them no favors by creating constitutional barriers to being accountable to society for the protection of children.

It should be clear by now that as a historical and doctrinal matter, the appropriate default legal rule is that conduct involving licentiousness is unprotected religious conduct. The history of the intent behind the First Amendment and state constitution free exercise provisions, their interpretation in cases involving licentious acts in religious organizations, and First Amendment doctrine relating to child sex abuse strongly support the vast majority of state courts, which have concluded that  [984]  the First Amendment is no barrier to criminal or civil liability for religious organi zations in cases involving child sex abuse. 117

The nineteenth century United States Supreme Court decisions and their reasoning upholding the laws against polygamy remain good law at the Court 132 years later, 118 making them powerful elements of the law today and deserving of stare decisis in child sex abuse cases. The Court’s conclusions regarding the polygamy laws have been followed many times in the lower courts. 119The reasoning of Reynolds and  [985]  Davis v. Beason 120 was not intended to be limited solely to polygamy. In the Supreme Court’s words, it “was never intended or supposed that the [First] amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order and morals of society.” 121 Nor has any Supreme Court decision since Reynolds and Beason ruled that the First Amendment is an appropriate vehicle for religious actors to overcome laws relating to illegal sexual conduct or involving the sexual abuse of children. In fact, the Supreme Court has never had an opportunity to address sexual abuse within religious organizations, though the reasoning of its free speech jurisprudence involving child pornography has laid groundwork that requires the rejection of claims to free exercise rights regarding the sexual abuse of children. It is nonsensical to refuse to extend free speech rights to individuals because they traffic in child pornography on the ground that pornography involves child sex abuse and then to erect free exercise rights for religious organizations and individuals who engage in and foster child sex abuse. It is imminently sensible to exclude cases involving child sex abuse from the reach of free exercise jurisprudence.

[986]

APPENDIX A

1. Arizona Constitution, art. II, § 12

The liberty of conscience secured by the provisions of this Constitution shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the State. No public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment. No religious qualifications shall be required for any public office or employment, not shall any person be incompetent as a witness or juror in consequence of his opinion on matters of religion, nor be questioned touching his religious belief in any court of justice to affect the weight of his testimony.

2. California Constitution, art. I, § 4

Free exercise and enjoyment of religion without discrimination or preference are guaranteed. This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace or safety of the State. The Legislature shall make no law respecting an establishment of religion.

3. Colorado Constitution, art. II, § 4

The free exercise and enjoyment of religious profession and worship, without discrimination, shall forever hereafter be guaranteed; and no person shall be denied any civil or political right, privilege or capacity, on account of his opinions concerning religion; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts oflicentiousness or justify practices inconsistent with the good order, peace or safety of the state. No person shall be required to attend or support any ministry or place of worship, religious sect or denomination against his consent. Nor shall any preference be given by law to any religious denomination or mode of worship.

4. Connecticut Constitution, art. I, § 3

The exercise and enjoyment of religious profession and worship, without discrimination, shall forever be free to all persons in the state; provided, that the right hereby declared and established, shall not be so construed as to excuse acts of licentiousness, or to justify practices inconsistent with the peace and safety of the state.

[987]

5. Georgia Constitution, art. I, § 1, PP I

No inhabitant of this state shall be molested in person or property or be prohibited from holding any public office or trust on account of religious opinions; but the right of freedom of religion shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state.

6. Idaho Constitution, art. I, § 4

The exercise and enjoyment of religious faith and worship shall forever be guaranteed; and no person shall be denied any civil or political right, privilege, or capacity on account of his religious opinions; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, or excuse acts of licentiousness or justify polygamous or other pernicious practices, inconsistent with morality or the peace or safety of the state; nor to permit any person, organization, or association to directly or indirectly aid or abet, counsel or advise any person to commit the crime of bigamy or polygamy, or any other crime. No person shall be required to attend or support any ministry or place of worship, religious sect or denomination, or pay tithes against his consent; nor shall any preference be given by law to any religious denomination or mode of worship. Bigamy and polygamy are forever prohibited in the state, and the legislature shall provide by law for the punishment of such crimes.

7. Illinois Constitution, art. I, § 3

The free exercise and enjoyment of religious profession and worship, without discrimination, shall forever be guaranteed, and no person shall be denied any civil or political right, privilege or capacity, on account of his religious opinions; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of the State. No person shall be required to attend or support any ministry or place of worship against his consent, nor shall any preference be given by law to any religious denomination or mode of worship.

8. Minnesota Constitution, art. I, § 16

The enumeration of rights in this constitution shall not deny or impair others retained by and inherent in the people. The right of every man to worship God according to the dictates of his own conscience shall never be infringed; nor shall any man be compelled to attend, erect or support any place of worship, or to maintain any religious or ecclesiastical ministry, against his consent; nor shall any control of or interference with the rights of conscience be permitted, or any preference be given by  [988]  law to any religious establishment or mode of worship; but the liberty of conscience hereby secured shall not be so construed as to excuse acts oflicentiousness or justify practices inconsistent with the peace or safety of the state, nor shall any money be drawn from the treasury for the benefit of any religious societies or religious or theological seminaries.

9. Mississippi Constitution, art. III, § 18

No religious test as a qualification for office shall be required; and no preference shall be given by law to any religious sect or mode of worship; but the free enjoyment of all religious sentiments and the different modes of worship shall be held sacred. The rights hereby secured shall not be construed to justify acts of licentiousness injurious to morals or dangerous to the peace and safety of the state, or to exclude the Holy Bible from use in any public school of this state.

10. Missouri Constitution, art. I, § 5

That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; that no human authority can control or interfere with the rights of conscience; that no person shall, on account of his religious persuasion or belief, be rendered ineligible to any public office or trust or profit in this state, be disqualified from testifying or serving as a juror, or be molested in his person or estate; but this section shall not be construed to excuse acts of licentiousness, nor to justify practices inconsistent with the good order, peace or safety of the state, or with the rights of others.

11. Nevada Constitution, art. I, § 4

The free exercise and enjoyment of religious profession and worship without discrimination or preference shall forever be allowed in this State, and no person shall be rendered incompetent to be a witness on account of his opinions on matters of his religious belief, but the liberty of consciene [conscience] hereby secured, shall not be so construed, as to excuse acts oflicentiousness or justify practices inconsistent with the peace, or safety of this State.

12. New York Constitution, art. I, § 3 (amended 2001)

The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all humankind; and no person shall be rendered incompetent to be a witness on account of his or her opinions on matters of religious belief; but the liberty of conscience hereby secured  [989]  shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state. (Amended by vote of the people November 6, 2001.)

13. North Dakota Constitution, art. I, § 3

The free exercise and enjoyment of religious profession and worship, without discrimination or preference shall be forever guaranteed in this state, and no person shall be rendered incompetent to be a witness or juror on account of his opinion on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts oflicentiousness, or justify practices inconsistent with the peace or safety of this state.

14. South Dakota Constitution, art. VI, § 3

The right to worship God according to the dictates of conscience shall never be infringed. No person shall be denied any civil or political right, privilege or position on account of his religious opinions; but the liberty of conscience hereby secured shall not be so construed as to excuselicentiousness, the invasion of the rights of others, or justify practices inconsistent with the peace or safety of the state.

No person shall be compelled to attend or support any ministry or place of worship against his consent nor shall any preference be given by law to any religious establishment or mode of worship. No money or property of the state shall be given or appropriated for the benefit of any sectarian or religious society or institution.

15. Washington Constitution, art. I, § 11 (amended 1993)

Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state. No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment: Provided, however, That this article shall not be so construed as to forbid the employment by the state of a chaplain for such of the state custodial, correctional, and mental institutions, or by a county’s or public hospital district’s hospital, health care facility, or hospice, as in the discretion of the legislature may seem justified. No religious qualification shall be required for any public office or employment, nor shall any person be incompetent as a witness or juror, in consequence of his opinion on matters of religion, nor be questioned in any court of justice touching his religious belief to affect the weight of his testimony.  [990]

16. Wyoming Constitution, art. I, § 18

The free exercise and enjoyment of religious profession and worship without discrimination or preference shall be forever guaranteed in this state, and no person shall be rendered incompetent to hold any office of trust or profit, or to serve as a witness or juror, because of his opinion on any matter of religious belief whatever; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state.

William & Mary Bill of Rights Journal
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William & Mary Bill of Rights Journal
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