Religious Institutions, the No-Harm Doctrine, and the Public Good
Marci A. Hamilton
Cardozo Law School
Cardozo Legal Studies Research Paper No. 95
This Article addresses the question whether there is or should be a church autonomy doctrine, which protects religious institutions from the force of the law. Anglo-American history, philosophy, theology, republican theory, and Supreme Court doctrine answer the question in the negative. The article traces the history of special privileges for religious entities to avoid the law since the twelfth century in Britain, and shows the decline in such privileges and a corresponding rise in the common law and the rule of law. Under republican principles, legislatures are charged with enacting laws that serve the public good, and a core principle is that individuals have a freedom of conscience, but may not act to harm others. This no-harm principle runs through the common law, the rule of law, republicanism, and important thinkers for United States history including John Locke, Thomas Jefferson, James Madison, John Witherspoon, and especially John Stuart Mill, whose ideas were furthered by H.L.A. Hart and Joel Feinberg. Thus, the arguments raised by religious entities today for autonomy from the law are anachronistic, a throwback to principles that have lost their legitimacy. Religious entities may be exempted from the laws that protect others from harm - which include at the least criminal law, tort law, and regulatory law - only when the legislature has crafted an explicit exemption and granted that exemption in light of the public good.
Number of Pages in PDF File: 108
Keywords: free exercise, first amendment, establishment clause, separation of church and state, church autonomy, ministerial exception, exemption, public welfare, tort, criminalAccepted Paper Series
Date posted: October 11, 2004 ; Last revised: September 21, 2010
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