Dispatches from the Creation Wars

Here’s a fascinating case in Indiana, where the state court of appeals has upheld a state law that upgrade burglary to a more serious felony if one robs a church rather than another kind of building. A man convicted of burgling a church challenged the increased punishment on Establishment Clause grounds but the court said that there was no violation.

The court applied the Lemon test, concluding that the law “does not violate the Establishment Clause of the First Amendment because it has a secular legislative purpose, its primary effect neither advances nor inhibits religion, and it does not foster an excessive government entanglement with religion.”

Is the court right? I’m not so sure. First of all, it started with a clear presumption of constitutionality:

Statutes are presumed to be constitutional, and such presumption continues until clearly overcome by a showing to the contrary. We resolve all doubts in favor of a statute‟s constitutionality. The burden is on the party challenging a statute to demonstrate its unconstitutionality.

Bad idea from the start, for reasons I’ve explained a dozen times before. But more importantly, the “secular purposes” that the court recognized sound like sham pretexts to me.

We agree with these other courts. Section 35-43-2-1(1)(B)(ii)‟s purpose is not to give added protection to structures used for religious worship but to ensure the appropriate sentence for the offender. It reflects a legislative recognition that: (1) structures used for religious worship have a “traditional absence of security measures” and are thus easy targets of crime, Carter II, 26 F.3d at 699, (2) crimes against structures used for religious worship are “more repugnant to the community,” Carter I, 592 N.E.2d at 497, and (3) it takes more time to reform and rehabilitate those offenders who commit acts society deems more repulsive.

But is the first claim even true? The Illinois case that the court cites said that “[p]laces of worship reach out and extend an invitation to the public; doors are unlocked; security is relaxed.” But this case is about a burglary statute, not an armed robbery statute. If the church was robbed during a service, when the doors are unlocked, that would almost certainly be charged under the armed robbery statute and that would automatically be a more serious felony. That simply doesn’t apply here. And I would be willing to bet that churches are far more likely to have enhanced security — alarms, keypads, perhaps even cameras — than a private home.

As for the notion that this crime is “more repugnant to the community,” that’s a rather disturbing basis for punishment. If society decided that it was more repugnant to murder a white person than a black person, that would hardly be a constitutional defense of such a law. The key here is the disparate treatment of religious buildings vs. non-religious buildings.

And the third claim is purely speculative and based upon the second. Is there any actual evidence that someone who robs a church is more difficult to rehabilitate than one who robs a private home or a business? I highly doubt it.