Equality and the Rule of Law vs. Religious Institutions (Book Notes: God vs. the Gavel)

Throughout much of Western history, Christian churches occupied a privileged place in society. Religious institutions were sovereign, which meant that for the most part they simply weren't subject to the civil laws that applied to everyone else - and this includes the clergy. A priest who raped a child might only be sentenced a a year in a monastery while anyone else would be put to death.

In God vs. the Gavel: Religion and the Rule of Law, Marci A. Hamilton explains how Western law changed to bring churches and other religious institutions under the umbrella of neutral, generally applicable laws:

Since the 12th century, when Henry II took the first steps toward a common law by resisting a separate sphere of justice for clergy, the justifications for special treatment of religious entities have become increasingly hollow. Although it took centuries for Henry II's intended reforms to be fully effected, the logic of Henry's attempts to place clergy under the same justice system as an others was ineluctable: the victim of rape or murder by a clergy member is just as injured as the victim of an ordinary citizen. The injury demands proportional punishment, which is determined according to the harm, not the identity of the actor. ...

Before the common law and its equalizing principles were entrenched and before the creation of the United States, churches did have autonomy from the law. The rights of religious institutions and their clergy were above those of ordinary citizens. From the 3rd to the 16th centuries in Britain, church autonomy was in fact the order of the day. The Roman Catholic Church was permitted to harbor fugitives from the law under the practice of "sanctuary."

The idea that a crime should be punished based upon the harm done to the victim rather than the identity of the actor will seem obvious to people today, but clearly it wasn't always obvious in the past. In fact, the belief that certain classes of people should be privileged and not subject to the same legal requirements as the rest of the population has been very slow to die. Even people who express support for the principle of equality of all before the law will be quick to support the privileging of some group if it turns out that they are members or might somehow benefit personally.

The church was co-sovereign with the state, and it instituted ecclesiastical courts that provided separate (and far more lenient) justice for the criminal acts of clergy, which came to be called the benefit of clergy. In more recent times, a judicial doctrine was crafted that shielded religious institutions from civil lawsuits demanding monetary damages for harm done by the institution or its employees. Each of these tacks provided meaningful autonomy for religious institutions, each permitted such institutions to be unaccountable to the public good, and each has been repealed or overruled or, in the case of charitable immunity, significantly weakened in Britain and the United States.

They key concept here may be "public good." Churches and other public institutions shouldn't be allowed to harm the "public good" or cause harm to citizens simply because they are religious. In other words, they shouldn't be allowed to get away with harmful, dangerous behavior that secular institutions would be prohibited from doing. If no harm is being caused and no one is being hurt, then permitting a religious institution to do something that is otherwise prohibited shouldn't be a problem.

Then again, if there really is no harm and there really is no one being hurt, then why is it prohibited in the first place?

 

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