Earlier in the week, the Court of Appeals published its opinion in the case of Burke v. State. The case involved a challenge to IC 35-43-2-1(1)(B)(ii). It’s a sentence enhancement for breaking and entering when the structure is a structure used for religious worship.
The convict challenged this enhancement as violating the Establishment Clause of the First Amendment to the U.S. Constitution and Art. 1, Sec. 4 of the Indiana Constitution. The gist of the argument is “why is the State giving a preference to churches? The crime should get the same penalty as breaking into any other place.” The Court of Appeals reasoned, speciously in the opinion of Ed Brayton, that the purpose is not to give added protection to structures used for religious worship. Rather the purpose of the statute, according to the Court of Appeals, is 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; (2) crimes against structures used for religious worship are “more repugnant to the community;” and (3) it takes more time to reform and rehabilitate those offenders who commit acts society deems more repulsive.
Personally, I think a better statute would be one that enhances the penalty for burglary of a property of any non-profit 501(c)(3) institution. That would capture the intent divined by the Court of Appeals in a more neutral fashion – reflecting the notion that a person willing to commit a crime against a do-gooder organization deserves greater punishment. (I imagine some legislators would get their hackles up over a sentence enhancement that increased the punishment for someone burgling Planned Parenthood.) But, of course, this statute was designed to reflect a greater concern by the General Assembly for religious institutions than for the average non-residential property. Is it a religious purpose? Sure it is. Does it go too far? I don’t know. For me, it seems like a “no skin off my nose” kind of statute. But, if we take the language of the case law at face value, there’s probably no terribly compelling, non-religious state purpose that justifies singling out religious institutions for special treatment.
So, I think you get the Court of Appeals doing contortions in a case like that. There isn’t a big appetite to stir up the shitstorm that would inevitably come if they reduced this guy’s sentence by striking down the law. But, to get a non-religious purpose, the Court of Appeals has to offer rationales that can be pretty well deconstructed by guys like Brayton.
I’ve always wondered about laws/ordinances that probit bars, etc. within so many feet of a church building being unconstitutional in a similar vein. It would seem that establishing minimum distances from schools or other places where childen were present would likely pass a “rational basis” test, but the prohibition concerning houses of worship would seem to be a much different animal. Why not also any situation where people would assemble for something approaching a quiet and orderly meeting, and coming to and fro without whatever “influence” that an establishment dispensing alcohol would have. And the fact that a church congregation (as opposed to a school situation) would includ children along with their parents wouldn’t seem a proper basis under the First Amendment. But given the decision you cite, if it stands, I suspect the ordinances I have in mind would be rubber-stamped.
If gov’t would end it’s decades long tax-and-spend spree, Americans would have more expendable income. Much of that would find its way to religious institutions and other non-profits.
Indirectly the gov’t is robbing churches.