Religious Institutions, the No-Harm Doctrine, and the Public Good
Hamilton, Marci A., Brigham Young University Law Review
[When] principles break out into overt acts against peace and good order [it is the] rightful purpose  of civil government, for its officers to interfere.
[F]or such actions as are prejudicial to the interests of others, the individual is accountable, and may be subjected either to social or to legal punishments, if society is of opinion that the one or the other is requisite for its protection.
John Stuart Mill[double dagger]
Our cases do not at their farthest reach support the proposition that a stance of conscientious opposition relieves an objector from any colliding duty fixed by a, democratic government.
Employment Division v. Smith§
The only legitimate goal of a republican form of government is the public good, and the Constitution, including the Bill of Rights, sits firmly under this horizon.1 If the public good is the end of government, all laws should contribute to the public good. The question this Article addresses is how to incorporate religious liberty into a system that is aimed at the public good. This Article situates the religion clauses in this constitutional context and answers that two principles define the parameters of religious liberty: (1) religious belief must be absolutely protected, and (2) religious conduct that harms others must be capable of being regulated. This second concept, which I call the no-harm rule, has become entrenched in Anglo-American culture after centuries of experience with religion as sovereign, separate ecclesiastical courts and legal spheres, and legal immunities. Each of those regimes has been rejected, because religious entities have not been unwavering servants of the public good.
This Article's focus on regulating harm caused by religious entities may well seem perverse in the United States, because "[t]here is a long history in this country of religion being reduced to Sunday school morality in service of the common good."2 The reality, however, is that religious entities, like all other human institutions, are capable of great harm to others,3 and the fact that their conduct is religiously motivated does not alter the fact of the harm. Like every other human institution, they are capable of being tempted to abuse their power. Fortunately, the Framers were a pragmatic and disillusioned group that instilled into the United States' republican form of government a healthy distrust of any entity that holds power. The Constitution grants limited powers to each branch of government and pits governing powers against each other to limit their overreaching.4 The mechanism that restrains private entities and fosters their social responsibility is the rule of law.5 When it comes to the public good, the rule of law needs to govern religious institutions, just as it does other private entities.
Since its inception, the United States' constitutional system has been one of ordered liberty, not license.6 Accordingly, the principles of republicanism have informed the Supreme Court's Religion Clause7 jurisprudence, with the Court in the vast majority of cases requiring obedience to legislative determinations of the public good, unless there is evidence of animus or hostility towards religion.8 "There is one condition attached to all exercises of freedom: that the use of the freedom will not breach minimal responsibilities owed to the larger society as those responsibilities are embodied in legitimate laws."9 This principle is as valid for religious entities as it is for nonreligious entities.
The corollary-that religious persecution is unconstitutional-can also be analyzed as part of the republican matrix. Religious persecution shifts the focus from the public good to a single entity. The legislature's responsibility to engage in a broad-ranging examination of the public good has been subverted by prejudice, ignorance, or both.10 Thus, the rule against religious persecution does not stand outside the republican form of government, but rather contributes to it. …