Ind. law on church burglary ruled constitutional

Monday, February 28, 2011

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An Indiana burglary law that increases punishments for those who break into religious buildings does not violate the establishment clause of the First Amendment, an Indiana appeals court has ruled.

In October 2009, Joshua Burke and two other individuals burglarized and vandalized the True Gospel Assembly Church in Indianapolis. They spray-painted walls in the church, destroyed musical instruments and carried away an amplifier.

Burke faced charges under the state burglary law, which provides in part:

“A person who breaks and enters the building or structure of another person, with intent to commit a felony in it, commits burglary, a Class C felony.  However, the offense is:
(1) A Class B felony if …
(B) the building or structure is …
(ii) … used for religious purposes.”

That is, when defendants burglarize churches or other religious buildings, they face more serious charges and more prison time.

Burke argued that the Indiana law violated the Article I, Section 4 of the Indiana Constitution, which provides in part: “No preference shall be given, by law, to any creed, religious society, or mode of worship.” He later contended that the law also violated the establishment clause.

A trial court rejected his constitutional arguments and sentenced him to eight years in prison with two years suspended. He appealed to the Indiana Court of Appeals, which also rejected his constitutional challenge in its Feb. 21 opinion in Burke v. State.

The appeals court applied the Supreme Court’s Lemon test taken from the Court’s 1971 decision Lemon v. Kurtzman. Under the Lemon test, a law must have a valid secular purpose, have a primary effect that does not advance or inhibit religion and must not excessively entangle government with religion.

The appeals court noted that the law serves the secular purpose of providing protection to structures that typically lack security. The law also says burglarizing religious structures is more repugnant to the community than other burglaries, and that such a crime requires more rehabilitation; although these provisions may seem to suggest a religious purpose, the Indiana appellate court – relying on similar decisions from Illinois and the federal courts – saw a secular purpose focused on the “appropriate sentence for the offender.”

Next, the court found that the primary effect of the law is “on the offender” and any benefits to religion are only “incidental.” The Indiana appeals court also found no excessive entanglement between church and state in this law.

The appeals court also rejected Burke’s state constitutional law challenge, writing that Article I, Section 4 of the Indiana Constitution “does not demonstrate a preference for a particular religion or religion in general.”

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