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Religious-worship burglary enhancement doesn’t violate constitutions

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The Indiana Court of Appeals ruled against a man who argued the enhancement of his burglary conviction to a Class B felony because he burgled a church violated the federal and state constitutions. In the first impression issue, the judges held the enhancement doesn’t violate the Establishment Clause of the First Amendment or Article 1, Section 4 of the Indiana Constitution.

Joshua Burke was charged with Class B felony burglary for his role in a break-in at an Indianapolis church. Indiana Code Section 35-43-2-1(1)(B)(ii) enhances burglary from a Class C felony to a Class B felony if the building or structure burgled is used for religious worship.

In Joshua Burke v. State of Indiana, No. 49A02-1006-CR-660, the judges analyzed whether this enhancement violates the Establishment Clause of the First Amendment over objections from the state that Burke argued in his motion to dismiss only that the statute violated the state constitution. Burke’s appeal is the first time in Indiana someone has argued that any statutory provision enhancing a crime when a structure used for religious worship is involved violates the Establishment Clause.

The Court of Appeals cited People v. Carter (Carter I), 592 N.E.2d 491, 495 (Ill. App. Ct. 1992), in which the Appeals Court of Illinois held that a provision allowing a trial court to consider as an aggravating factor the fact a crime occurred in or on the grounds of a place of worship immediately before, during, or after worship services, doesn’t violate the Establishment Clause. The 7th Circuit Court of Appeals agreed in Carter v. Peters (Carter II), 26 F.3d 697 (7th Circ. 1994), which it received after Carter’s habeas petition was denied in lower court. Both courts found the provision’s primary effect was not on people deciding whether to attend worship services, but on people who commit crimes there, wrote Judge Nancy Vaidik.

Judge Vaidik pointed out that comparable Establishment Clause challenges in other jurisdictions have reached the same conclusion.

“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,” she wrote. “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.”

The appellate court also concluded the statute doesn’t materially burden the right to be free from government preference for a particular religion or religion in general under Article 1, Section 4 of the Indiana Constitution.

“To the extent that the provision may benefit structures used for religious worship in the form of added protection, such benefit is too slight to frustrate Article 1, Section 4’s core constitutional value. That is, such benefit does not amount to an impairment of such magnitude that the right to be free from government preference for a particular religion or religion in general is unconstitutionally burdened,” she wrote.

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  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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