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. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.