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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. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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