From the Arkansas Statehouse...

No guns in church, after all.

In Firearms, Religion on 25 February 2009 at 9:54 pm

After a barrage of national media attention over a House bill, the Senate Judiciary Committee decided today that it’s not such a good idea to allow concealed-carry holders to bring weapons into churches.

Other than the fanaticism that gun stories never fail to cause — even more fanatic when the gun story involves church — the bill raised a legitimate constitutional question. Does banning weapons in the sanctuary, as current law explicitly does, violate on the free exercise of religion? Is such a ban an infringement of the separation of church and state?

Personally I think not. Firearms have nothing to do with church doctrine, scripture, dogma or teaching. Gun control is a public-safety and therefore a public-policy issue.  Sen. Sue Madison made some of the same points in her arguments before the negative vote on the bill.

(I do think this bill has been a huge waste of time. As John Brummett writes, the circus could have been avoided if church language had never been put into law in the first place.)

But Rep. Beverly Pyle, the bill’s sponsor, disagreed. More importantly, she had the opinion of John DiPippa, dean of the Bowen School of Law, on her side. In an email Rep. Pyle read to the committee, DiPippa outlined how the current law banning guns in church could be challenged on constitutional and other grounds.

Rep. Pyle said after the committee meeting today that she would present the bill again later this session. Perhaps she thinks that DiPippa’s email, which I’ve reprinted after the jump, will help change some minds.

Representative Pyle,

You have asked me to elaborate on my statement reported by the Associated Press that the current Arkansas statute that bans the possession of concealed weapons in any church or place of worship is subject to challenge. I am happy to do so in this brief written statement.

The law as currently written raises significant legal questions under the Religion Clauses of the First Amendment to the United States Constitution and the Religious Land Use and Institutionalized Persons Act. (RLUIPA) (42 USC 2000cc et seq)

First, the law could be challenged by individuals as a violation of the Free Exercise Clause. To do so, challengers must show that a law that is not neutral toward religion substantially burdens a sincerely held religious belief.

The current law is neither neutral toward religion nor generally applicable. Rather, it singles out churches and places of worship. These laws must satisfy strict scrutiny, a very demanding standard. The law will survive only if the state can show a compelling purpose for the law and that it has chosen the means least restrictive on religious practice and belief.

Although public safety is a compelling governmental interest, a blanket ban on concealed weapons in churches seems to go too far. There are less restrictive ways to accomplish the government’s safety goal.

Second, religious organizations could challenge the current law as a violation of the Establishment Clause of the First Amendment. The Establishment Clause guarantees religious groups substantial autonomy in their practices, beliefs, and procedures. Like the Free Exercise clause, church practice gives way only in the face of compelling public necessity. This policy is so strong that religions are often given exemptions from the application of federal employment statutes.

The current law interferes with the teaching by some religious groups that individuals have an obligation to defend others. Religious organizations who believe this can reasonably conclude that this obligation extends even during religious services and may decide to organize themselves accordingly.

Third, the current law is subject to challenge under RLUIPA as a land use regulation that substantially burdens the religious exercise of a person or a religious assembly or institution. Such regulations must satisfy the strict scrutiny standard (i.e., compelling government purpose and least restrictive means). The law can also be challenged under RLUIPA because it does not treat religious institutions the same as other property owners.

These are issues of first impression under the religion clauses or RLUIPA. It is difficult to predict the outcome of a legal challenge. I believe, however, that these are non-frivolous positions and that courts would take them seriously.

This is not a gun question. Rather, it is a question of religious freedom. Many people, including myself and my faith community, the Roman Catholic Church, do not believe that concealed weapons belong in places of worship. But that is not the issue. Reasonable people of faith might reach different theological and moral conclusions. Religion can not be free if we protect only those people and groups with whom we agree. Rather, the test of freedom is whether we are willing to extend its protections to those with whom we disagree. I believe that the Constitution intended to keep government out of religion as much as possible. That is the soil in which vibrant religious faith and effective government action flourishes. Accordingly, I believe that each religious group should be free to decide whether or not it wants to ban the possession of concealed weapons on its property.

I should add that I also have First Amendment concerns if churches were required to post signs or notices announcing that they were banning concealed weapons from their premises. The government should not compel speech by religious groups. Religious groups should decide how they want to communicate their intentions concerning the presence of concealed weapons on their property. Neither the form nor the content should be mandated by the State.

Thank you for this opportunity to address this issue. Please let me know if you have any questions.

John M.A. DiPippa

Dean and Distinguished Professor of Law and Public Policy

University at Arkansas at Little Rock

William H. Bowen School of Law

  1. […] a guy in the Arkansas Times, or on one of its blogs, who gets the perspective right about this guns in church […]

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