17 Fla. St. U. L. Rev. 325 (1989-1990)
The Prosecution of Religious Fraud

handle is hein.journals/flsulr17 and id is 335 raw text is: THE PROSECUTION OF RELIGIOUS FRAUD
STEPHEN SENN*
The first amendment to the United States Constitution protects the
religious freedom of individuals through its establishment and free
exercise clauses. Should the government's hands-off policy under
the free exercise clause provide a protective blanket for fraudulent
moneymaking schemes carried out in the name of religion? The
author of this Article argues that protection of religious freedom
can comfortably coexist with protection from religious fraud where
courts employ a sincerity test.' He concludes that with
appropriate procedural safeguards, courts can use this test to
distinguish sincere religious exercise from criminally fraudulent
enterprise.
T HE QUESTION of how to calibrate the balance of power be-
tween the state and the individual is most bluntly presented when
the state imposes criminal sanctions against an individual for doing
that which the individual claims to have a right to do.'
The resulting conflict presents the issue of whether the state is act-
ing legitimately, or from a different perspective, whether the indivi-
dual's activity is constitutionally protected. In the area of religious
liberty, the free exercise clause of the first amendment2 expressly
provides that in conflicts with the government, the individual is to
have the upper hand.
This Article focuses on the criminal prosecution of religious fraud,
arguing that those who commit the types of fraud discussed below
merit no constitutional protection3 and should be prosecuted under a
neutral application of the criminal fraud laws.4 The risk of punishing
individuals who should be protected necessitates heightened proce-
*  Law Clerk to the Hon. William J. Castagna, United States District Judge for the Mid-
dle District of Florida; B.S., 1986, Florida State University; J.D., 1989, Florida State University.
1. See, e.g., Braunfeld v. Brown, 366 U.S. 599, 605 (1961) (In [criminal] cases, to make
accommodation between the religious action and an exercise of state authority is a particularly
delicate task, because resolution in favor of the State results in the choice to the individual of
either abandoning his religious principle or facing criminal prosecution.) (citation omitted).
2. U.S. CoNsT. amend. I (Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof . . ).
3. See infra notes 54-56 and accompanying text.
4. See infra notes 11-30 and accompanying text.

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