Criminal ban on sex between clergy and those who are seeking religious or spiritual advice, aid, or comfort

[Volokh, Eugene]

	State v. Bussmann, Minn. Supreme Ct., Nov. 1, 2007,
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=MN&vol=sc\0711\OP
A051782-1101&invol=1, upholds such a ban by an equally divided court,
but concludes that as applied the ban violated the Establishment Clause:
"[T]he district court allowed the state to introduce extensive evidence
regarding the Catholic Church's doctrine on the religious power of
priests over parishioners; the Church's official policy on counseling
and pastoral care; the Church's concerns about priest sexual misconduct;
and the Church's official investigation and findings regarding
Bussmann's behavior.  Through the admission of this evidence, the court
allowed the religious doctrine of the Catholic Church to become
entangled with the criteria set out in the clergy sexual conduct statute
for determining the criminality of Bussmann's conduct.  The jury's
verdict was based on this evidence, and was unavoidably entangled with
the religious doctrine introduced into evidence by the state."

	Question:  If a state imposes a greater restriction on
clergy-advice-seeker sex than it imposes on psychotherapist-patient sex
(some judges took this view of this statute and others didn't), does
that violate the Free Exercise Clause under Lukumi and McDaniel v. Paty,
on the theory that it singles out the clergy for special burdens?

	Eugene