Actually, my criticism of Marci was not because she was a woman
(surprise!), but because it seemed to me that for whatever reason her argument
was framed in a way that was as unsubstantive and as lacking in concreteness as
possible. As I noted in the e-mail to which Marci responded, there is a
plausible but contestable explanation for how enacting a RFRA might indeed
indirectly increase the rate of child sexual abuse. But that’s an argument
that, it seems to me, is most helpfully offered by explaining its specifics,
and in the process noting its limitations.
Instead, Marci’s first post on the subject framed the matter as
“Most Americans when they understand that a RFRA opens the door to
discrimination or child sex abuse or medical neglect quickly cool on the
extremism of a RFRA.” “[A] RFRA opens the door to ... child sex abuse”?
That’s rhetoric, or hyperbole, or perhaps just careless wording. “Opens the
door” suggests that something that before wasn’t happening now would be
happening, or at least (as in the “discrimination” and “medical neglect” items)
something that before wasn’t legal now would be legal. Of course, child sex
abuse is a very serious crime with or without a RFRA; at most, what RFRA might
do is diminish the incentives that one set of institutions has to maximally
combat child sex abuse.
In another post, Marci writes, “RFRA, as we all know, does not mirror the First
Amendment, and the North Dakota RFRA would have triggered strict scrutiny even
without a showing that the burden was ‘substantial’ -- so we can be certain
that it could be more problematic in child sex abuse and medical neglect
cases.” Can we really be so “certain,” given the rather modest difference in
wording, the fact that court decisions providing protection to churches are
generally entanglement cases, not RFRA cases, and the fact that most courts
don’t accept either entanglement or free exercise/RFRA challenges? (Or is the
sentence saved by the fact that it only says “we can be certain that it could
be more problematic,” in which case the claim is made accurate by being made
basically empty?)
Most recently, Marci’s latest response offers one case citation: Gibson v
Brewer. But it might be worth noting that Gibson accepts a First Amendment
defense to employer negligence claims on entanglement and endorsement grounds,
with a dollop of Kedroff. It didn’t rely on the Sherbert/Yoder/RFRA strict
scrutiny model. Again, instead of concrete analysis, what I’m seeing is
one-liners and broad assertions.
I would not normally publicly criticize another list member’s work this way,
but Marci’s implicit accusation of sexism requires me to explain just why her
argument struck me as more “rhetoric” than substance, and would have regardless
of her sex.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Thursday, June 14, 2012 4:28 AM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Religious exemptions and child sexual abuse
I'm not sure why stating the facts in these cases is "rhetoric" I sincerely
hope it is not because a woman is pointing out the facts rather than a man.
This last statement also is not rhetoric but an honest observation.
Eugene's analysis is correct to a point. Even though slightly more than half
of the states have rejected religious liberty as an absolute defense, the
churches still raise religious liberty defenses in a myriad of situations in
these cases i those states Examples: They balk at discovery on a routine
basis and use the defense to try to get around SOLs. Shifting from the
constitutional standard to the RFRA formulation increases delay and cost in
these cases. That means it increases the suffering of the victims now and
creates more dangers in the future. These are the facts
The same is true for medical neglect.
Having said that -- the North Dakota RFRA also was more extreme than most
because it did not require a substantial burden. Just a burden.
RFRA is a misguided approach. If legislators are foolish enough to adopt this
formulation which disables laws they worked hard to pass, at the least they
should exempt all cases involving child abuse and neglect. Existing rfras
should be amended accordingly and religious lobbyists should include the child
safety exemption in every bill they push.
Still, the gay rights lobbies and women 's rights lobbies passionately oppose
the RFRA formulation. The tide has turned because they came to understand
that the rfras are one means of oppressing them. Again just a fact -- not
rhetoric.
Marci
On Jun 14, 2012, at 12:13 AM, "Volokh, Eugene"
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
Folks: I think that, if we soften the rhetoric and get more
concrete, we could arrive at the following:
1. There’s been a debate about whether religious freedom
protections insulate churches from lawsuits for negligent hiring, negligent
supervision, and negligent retention in child sex abuse cases (I’ll call this
“employer negligence” for short, though some courts have treated the different
theories differently).
2. Many church lawyers, faced with a lawsuit trying to hold a
church liable for crimes by some of its clergy, have indeed asserted such
defenses.
3. In some cases, those defenses have been successful, not
because religious freedom is seen a defense to a sex abuse charge as such, but
because it’s seen as a defense to an employer negligence claim.
4. These defenses have generally been based on constitutional
non-entanglement arguments, on the theory that secular courts shouldn’t be in
the business of deciding whether a decision to hire or not hire a minister is
“reasonable,” but they might in principle also be strengthened by a
Sherbert/Yoder regime, such as that created by RFRAs or similar constitutional
amendments. This having been said, lots of courts in states with such
Sherbert/Yoder regimes have indeed accepted liability for employer negligence
notwithstanding those regimes, so it seems quite likely that implementing a
RFRA would not thwart such negligence – but only quite likely, not certain.
5. Liability for employer negligence may help encourage
churches to more closely police their clergy, based on standard
tort-law-as-deterrence theory.
6. Conversely, disallowing such liability may, by comparison,
diminish the incentive for churches to closely police their clergy, and may
thus yield somewhat more sex abuse by clergy.
7. Therefore, depending on the magnitude of the effects
described in item 4 (RFRA strengthening the no-employer-negligence-liability
position) and item 6 (absence of liability diminishing the incentive to police
clergy, and absence of policing increasing abuse), enacting a RFRA might in
some measure yield somewhat more sex abuse by clergy.
This of course doesn’t meaning that enacting a RFRA (even one
without an exception for employer negligence) is necessarily bad. I favor
state RFRA statutes, though I also favor Smith as a constitutional model. But
it does suggest one possible cost of a RFRA.
Eugene
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