But as I understand it, some states – though a minority – do
indeed protect churches from negligent supervision/retention/hiring liability;
and since generally speaking respondeat superior is usually unavailable in such
cases, the effect is indeed an immunity of churches from liability for this
particular sort of abuse. (I agree that this is hard to lay at the door of
RFRAs, since the immunity has generally been recognized under the
non-entanglement doctrine.)
In any case, it seems to me that these concrete discussions of
what the law does and does not authorize, and which law does so, are more
helpful than snippy one-liners from either side.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of lawyer2...@aol.com
Sent: Friday, June 15, 2012 10:57 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Religious exemptions in ND
Agreed.
But in order for there to be a "cost of immunity from tort law" there first has
to be "immunity from tort law" and, particular to this discussion, immunity
from tort law in child sex abuse cases.
This discussion started with the assertion that RFRA's "open the door" to child
sex abuse, "lessen deterrence" of it, and that RFRA arguments to this end were
being made by "churches" and "their lawyers" "all the time"
When that was questioned, the limitless assertions devolved to RFRA's "adding a
layer of argument" during the course of litigation
--Don Clark
Nationwide Special Counsel
United Church of Christ
In a message dated 6/15/2012 12:40:08 P.M. Central Daylight Time,
vol...@law.ucla.edu<mailto:vol...@law.ucla.edu> writes:
No, actually I think the quote was an unnecessarily pugnacious
attempt to capture an important point. Some religious groups have apparently
failed to reasonably investigate and monitor people whom they put in positions
of influence over children, and some of those people have used that influence
to molest children. It's at least plausible that holding religious groups
liable for negligent hiring, retention, and supervision would provide an extra
incentive for such monitoring and investigation in the future. Conversely,
it's at least plausible that immunizing those groups from such employer
liability would make it easy for them to endanger children -- not through
deliberate attempts to harm children, of course, but through failure to protect
the children.
As I've mentioned, I'm skeptical that RFRAs will provide such
immunity. But some states have indeed interpreted the First Amendment as
providing such immunity – and even if that is nonetheless the correct result,
for non-entanglement reasons or other reasons – it does seem to facilitate
religious groups’ failure to take proper care to protect children. As I said,
I think both sides of the discussion have at times put things more pugnaciously
than is helpful. But the basic point of the cost of immunity from tort law is
one that should be taken seriously.
Eugene
> -----Original Message-----
> From:
> religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
> [mailto:religionlaw-
> boun...@lists.ucla.edu<mailto:boun...@lists.ucla.edu>] On Behalf Of
> lawyer2...@aol.com<mailto:lawyer2...@aol.com>
> Sent: Friday, June 15, 2012 3:42 AM
> To: Law & Religion issues for Law Academics
> Subject: Re: Religious exemptions in ND
>
> "Giving religious groups more power to endanger children...."
>
> Wow....
>
> To be charitable, I will chalk that one up to the lateness of the hour in
> which it
> was written.....
>
> -Don Clark
> Nationwide Special Counsel
> United Church of Christ
> Sent from my Verizon Wireless BlackBerry
>
> -----Original Message-----
> From: Marci Hamilton <hamilto...@aol.com<mailto:hamilto...@aol.com>>
> Sender:
> religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
> Date: Fri, 15 Jun 2012 03:08:48
> To: Law & Religion issues for Law
> Academics<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
> Reply-To: Law & Religion issues for Law Academics
> <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
> Cc: Law & Religion issues for Law
> Academics<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
> Subject: Re: Religious exemptions in ND
>
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