I posted something briefly from my droid that was short, but now raise it more completely. Is there any evidence that the defeat in ND was at least in part about Indian religious freedom. There is some serious tension between Indians and non-Indians in ND and since the whole issue of RFRA came out of Oregon's hostility to the Native American Church -- Oregon could easily have gone the other way just on the fact of Smith -- I wonder if there is some sense that this issue was present in ND as well.
Paul ************************************************* Paul Finkelman, Ph.D. President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu> www.paulfinkelman.com<http://www.paulfinkelman.com> ************************************************* ________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Vance R. Koven [vrko...@gmail.com] Sent: Thursday, June 14, 2012 1:57 PM To: Law & Religion issues for Law Academics Subject: Re: Religious exemptions and child sexual abuse I think someone needs to raise a word in defense of Marci here. The perspective of someone who actively litigates these cases has to be different from that of someone who sits in an office reading the decisions and synthesizing the rationales of the cases. The fact that religious-institution defendants raise RFRAs as a defense to causes of action or to discovery means that the plaintiffs have to go to that much more work (and legal expense) to counter the arguments. In that sense, whether the defenses "work" or not, there is an additional burden on litigants in having that extra string on the defendant's bow. That said, the fact that RFRA-based claims don't succeed very well may over time cause them to wither as a tactic, especially if plaintiffs can whack the defendants with Rule 11 sanctions for putting them to that bother. And, of course, this additional burden on plaintiffs may itself not be sufficient to outweigh the benefits that RFRAs have in terms of facilitating non-violent religious practice and conscience. I just wanted to add an observation about the fact that "everyone agrees" that child (and female) abuse is "indefensible." This is true in a sense, but the definition of these things matters. Marci's citing the LDS as one of the black-hat institutions raises a red flag that maybe an unsophisticated and tendentious notion of "abuse" is doing too much work in this discussion--there are practices that many sincere believers do not consider abusive that have become part of the culture wars. To the extent that RFRAs force courts to recognize the potential conscientious validity of these practices, and weigh the countervailing government interest, they can help prevent anti-religious (or anti-denominational) lynch mobs from having free rein. You shouldn't be permitted to just wave your hand in a culturally biased way at a broad spectrum of practices and call them all abusive because they're not the norm in New York 10025 or Cambridge 02138. Vance On Thu, Jun 14, 2012 at 12:15 PM, Arthur Spitzer <artspit...@gmail.com<mailto:artspit...@gmail.com>> wrote: I've just read Gibson v Brewer, 952 SW.2d 23 (Mo.1997). If that's the poster child for why RFRAs are bad, it's not much of a poster. In the first place, it didn't involve a RFRA at all, just the First Amendment, with which we're stuck for better or for worse. First, motions to dismiss claims of battery, negligent infliction of emotional distress, and intentional infliction of emotional distress against the priest were denied by the lower courts, and these decisions were not reviewed by the Missouri Supreme Court. the court did dismiss claims of negligent hiring or ordination of clergy, negligent failure to supervise clergy, negligent infliction of emotional distress by clergy, and independent negligence by the diocese on First Amendment grounds. Some of those rulings may have been too broad. But it allowed a claim of intentional failure to supervise clergy to go forward, rejecting the diocese's First Amendment defense. It also dismissed a respondeat superior claim against the diocese, based on ordinary principles of Missouri respondeat superior law that would apply to any employer. Missouri respondeat superior law appears to be narrower than, e.g., DC law, where the claim probably would have been allowed to proceed, but that has nothing to do with religion. Likewise, it found no First Amendment bar to a claim of intentional infliction of emotional distress by the diocese, but dismissed that claim because the allegations of the complaint did not state a claim under state law. It would be interesting to know what happened on remand to the claims against the priest and the claim against the diocese for intentional failure to supervise. Art Spitzer On Thu, Jun 14, 2012 at 11:45 AM, Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: Anecdotal evidence and surmise is all we have for most laws – it’s all we have for the proposition that, for instance, having RFRAs actually increases religious freedom; it’s not like we have social science or criminal statistics to support that. And social science and criminal statistics are especially unlikely to be available for child sexual abuse by the clergy, which is for obvious reasons hard to measure accurately, and which is numerically rare enough that random variation can easily swamp any slight effects of a RFRA or employer tort liability. To be sure, I think that social science evidence, when it’s available and when it’s properly gathered and analyzed, can be very helpful in making policy decisions. But we often find ourselves having to make such decisions even without such evidence. Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] On Behalf Of lawyer2...@aol.com<mailto:lawyer2...@aol.com> Sent: Thursday, June 14, 2012 6:21 AM To: religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu> Subject: Re: Religious exemptions and child sexual abuse Do we know of any social science or criminal statistics that supports a notion that jurisdictions with RFRA or upheld constitutional defenses to employer liability have a higher incidence of child sexual abuse (or, for that matter, that incidents of child sexual abuse are higher in religious settings than settings, such as public schools, where these legal arguments regarding employer liability are inapplicable)...or are we left with anecdotal evidence, if not surmise? --Don Clark Nationwide Special Counsel United Church of Christ In a message dated 6/13/2012 11:14:28 P.M. Central Daylight Time, vol...@law.ucla.edu<mailto:vol...@law.ucla.edu> writes: 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 = _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Arthur B. Spitzer Legal Director American Civil Liberties Union of the Nation's Capital 4301 Connecticut Avenue, N.W., Suite 434 Washington, D.C. 20008 Tel. 202-457-0800<tel:202-457-0800> www.aclu-nca.org<http://www.aclu-nca.org/><mailto:a...@aclu-nca.org> artspit...@gmail.com<mailto:artspit...@gmail.com> See Something - Say Something! If you see a violation of civil liberties, call the ACLU! Confidentiality Notice This message is being sent by a lawyer. It is intended exclusively for the individual(s) to whom it is addressed. This communication may contain information that is privileged, confidential or otherwise legally protected from disclosure. If you are not a named addressee then you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of this message. Thank you. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Vance R. Koven Boston, MA USA vrko...@world.std.com<mailto:vrko...@world.std.com>
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
