I don't think there is much of a litigation burden from RFRA defenses in
sexual abuse cases. The principal news about state RFRAs is that they are
seriously underutilized and seriously underenforced when utilized. Chris
Lund documents this at 55 S.D. L. Rev. 466 (2010). This is not a good thing,
but it's a fact.
I am not aware of state RFRAs being used at all in sexual abuse cases. Chris
mentions no such case, and he cites no case with a Doe or Roe plaintiff. But
as Vance says, things can go on in trial courts that law professors don't
know about. So I asked Martin Nussbaum at the Rothgerber firm in Denver
whether anyone is using state RFRAs in sexual abuse cases. Martin has
represented churches in many sexual abuse cases. Here is what he said:
"I am aware of only one church defense counsel in the past five years, who
has filed a dispositive motion based on church autonomy or other religious
freedom grounds. That motion was filed in the past year. It was not based
on a state RFRA argument. It was unsuccessful. While the First Amendment
precedents are still split on this issue, the majority of such First
Amendment arguments after 1-1-02 have lost.
I am aware of some arguments being made that seek to limit the scope of
discovery that invoke confidences mandated by church law and contend that
civil courts should respect such confidences due to First Amendment, state
confidential clergy communications statutes, and, conceivably, state RFRAs.
I cannot point though to instances where an advocate invoked state RFRA laws
to limit such discovery. It may have happened. I just don't know about
it."
The significance of 2002, of course, is that that is when the news from
Boston broke.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Vance R. Koven
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.
Vance
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