Martin Nussbaum’s response on the alleged prevalence of state RFRA arguments
and church autonomy arguments:
My previous comments were not about the bankruptcies where federal law, the
U.S. Bankruptcy Code, is operative, and RFRA arguments are made and sometimes
prevail.
Second, it is one thing to plead an affirmative defense. It is quite another
to file a dispositive motion. Professor Hamilton writes, "Just this week I
have seen autonomy argued in Illinois, Hawaii, and California cases." If she
"saw" the arguments, there must be briefs. Might she share those three briefs
with the group?
The information I have suggests that counsel, at least in Hawaii and
California, are not filing dispositive motions arguing that the church autonomy
doctrine bars ecclesiastical negligent supervision claims. Last evening, the
leading ecclesiastical defense counsel in California (who has himself handled
over 500 cases and who is daily communications with others from that defense
bar) told me that he is unaware of defense counsel in California filing
dispositive motions contending that tort liability is precluded by the church
autonomy doctrine. I suspect that the practical unavailability of a church
autonomy argument against negligent ecclesiastical supervision claims in
California has something to do with Church defendants paying out around $1.5
billion in settlements in that state. The leading ecclesiastical defense
counsel in Hawaii also informed me that he is unaware of church autonomy
arguments being briefed in Hawaii to bar ecclesiastical negligent supervision
claims. I have not recently conferred with church counsel in Illinois.
Finally, Professor Hamilton only claims that state RFRAs are plead, not argued,
in those states with such laws. This is consistent with what I've seen.
Martin Nussbaum
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From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Thursday, June 14, 2012 6:44 PM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Religious exemptions and child sexual abuse
There is a significant federal RFRA litigation burden in the diocesan
bankruptcies. Marty and I have been on opposite sides litigating it. I
currently represent the victims in the Milwaukee Archdiocesan bankruptcy on the
RFRA and First Amendment issues.
I have seen state rfras pled in many cases. These cases typically settle so
decisions are rare. The trend is definitely against their theories but they
are part of the fabric of these cases nonetheless.
Autonomy theories are persistent in these cases. Marty may not have seen the
briefing but I see such issues from around the country on a daily basis. Just
this week I have seen autonomy argued in Illinois, Hawaii, and California cases.
Marci
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