First of all, he goes by Martin, not Marty.
Marci, you have not yet offered a single example of substantial briefing of a
state RFRA issue in a sexual abuse case. It does not have to be the dispositive
issue to count. It does need to be an issue that is seriously argued, and not
a boilerplate pleading.
We haven’t even seen an example of a boilerplate pleading of a state RFRA.
There surely are some; lawyers will plead pretty much anything. But investing
serious resources to develop the argument, devoting limited pages to the
argument, and taking up the court’s time with the argument, is an altogether
different decision. You have to do those things before the other side is forced
to invest resources responding. Martin says it isn’t happening, and he’s
checked with two other lawyers who do a lot of these cases, and they agree that
it isn’t happening.
Neither your cert petition below nor the Tennessee opinion you cite even
mentions a RFRA. The cert petition is from a Missouri case. Both Missouri and
Tennessee have RFRAs. The cert petition offers a nationwide set of string
cites. There is no mention of state RFRAs as part of the problem.
The church autonomy argument is no longer being offered much outside the states
that have already recognized it, because it’s chances of success are no longer
very good. It is being offered some, including in the Tennessee case, and of
course it is offered in states that recognize it. We have no dispute about
that.
State RFRA arguments are not being seriously pressed in sexual abuse cases,
probably because no one believes that such an argument would have the slightest
chance of success. Sexual abuse cases as an argument against state RFRAs is
just mudslinging.
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 Marci Hamilton
Sent: Friday, June 15, 2012 12:27 PM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Religious exemptions and child sexual abuse
To be sure church autonomy arguments outpace RFRA arguments, but less than half
the states have rfras
I don't actually get Doug's point -- a RFRA is irrelevant if it is not the
dispositive issue in most cases? It adds a layer of argument in these cases.
And from the perspective of child protection, it is bad policy.
In any event, Marty has under reported the prevalence of these issues in child
sex abuse cases. For a summary of the cases and issues, see my cert petition in
John Doe AP, which I have posted on my Cardozo web page
http://www.cardozo.yu.edu/uploadedFiles/Cardozo/Profiles/hamilton02-447/MOJohnDoeAPcertpetn.pdf
For the most recent case, see the Tennessee Supreme Court decision, Redwing v.
Catholic Bishop for the Diocese of Memphis
-
On Jun 15, 2012, at 11:31 AM, "Douglas Laycock" <dlayc...@virginia.edu> wrote:
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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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 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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