Legal Analysis and Commentary from Justia

The Plague of Proposed Legislation by Religious Entities in the States: An Explosion in Foolhardy State Religious Liberty Proposals and a Sneaky Addition to the Pennsylvania Task Force’s Legislative Proposals

In a development reminiscent of the movie Groundhog Day, the insidious movement to permit religious believers to avoid the laws that govern everyone else has reached a new and truly disturbing level.  Indeed, I fear that my poor readers will feel as if they have entered the Groundhog Day reel themselves as well, as I describe this new iteration of state religious freedom restoration acts (RFRAs, for short).  I have, after all, discussed them here, here, here, and here.

But now there is a new twist that merits everyone’s attention.

After I discuss this new iteration of RFRAs, I will then turn to another of my areas of legal expertise:  child protection and ways to increase it.  There, I will discuss the sneaky addition that has been smuggled into the Pennsylvania Task Force’s Legislative Proposals to improve child protection in Pennsylvania.  Incredibly, one of these proposals actually reduces child protection dramatically.  And since it’s a package, a reader who was not paying close attention, might miss that one noxious proposal.

A Short History of State RFRAs

The first, federal RFRA, the Religious Freedom Restoration Act of 1993, was passed by Congress to trump the Supreme Court’s decision in Employment Div. v. Smith.  It was a well-intentioned but deeply misguided law that imposed strict scrutiny on every law in the country if the person or entity challenging the law was religious.  Thankfully and properly, that RFRA was held unconstitutional by the U.S. Supreme Court in Boerne v. Flores.

Here is what a standard RFRA provides: the religious believer bears the burden of proving that a law places a “substantial burden” on his or her religious conduct.  If the believer fails to provide that proof, then the law stands. If the believer succeeds, then the burden shifts to the government, which must prove that the law that is being challenged serves a “compelling interest” and is the “least restrictive means” available to serve that interest.

What was the objection to the Supreme Court’s decision in Smith?  The answer is that religious groups and a few law professors were upset that the Supreme Court had held that the First Amendment’s Free Exercise Clause does not protect a religious believer from the effect of neutral, generally applicable laws.  In particular, the Court held in Smith that the First Amendment did not create a defense for a Native American Church member who used peyote, an illegal drug, during a religious service.   The decision should have been seen as utterly unremarkable, as, at the time Smith was handed down, the Court had held repeatedly in the past that religious believers do not have the right to trump the neutral, generally applicable laws that govern everyone else:  According to long-established Supreme Court precedent, a Mormon man in the Nineteenth Century did not have a right to practice polygamy, and an Amish employer in the Twentieth did not have the right to avoid Social Security taxes.  Thus, religious lobbyists and law professors like Douglas Laycock, seeing no remedy from the High Court, ran to Congress to demand new rights that the religious never had received before.   The result was the federal RFRA.

When the Court held the federal RFRA unconstitutional, the Rutherford Institute fanned out over the 50 states to push state-level mini-RFRAs.  That movement slowed down dramatically as child-protection groups, the National League of Cities, the attorneys general, mayors, and governors, and eventually civil rights groups like the ACLU, all argued against the mini-RFRAs.  It took a while, but legislators started to fully understand that, with the mini-RFRAs, they were being asked to pass laws that undermined their own prior efforts.  Why would legislators who had worked hard to get laws passed later agree to blunt the effect of every single law on the books, simply because a religious believer was the one who was violating that law?   The list of laws at stake here is long, ranging from child custody, to divorce, to laws forbidding the medical neglect of children, to other regulations for the protection of children, to fair housing laws, and potentially, to every other law in the state.

Then the mini-RFRA movement was stalled until recently.   The courts have wisely read the word “substantial” in “substantial burden” to have some teeth, because the phrase was borrowed from the Supreme Court’s jurisprudence.  In those cases, a de minimis or “incidental” burden is not deemed sufficient to trigger free exercise protection.  So while, in theory, religious believers had the threat of filing a lawsuit to challenge virtually every law they disliked, in a state where a state RFRA existed, the barrier of having to prove that there was a “substantial burden” was not easy to surmount.

A New Tactic From Religious Institutions:  Taking the “Substantial” Out of RFRAs’ “Substantial Burden” Requirement

So what does a religious believer who is intent on breaking the law do now?  Simple: propose a RFRA that deletes the word “substantial.” That means that a believer who is suffering a de minimis burden on his, her, or its religious practice can file a lawsuit and demand that the law cannot apply to them.  This new, aggressive iteration of mini-RFRAs is extraordinary in its overreaching, and constitutes further evidence that we have now –in the United States, and around the world—an era in which religious forces are challenging the very concept of the rule of law.

This formulation omitting the substantial burden requirement popped up in states with no RFRA, such as South Dakota and Colorado, but was defeated there, once groups that fear religious actors became involved.  Yet this new RFRA version actually passed in Kentucky recently, even after the Governor vetoed it.

In a bizarre twist, this new RFRA formulation is also popping up in states that already apply strict scrutiny in free exercise cases.  The Wisconsin courts have applied strict scrutiny under the state free exercise guarantees, which normally would mean that also passing a state RFRA would be redundant.  But apparently a RFRA that lacks the word “substantial” is now in the Wisconsin legislative system.”  And in Texas, where there is already a TRFRA in place, this RFRA variant omitting the word “substantial has been introduced several sessions in a row.

Why RFRA Laws That Do Not Require a Substantial Burden, but Only a Burden, Will Ultimately Fail

RFRA laws that omit a substantial burden requirement are sheer constitutional folly, and a colossal waste of time and resources to boot.  That’s  because a religious “liberty” (translation: licentiousness) statute that is triggered by a mere de minimis burden, is surely a violation of the Establishment Clause. Such a law, if passed, grants religious believers a right to be lawbreakers across the board, except in those relatively rare cases where the law serves a compelling interest, and is the least restrictive means for that believer.   Kentucky just guaranteed itself a slew of lawsuits, and its RFRA will likely be blocked by threshold litigation on the unconstitutionality of the bare “burden” requirement, with the word “substantial” having been dropped.

One possible way in which the courts could try to save the law would be for them to read in the word “substantial” in order to render the law constitutional, but I think that kind of judicial gloss is unlikely at this point in time.  In comparison, Connecticut had excluded the word “substantial” in an early RFRA, but the courts read that word in, on the assumption it was an oversight.  These new RFRAs, however, make no oversights when they omit the word “substantial.” To the contrary, these new RFRAs are the very intentional results of the kind of aggressive lobbying for which religious lobbyists are becoming increasingly known.

Why is such a wrongheaded law making the rounds now?  I would venture two theories.  First, legislators have miscalculated what their voters’ true views are, and thus they continue to believe that pandering to religious entities is in their re-election interest.  They are not, however, paying attention to the polls that indicate Americans’ increasing dissatisfaction with organized religion.

Second, various religious leaders are losing the public battles over (1) statutes of limitations for child sex-abuse victims (check out www.sol-reform.com), (2) gay marriage, and (3) contraception, especially when it comes to employers paying for health care.  These leaders aren’t winning in the big picture, nationwide, so they are trying to win state-by-state on these issues.  To put it another way, they aren’t winning on policy, so they are going for the more abstract religious-liberty statutes that on their face don’t reveal their actual, and increasingly unpopular, agendas.

The Sad Surprise That Was Dropped into the Pennsylvania Task Force’s Legislative Package to Protect Pennsylvania’s Children

After considering recent state RFRA developments, I now will turn to another of my strongest academic and policy interests, which also involves religious interests and the law.  There is no state in the nation with more problems with child endangerment than Pennsylvania.  The facts of the entrenched, serial sex abuse in the Philadelphia Archdiocese and at Penn State have now been plastered on front pages across the country.  The Penn State situation prompted the Governor and the Pennsylvania state legislature to create a Task Force to study how to improve the laws for child-protection in the state.  Unfortunately, religious groups affected the product in two ways:

In an obvious nod to the Catholic Conference, Governor Corbett did not include child-sex-abuse statute-of-limitations reform in his list of areas for the Task Force to consider.  Numerous groups, such as the Foundation to Abolish Child Sex Abuse and justice4pakids, pleaded with the Governor and the legislature to ensure that such reform would be part of the Task Force’s charge, but to no avail.

Recently, the head of the Task Force, Bucks County District Attorney David Heckler, announced the package of reforms that the Task Force was recommending.  When asked where the statute-of-limitations reforms were, Heckler had the gall to state that he did not believe that anyone thought that was a problem.  He could not remember a single person addressing the issue during their hearings before the Task Force.  This was hilarious for those few who still retain a sense of humor in this field, given that the topic was not even on their list of approved topics!

But even more insidiously, the new proposals bear the imprint of lobbying by faith-healing religions, which apparently succeeded in getting the Task Force to include in the provisions a new exemption from the criminal law for the medical neglect of children. Rita Swan, the courageous and determined founder of CHILD, Inc. (Children’s Healthcare Is a Legal Duty), explains the problem with SB28 as follows, and better than I could:

Many Pennsylvania children have died and suffered other harms because of religious beliefs against medical care.  The religious exemption ought to be repealed and certainly should not be put in the criminal code.  Only a small fraction of these harms are prosecuted; even more deaths would probably be ignored by law enforcement if Pennsylvania had a religious defense in the criminal code.

This law saying that religiously-motivated medical neglect is not abuse may well discourage the public from even reporting such cases to state child protective services (CPS).  And then if they are reported, the county social workers are supposed to “closely monitor the child” and get medical intervention only when the child’s life or long-term health are threatened.

Social workers cannot monitor a child nearly as closely as parents can and should do.  Furthermore, social workers do not have medical training.  In one especially poignant and tragic case, Philadelphia social workers visited a child whose father was withholding medical care on religious grounds.  The father said the boy had “a sore foot” and the social workers just accepted his statement.  The day after a second CPS visit, the 9-year-old boy died of untreated leukemia.  The “sore foot” was likely caused by inflammation of the bone because of the cancer in the bone marrow.

Why in the world would a Task Force intended to protect children introduce more potential dangers to them?  The answer, sadly, is that the Task Force was obviously politicized, and must have listened to those whose first concerns are not children, but rather religious “liberty.” First, the process was obviously hijacked by the bishops, who are obsessed with ensuring that child-sex-abuse victims don’t get to court.  Second, it was infected by faith-healing believers who want to avoid the force of the laws that prohibit medical neglect, which are the only deterrent that will force them to protect their children from treatable ailments.

Some have had the nerve to call this wave in demands for religious liberty as a new “Great Awakening.”  For children, it is all too often a deep darkening.

Marci A. HamiltonMarci A. Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, and the author of God vs. the Gavel: The Perils of Extreme Religious Liberty and Justice Denied: What America Must Do to Protect Its Children. She also runs two active websites covering her areas of expertise, the Religious Freedom Restoration Acts, www.RFRAperils.com, and statutes of limitations for child sex abuse, www.sol-reform.com. Professor Hamilton blogs at Hamilton and Griffin on Rights. Her email address is hamilton02@aol.com.
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  • Watchman of the Valley

    Ms. Hamilton would do well to also review the history of what happens to religious minorities when the majority population uses laws to manipulate the minority into a ‘religious ghetto’. It has become fashionable for the majority to craft laws which directly inhibit the free-exercise of religion in the public square and then rely on the courts to circumscribe religious expression such that it may only occur between the pews of the church building.

    New Jersey passed its same-sex non-discrimination law and a church fell prey to its application and was prevented from using its real estate for weddings unless it also made the property available for same-sex weddings. The Catholic church is being forced to pay for contraception under O’Bamacare.

    If Ms. Hamilton would broaden both her mind and her review of history vis a vis religious organizations and the law, perhaps she would discover the true threat at hand and the genesis of the legislation she decries. There is a very good reason, based on unfortunate historical antecedents, that the ostensible protection of religion’s free exercise was the first freedom guaranteed to the people.

    • Joe_JP

      If churches want to sell their property, they also have to follow civil rights laws, such as not discriminating by race or sex. Is that a problem too? Churches aren’t required to actually perform weddings. But, if they have “real estate,” it is regulated when not used by the church for religious purposes like other people with real estate. Neutrality is not religious discrimination.

      Also, are you aware of the general practice in the states regarding contraceptives – that is, paid health benefits – before PPACA? Over twenty states had similar requirements, a few had stricter ones. The rules do not apply to purely religious employees. If a Jewish janitor at a Catholic college gets health benefits, which she pays for by her labor, yes, she gets to decide, using her own religious beliefs, how to use them to meet her needs.

      What is the “very good reason” to deny such a woman the right to use her own money in the way her own moral beliefs lead her to use? What about her religious beliefs? Do they matter?

  • http://www.facebook.com/nevadadailysteve Steve Moyer

    Ms. Hamilton is trying what my late father would describe as urinating down his back and saying it was raining, although he wouldn’t use the word urinating. The liberals have been trying to do everything in their power to destroy Christianity and completely ignore the fact that the Constitution’s First Amendment clearly states that the free exercise of religion shall not be prohibited. They do everything they can to stress the first part about “shall make no law respecting an establishment” of religion but forget it also says “or prohibiting the free exercise thereof.”

    When the Nazis came for the communists,

    I remained silent;

    I was not a communist.

    When they locked up the social democrats,

    I remained silent;

    I was not a social democrat.

    When they came for the trade unionists,

    I did not speak out;

    I was not a trade unionist.

    When they came for the Jews,

    I remained silent;

    I wasn’t a Jew.

    When they came for me,

    there was no one left to speak out.

    We know where Ms. Hamilton stands.

    • http://www.facebook.com/beth.russo.359 Beth Russo

      I’m a liberal, and I am not trying to destroy Christianity. In fact, many of my liberal friends are practicing Christians who live their belief systems by giving to the poor, visiting those in prison, and generally following Jesus’ WORDS. In fact, I’m at best a agnostic- but I wholeheartedly support YOUR right to YOUR beliefs, as long as they don’t infringe on the rights of others. Please don’t judge all liberals (I am pretty sure that Jesus said something about judging….)

    • Joe_JP

      The RFRA law she opposes here was a bipartisan piece of legislation strongly supported by “liberals.” She isn’t a liberal herself either. Religious believers also aren’t being “locked up” and such by neutral application of the laws except when they break pretty serious laws like child abuse or the like.

  • http://www.facebook.com/people/Michael-Skiendzielewski/1168087575 Michael Skiendzielewski

    “…Recently, the head of the Task Force, Bucks County District Attorney David Heckler, announced the package of reforms that the Task Force was recommending. When asked where the statute-of-limitations reforms were, Heckler had the gall to state that he did not believe that anyone thought that was a problem. He could not remember a single person addressing the issue during their hearings before the Task Force…”

    And those of us who advocate on behalf of the protection of PA children are supposed to take this guy seriously, the DA of Bucks County……cmon, his name is Heckler, don’t you know!

    Many PA citizens would certainly like to know the facts, evidence, etc. of the alleged rape case at the Shrine in Doylestown, PA and what led Heckler to decline the criminal charges in the case. Does the victim have recourse at a higher level, e.g., the PA Attorney General Kathleen Kane, to have criminal charges filed in this case?

  • http://www.facebook.com/people/Michael-Skiendzielewski/1168087575 Michael Skiendzielewski

    “….Recently, the head of the Task Force, Bucks County District Attorney David Heckler, announced the package of reforms that the Task Force was recommending. When asked where the statute-of-limitations reforms were, Heckler had the gall to state that he did not believe that anyone thought that was a problem. He could not remember a single person addressing the issue during their hearings before the Task Force. This was hilarious for those few who still retain a sense of humor in this field, given that the topic was not even on their list of approved topics!….”

    One might ask whether or not Mr. Heckler has been living under a rock during the past several years, given the enormity and devastation of the two Grand Jury Investigations and Reports by the District Attorney of Philadelphia re clergy sexual abuse in the Archdiocese of Philadelphia as well as the horrific sexual abuse scandal at Penn State University perpetrated by Jerry Sandusky. Mr. Heckler just might be the ONLY PA citizen that believes that statute-of-limitations reforms is NOT a problem.

 

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