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.