How to Craft a Religious Exemption Regime Guaranteed to Be Dangerous for Children: The Case of Idaho


The contemporary public debate on the state Religious Freedom Restoration Acts has focused on the fact they are tools for discrimination. The federal RFRA of 1993 was prompted in the first instance by a drive to overcome the fair housing laws; the RFRA of 2000 was carved back to exclude the states in part to avoid gutting the state fair housing laws; and now the state RFRAs are being endorsed so as to permit businesses to discriminate against the same community. These issues certainly deserve close attention, not to mention condemnation, as RFRAs are debated in state after state.

There is another issue, though, that is just as pressing, but that receives far too little attention: that is the harm done to children under the guise of “religious liberty.” As I discussed in my last column, the childhood vaccination religious exemptions have been exploited and expanded to the point that herd immunity is undermined. Yet, vaccines are just one aspect of the threat that religious believers can pose to the health and safety of children. Specific medical neglect exemptions also pose a problem. Initiated in the Nixon Administration, they give parents latitude to let their children die or be disabled through a failure of medical treatment.

As if these exemptions are not enough to put defenseless children at risk, in some states the RFRA regime is being layered on top of these other exemptions. The result is that it has become increasingly difficult to deter religiously motivated parents from letting their children die or be permanently disabled by lack of treatment.

Those who favor an exemption regime and liberty over the law must answer for the deadly harm afflicting children. A case in point is Idaho, which has become the capitol of child endangerment. The state’s complete disregard for the safety of children merits congressional hearings and an investigation by the Department of Justice. If these children were dying of lead poisoning or harmed by child labor law violations, Congress would jump in. So many deaths, and Idaho’s apparent incapacity to turn the corner on its public health debacle, are tailor-made for federal intervention.

Idaho Medical Neglect Exemption. In the 1970s, Idaho, like numerous other states incentivized by the federal government, enacted a religious exemption for parents who believe in faith-healing. The federal government was responding to pressure from the First Church of Christian Science, and no one seems to have grasped that children could and would die from such an exemption. The only explanation I can offer is that was part of the Pollyanna era of American history when everyone believed at some level that religious believers wouldn’t harm a child.

Such exemptions open the door to the deaths of children from ailments with known and tested treatments, from food poisoning to diabetes, pneumonia, and leukemia. The Church of the First Born and the Followers of Christ are two of the most ardent believers against medicine, and at one time, they populated Oregon, where prosecutors discovered in the 1990s to their horror that they could not prosecute them for the preventable deaths of children. Since then, Oregon has dramatically narrowed its medical neglect exemptions and prosecuted some of the worst cases, with a major manslaughter conviction in 2014.

While Oregon finally made strides in protecting its children, the number of deaths in Idaho escalated. Why? Because Idaho has created a legal paradise for believers in faith alone. Idaho has defanged civil and criminal laws that deter such deaths. Indeed, Idaho seems to be encouraging parents to make religious martyrs of their children, something the First Amendment has never required.

Idaho holds a special place among religious exemption states in that it even immunizes parents from criminal charges for manslaughter, and negligent homicide. That’s right, Thus, prosecutors cannot step in to protect the interests of children and deter their deaths. According to Children’s Healthcare Is a Legal Duty, a nonprofit organization dedicated to protecting children from harmful religious and cultural practices, Idaho has now become the worst state in the country for the preventable deaths of children from medical neglect.

A bill was introduced last year to repeal the medical neglect exemptions, but Republicans killed it in order to protect “religious liberty.” No new bill has been introduced this year. But repealing these specific exemptions in Idaho would not go far enough in protecting Idaho’s children from death.

Idaho Vaccination Exemption. Idaho also exempts children from vaccination requirements. As I mentioned in my last column, numerous states have enacted religious exemptions for vaccinations, which were then extended to philosophical objections, ultimately threatening herd immunity. Consistent with the child endangerment regime in Idaho, the vaccination exemption has a capacious exemption that appears to permit any parent to obtain for any reason. But there is more.

Idaho State RFRA. Piling on top of the religious exemptions is Idaho’s Religious Freedom Restoration Act. I will not revisit at length here the additional risk it poses to children in faith-healing homes.

The primary problem, as with all RFRAs, is that it prevents enforcement of laws against believers unless the law is the “least restrictive means” of serving the government’s compelling interest (here, the protection of children). What is the “least restrictive means” in this arena? Were the state to create civil and criminal liability, and parents were charged with manslaughter or murder, they would be able to argue that civi liability is less restrictive than criminal. Or, in a case involving capitol murder, a manslaughter charge would be less restrictive. Or in the case of civil liability, parents could argue that damages should be kept to a minimum, because steep damages would be less restrictive. And each and every one of these less restrictive options would still endanger too many children in very real sects now and in the future. RFRA thus creates a slippery slope of responsibility and deters deterrence. Idaho’s children don’t have a chance with these laws stacked against them.

Parental Rights Bill. Apparently, the current regime still does not do enough to endanger the children of Idaho. With the publicity about the deaths of children in Idaho and the push last year to repeal the exemptions, today there will be a hearing on a new bill to ensure that parents retain the control needed. Just out of curiosity: who told them parents are at a disadvantage in Idaho?

HB 113 is a parental rights bill (which is not the only one pending in the states today) that makes the right of a parent to control a child a so-called “fundamental” right whether or not it is a fundamental right under the federal or state constitution.

This bill would be the cherry on top of the toxic religious liberty sundae of Idaho for those parents whose beliefs require abstaining from medical treatment. It would also lay out the welcome mat for the “spare the rod, spoil the child” believers, the child-bride polygamists, and the many cults that engage in unspeakable practices against children.

For other states paying attention, and considering state RFRAs or amending their medical neglect exemptions, note that by creating a regime like Idaho’s you invite believers into your state that will do things you never imagined.

The religious exemptions (including the state RFRAs) which harm children are particularly insidious, because the ones hurt are so powerless. When they die, they forever lose the voice that would testify in favor of protecting the next child. They leave us with a solemn responsibility to speak their truth for them: religious exemptions for medical neglect and the RFRAs leading to child death or disability are not just wrong, they are evil. The First Amendment doesn’t require them, and neither should the states nor the federal government.

Posted in: Speech and Religion

Tags: Legal

  • Joe Paulson

    I think Prof. Hamilton goes too far at times, but this column underlines that she is dealing with truly serious concerns. Freedom of conscience is a basic right in this country, but it is only one. There needs to be some balance. Vaccination provides a glaring case of where the balance has not been done correctly at times.