Marci A. Hamilton

Marci A. Hamilton

MARCI A. HAMILTON is the Robert A. Fox Leadership Program Professor of Practice, and Fox Family Pavilion Resident Senior Fellow in the Program for Research on Religion at the University of Pennsylvania. She is also the founder, CEO, and Academic Director of CHILD USA, a 501(c)(3) nonprofit academic think tank at the University of Pennsylvania dedicated to interdisciplinary, evidence-based research to prevent child abuse and neglect. Before moving to the University of Pennsylvania, Professor Hamilton was the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University.

Hamilton is the leading expert on child sex abuse statutes of limitations and has submitted testimony and advised legislators in every state where significant reform has occurred. She is the author of Justice Denied: What America Must Do to Protect Its Children (Cambridge University Press), which advocates for the elimination of child sex abuse statutes of limitations. She has filed countless pro bono amicus briefs for the protection of children at the United States Supreme Court and the state supreme courts. Her textbook, Children and the Law, co-authored with Martin Gardner, will be published Fall 2017 by Carolina Academic Press, formerly Lexis/Nexis.

Hamilton has been a vocal and influential critic of extreme religious liberty, advocating for the vulnerable about overreaching. Hamilton successfully challenged the constitutionality of the Religious Freedom Restoration Act (“RFRA”) at the Supreme Court in Boerne v. Flores (1997), and defeated the RFRA claim brought by the Archdiocese of Milwaukee against hundreds of child sex abuse survivors in Committee of Unsecured Creditors v. Listecki (7th Cir. 2015). She has represented numerous cities dealing with church-state issues as well as claims brought under the Religious Land Use and Institutionalized Persons Act (“RLUIPA). The author of God vs. the Gavel: The Perils of Extreme Religious Liberty (Cambridge University Press), which was nominated for a Pulitzer Prize, she is also a columnist for Verdict on Justia.com.

Hamilton has been honored with the 2018 Pennsylvania State University Department of Philosophy Distinguished Alumni Award, the 2017 University of Pennsylvania Law School Louis H. Pollak Public Service Award, the 2016 Voice Today, Voice of Gratitude Award; the 2015 Religious Liberty Award, American Humanist Association; the 2014 Freethought Heroine Award; the National Crime Victim Bar Association’s Frank Carrington Champion of Civil Justice Award, 2012; the E. Nathaniel Gates Award for outstanding public advocacy and scholarship, 2008; and selected as a Pennsylvania Woman of the Year Award, 2012, among others. She is also frequently quoted in the national media on child abuse and neglect, statute of limitations, constitutional, RFRA, RLUIPA, and First Amendment issues.

Hamilton clerked for United States Supreme Court Justice Sandra Day O’Connor and Judge Edward R. Becker of the United States Court of Appeals for the Third Circuit. Professor Hamilton is a graduate of Vanderbilt University, B.A., summa cum laude; Pennsylvania State University, M.A. (English, fiction writing, High Honors); M.A. (Philosophy); and the University of Pennsylvania School of Law, J.D., magna cum laude, where she served as Editor-in-Chief of the University of Pennsylvania Law Review. She is a member of Phi Beta Kappa and Order of the Coif.

Columns by Marci A. Hamilton

North Dakota’s Religious Freedom Restoration Act (RFRA) Signals Religious Lobbyists’ New and Disturbing Approach to Statute-based Free Exercise Rights

Justia columnist and Cardozo law professor Marci Hamilton comments on past and recent developments regarding Religious Freedom Restoration Acts (RFRAs) on both the state and federal levels. As she explains, a RFRA functions as follows: If a religious believer carries his burden to prove that a given law places a “substantial burden” on his right to religious exercise, then the government must prove that the law it is seeking to enforce serves a compelling interest and is the least restrictive means to accomplish that interest, or the law will not be applied. Hamilton describes a typical RFRA, chronicles the history of RFRAs, and describes a kindred federal statute, RLUIPA, the Religious Land Use and Institutionalized Persons Act. She focuses especially on a recently proposed North Dakota RFRA, which is being introduced through the initiative process. In addition, Hamilton considers how RFRAs, if enacted into law, might affect school-voucher programs.

The Catholic Bishops Lobby Against Legislation to Protect Children

Justia columnist and Cardozo law professor Marci Hamilton takes strong issue with the position of the California Catholic Conference, the lobbyist for the California bishops, on issues relating to child sex abuse. As Hamilton explains, the Conference sent a one-page letter opposing AB1628, a California bill that would effect a short extension of the child-sex-abuse statutes of limitations, and require more rigorous background checks for employees and volunteers who work closely with children. Hamilton argues that the bill should be passed, details the Conference’s objections to the bill, and concludes that those objections are meritless. She also notes that this is just one instance in which the bishops are seeking to block child-sex-abuse statute-of-limitations reform; similar efforts are being made in other states as well.

A Politically Moderate Constitutional Law Professor Examines the Gender Gap in This Presidential Election

Justia columnist and Cardozo law professor Marci Hamilton takes very strong issue with Republicans’ current stances on issues that are of importance to women, such as contraception access, equal pay for equal work, violence against women, and child sex abuse. As a politically moderate woman herself, Hamilton notes that she would find it very difficult to support the package of views and proposals that the Party is offering voters this year. Interestingly, Hamilton observes that, had Rick Santorum never run for president, the other candidates and the voters might never have focused on these issues, and the issue of the economy might, instead, have dominated Republican speeches and stances in the run-up to the election. But because Santorum did run, Hamilton predicts that Mitt Romney, too, will face a very significant gender gap at the polls this year as he, too, is forced to address these issues—for female voters will likely be uncomfortable with some of his answers.

An Historic Turning Point for Reforming Statutes of Limitations for Child Sex Abuse: News From Massachusetts, and More

Justia columnist and Cardozo law professor Marci Hamilton comments on Massachusetts’s recent movement toward reforming the statutes of limitations (SOLs) for child sex abuse. In addition to covering the Massachusetts situation, Hamilton also argues that the tide is turning, nationwide, on the SOL issue. In particular, she cites progress in New York, Pennsylvania, Wisconsin, and Hawaii. Hamilton also takes strong issue with the Catholic Bishops’ contention that paying out child sex abuse claims will bankrupt them. Finally, Hamilton observes a new development in the movement against child sex abuse, and toward SOL reform in that area: Incest survivors and clergy child sex abuse survivors, Hamilton notes, are coming together to fight abuse and seek SOL reform.

The GOP, Privacy and Reproductive Rights, and the Backlash

Justia columnist and Cardozo law professor Marci Hamilton comments on the recent attack on reproductive and privacy rights by GOP presidential candidates Rick Santorum and Mitt Romney. Hamilton notes that some state legislatures, such as those of Ohio and Utah, have also taken similar stances—with Arizona and Kansas very possibly following the trend. Hamilton questions the wisdom of these stances, in light of the fact that a sizable majority of the country is not opposed to contraception, and the fact that only with the support of independent and moderate voters could the GOP candidate possibly beat President Obama’s re-election bid. Hamilton also notes that there has been a substantial backlash against such measures, by female legislators who are registering their protest by introducing laws that would, for instance, make it harder for men to obtain Viagra, and regulate ejaculation except when it occurs in the context of conception. Vasectomies, too, have been the target of the female legislators’ efforts—which, of course, are not serious attempts at getting laws passed, but are very serious attempts to draw attention to what the legislators believe is a dangerous attack on women’s rights. Hamilton adds her own “modest proposals” to those of the female legislators, and warns that moving into this delicate and personal area may cost the GOP the presidential election and/or congressional seats.

Children in Peril in New York: Another Infant Dies Due to a Risky Circumcision Practice, and More Needs to Be Done Regarding Child Sex Abuse

Justia columnist and Cardozo law professor Marci Hamilton comments on two significant threats to New York State’s children. Hamilton begins by noting the recent, tragic death of an infant from herpes. She notes that the infant likely contracted the disease from a mohel who performed “oral suction” on the infant after Orthodox Jewish ritual circumcision. (Oral suction is a controversial practice in the Jewish community, and has fallen out of favor with many. In ancient times, the practice was thought to contribute to hygiene, but as it was learned that it could spread disease, it was mostly abandoned. Those who still practice it typically employ a glass tube to avoid direct contact and disease transmission.) Noting that this is not the first such death to likely be associated with oral suction, Hamilton argues that this risky procedure should be banned, and notes that its religious nature provides no legal defense for those who follow the procedure. She also warns that not only the mohel, but also the parents, could be held responsible for the death, depending on what they knew about the procedure’s risks. In addition, Hamilton covers a second ongoing threat to the well-being of New York’s children: clergy child sex abuse. Hamilton contends that New York ought to follow the example of Philadelphia, when it comes to the reporting of clergy child abuse—for there, District Attorney Lynne Abraham eventually enabled justice to be done due to her grand jury investigation into the cover-up of abuse.

The Lessons We Should Take From the Recent Hearings on President Obama’s Contraception-Coverage Compromise, and Other Battles Involving Religious Lobbyists

Justia columnist and Cardozo law professor Marci Hamilton comments on the recent hearings regarding contraception coverage for employees of religiously-affiliated institutions. Hamilton starts by going back to the time of the Framers, and noting their concerns about the potential abuse of power by legislators. In the context of the contraception-coverage debate, Hamilton argues, Congress is being overly influenced by religious and religiously-affiliated institutions’ lobbyists. Those lobbyists’ religious arguments, she contends, lack any constitutional or statutory basis, especially now that the Obama Administration has offered a compromise, under which the institutions would not have pay for their employees’ contraception coverage; insurance companies would pay instead. Hamilton parallels this fight with an earlier Congressional controversy, regarding RLUIPA, the Religious Land Use and Institutionalized Persons Act. She argues that there, too, religious institutions’ lobbyists sought—and gained—more for such institutions than could possibly be justified, because legislators capitulated when they should have held firm.

The U.S. Court of Appeals for the Ninth Circuit Strikes Down Proposition 8: Three Key Elements of the Decision

Justia columnist and Cardozo law professor Marci Hamilton comments on several key aspects of the recent decision, by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, holding that Proposition 8—the initiative constitutional amendment purporting to abolish gay marriage in California—violates equal protection. Hamilton focuses, in particular, on (1) the standing issue and the problems the initiative procedure raised; (2) the question whether Prop. 8 had any legitimate purpose, or was simply driven by animus toward gay people; and (3) why the U.S. Supreme Court is unlikely to take the case.

New York City and State Consider Seeking to Reverse the Second Circuit’s Decision in the Bronx Household of Faith Case, Regarding Whether a Church Can Make a Public School Its House of Worship

Justia columnist and Cardozo law professor Marci Hamilton comments on a New York church-and-state case in which the U.S. Supreme Court recently declined to grant review. As Hamilton explains, the case concerned a religious group, the Bronx Household of Faith, which sought to continue to use a public middle school on the weekends for Christian worship services, followed by a “fellowship meal”—without providing payment to the school, and while taking advantage of the free use of the school’s utilities. A three-judge panel of the U.S. Court of Appeals for the Second Circuit ruled, 2-1, against the Bronx Household of Faith, on the ground that the group did not have an “all comers” policy. Indeed, Hamilton notes, Bronx Household specifically excludes anyone who is not baptized, who is excommunicated, or who advocates the Islamic religion. Hamilton argues that both the Second Circuit panel’s decision and that of the U.S. Supreme Court were clearly correct as a matter of constitutional law. And yet, she notes, New York City and New York State are now hearing arguments to once again open the public schools to religious groups, including groups that lack “all comers” policies.

In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Supreme Court Embraces a Narrow Ministerial Exception to Federal Anti-Discrimination Laws

Justia columnist and Cardozo law professor Marci Hamilton comments on the Supreme Court’s decision this week in a case that pitted First Amendment religious freedom rights against the rights set forth in federal anti-discrimination law. In the case, a woman who worked for a church as a teacher was fired after taking a medical leave, and sought to invoke her rights under the Americans with Disabilities Act (ADA). But because she was a “called” teacher, with some religious responsibilities, the church argued that her firing was within its discretion, under the First Amendment’s religion clauses. The Supreme Court ultimately agreed, but as Hamilton explains, the Court issued a narrow decision that still leaves a host of related questions unanswered. Hamilton covers the “parade of horribles” that was raised, but that the Court declined to address in its decision. She also identifies the decision’s bottom line: Courts cannot constitutionally establish selection criteria for clergy.

2011’s Lessons on How We Can Better Protect Children From Sexual Abuse

Justia columnist and Cardozo law professor Marci A. Hamilton comments on the disturbing developments, over the course of 2011, with respect to child sex abuse. From Penn State, to Syracuse, to The Citadel, Hamilton notes, scandals broke out after child sex abuse was credibly alleged. Hamilton suggests ten key lessons we can all take from these events. Among those lessons are that organizations typically cover up the abuse; that cover-ups tend to follow the same pattern; that just one person can make a huge difference by reporting abuse but too often, no one does; that child sex abuse sadly proves to be more prevalent than we would like to think; and that legal reforms can help in important ways. Hamilton also covers the stances of Governors Corbett and Cuomo on this issue.

The Sandusky Case: Secrecy and Silence Are a Child Predator’s Best Friends, but Other Events the Same Day Show That Soon Our Justice System Will Reveal the Truth

Justia columnist and Cardozo law professor Marci Hamilton reports on the court proceedings that occurred this Tuesday, December 13, in the Jerry Sandusky child molestation case. Hamilton notes that Sandusky waived his right to a preliminary hearing, which would have allowed him to see some of the prosecution’s evidence against him. She explains, however, that Sandusky already had a great deal of notice as to the prosecution's evidence from the grand jury report that has been issued; and that, by choosing to waive his right to a preliminary hearing, Sandusky avoided having ten alleged victims get on the stand to tell their stories. Hamilton expresses regret that, in this way, the alleged victims were silenced once again. She also explains—based on a press conference at the courthouse, held by Sandusky's attorney—what the defense will claim: that the alleged victims are only in this for the money. But as Hamilton notes, that theory seems very weak, since none of the alleged victims has filed a civil suit. In addition, Hamilton covers a defamation case that is related to the allegations of sexual abuse by Syracuse men’s basketball coach Jim Boeheim’s longtime assistant, Bernie Fine, and the congressional hearings on sex-abuse reporting.

A Tale of Two States and Three Survivors: The Legal Obstacles Relating to Syracuse University’s Sex Abuse Scandal

Justia columnist and Cardozo law professor Marci Hamilton comments on the obstacles to bringing prosecutions and civil suits based upon the alleged child sexual abuse by Syracuse associate head basketball coach Bernie Fine. Hamilton explains why the first two alleged victims who came forward may not receive justice due to the New York statute of limitations (SOL) that will govern their cases, and why the third alleged victim, who says he suffered abuse in Pennsylvania, will be subject to less draconian SOLs. Hamilton argues for SOL reform in these states and nationwide, and takes on the question of whether it should matter—or will matter—to judges and jurors that the third alleged victim who came forward in the Syracuse scandal is himself facing child sexual abuse charges. Hamilton points out, regarding this issue, that child sex abuse victims disproportionately become abusers themselves—suggesting that they deserve at least some sympathy, as their own childhood abuse is likely one causal factor in their own later abuse of children. She also calls for SOL standardization across the country, so that pedophiles can no longer choose to live in the locations with the most lenient laws (via federal incentives offered to states that opt for reform, and federal penalties for those that do not). In addition, Hamilton suggests that states create SOL “windows” to help past victims of child sexual abuse whose civil claims otherwise would be time-barred confront their accusers in court and find justice.

The Universal Need for the Mandatory Reporting of Child Sexual Abuse

In the wake of the child sexual abuse scandals at Penn State and The Citadel’s camp, and within the Catholic Church and other religious institutions, Marci Hamilton suggests a better approach to the reporting and investigation of child sexual abuse claims. Hamilton argues that there should be a universal obligation to report abuse to a hotline, and that those who call the hotline in good faith, to report suspected abuse, should be legally immune to defamation claims. (False claims, however, would be penalized.) The hotline responders would then alert the appropriate agency or agencies. Hamilton also advocates strong failure-to-report penalties. She cautions, though, that a reporting obligation will not be enough; investigations must be improved too—noting that there was a 1998 report from a child’s mother about alleged Penn State abuser Jerry Sandusky, and yet, that investigation went off-track. Hamilton explains why that investigation was, and why similar investigations can be, ineffective, and she urges that investigators and others must keep in mind that empirically, children rarely lie about sexual abuse. Moreover, Hamilton notes that mandatory reporting will not only protect children, but also institutions that would otherwise have been destroyed by scandal, and now have the chance to take quick, decisive action against abusers.

The Penn State Scandal: Contrasting the School’s Approach With the Catholic Church’s Approach to Its Own Child Sex Abuse Scandal

Justia columnist and Cardozo law professor Marci Hamilton contrasts the outcomes of the Catholic clergy child sex abuse scandal, and the recent Penn State child sex abuse scandal. Hamilton notes the two different outcomes: On one hand, the Boston Archdiocese’s Bernard Law, who enabled abuse by serial perpetrators, was embraced by the Holy See, and apparently will spend the rest of his life in Rome without ever having to answer for the crimes he permitted. On the other hand, Penn State’s Coach Joe Paterno and President Graham Spanier were held publicly accountable for their failure to report and address child sex abuse. What accounts for the difference? Hamilton contends that it is organizational structure: Penn State is a public institution, funded by Pennsylvania’s taxpayers; the Catholic Church is effectively a monarchy.

Last Week’s Congressional Hearing on Religious Liberty: A Disturbing Presentation by a Catholic Bishop Raises Questions About the Separation of Church and State

Justia columnist and Cardozo law professor Marci Hamilton comments on a presentation given last week to a Subcommittee on the Constitution of the Judiciary Committee of the United States House of Representatives, by the Rev. William C. Lori, the Catholic Bishop of Bridgeport, CT, and the Chair of the United States Conference of Catholic Bishops’ newly-instituted “Ad Hoc Committee on Religious Liberty.” Hamilton argues that Lori’s remarks displayed insufficient respect for the Constitution’s separation of church and state. In particular, Hamilton discusses Lori’s remarks and the role of church/state separation as it relates to the availability of contraception and sterilization, and particularly the requirement that they be covered by private health insurance companies except insofar as certain employers’ religion forbids it. In addition, she discusses Lori’s position on government services relating to human-trafficking victims, which holds that religious service providers would not have to offer contraception and abortion—even to a trafficking victim who suffered a rape. In addition, Hamilton takes strong issue with Lori’s opposition to the federal government's decision to require that AIDS programs offer contraception (both condoms and other birth control) due to their proven efficacy in stopping the spread of disease. Hamilton acknowledges that, of course, religious institutions and institutions may act in these areas, but emphasizes that if they receive government funds, they must also follow government policy. Overall, Hamilton argues, the Church should focus on genuine religious liberty violations, and not issues like these.

Assessing Mitt Romney as a 2012 Presidential Candidate: Part Four in an Ongoing Series on the Likely Candidates and Their Views on Religion

Justia columnist and Cardozo law professor Marci Hamilton continues her series on religion and the likely 2012 presidential candidates. This week, Hamilton considers Mitt Romney. To begin, Hamilton comments on Romney’s seeming unease about the history of polygamy of the Church of Jesus Christ of Latter-Day Saints (also known as the LDS Church), in which he has been a religious leader. Hamilton also compares Romney’s speech on how his religion would, and would not, affect his possible future presidency with the similar speech given by JFK regarding his Catholicism and his own possible future presidency—noting interesting differences in the stances taken by JFK and Romney, respectively. Hamilton also considers other aspects of Romney’s record—such as his questionable civil rights record, and certain instances where, she argues, he welcomed the exercise of federal power, even as he claimed to embrace states’ rights, such as when federal measures regarding same-sex marriage and federal healthcare money were at issue. In addition, she notes that Romney’s record on abortion is cryptic, and features some flip-flopping, leaving his true beliefs essentially unknown.

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC: The Supreme Court Oral Argument, and What It Revealed

Justia columnist and Cardozo law professor Marci Hamilton comments on yesterday's Supreme Court oral argument, regarding religious institutions and anti-discrimination law. As Hamilton explains, the case brought the “ministerial exception” doctrine to the Supreme Court, for the first time ever. The doctrine, which stems from the First Amendment's Religion Clauses, holds that religious organizations have the right to determine the criteria for their own clergy (for instance, the Catholic Church need not hire female priests). The question the case raises is how to reconcile the ministerial exception with laws forbidding discriminatory hiring and firing. A related question is whether the teacher whom the Church fired, Cheryl Perich, was actually a minister, or simply a teacher of religion (as well as secular subjects). If she is a minister, the ministerial exception may apply; if not, she enjoys the full protection of the anti-discrimination laws. Finally, Hamilton notes that “sincerity” cases—allowing courts to gauge the sincerity of religious belief—might well have proven relevant here, but were not mentioned at oral argument.

Assessing Michele Bachmann as a 2012 Presidential Candidate: Part Three in an Ongoing Series on the Likely Candidates and Their Views on Religion

Justia columnist and Cardozo law professor Marci Hamilton continues her ongoing series about the 2012 presidential candidates and their views on religion. In this column, Hamilton considers the views of Congresswoman Michele Bachmann. Hamilton contends that a Bachmann presidency would likely be dominated by evangelical Christianity, and notes that Bachmann sees the separation of church and state as “a myth” and would likely nominate to the federal judiciary only those who share her views. Moreover, Hamilton argues that Bachmann’s religious views would, if she were elected, also influence her foreign policy (which she has suggested would be automatically pro-Israel on religious grounds) and her policies on social issues such as abortion, stem-cell research, the HPV vaccine, and gay rights. Hamilton also notes that although Bachmann claims to support states’ rights, in practice she supports federal action if one of the policies that she herself favors is at issue.

The Tenth Anniversaries of 9/11 and of the Revelations of Catholic Bishops’ Cover-up of Child Sex Abuse: Two Developments That Profoundly Changed America

Justia columnist and Cardozo law professor Marci Hamilton looks back to a more innocent time, ten years ago, before the 9/11 attacks shocked and horrified America, and before clergy child-sex-abuse scandals rocked first the Catholic Church and its believers, and then other religious institutions and believers as well. Hamilton contends that the key lessons of these devastating events are that we can never assume that a person’s belief in God, in itself, renders him or her godly; and that faith can too easily provide a pretext for terrible crimes.