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I wish that were true, among academics, among religious entities, and
lawmakers. But it is not. The default position for
accommodation and free exercise jurisprudence among most academics and religious
entities is one that focuses solely on the needs of the religious entities --
which, in turn, devalues the interests of the child (and any other victim)
in these circumstances.
A good example would be the Church Autonomy conference to which Chip
referred earlier. His and Bob's paper's primary concern was that courts
might be harsher toward religious defendants than they were toward other
defendants, so they recommended a standard (a la New York Times) that would make
it harder for victims of religious entities to sue those religious
entities. As Chip knows, I found it extremely disturbing that they would
read the cases and reach that particular balance. I have yet to see a
court that does not prefer to defer to religious entities than to hold them
accountable. It takes hundreds of cases to bring them to the realization
that if they don't hold religious entities responsible for what they do to
children (and others), the harm will not stop. Self-policing is a proven
failure. All the other papers argued for expansive religious "autonomy"
from the law, despite the context of the known sexual abuse crisis. Mine,
which charted the history and decline of the special treatment of religious
entities, was the only paper that considered so-called church "autonomy",
especially in the child abuse context," troublesome and contrary to sound
legal principles.
Second, children do not vote and have virtually no say in legislation,
which is why so many religious exemptions harm them in particular.
Let me give you an example as well -- lawsuits were filed in
Florida against a youth, religious camp where former campers alleged sexual and
physical abuse. What was Florida's response? To create an exemption
for religious camps from state regulation. Missouri, likewise, has
exempted religious entities caring for children from state
regulation.
One may find a "closer" case more intellectually interesting in the ivory
tower sense, but the issue that must addressed in the academy is why religious
entities should be treated as entitled to harm others. It is not enough to
say "they shouldn't." One has to defend one's view of the doctrine and its
impact on others.
Marci
I think the more interesting cases are not the ones involving physical and sexual abuse about which I would hope there's some reasonable consensus against religious exemption. |
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