Folks: I think that, if we soften the rhetoric and get more
concrete, we could arrive at the following:
1. There's been a debate about whether religious freedom
protections insulate churches from lawsuits for negligent hiring, negligent
supervision, and negligent retention in child sex abuse cases (I'll call this
"employer negligence" for short, though some courts have treated the different
theories differently).
2. Many church lawyers, faced with a lawsuit trying to hold a
church liable for crimes by some of its clergy, have indeed asserted such
defenses.
3. In some cases, those defenses have been successful, not
because religious freedom is seen a defense to a sex abuse charge as such, but
because it's seen as a defense to an employer negligence claim.
4. These defenses have generally been based on constitutional
non-entanglement arguments, on the theory that secular courts shouldn't be in
the business of deciding whether a decision to hire or not hire a minister is
"reasonable," but they might in principle also be strengthened by a
Sherbert/Yoder regime, such as that created by RFRAs or similar constitutional
amendments. This having been said, lots of courts in states with such
Sherbert/Yoder regimes have indeed accepted liability for employer negligence
notwithstanding those regimes, so it seems quite likely that implementing a
RFRA would not thwart such negligence - but only quite likely, not certain.
5. Liability for employer negligence may help encourage
churches to more closely police their clergy, based on standard
tort-law-as-deterrence theory.
6. Conversely, disallowing such liability may, by comparison,
diminish the incentive for churches to closely police their clergy, and may
thus yield somewhat more sex abuse by clergy.
7. Therefore, depending on the magnitude of the effects
described in item 4 (RFRA strengthening the no-employer-negligence-liability
position) and item 6 (absence of liability diminishing the incentive to police
clergy, and absence of policing increasing abuse), enacting a RFRA might in
some measure yield somewhat more sex abuse by clergy.
This of course doesn't meaning that enacting a RFRA (even one
without an exception for employer negligence) is necessarily bad. I favor
state RFRA statutes, though I also favor Smith as a constitutional model. But
it does suggest one possible cost of a RFRA.
Eugene
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