I've just read *Gibson v Brewer*, 952 SW.2d 23 (Mo.1997). If that's the poster child for why RFRAs are bad, it's not much of a poster. In the first place, it didn't involve a RFRA at all, just the First Amendment, with which we're stuck for better or for worse.
First, motions to dismiss claims of battery, negligent infliction of emotional distress, and intentional infliction of emotional distress against the priest were denied by the lower courts, and these decisions were not reviewed by the Missouri Supreme Court. the court did dismiss claims of negligent hiring or ordination of clergy, negligent failure to supervise clergy, negligent infliction of emotional distress by clergy, and independent negligence by the diocese on First Amendment grounds. Some of those rulings may have been too broad. But it allowed a claim of intentional failure to supervise clergy to go forward, rejecting the diocese's First Amendment defense. It also dismissed a respondeat superior claim against the diocese, based on ordinary principles of Missouri respondeat superior law that would apply to any employer. Missouri respondeat superior law appears to be narrower than, e.g., DC law, where the claim probably would have been allowed to proceed, but that has nothing to do with religion. Likewise, it found no First Amendment bar to a claim of intentional infliction of emotional distress by the diocese, but dismissed that claim because the allegations of the complaint did not state a claim under state law. It would be interesting to know what happened on remand to the claims against the priest and the claim against the diocese for intentional failure to supervise. Art Spitzer On Thu, Jun 14, 2012 at 11:45 AM, Volokh, Eugene <vol...@law.ucla.edu>wrote: > Anecdotal evidence and surmise is all we have for most > laws – it’s all we have for the proposition that, for instance, having > RFRAs actually increases religious freedom; it’s not like we have social > science or criminal statistics to support that. And social science and > criminal statistics are especially unlikely to be available for child > sexual abuse by the clergy, which is for obvious reasons hard to measure > accurately, and which is numerically rare enough that random variation can > easily swamp any slight effects of a RFRA or employer tort liability. To > be sure, I think that social science evidence, when it’s available and when > it’s properly gathered and analyzed, can be very helpful in making policy > decisions. But we often find ourselves having to make such decisions even > without such evidence.**** > > ** ** > > Eugene**** > > ** ** > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *lawyer2...@aol.com > *Sent:* Thursday, June 14, 2012 6:21 AM > *To:* religionlaw@lists.ucla.edu > > *Subject:* Re: Religious exemptions and child sexual abuse**** > > ** ** > > **** > > **** > > *Do we know of any social science or criminal statistics that supports a > notion that jurisdictions with RFRA or upheld constitutional defenses to > employer liability have a higher incidence of child sexual abuse (or, for > that matter, that incidents of child sexual abuse are higher in religious > settings than settings, such as public schools, where these legal arguments > regarding employer liability are inapplicable)...or are we left with > anecdotal evidence, if not surmise?***** > > **** > > *--Don Clark***** > > * Nationwide Special Counsel***** > > * United Church of Christ***** > > **** > > In a message dated 6/13/2012 11:14:28 P.M. Central Daylight Time, > vol...@law.ucla.edu writes:**** > > 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**** > > = > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others.**** > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > -- **Arthur B. Spitzer Legal Director American Civil Liberties Union of the Nation's Capital 4301 Connecticut Avenue, N.W., Suite 434 Washington, D.C. 20008 Tel. 202-457-0800 www.aclu-nca.org <a...@aclu-nca.org> artspit...@gmail.com *See Something - Say Something! If you see a violation of civil liberties, call the ACLU!* *Confidentiality Notice* * *This message is being sent by a lawyer. It is intended exclusively for the individual(s) to whom it is addressed. This communication may contain information that is privileged, confidential or otherwise legally protected from disclosure. If you are not a named addressee then you are not authorized to read, print, retain, copy or disseminate this message or any part of it. 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_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
