I don't think there is much of a litigation burden from RFRA defenses in sexual abuse cases. The principal news about state RFRAs is that they are seriously underutilized and seriously underenforced when utilized. Chris Lund documents this at 55 S.D. L. Rev. 466 (2010). This is not a good thing, but it's a fact.
I am not aware of state RFRAs being used at all in sexual abuse cases. Chris mentions no such case, and he cites no case with a Doe or Roe plaintiff. But as Vance says, things can go on in trial courts that law professors don't know about. So I asked Martin Nussbaum at the Rothgerber firm in Denver whether anyone is using state RFRAs in sexual abuse cases. Martin has represented churches in many sexual abuse cases. Here is what he said: "I am aware of only one church defense counsel in the past five years, who has filed a dispositive motion based on church autonomy or other religious freedom grounds. That motion was filed in the past year. It was not based on a state RFRA argument. It was unsuccessful. While the First Amendment precedents are still split on this issue, the majority of such First Amendment arguments after 1-1-02 have lost. I am aware of some arguments being made that seek to limit the scope of discovery that invoke confidences mandated by church law and contend that civil courts should respect such confidences due to First Amendment, state confidential clergy communications statutes, and, conceivably, state RFRAs. I cannot point though to instances where an advocate invoked state RFRA laws to limit such discovery. It may have happened. I just don't know about it." The significance of 2002, of course, is that that is when the news from Boston broke. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Vance R. Koven Sent: Thursday, June 14, 2012 1:57 PM To: Law & Religion issues for Law Academics Subject: Re: Religious exemptions and child sexual abuse I think someone needs to raise a word in defense of Marci here. The perspective of someone who actively litigates these cases has to be different from that of someone who sits in an office reading the decisions and synthesizing the rationales of the cases. The fact that religious-institution defendants raise RFRAs as a defense to causes of action or to discovery means that the plaintiffs have to go to that much more work (and legal expense) to counter the arguments. In that sense, whether the defenses "work" or not, there is an additional burden on litigants in having that extra string on the defendant's bow. Vance
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