There is a significant federal RFRA litigation burden in the diocesan bankruptcies. Marty and I have been on opposite sides litigating it. I currently represent the victims in the Milwaukee Archdiocesan bankruptcy on the RFRA and First Amendment issues.
I have seen state rfras pled in many cases. These cases typically settle so decisions are rare. The trend is definitely against their theories but they are part of the fabric of these cases nonetheless. Autonomy theories are persistent in these cases. Marty may not have seen the briefing but I see such issues from around the country on a daily basis. Just this week I have seen autonomy argued in Illinois, Hawaii, and California cases. Marci On Jun 14, 2012, at 6:01 PM, "Douglas Laycock" <dlayc...@virginia.edu> wrote: > 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 > > _______________________________________________ > 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.
