May I suggest this is too strong. A great many constitutional rights increase to some degree the possibility that child abuse will occur, not be detected and not be adequately punished. Consider in this respect the Fourth and Fifth Amendments, at least as presently interpreted (and I suspect most of us would not agree with an interpretive rule that said government does not violate the Fourth and Fifth Amendment whenever doing so might increase to any degree the possibility that a crime will not be committed, not be detected, and not be punished. So we might assume that a) protections for religious freedom will have some negative consequences, including some severe negative consequences but b) that this is true for pretty much all constitutional rights.
So the issue is how much do we risk because we value religious freedom (remembering that a strategy of risk nothing will have other severe bad consequences. In this vein, may I suggest that the present alternatives are not helpful. SMITH seems to suggest a rational basis test that would allow government to severely burden religious practice whenever doing so has any appreciable tendency to prevent, detect, or punish crime. Many RFRAs suggest a compelling interest test that probably puts too high a burden on government to do a variety of acts (not just in the area of criminal justice-so even if you think, as I do, that preventing child abuse is obviously a compelling government interest, you might still think the compelling interest standard too strong in other cases). Strikes me that one thing we might discuss is what that in-between standard looks like. Mark A. Graber From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Friday, June 15, 2012 9:26 AM To: religionlaw@lists.ucla.edu; lawyer2...@aol.com Subject: Re: Religious exemptions in ND Religious institutions are creating the conditions for abuse in MANY circumstances. That is the reality, and the notion they should be less culpable than the perpetrators in the endangerment of children does them and children no favors. Religious institutions should not have one iota more latitude to endanger children than anyone else. And any RFRA or First Amendment decision that decreases deterrents to abuse or lets off those responsible for endangering children is a mistake in my view. Not one other person on this listserv has endorsed exempting child safety from a RFRA. Rather, I've heard that the rfras don't affect these cases. As someone involved in dozens, and at times hundreds of these cases at once, I can tell you the rfras and First Amendment do affect these cases. For the record, I oppose any religious liberty decision or rfra that affects the safety of children. For those who missed it, the Jehovahs Witnesses lost a child sex abuse case in California this week, and the jury served up 21 million in punitive damages. The evidence included a letter ordering keeping the abuse secret. Just one case out of thousands. Best to all-- Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com<mailto:hamilto...@aol.com> -----Original Message----- From: Marc Stern <ste...@ajc.org> To: 'religionlaw@lists.ucla.edu' <religionlaw@lists.ucla.edu>; 'lawyer2...@aol.com' <lawyer2...@aol.com> Sent: Fri, Jun 15, 2012 8:07 am Subject: Re: Religious exemptions in ND Allowing religious liberty defenses(which have so far been mostly unsuccessful) no more endangers children than does placing the burden of proof on the plaintiff in civil cases and the state(beyond a reasonable doubt) in criminal cases,rules against hearsay or requiring actual confrontation with accusers and so on. What is so troubling about Marci's message is not so much the bottom line result as the suggestion that interests of religious institutions-who after all are not themselves molesting children whatever their culpability for not acting more vigorously to protect children-are somehow systematically less worthy of protection than other social interests. While I accept Eugene's rebuke about rhetoric,and his observation about both equality and religious liberty being protected,it seems to me fair to observe that while there often ways to maximize both interests, there is an increasing tendency-readily visible in positions on conscientious objection by pharmacists to eschew such balancing tests in favor of sweeping assertions of the overarching importance of equality. The same trend is evident in the debates over religious exemptions in the context of same sex marriage. Marc From: hamilto...@aol.com<mailto:hamilto...@aol.com> [mailto:hamilto...@aol.com<mailto:hamilto...@aol.com?>] Sent: Friday, June 15, 2012 07:30 AM To: lawyer2...@aol.com<mailto:lawyer2...@aol.com> <lawyer2...@aol.com<mailto:lawyer2...@aol.com>>; religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu> <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: Religious exemptions in ND Please explain what is objectionable about that statement? Are you saying that religious groups do not endanger children? That is simply false. This is a law prof listserv where the discussion needs to focus on facts, doctrine, and policy. The mythology that religious groups always protect children or do not need the hand of the law to forestall harm is that -- mythology -- and not worthy of serious scholarly discussion. So do a lot of secular and individuals, but they are not capable of wrapping themselves in the mantle of claims for religious liberty or freedom. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com<mailto:hamilto...@aol.com> -----Original Message----- From: lawyer2974 <lawyer2...@aol.com<mailto:lawyer2...@aol.com>> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Sent: Fri, Jun 15, 2012 6:45 am Subject: Re: Religious exemptions in ND "Giving religious groups more power to endanger children...." Wow.... To be charitable, I will chalk that one up to the lateness of the hour in which it was written..... -Don Clark Nationwide Special Counsel United Church of Christ Sent from my Verizon Wireless BlackBerry -----Original Message----- From: Marci Hamilton <hamilto...@aol.com<mailto:hamilto...@aol.com>> Sender: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> Date: Fri, 15 Jun 2012 03:08:48 To: Law & Religion issues for Law Academics<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Cc: Law & Religion issues for Law Academics<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: Religious exemptions in ND _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto: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<mailto: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<mailto: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.
