It is not just other constitutional interests that limit liability for harm
to children. It is also other public policies.
For example, in Missouri, where Gibson v. Brewer limits the churchs
liability to cases where they knew about abuse and failed to act, public
schools have no state-law liability at all in sex abuse cases. See Mo. Stat.
§537.600; Letlow v. Evans, 857 F. Supp. 676 (W.D. Mo. 1994); Doe v. Special
School District, 637 F. Supp. 1138 (E.D. Mo. 1986). And they would have no
federal liability unless an official with authority to act had actual
knowledge and made an official decision not to do anything. Gebser v.
Lago Vista Independent School District, 524 U.S. 274, 290 (1998).
The should-have-known liability now imposed on churches in many states, and
the should-have-known-there-was-an-elevated-risk liability that is often
alleged and sometimes imposed, goes far beyond the liability rules
applicable to most public schools.
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 Graber, Mark
Sent: Friday, June 15, 2012 9:46 AM
To: Law & Religion issues for Law Academics
Subject: RE: Religious exemptions in ND
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 justiceso 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
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