To be sure church autonomy arguments outpace RFRA arguments, but less than half the states have rfras I don't actually get Doug's point -- a RFRA is irrelevant if it is not the dispositive issue in most cases? It adds a layer of argument in these cases. And from the perspective of child protection, it is bad policy.
In any event, Marty has under reported the prevalence of these issues in child sex abuse cases. For a summary of the cases and issues, see my cert petition in John Doe AP, which I have posted on my Cardozo web page > http://www.cardozo.yu.edu/uploadedFiles/Cardozo/Profiles/hamilton02-447/MOJohnDoeAPcertpetn.pdf > > > For the most recent case, see the Tennessee Supreme Court decision, Redwing > v. Catholic Bishop for the Diocese of Memphis > > - > On Jun 15, 2012, at 11:31 AM, "Douglas Laycock" <dlayc...@virginia.edu> wrote: > Martin Nussbaum’s response on the alleged prevalence of state RFRA arguments > and church autonomy arguments: > > My previous comments were not about the bankruptcies where federal law, the > U.S. Bankruptcy Code, is operative, and RFRA arguments are made and sometimes > prevail. > > Second, it is one thing to plead an affirmative defense. It is quite another > to file a dispositive motion. Professor Hamilton writes, "Just this week I > have seen autonomy argued in Illinois, Hawaii, and California cases." If she > "saw" the arguments, there must be briefs. Might she share those three > briefs with the group? > > The information I have suggests that counsel, at least in Hawaii and > California, are not filing dispositive motions arguing that the church > autonomy doctrine bars ecclesiastical negligent supervision claims. Last > evening, the leading ecclesiastical defense counsel in California (who has > himself handled over 500 cases and who is daily communications with others > from that defense bar) told me that he is unaware of defense counsel in > California filing dispositive motions contending that tort liability is > precluded by the church autonomy doctrine. I suspect that the practical > unavailability of a church autonomy argument against negligent ecclesiastical > supervision claims in California has something to do with Church defendants > paying out around $1.5 billion in settlements in that state. The leading > ecclesiastical defense counsel in Hawaii also informed me that he is unaware > of church autonomy arguments being briefed in Hawaii to bar ecclesiastical > negligent supervision claims. I have not recently conferred with church > counsel in Illinois. > > Finally, Professor Hamilton only claims that state RFRAs are plead, not > argued, in those states with such laws. This is consistent with what I've > seen. > > Martin Nussbaum > > > PLEASE TAKE NOTICE, the information contained in this electronic > communication and any document attached hereto or transmitted herewith, > including metadata, is attorney-client privileged, work product, private or > otherwise confidential, and is intended for the exclusive use of the > individual or entity named above. The information transmitted in this e-mail > and any attachment is intended only for the personal and confidential use of > the intended recipients and is covered by the Electronic Communications > Privacy Act, 18 U.S.C. §2510-2521. If the reader of this message is not the > intended recipient or the employee or agent responsible for delivering it to > the intended recipient, you are hereby notified that any examination, use, > dissemination, distribution, or copying of this communication or any part > thereof is strictly prohibited. If you have received this communication in > error, please immediately notify the sender by telephone or reply e-mail and > delete this communication. You are further notified that all personal > messages express views solely of the sender which are not to be attributed to > Rothgerber Johnson & Lyons LLP and may not be copied or distributed without > this disclaimer. > > > 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 Marci Hamilton > Sent: Thursday, June 14, 2012 6:44 PM > To: Law & Religion issues for Law Academics > Cc: Law & Religion issues for Law Academics > Subject: Re: Religious exemptions and child sexual abuse > > 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 > > > > _______________________________________________ > 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.
