Marc: It seems to me that state RFRAs are aimed at protecting religious observers and religious institutions more than at least many other social interests. Conversely, as I understand the church liability cases, plaintiffs usually aim to simply apply normal negligent hiring/supervision/retention law to churches, just as it would apply to (say) secular private schools, secular youth organizations, secular day care centers, and so on. To be sure, as Doug pointed out, state and local governments often are treated better than all these private institutions, under sovereign-immunity-ish principles. But whether that better treatment or not is right, it is justified by the sense that taxpayer money needs to be specially protected. Why should religious institutions be given more protection against liability than other private organizations?
Eugene Marc Stern writes: 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
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