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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