RE: Religious exemptions and child sexual abuse
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.
Re: Religious exemptions and child sexual abuse
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
Re: Religious exemptions and child sexual abuse
, 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.
RE: Religious exemptions and child sexual abuse
First of all, he goes by Martin, not Marty. Marci, you have not yet offered a single example of substantial briefing of a state RFRA issue in a sexual abuse case. It does not have to be the dispositive issue to count. It does need to be an issue that is seriously argued, and not a boilerplate pleading. We haven’t even seen an example of a boilerplate pleading of a state RFRA. There surely are some; lawyers will plead pretty much anything. But investing serious resources to develop the argument, devoting limited pages to the argument, and taking up the court’s time with the argument, is an altogether different decision. You have to do those things before the other side is forced to invest resources responding. Martin says it isn’t happening, and he’s checked with two other lawyers who do a lot of these cases, and they agree that it isn’t happening. Neither your cert petition below nor the Tennessee opinion you cite even mentions a RFRA. The cert petition is from a Missouri case. Both Missouri and Tennessee have RFRAs. The cert petition offers a nationwide set of string cites. There is no mention of state RFRAs as part of the problem. The church autonomy argument is no longer being offered much outside the states that have already recognized it, because it’s chances of success are no longer very good. It is being offered some, including in the Tennessee case, and of course it is offered in states that recognize it. We have no dispute about that. State RFRA arguments are not being seriously pressed in sexual abuse cases, probably because no one believes that such an argument would have the slightest chance of success. Sexual abuse cases as an argument against state RFRAs is just mudslinging. 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: Friday, June 15, 2012 12:27 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Religious exemptions and child sexual abuse 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
Re: Religious exemptions and child sexual abuse
Do we know of any social science or criminal statistics that supports a notion that jurisdictions with RFRA or upheld constitutional defenses to employer liability have a higher incidence of child sexual abuse (or, for that matter, that incidents of child sexual abuse are higher in religious settings than settings, such as public schools, where these legal arguments regarding employer liability are inapplicable)...or are we left with anecdotal evidence, if not surmise? --Don Clark Nationwide Special Counsel United Church of Christ In a message dated 6/13/2012 11:14:28 P.M. Central Daylight Time, vol...@law.ucla.edu writes: Folks: I think that, if we soften the rhetoric and get more concrete, we could arrive at the following: 1. There’s been a debate about whether religious freedom protections insulate churches from lawsuits for negligent hiring, negligent supervision, and negligent retention in child sex abuse cases (I’ll call this “employer negligence” for short, though some courts have treated the different theories differently). 2. Many church lawyers, faced with a lawsuit trying to hold a church liable for crimes by some of its clergy, have indeed asserted such defenses. 3. In some cases, those defenses have been successful, not because religious freedom is seen a defense to a sex abuse charge as such, but because it’ s seen as a defense to an employer negligence claim. 4. These defenses have generally been based on constitutional non-entanglement arguments, on the theory that secular courts shouldn’t be in the business of deciding whether a decision to hire or not hire a minister is “ reasonable,” but they might in principle also be strengthened by a Sherbert/Yoder regime, such as that created by RFRAs or similar constitutional amendments. This having been said, lots of courts in states with such Sherbert/Yoder regimes have indeed accepted liability for employer negligence notwithstanding those regimes, so it seems quite likely that implementing a RFRA would not thwart such negligence – but only quite likely, not certain. 5. Liability for employer negligence may help encourage churches to more closely police their clergy, based on standard tort-law-as-deterrence theory. 6. Conversely, disallowing such liability may, by comparison, diminish the incentive for churches to closely police their clergy, and may thus yield somewhat more sex abuse by clergy. 7. Therefore, depending on the magnitude of the effects described in item 4 (RFRA strengthening the no-employer-negligence-liability position) and item 6 (absence of liability diminishing the incentive to police clergy, and absence of policing increasing abuse), enacting a RFRA might in some measure yield somewhat more sex abuse by clergy. This of course doesn’t meaning that enacting a RFRA (even one without an exception for employer negligence) is necessarily bad. I favor state RFRA statutes, though I also favor Smith as a constitutional model. But it does suggest one possible cost of a RFRA. Eugene = ___ 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.
Re: Religious exemptions and child sexual abuse
Marci - I don't believe you've stated the facts of a single case. I'd say the same thing if you were a man. Art On Thu, Jun 14, 2012 at 7:27 AM, Marci Hamilton hamilto...@aol.com wrote: I'm not sure why stating the facts in these cases is rhetoric I sincerely hope it is not because a woman is pointing out the facts rather than a man. This last statement also is not rhetoric but an honest observation. ___ 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.
Re: Religious exemptions and child sexual abuse
There are actual cases of it being used as a defense. Abuse of RFRA is not in itself enough to not have such laws, but it is also something not to be ignored in considering the wisdom of and form of a RFRA. Nor should its use to permit or even encourage discrimination against groups be ignored in assessing its value. Nor should its very limited application in support of religion be ignored -- if it s mostly symbolic, why do it? Nor should the ability of courts to find that there is no substantial burden for those RFRAs (like the federal one) that include that predicate. Actual incidents are relevant as are the sorts of statistics Don Clark is asking about. Steve On Jun 14, 2012, at 9:21 AM, lawyer2...@aol.com wrote: Do we know of any social science or criminal statistics that supports a notion that jurisdictions with RFRA or upheld constitutional defenses to employer liability have a higher incidence of child sexual abuse (or, for that matter, that incidents of child sexual abuse are higher in religious settings than settings, such as public schools, where these legal arguments regarding employer liability are inapplicable)...or are we left with anecdotal evidence, if not surmise? --Don Clark Nationwide Special Counsel United Church of Christ In a message dated 6/13/2012 11:14:28 P.M. Central Daylight Time, vol...@law.ucla.edu writes: Folks: I think that, if we soften the rhetoric and get more concrete, we could arrive at the following: 1. There’s been a debate about whether religious freedom protections insulate churches from lawsuits for negligent hiring, negligent supervision, and negligent retention in child sex abuse cases (I’ll call this “employer negligence” for short, though some courts have treated the different theories differently). 2. Many church lawyers, faced with a lawsuit trying to hold a church liable for crimes by some of its clergy, have indeed asserted such defenses. 3. In some cases, those defenses have been successful, not because religious freedom is seen a defense to a sex abuse charge as such, but because it’s seen as a defense to an employer negligence claim. 4. These defenses have generally been based on constitutional non-entanglement arguments, on the theory that secular courts shouldn’t be in the business of deciding whether a decision to hire or not hire a minister is “reasonable,” but they might in principle also be strengthened by a Sherbert/Yoder regime, such as that created by RFRAs or similar constitutional amendments. This having been said, lots of courts in states with such Sherbert/Yoder regimes have indeed accepted liability for employer negligence notwithstanding those regimes, so it seems quite likely that implementing a RFRA would not thwart such negligence – but only quite likely, not certain. 5. Liability for employer negligence may help encourage churches to more closely police their clergy, based on standard tort-law-as-deterrence theory. 6. Conversely, disallowing such liability may, by comparison, diminish the incentive for churches to closely police their clergy, and may thus yield somewhat more sex abuse by clergy. 7. Therefore, depending on the magnitude of the effects described in item 4 (RFRA strengthening the no-employer-negligence-liability position) and item 6 (absence of liability diminishing the incentive to police clergy, and absence of policing increasing abuse), enacting a RFRA might in some measure yield somewhat more sex abuse by clergy. This of course doesn’t meaning that enacting a RFRA (even one without an exception for employer negligence) is necessarily bad. I favor state RFRA statutes, though I also favor Smith as a constitutional model. But it does suggest one possible cost of a RFRA. Eugene -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ Whenever you find yourself on the side of the majority, it is time to pause and reflect. Mark Twain ___ 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.
Re: Religious exemptions and child sexual abuse
I was talking about the facts of how these cases are litigated. I represent many victims in numerous cases around the country on the First Am and RFRA issues. The RCC and LDS on particular push the religious freedom claims hard in such cases. Sometimes together Gibson v Brewer out of Missouri Is a good case to start with Marci On Jun 14, 2012, at 9:31 AM, Arthur Spitzer artspit...@gmail.com wrote: Marci - I don't believe you've stated the facts of a single case. I'd say the same thing if you were a man. Art On Thu, Jun 14, 2012 at 7:27 AM, Marci Hamilton hamilto...@aol.com wrote: I'm not sure why stating the facts in these cases is rhetoric I sincerely hope it is not because a woman is pointing out the facts rather than a man. This last statement also is not rhetoric but an honest observation. ___ 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.
RE: Religious exemptions and child sexual abuse
Gibson v. Brewer is an outlier, giving the church more protection than most states provide. And the protection Gibson provides is roughly equivalent to what state and federal law provides the public schools in similar circumstances. No state has even considered giving religious liberty protection to abusers. The only dispute is with respect to entities who weren’t there and didn’t do it, but might have been able to prevent it. And most of those cases are decided under common law rules uninfluenced by RFRAs or free exercise clauses. I have written about Gibson v. Brewer in Michigan in 2007. 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 10:02 AM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Religious exemptions and child sexual abuse I was talking about the facts of how these cases are litigated. I represent many victims in numerous cases around the country on the First Am and RFRA issues. The RCC and LDS on particular push the religious freedom claims hard in such cases. Sometimes together Gibson v Brewer out of Missouri Is a good case to start with Marci On Jun 14, 2012, at 9:31 AM, Arthur Spitzer artspit...@gmail.com wrote: Marci - I don't believe you've stated the facts of a single case. I'd say the same thing if you were a man. Art On Thu, Jun 14, 2012 at 7:27 AM, Marci Hamilton hamilto...@aol.com wrote: I'm not sure why stating the facts in these cases is rhetoric I sincerely hope it is not because a woman is pointing out the facts rather than a man. This last statement also is not rhetoric but an honest observation. ___ 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.
Re: Religious exemptions and child sexual abuse
Doug-- your downplaying of rfras' effect is inaccurate and misleading. The rfras can apply and they are invoked in these casesJust because a case comes down on common law theory doesn't mean rfras don't apply. I think you have sidestepped the issues. Obviously, rfras can be invoked in these cases Are you opposed to exempting child safety from the RFRAs? And what is your view on a RFRA without substantial modifying burden? Marci On Jun 14, 2012, at 11:01 AM, Douglas Laycock dlayc...@virginia.edu wrote: Gibson v. Brewer is an outlier, giving the church more protection than most states provide. And the protection Gibson provides is roughly equivalent to what state and federal law provides the public schools in similar circumstances. No state has even considered giving religious liberty protection to abusers. The only dispute is with respect to entities who weren’t there and didn’t do it, but might have been able to prevent it. And most of those cases are decided under common law rules uninfluenced by RFRAs or free exercise clauses. I have written about Gibson v. Brewer in Michigan in 2007. 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 10:02 AM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Religious exemptions and child sexual abuse I was talking about the facts of how these cases are litigated. I represent many victims in numerous cases around the country on the First Am and RFRA issues. The RCC and LDS on particular push the religious freedom claims hard in such cases. Sometimes together Gibson v Brewer out of Missouri Is a good case to start with Marci On Jun 14, 2012, at 9:31 AM, Arthur Spitzer artspit...@gmail.com wrote: Marci - I don't believe you've stated the facts of a single case. I'd say the same thing if you were a man. Art On Thu, Jun 14, 2012 at 7:27 AM, Marci Hamilton hamilto...@aol.com wrote: I'm not sure why stating the facts in these cases is rhetoric I sincerely hope it is not because a woman is pointing out the facts rather than a man. This last statement also is not rhetoric but an honest observation. ___ 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. ___ 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.
RE: Religious exemptions and child sexual abuse
Actually, my criticism of Marci was not because she was a woman (surprise!), but because it seemed to me that for whatever reason her argument was framed in a way that was as unsubstantive and as lacking in concreteness as possible. As I noted in the e-mail to which Marci responded, there is a plausible but contestable explanation for how enacting a RFRA might indeed indirectly increase the rate of child sexual abuse. But that’s an argument that, it seems to me, is most helpfully offered by explaining its specifics, and in the process noting its limitations. Instead, Marci’s first post on the subject framed the matter as “Most Americans when they understand that a RFRA opens the door to discrimination or child sex abuse or medical neglect quickly cool on the extremism of a RFRA.” “[A] RFRA opens the door to ... child sex abuse”? That’s rhetoric, or hyperbole, or perhaps just careless wording. “Opens the door” suggests that something that before wasn’t happening now would be happening, or at least (as in the “discrimination” and “medical neglect” items) something that before wasn’t legal now would be legal. Of course, child sex abuse is a very serious crime with or without a RFRA; at most, what RFRA might do is diminish the incentives that one set of institutions has to maximally combat child sex abuse. In another post, Marci writes, “RFRA, as we all know, does not mirror the First Amendment, and the North Dakota RFRA would have triggered strict scrutiny even without a showing that the burden was ‘substantial’ -- so we can be certain that it could be more problematic in child sex abuse and medical neglect cases.” Can we really be so “certain,” given the rather modest difference in wording, the fact that court decisions providing protection to churches are generally entanglement cases, not RFRA cases, and the fact that most courts don’t accept either entanglement or free exercise/RFRA challenges? (Or is the sentence saved by the fact that it only says “we can be certain that it could be more problematic,” in which case the claim is made accurate by being made basically empty?) Most recently, Marci’s latest response offers one case citation: Gibson v Brewer. But it might be worth noting that Gibson accepts a First Amendment defense to employer negligence claims on entanglement and endorsement grounds, with a dollop of Kedroff. It didn’t rely on the Sherbert/Yoder/RFRA strict scrutiny model. Again, instead of concrete analysis, what I’m seeing is one-liners and broad assertions. I would not normally publicly criticize another list member’s work this way, but Marci’s implicit accusation of sexism requires me to explain just why her argument struck me as more “rhetoric” than substance, and would have regardless of her sex. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Thursday, June 14, 2012 4:28 AM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Religious exemptions and child sexual abuse I'm not sure why stating the facts in these cases is rhetoric I sincerely hope it is not because a woman is pointing out the facts rather than a man. This last statement also is not rhetoric but an honest observation. Eugene's analysis is correct to a point. Even though slightly more than half of the states have rejected religious liberty as an absolute defense, the churches still raise religious liberty defenses in a myriad of situations in these cases i those states Examples: They balk at discovery on a routine basis and use the defense to try to get around SOLs. Shifting from the constitutional standard to the RFRA formulation increases delay and cost in these cases. That means it increases the suffering of the victims now and creates more dangers in the future. These are the facts The same is true for medical neglect. Having said that -- the North Dakota RFRA also was more extreme than most because it did not require a substantial burden. Just a burden. RFRA is a misguided approach. If legislators are foolish enough to adopt this formulation which disables laws they worked hard to pass, at the least they should exempt all cases involving child abuse and neglect. Existing rfras should be amended accordingly and religious lobbyists should include the child safety exemption in every bill they push. Still, the gay rights lobbies and women 's rights lobbies passionately oppose the RFRA formulation. The tide has turned because they came to understand that the rfras are one means of oppressing them. Again just a fact -- not rhetoric. Marci On Jun 14, 2012, at 12:13 AM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Folks: I think that, if we soften the rhetoric and get more concrete, we could arrive at the following
RE: Religious exemptions and child sexual abuse
Anecdotal evidence and surmise is all we have for most laws – it’s all we have for the proposition that, for instance, having RFRAs actually increases religious freedom; it’s not like we have social science or criminal statistics to support that. And social science and criminal statistics are especially unlikely to be available for child sexual abuse by the clergy, which is for obvious reasons hard to measure accurately, and which is numerically rare enough that random variation can easily swamp any slight effects of a RFRA or employer tort liability. To be sure, I think that social science evidence, when it’s available and when it’s properly gathered and analyzed, can be very helpful in making policy decisions. But we often find ourselves having to make such decisions even without such evidence. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of lawyer2...@aol.com Sent: Thursday, June 14, 2012 6:21 AM To: religionlaw@lists.ucla.edu Subject: Re: Religious exemptions and child sexual abuse Do we know of any social science or criminal statistics that supports a notion that jurisdictions with RFRA or upheld constitutional defenses to employer liability have a higher incidence of child sexual abuse (or, for that matter, that incidents of child sexual abuse are higher in religious settings than settings, such as public schools, where these legal arguments regarding employer liability are inapplicable)...or are we left with anecdotal evidence, if not surmise? --Don Clark Nationwide Special Counsel United Church of Christ In a message dated 6/13/2012 11:14:28 P.M. Central Daylight Time, vol...@law.ucla.edumailto:vol...@law.ucla.edu writes: Folks: I think that, if we soften the rhetoric and get more concrete, we could arrive at the following: 1. There’s been a debate about whether religious freedom protections insulate churches from lawsuits for negligent hiring, negligent supervision, and negligent retention in child sex abuse cases (I’ll call this “employer negligence” for short, though some courts have treated the different theories differently). 2. Many church lawyers, faced with a lawsuit trying to hold a church liable for crimes by some of its clergy, have indeed asserted such defenses. 3. In some cases, those defenses have been successful, not because religious freedom is seen a defense to a sex abuse charge as such, but because it’s seen as a defense to an employer negligence claim. 4. These defenses have generally been based on constitutional non-entanglement arguments, on the theory that secular courts shouldn’t be in the business of deciding whether a decision to hire or not hire a minister is “reasonable,” but they might in principle also be strengthened by a Sherbert/Yoder regime, such as that created by RFRAs or similar constitutional amendments. This having been said, lots of courts in states with such Sherbert/Yoder regimes have indeed accepted liability for employer negligence notwithstanding those regimes, so it seems quite likely that implementing a RFRA would not thwart such negligence – but only quite likely, not certain. 5. Liability for employer negligence may help encourage churches to more closely police their clergy, based on standard tort-law-as-deterrence theory. 6. Conversely, disallowing such liability may, by comparison, diminish the incentive for churches to closely police their clergy, and may thus yield somewhat more sex abuse by clergy. 7. Therefore, depending on the magnitude of the effects described in item 4 (RFRA strengthening the no-employer-negligence-liability position) and item 6 (absence of liability diminishing the incentive to police clergy, and absence of policing increasing abuse), enacting a RFRA might in some measure yield somewhat more sex abuse by clergy. This of course doesn’t meaning that enacting a RFRA (even one without an exception for employer negligence) is necessarily bad. I favor state RFRA statutes, though I also favor Smith as a constitutional model. But it does suggest one possible cost of a RFRA. Eugene = ___ To post, send message to Religionlaw@lists.ucla.edumailto: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
RE: Religious exemptions and child sexual abuse
Marci, has any church ever won any form of sexual abuse case on a RFRA theory? I will not assert that the number of such cases is zero, because I do not claim to have read every case. I am confident that the number of such cases is very small. As Eugene has already noted, the churches that have won negligent supervision or negligent hiring cases on religious liberty theories have won them on the ground that liability would interfere with the relationship between the church and its ministers. And that theory was never based in RFRA or Sherbert-Yoder. It was and is based in Watson v. Jones and the line of cases that also led to the ministerial exception. We can all agree that the underlying conduct in the sex abuse cases is indefensible. Every judge has agreed with that too. You use them like a three-year old with a newly discovered hammer, to beat on any religious liberty issue no matter how remote or irrelevant. At the AALS in January, you dragged the sex abuse cases into a panel on the land use provisions of RLUIPA. You combine the worst sort of ad hominem with the worst sort of guilt by association – some religious folks have done bad things, so all religious folks should have their liberty constrained in all domains. 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 11:12 AM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Religious exemptions and child sexual abuse Doug-- your downplaying of rfras' effect is inaccurate and misleading. The rfras can apply and they are invoked in these casesJust because a case comes down on common law theory doesn't mean rfras don't apply. I think you have sidestepped the issues. Obviously, rfras can be invoked in these cases Are you opposed to exempting child safety from the RFRAs? And what is your view on a RFRA without substantial modifying burden? Marci On Jun 14, 2012, at 11:01 AM, Douglas Laycock dlayc...@virginia.edu wrote: Gibson v. Brewer is an outlier, giving the church more protection than most states provide. And the protection Gibson provides is roughly equivalent to what state and federal law provides the public schools in similar circumstances. No state has even considered giving religious liberty protection to abusers. The only dispute is with respect to entities who weren’t there and didn’t do it, but might have been able to prevent it. And most of those cases are decided under common law rules uninfluenced by RFRAs or free exercise clauses. I have written about Gibson v. Brewer in Michigan in 2007. 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 10:02 AM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Religious exemptions and child sexual abuse I was talking about the facts of how these cases are litigated. I represent many victims in numerous cases around the country on the First Am and RFRA issues. The RCC and LDS on particular push the religious freedom claims hard in such cases. Sometimes together Gibson v Brewer out of Missouri Is a good case to start with Marci On Jun 14, 2012, at 9:31 AM, Arthur Spitzer artspit...@gmail.com wrote: Marci - I don't believe you've stated the facts of a single case. I'd say the same thing if you were a man. Art On Thu, Jun 14, 2012 at 7:27 AM, Marci Hamilton hamilto...@aol.com wrote: I'm not sure why stating the facts in these cases is rhetoric I sincerely hope it is not because a woman is pointing out the facts rather than a man. This last statement also is not rhetoric but an honest observation. ___ 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
Re: Religious exemptions and child sexual abuse
I've just read *Gibson v Brewer*, 952 SW.2d 23 (Mo.1997). If that's the poster child for why RFRAs are bad, it's not much of a poster. In the first place, it didn't involve a RFRA at all, just the First Amendment, with which we're stuck for better or for worse. First, motions to dismiss claims of battery, negligent infliction of emotional distress, and intentional infliction of emotional distress against the priest were denied by the lower courts, and these decisions were not reviewed by the Missouri Supreme Court. the court did dismiss claims of negligent hiring or ordination of clergy, negligent failure to supervise clergy, negligent infliction of emotional distress by clergy, and independent negligence by the diocese on First Amendment grounds. Some of those rulings may have been too broad. But it allowed a claim of intentional failure to supervise clergy to go forward, rejecting the diocese's First Amendment defense. It also dismissed a respondeat superior claim against the diocese, based on ordinary principles of Missouri respondeat superior law that would apply to any employer. Missouri respondeat superior law appears to be narrower than, e.g., DC law, where the claim probably would have been allowed to proceed, but that has nothing to do with religion. Likewise, it found no First Amendment bar to a claim of intentional infliction of emotional distress by the diocese, but dismissed that claim because the allegations of the complaint did not state a claim under state law. It would be interesting to know what happened on remand to the claims against the priest and the claim against the diocese for intentional failure to supervise. Art Spitzer On Thu, Jun 14, 2012 at 11:45 AM, Volokh, Eugene vol...@law.ucla.eduwrote: Anecdotal evidence and surmise is all we have for most laws – it’s all we have for the proposition that, for instance, having RFRAs actually increases religious freedom; it’s not like we have social science or criminal statistics to support that. And social science and criminal statistics are especially unlikely to be available for child sexual abuse by the clergy, which is for obvious reasons hard to measure accurately, and which is numerically rare enough that random variation can easily swamp any slight effects of a RFRA or employer tort liability. To be sure, I think that social science evidence, when it’s available and when it’s properly gathered and analyzed, can be very helpful in making policy decisions. But we often find ourselves having to make such decisions even without such evidence. ** ** Eugene ** ** *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *lawyer2...@aol.com *Sent:* Thursday, June 14, 2012 6:21 AM *To:* religionlaw@lists.ucla.edu *Subject:* Re: Religious exemptions and child sexual abuse ** ** *Do we know of any social science or criminal statistics that supports a notion that jurisdictions with RFRA or upheld constitutional defenses to employer liability have a higher incidence of child sexual abuse (or, for that matter, that incidents of child sexual abuse are higher in religious settings than settings, such as public schools, where these legal arguments regarding employer liability are inapplicable)...or are we left with anecdotal evidence, if not surmise?* *--Don Clark* * Nationwide Special Counsel* * United Church of Christ* In a message dated 6/13/2012 11:14:28 P.M. Central Daylight Time, vol...@law.ucla.edu writes: Folks: I think that, if we soften the rhetoric and get more concrete, we could arrive at the following: ** ** 1. There’s been a debate about whether religious freedom protections insulate churches from lawsuits for negligent hiring, negligent supervision, and negligent retention in child sex abuse cases (I’ll call this “employer negligence” for short, though some courts have treated the different theories differently). ** ** 2. Many church lawyers, faced with a lawsuit trying to hold a church liable for crimes by some of its clergy, have indeed asserted such defenses. ** ** 3. In some cases, those defenses have been successful, not because religious freedom is seen a defense to a sex abuse charge as such, but because it’s seen as a defense to an employer negligence claim.* *** ** ** 4. These defenses have generally been based on constitutional non-entanglement arguments, on the theory that secular courts shouldn’t be in the business of deciding whether a decision to hire or not hire a minister is “reasonable,” but they might in principle also be strengthened by a Sherbert/Yoder regime, such as that created by RFRAs or similar constitutional amendments. This having been said, lots of courts in states
Re: Religious exemptions and child sexual abuse
I think someone needs to raise a word in defense of Marci here. The perspective of someone who actively litigates these cases has to be different from that of someone who sits in an office reading the decisions and synthesizing the rationales of the cases. The fact that religious-institution defendants raise RFRAs as a defense to causes of action or to discovery means that the plaintiffs have to go to that much more work (and legal expense) to counter the arguments. In that sense, whether the defenses work or not, there is an additional burden on litigants in having that extra string on the defendant's bow. That said, the fact that RFRA-based claims don't succeed very well may over time cause them to wither as a tactic, especially if plaintiffs can whack the defendants with Rule 11 sanctions for putting them to that bother. And, of course, this additional burden on plaintiffs may itself not be sufficient to outweigh the benefits that RFRAs have in terms of facilitating non-violent religious practice and conscience. I just wanted to add an observation about the fact that everyone agrees that child (and female) abuse is indefensible. This is true in a sense, but the definition of these things matters. Marci's citing the LDS as one of the black-hat institutions raises a red flag that maybe an unsophisticated and tendentious notion of abuse is doing too much work in this discussion--there are practices that many sincere believers do not consider abusive that have become part of the culture wars. To the extent that RFRAs force courts to recognize the potential conscientious validity of these practices, and weigh the countervailing government interest, they can help prevent anti-religious (or anti-denominational) lynch mobs from having free rein. You shouldn't be permitted to just wave your hand in a culturally biased way at a broad spectrum of practices and call them all abusive because they're not the norm in New York 10025 or Cambridge 02138. Vance On Thu, Jun 14, 2012 at 12:15 PM, Arthur Spitzer artspit...@gmail.comwrote: I've just read *Gibson v Brewer*, 952 SW.2d 23 (Mo.1997). If that's the poster child for why RFRAs are bad, it's not much of a poster. In the first place, it didn't involve a RFRA at all, just the First Amendment, with which we're stuck for better or for worse. First, motions to dismiss claims of battery, negligent infliction of emotional distress, and intentional infliction of emotional distress against the priest were denied by the lower courts, and these decisions were not reviewed by the Missouri Supreme Court. the court did dismiss claims of negligent hiring or ordination of clergy, negligent failure to supervise clergy, negligent infliction of emotional distress by clergy, and independent negligence by the diocese on First Amendment grounds. Some of those rulings may have been too broad. But it allowed a claim of intentional failure to supervise clergy to go forward, rejecting the diocese's First Amendment defense. It also dismissed a respondeat superior claim against the diocese, based on ordinary principles of Missouri respondeat superior law that would apply to any employer. Missouri respondeat superior law appears to be narrower than, e.g., DC law, where the claim probably would have been allowed to proceed, but that has nothing to do with religion. Likewise, it found no First Amendment bar to a claim of intentional infliction of emotional distress by the diocese, but dismissed that claim because the allegations of the complaint did not state a claim under state law. It would be interesting to know what happened on remand to the claims against the priest and the claim against the diocese for intentional failure to supervise. Art Spitzer On Thu, Jun 14, 2012 at 11:45 AM, Volokh, Eugene vol...@law.ucla.eduwrote: Anecdotal evidence and surmise is all we have for most laws – it’s all we have for the proposition that, for instance, having RFRAs actually increases religious freedom; it’s not like we have social science or criminal statistics to support that. And social science and criminal statistics are especially unlikely to be available for child sexual abuse by the clergy, which is for obvious reasons hard to measure accurately, and which is numerically rare enough that random variation can easily swamp any slight effects of a RFRA or employer tort liability. To be sure, I think that social science evidence, when it’s available and when it’s properly gathered and analyzed, can be very helpful in making policy decisions. But we often find ourselves having to make such decisions even without such evidence. ** ** Eugene ** ** *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *lawyer2...@aol.com *Sent:* Thursday, June 14, 2012 6:21 AM *To:* religionlaw@lists.ucla.edu *Subject:* Re: Religious exemptions and child
Re: Religious exemptions and child sexual abuse
This straight out of C.S. Lewis' Bulverism essay, where young Ezekiel Bulver hears his father argue that the angles of a triangle add up to 180, and his mother retort You say that because you are a MAN! At 09:31 AM 6/14/2012, you wrote: Marci - I don't believe you've stated the facts of a single case. I'd say the same thing if you were a man. Art On Thu, Jun 14, 2012 at 7:27 AM, Marci Hamilton mailto:hamilto...@aol.comhamilto...@aol.com wrote: I'm not sure why stating the facts in these cases is rhetoric I sincerely hope it is not because a woman is pointing out the facts rather than a man. This last statement also is not rhetoric but an honest observation. ___ 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.
Re: Religious exemptions and child sexual abuse
Obviously the man lives in flatland and the woman in sphereland. :) On Jun 14, 2012, at 2:28 PM, Will Linden wrote: This straight out of C.S. Lewis' Bulverism essay, where young Ezekiel Bulver hears his father argue that the angles of a triangle add up to 180, and his mother retort You say that because you are a MAN! At 09:31 AM 6/14/2012, you wrote: Marci - I don't believe you've stated the facts of a single case. I'd say the same thing if you were a man. Art On Thu, Jun 14, 2012 at 7:27 AM, Marci Hamilton hamilto...@aol.com wrote: I'm not sure why stating the facts in these cases is rhetoric I sincerely hope it is not because a woman is pointing out the facts rather than a man. This last statement also is not rhetoric but an honest observation. ___ 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. -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ Nothing ever doesn't change, but nothing changes much. Damian Kulash of OK Go in White Knuckles ___ 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.
Religious exemptions and child sexual abuse
I don't think there is much of a litigation burden from RFRA defenses in sexual abuse cases. The principal news about state RFRAs is that they are seriously underutilized and seriously underenforced when utilized. Chris Lund documents this at 55 S.D. L. Rev. 466 (2010). This is not a good thing, but it's a fact. I am not aware of state RFRAs being used at all in sexual abuse cases. Chris mentions no such case, and he cites no case with a Doe or Roe plaintiff. But as Vance says, things can go on in trial courts that law professors don't know about. So I asked Martin Nussbaum at the Rothgerber firm in Denver whether anyone is using state RFRAs in sexual abuse cases. Martin has represented churches in many sexual abuse cases. Here is what he said: I am aware of only one church defense counsel in the past five years, who has filed a dispositive motion based on church autonomy or other religious freedom grounds. That motion was filed in the past year. It was not based on a state RFRA argument. It was unsuccessful. While the First Amendment precedents are still split on this issue, the majority of such First Amendment arguments after 1-1-02 have lost. I am aware of some arguments being made that seek to limit the scope of discovery that invoke confidences mandated by church law and contend that civil courts should respect such confidences due to First Amendment, state confidential clergy communications statutes, and, conceivably, state RFRAs. I cannot point though to instances where an advocate invoked state RFRA laws to limit such discovery. It may have happened. I just don't know about it. The significance of 2002, of course, is that that is when the news from Boston broke. 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 Vance R. Koven Sent: Thursday, June 14, 2012 1:57 PM To: Law Religion issues for Law Academics Subject: Re: Religious exemptions and child sexual abuse I think someone needs to raise a word in defense of Marci here. The perspective of someone who actively litigates these cases has to be different from that of someone who sits in an office reading the decisions and synthesizing the rationales of the cases. The fact that religious-institution defendants raise RFRAs as a defense to causes of action or to discovery means that the plaintiffs have to go to that much more work (and legal expense) to counter the arguments. In that sense, whether the defenses work or not, there is an additional burden on litigants in having that extra string on the defendant's bow. Vance ___ 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.
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 On Jun 14, 2012, at 6:01 PM, Douglas Laycock dlayc...@virginia.edu wrote: I don’t think there is much of a litigation burden from RFRA defenses in sexual abuse cases. The principal news about state RFRAs is that they are seriously underutilized and seriously underenforced when utilized. Chris Lund documents this at 55 S.D. L. Rev. 466 (2010). This is not a good thing, but it’s a fact. I am not aware of state RFRAs being used at all in sexual abuse cases. Chris mentions no such case, and he cites no case with a Doe or Roe plaintiff. But as Vance says, things can go on in trial courts that law professors don’t know about. So I asked Martin Nussbaum at the Rothgerber firm in Denver whether anyone is using state RFRAs in sexual abuse cases. Martin has represented churches in many sexual abuse cases. Here is what he said: “I am aware of only one church defense counsel in the past five years, who has filed a dispositive motion based on church autonomy or other religious freedom grounds. That motion was filed in the past year. It was not based on a state RFRA argument. It was unsuccessful. While the First Amendment precedents are still split on this issue, the majority of such First Amendment arguments after 1-1-02 have lost. I am aware of some arguments being made that seek to limit the scope of discovery that invoke confidences mandated by church law and contend that civil courts should respect such confidences due to First Amendment, state confidential clergy communications statutes, and, conceivably, state RFRAs. I cannot point though to instances where an advocate invoked state RFRA laws to limit such discovery. It may have happened. I just don't know about it.” The significance of 2002, of course, is that that is when the news from Boston broke. 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 Vance R. Koven Sent: Thursday, June 14, 2012 1:57 PM To: Law Religion issues for Law Academics Subject: Re: Religious exemptions and child sexual abuse I think someone needs to raise a word in defense of Marci here. The perspective of someone who actively litigates these cases has to be different from that of someone who sits in an office reading the decisions and synthesizing the rationales of the cases. The fact that religious-institution defendants raise RFRAs as a defense to causes of action or to discovery means that the plaintiffs have to go to that much more work (and legal expense) to counter the arguments. In that sense, whether the defenses work or not, there is an additional burden on litigants in having that extra string on the defendant's bow. Vance ___ 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.
