Religious liberty could protect unconscionable acts

by Jetta Bernier and Marci Hamilton

This article appeared in the Focus section of the Boston Sunday Globe on October 3, 1999.

A warlock in Arizona claimed that his religion required him to sexually abuse his 13-year-old daughter. A religious polygamist in Utah sought to add his teenage niece to his group of wives. A faith-healing sect in Oregon withheld necessary medical care to 78 children in its local congregation who died since 1955.

These real and heart-wrenching stories underscore the capacity of adult religious beliefs to override children's most basic rights to safety, protection, and even life.

Unbelievably, Congress is now considering legislation that would place these children at even greater risk from religiously motivated conduct. The Religious Liberty Protection Act (RLPA) is a follow-up to the 1993 Religious Freedom Restoration Act (RFRA) that Congress passed in 1993 and that was struck down as unconstitutional by the U.S. Supreme Court in 1997.

The new legislation, like the old, once again seeks to prohibit the government and any agency receiving federal funds from interfering in a person's exercise of religion unless it furthers a compelling government interest. Even then, the government action would have to be deemed the least restrictive action.

What would this mean for children? A look at the impact of the original law gives us ample concern. In Vermont the state found itself powerless to enforce its orders for child support against a father living in a communal religion in which all income was pooled. Despite a school weapons ban policy, a California school district was forced to permit Sikh children to carry 7-inch functional, accessible knives to school with them each day because of their parent's religious beliefs. A Christian Science mother who let her daughter die of meningitis without medical care challenged her conviction on the grounds that her rights under RFRA had been violated. When Justice Stevens concurred in the Supreme Court's opinion stricking down RFRA, he argued that the law violated the Establishment clause because it provided "a potent, legal weapon" available only to religious individuals. These three examples prove all too well that he was right.

What can we expect if the new law is passed? Parents involved in child abuse and neglect court proceedings could raise the charge of improper governmental interference with individual religious exercise. Faith-based defenses could be allowed in cases of child sexual assault involving the misconduct of members of religious groups. Prosecutors, judges and child protection workers would be crippled in their ability to resolve cases quickly. Instead of focusing on the best interests of children, they will be consumed with proving whether their actions are the least restrictive means for the parents. Litigation and appeals would result in significant delays in juvenile court proceedings. Even the threat of litigation expenses would have a chilling effect on already fiscally strained child welfare agencies.

Court orders for timely and appropriate medical treatment would be more difficult since the new law could be invoked by parents to defend their denial of medical care for religious reasons. State foster care systems already faced with serious foster home shortages would be forced to go beyond current reasonable efforts and absolutely match foster children with same-religion foster families. Children requiring removal from their homes because of serious, religiously-motivated abuse or medical neglect would be withheld from adoption since it could be argued that it was not the least restrictive action.

Child care and residential facilities operated by religious groups would be immune from health and safety code regulations. Preventative health screenings in schools for hearing and vision would be more frequently challenged by faith-healing parents, as would childhood immunizations, raising the exposure of all children to communicable diseases.

Reasonable citizens everywhere clearly do support the right of individuals to practice their religion. However, their support is balanced with the wisdom articulated by the U.S. Supreme Court in its 1944 decision, Prince v. Massachusetts which stated: "The right to practice religion freely does not include the right to expose the community or the child to communicable disease or the latter to ill-health or death… Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they can make that choice for themselves."

When RFRA became law in 1993, it was passed by a unanimous voice vote. Few people appreciated its ramifications due to its arcane terminology and the effectiveness of its lobbyists. Time, however, has made the negative consequences of both the old and new legislation more apparent. Though the new House bill did pass earlier this year, 118 House members opposed it, including all of the Massachusetts delegation who were concerned about its civil rights problems.

Still there is great political capital to be gained by supporting any bill that purports to restore greater religious freedoms. This week Senator Orrin Hatch held hearings in the Judiciary Committee with an eye to passing swiftly his own version of RLPA. Not a single representative of children's interests was invited to be present to offer testimony.

Several groups including, Prevent Child Abuse America, the Academy of Pediatrics, National PTA, and the America Bar Association are proposing an amendment to the bill that would protect the health, safety, welfare, and financial interests of children. Like them, the Senate must place children's needs at the center of any debate about the future of RLPA. Citizens have no stomach for legislation that expands religious protections for adults on the one hand while destroying protections for children on the other.

Jetta Bernier is executive director of the Massachusetts Citizens for Children/Prevent Child Abuse Massachusetts. Marci Hamilton is Distinguished Professor of Law at Emory University School of Law.

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