Religious liberty could protect unconscionable acts

From:The Boston Sunday Globe; Focus; Law and Society
October 3, 1999
By Jetta Bernier and Marci Hamilton


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 children in its local congregation; 78 of them died.

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

Congress is now considering legislation that could place these children at risk from religiously motivated conduct.  The Religious Liberty Protection Act – or RLPA, as it is known – is a follow-up to the Religious Freedom Restoration Act, which was passed by Congress in 1993 but struck down by the US Supreme Court four years later.

Then new legislation, like the old, seeks to prohibit the government, or any agency receiving federal money, 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 somewhat vague language mean for children? A look at the impact of the original law prompts 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.  In California, despite a school weapons ban policy, a school district was forced to permit Sikh children to carry 7-inch functional, accessible knives to school with them each day because of their parents’ 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 had been violated under the Religious Freedom Restoration Act.  Although her conviction was overturned on other grounds, similar arguments might be raised in other cases if the Religious Liberty Protection Act becomes law.

What can we expect if the new law is passed?  While its precise wording has yet to be determined, making it hard to know exactly how the law could be used, history suggests that a variety of abuses becomes possible:

Parents involved in court proceedings around child abuse and neglect 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 could be crippled in their ability to resolve cases quickly, as they become sidetracked trying to prove their actions are the “least restrictive means” called for under the law.

Court orders for timely and appropriate medical treatment could become more difficult, because 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 – could 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.

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

Such possibilities may have the ring of scare tactics, but they are based on law and fact – and on what happened during the four years the original law was in effect.

Reasonable citizens everywhere support the right of individuals to practice their religion.  However, their support is balanced with the wisdom articulated by the Supreme Court in its 1944 decision in 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.”

The original Religious Freedom Restoration Act of 1993 passed by a unanimous voice vote – its true ramifications obscured by the measure’s arcane terminology and the effectiveness of its lobbyists.  This time, however, the measure is attracting deserved attention.  Still, the House of Representatives passed it earlier this year.  Some 118 House members opposed it, including all of the Massachusetts delegation, who were concerned about its civil rights problems.

The measure is now being considered in the US Senate, a place where there is great political capital to be gained in supporting any bill that purports to restore greater religious freedoms.  But the Senate must place children’s needs at the center of the debate.  Citizens have no stomach for legislation that expands religious protections for adults while destroying protections for children.


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