FindLaw Forum: Child abuse, religious exemptions and the separation of church and state
By Marci A. Hamilton
Special to CNN.com
April 1, 2002 Posted: 12:14 p.m. EST (1714 GMT)
(FindLaw) -- Should the Catholic Church be left to its own devices to "fix" the child abuse problem? Some are suggesting the answer is yes. They cite worries that interfering with a religious institution will jeopardize the Constitution's separation of church and state, and concerns about insulting this otherwise venerated institution. The Church, however, has had at least eighteen years, and probably much longer, to clean house -- after all, the Louisiana scandal broke in 1984.
Far from cleaning its mansion, the Church spent the 80's and the 90's shuttering its windows. It "solved" its priest's sexual problems by transferring predatory priests -- merely shifting them to prey upon a crop of fresh victims, trapped by faith and fear. When one of the victims or their families complained, they were intimidated and/or paid off.
A harsh characterization? Yes, but an accurate one -- and a necessary one, if we are to combat the slowly emerging reasoning that the Church ought to be left alone or, worse, that it has a constitutional right to be let alone. In the midst of this scandal, such reasoning is scary stuff, and reminders of the real cost to children of letting the church alone are an important tonic.
There is no reason to treat the social response to this scandal as an either-or proposition -- in which the government either virtually takes over the Catholic Church, or refuses to touch it. Both the Church and the government bear the responsibility now to ensure child abuse never happens again, or at a minimum is severely punished if it occurs. The Constitution provides no excuse for either to shirk this responsibility.
Religious liberty, as the framers saw it, had limits in criminal law
Religious liberty does not require the government to back off in the face of irrefutable, weighty, and sickening evidence of a concerted enterprise to further criminal activity -- especially when that activity is child abuse, perpetrated upon innocent, vulnerable victims without the power to protest or the ability to defend themselves.
At the time of the framing of the United States Constitution, religious leaders reiterated over and over again that religious liberty required the freedom to believe and to worship. However, they stressed equally passionately that when such belief broke out into overt acts injurious to others, the state could legitimately punish the wrongdoer. When the Constitution guaranteed religious freedom, no one believed it also provided a license to commit religiously motivated crime.
This was true across a sweeping array of Christian denominations. Religious believers were not to be protected from the force of the law. Rather, they were expected to set an example for society; to try to serve the good of the whole by refraining from harming others in violation of the law. It was a given.
More than 200 years later, we have various entities wringing their hands about the imposition of government on the Catholic Church, as though the government should turn its sight away from the harm imposed. They just don't get it. The only way to make this society cohesive and safe for everyone, is to impose criminal laws on religious believers along with everyone else.
If the imposition is so serious as to place a substantial burden on the religion, then let the religious believers argue to the state legislatures for accommodation -- an exemption from the law. The legislature may then consider those requests, weighing them against the greater good, including the crucial interests of children.
When religion and children's welfare are at odds, religion wins too often
Why is it, in this society, that we have been so willing to accommodate religious institutions at the risk of children's welfare? In legal clashes, before the Supreme Court and within our legislatures, religious institutions and religious parents tend to win even when it means that children lose.
For example, the clergy--the ones who should be serving the highest good--have been granted exemptions from state statutes that require other caretakers of children to report child abuse. The cost of this exemption is not just that child abuse may go unreported; the exemption also tends to destroy the chance it will be punished if it is later reported due to the unrealistic statutes of limitations in so many states.
For instance, this type of exemption allows the Catholic Church to raise the tissue-paper-thin but, to some, persuasive defense "the law did not require us to report," as a reason the state should not intrude into church business. Yet, requiring reporting of child abuse allegations will enable the state to automatically get the information it needs from the church -- without having to bear the unfair burden of first proving the very allegations it is seeking to investigate.
The undue latitude for religion where children are concerned does not stop with the Church -- far from it. For example, Christian Science and Jehovah's Witness parents have been given exemptions from medical neglect charges, even though their children have easily treated diseases and even though they suffer. And in the landmark case Wisconsin v. Yoder, the Supreme Court held that, despite Wisconsin's compulsory education law, an Amish family had the right to end their children's education at 8th grade for religious reasons.
Justice Douglas's view: Children, too, have rights and interests
In Yoder, Justice Douglas wrote a particularly interesting partial dissent that raises important issues today. He argued that the Court should not have been so quick to treat the case as one between solely the Amish parents and the state. There was a third party, he noted: the child.
What if the child wanted to go to high school despite his or her parents' wishes and religious beliefs? What if the seriously ill daughter of a faith-healing family wants to see a doctor despite her parents' objection?
For Douglas, the child was not a pawn, but rather a person with rights. His message is worth our attention now that we discover so many children hurt by too many priests. Douglas pointed out how easily this society shelves children's interests, and those interests are at risk amidst this emerging theory that the Church should be left to clean its own house.
There is a right way to handle this problem, and it is prescribed by the Constitution. Both government and Church need to get into the act.
The Church has broad latitude to clean house and it should do so immediately and for its own sake publicly -- both because it is the right thing to do, and because if it does not, the government will have a basis for even more intrusion into church affairs than is currently warranted. But simultaneously, the government has the power and the obligation to prosecute child molesters and all those who assist such molestation by covering it up. The legislature also has the power to eradicate the statutory exemptions to reporting requirements that have left the government and the public ignorant of this costly social issue. It should also lengthen or repeal the statute of limitations in such cases.)
If the Church's housecleaning actually works this time, the government will have some spare time on its hands to devote to the others in this society who prey on children, and that is all to the good. In an ideal world, the Church would police itself and despite reporting requirements, would have nothing to report.
But that is not our world, yet. And if the Church does not begin to police itself far better than it has over the past decades, when it has known of abuse and done little or nothing, the government will and should be ready. Church and state were intended, in our Constitution and by the Framers, to be partners in achieving the public good. Sometimes that means the one must check the other when it veers off course.