HOW EXISTING STATE RELIGIOUS FREEDOM RESTORATION ACTS MAY BE USED TO HELP COVER UP CLERGY CHILD ABUSE, AND WHY STATES CONSIDERING RFRAS SHOULD THINK AGAIN

Sadly, the Vatican chose the latter course. As a result, we are all on notice that the prosecution of clergy members for child abuse will go no easier than it did in the past. There will be little willing cooperation with authorities, because the Church will have its own tribunals at which it will mete out its own justice, observe its own statute of limitations, and report abuse only when explicitly required.

Fortunately for victims, prosecutors are finally refusing to give the church a "bye" every time a priest gets in trouble. Yet they may find it more difficult to prosecute than they anticipated.

That is because a state statute--for which the Church is heavily lobbying--will, wherever it is (or has been) enacted, make it easier for the Church and its clergy culprits to "win" such cases. It will aid the Church in refusing to report abuse, to cooperate in investigations of abuse, and to provide discovery in civil suits alleging abuse.

The law already has been passed in 11 states: Alabama, Arizona, Connecticut, Florida, Idaho, Illinois, New Mexico, Oklahoma, Rhode Island, South Carolina, and Texas. It is also being pushed in the other 39 - most recently in Pennsylvania. It is called the Religious Freedom Restoration Act (RFRA).

The Catholic Conference's decision to push the pending Pennsylvania RFRA with vigor is, perhaps, unsurprising. But it is still disappointing - for those who expect more from both the Vatican and the stateside Church.

The Fate of the Federal RFRA

Before these state RFRAs, there was a federal RFRA, but it was held unconstitutional by the Supreme Court in 1997, in Boerne v. Flores.

The federal RFRA had blocked the application of generally applicable laws to religious individuals and entities. If a law substantially burdened them, then RFRA forced the government to cite a "compelling interest" to justify the law, and to prove the law the "least restrictive means" of achieving that interest.

For those conversant in constitutional law, these tests will sound familiar: They are the tests imposed when courts subject laws to "strict scrutiny," the steepest standard known to constitutional law. But only certain laws are subject to strict scrutiny - such as those that expressly discriminate based on race, or those that burden a fundamental right, not generally applicable, neutral laws.

After Boerne was decided, the forces that pushed the federal RFRA offered a successor, the Religious Liberty Protection Act (RLPA). But this time, many groups who had not initially realized they should oppose RFRA - because they did not anticipate how it would apply to them or their constituents - rose up in opposition to RLPA.

For instance, the American Civil Liberties Union was a full-throated supporter of RFRA but then had to back off when it became clear this was a tool for conservative religious believers to trump the fair housing laws. And it subsequently opposed most aspects of the RLPA - as did many cities, counties, municipal lawyers, children's advocates, prison authorities and so on.

On the whole, RLPA failed. Only a sliver of the law--the Religious Land Use and Institutionalized Persons Act-- was enacted. And RLUIPA, as I have discussed in a prior column, is a narrower, though still unfortunate, law.

Accordingly, the religious lobbyists took their campaign to the states - where, as noted above, 11 enacted state RFRAs.

How the State RFRAs Will Affect the Clergy Abuse Prosecutions and Litigation

In the early 90's, when lobbyists began having success with it, the RFRA formulation looked attractive. On the surface, RFRA looked good: It seemed to provide more religious liberty. (And its potentially undermining effect on a huge range of generally applicable laws was not apparent on its face.)

At the time, religion was assumed by many to be always beneficent - so why not get rid of the laws that burden it? I was one of those who bought into that world view, but changed my perspective 180 degrees when I saw how RFRA operated in practice.

That perspective is now untenable for any clear thinking individual. September 11 showed how religious fanaticism can be connected to terrorism and mass murder. The revelation of the depth and breadth of the Catholic Church's clergy abuse scandal showed that religious institutions cannot always be counted on to police their own clergy even when they break the law. Suddenly allowing religions to act lawlessly does not seem like such a good idea.

Still, the state RFRAs remain on the books, and the Church seems ready to take full advantage of them. They are likely to play a major role in the clergy abuse prosecutions and litigation. They will enable the Church to challenge the application to clergy and the Church of, for instance, abuse reporting requirements, and statutes extending statutory rape statutes of limitations.

RFRAs' Blind Spot: Unpredictable Effects on Virtually Every Law on the Books

The Supreme Court pointed out some major constitutional problems with RFRAs. There are also others.

One major issue is RFRAs' unpredictable application. In theory, they cover every law and every official act in its jurisdiction - meaning that no legislature could ever finish canvassing the law's likely effect. The only limits to RFRAs' application come from the boundaries of lawyers' creativity in representing religious individuals and institutions.

Legislatures who pass RFRAs, then, are legislating blind. On the federal level, for instance, Congress merely considered a handful of anecdotes involving autopsies and confessions, despite the fact that the federal RFRA was intended to cover every local, state, and federal law and every action by any government official.

Consider, by contrast, the type of religious-practice-specific laws the Supreme Court has apparently approved. In its 1990 decision in Employment Division v. Smith, the Court held that the Free Exercise Clause did not automatically exempt Native American use of peyote in religious services from the general drug laws. But it also referred approvingly to the state laws that expressly created such an exemption.

A specific peyote exemption is dramatically different from the broad state RFRAs. A legislature can adduce evidence to make a reasonable prediction of the effect of a peyote exemption on the common good, but with a broad RFRA, it can barely guess its likely effect.

Such a blind giveaway surely violates the principle of the separation of church and state. It also betrays the people's delegation of trust to their representatives to enact laws in light of the public interest. When the question is the welfare of children, that abdication of responsibility is particularly unacceptable.

Clergy Abuse and the State RFRAs

Those states with RFRAs will now learn that they have passed a law--even if they did not mean to--that can undermine prosecution of child abuse and that can protect an errant church. When a religious individual or entity is prosecuted for child abuse, every step of the way opens a legal door to which the religious claimant can cry "RFRA."

The "RFRA" cry means the state must pause before applying its generally applicable, neutral law and prove to the court that the law satisfies a state compelling interest and that the law is the least restrictive means of achieving the state's goal in relation to this particular individual or entity.

This is pure folly when the issue is whether a child has been criminally abused. The Supreme Court's wisdom in the Smith case was made apparent by 9/11 and the Catholic Church scandal: neutral criminal laws must apply generally and need not be strictly scrutinized simply because they have incidental effects on religious individuals and institutions. Those assisting the victims need to turn their attention from the Church now that it has made its position clear and instead focus on the state legislatures that have unknowingly added to the Church's firepower in defending itself against child abuse charges.