Sep 2, 2016

Religious Freedom Doesn't Protect Child Abuse

An Indiana woman’s claim that she beat her son because of her faith is unlikely to succeed in court, but it could have implications for how Americans perceive these kinds of arguments in the future.

·        The Atlantic

·        September 2, 2016

·        EMMA GREEN

·         

·        Last winter, a Burmese woman living in Indiana, Khin Par Thaing, was arrested on charges that she beat her 7-year-old son with a coat hanger, leaving 36 bruises. As The Indianapolis Star reported, Thaing argued via a briefing submitted in July that Indiana’s religious-freedom law protects her right to punish her children as she sees fit. When she hit her son, she argued, she was following the biblical guidance to “not withhold discipline from a child; if you punish them with the rod, they will not die.” A parent who “spares the rod, spoils the child,” she said.

This month, a judge refused to dismiss the case against her, and when she goes to trial in October, her religious-freedom claim is not likely to prevail, said James Dwyer, a law professor at William and Mary who studies child welfare and the First Amendment. “It’s totally implausible that you could ever win [a case like this] on a religious defense.” Thaing used “an unusual form of corporal punishment, and an especially gruesome form of corporal punishment,” he added. “The state has a compelling interest in much more modest forms of child protection, the courts have said repeatedly.”

Indiana law allows “reasonable corporal punishment,” which is a common standard, Dwyer said; most of the time, it’s up to judges to determine what constitutes “reasonable.” In the past, Indiana’s courts have interpreted this standard broadly, the IndyStar pointed out: In 2008, for example, the Supreme Court overturned the conviction of a woman who beat her 11-year-old son with either an extension cord or a belt.

What’s novel about this case, though, is that Thaing is invoking Indiana’s Religious Freedom Restoration Act in her defense. It was signed into law last spring by Mike Pence, now the Republican vice-presidential candidate, amid intense protests. The National Organization for Women and other progressive advocacy organizations alleged that the new law would enable religious defenses for child abuse. On its face, Thaing’s case seems to be proof that they were right.

But the problem with this argument is that the law, commonly known as RFRA, does not simply allow religious people to selectively follow the law. Indiana’s RFRA, which is modeled on a former version of a federal law and similar to measures in states around the country, has two parts. First, a person must prove that a law or government action places a “substantial burden” on their ability to exercise their religion. If they succeed, the state has to prove that it has a “compelling interest” in upholding the law or taking the action in question, and that it has found the “least restrictive means” of furthering that interest.

Dwyer was skeptical that Thaing could even pass the first part of the law’s test to prove that the state was interfering with her religious practice. “You have to show some burden beyond the trivial,” he said. Even if she were able to do that, though, the state would have a very strong argument in defense of its choice to take away Thaing’s son and charge her with a crime, he said.

Even if Thaing’s defense fails, though, the high-profile case could have an effect on the way religious-freedom laws are perceived in the United States. Even though versions of RFRA have been around for decades, in recent years, the law has become a symbol of conflict over religious rights, particular when it comes to LGBT issues. The protesters in Indiana last spring argued that the law would allow any business owner—whether it was a restaurant or hardware store or barber shop—refuse to serve LGBT people. While the measure was eventually revised to make it clear that this was not the case, its opponents still viewed it as a license to discriminate.

Thaing’s case isn’t about LGBT rights, but it’s about something equally controversial. Many parents would condemn a decision to beat an elementary schooler with a coat hanger dozens of times, hard enough to leave significant bruises. When someone like Thaing tries to use the Bible and religious-freedom laws to justify her actions, “it makes the public and judiciary in general skeptical and hostile to those sorts of claims,” Dwyer said. While the RFRA argument may not hurt Thaing’s chances in court, “it will hurt the cause of religious parents who might want to assert the defense in the future,” he said, particularly because this was “such an extreme form of punishment.”

It’s not uncommon for parents to use religious justifications for the way they raise and treat their kids. Many states given religious families latitude on education, for example, or, more controversially, decisions to forgo standard medical care when a child is sick.

This, however, is a rare kind of case. It’s true that “some level of corporal punishment is legal” in Indiana, wrote Rick Garnett, a law professor at Notre Dame, in an email. “Abuse and neglect, however, are not.”

http://www.theatlantic.com/politics/archive/2016/09/religious-freedom-doesnt-protect-child-abuse/498542/

 

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