I saw this story on a Mormon bishop who will be required to stand trial for failure to report child sex abuse. I still had on my mind the “religious freedom” issue of a Catholic-affiliated hospital being required to pay an insurance premium that covered contraception, and I got to thinking of parallels.
When the State imposes a duty to report child abuse, it imposes the duty on clergy (along with other citizens), without giving a blanket exemption for religious concerns. In some cases, it might offer a narrowly tailored exemption (e.g. granting immunity when the information is received by clergy during confession) but not a broader exemption for all religious concerns of a church (e.g. a religious preference for handling conflict between congregants internally, keeping secret (pdf) internal Church matters (see also here), or that the Church hierarchy is the proper authority for governing interaction between its priests and lay members of the Church.)
But, there has not been an outcry over the trampling of religious freedom when the State recognizes some but not all of the religious objections to state mandated activity. See here (pdf) for a summary of state laws concerning Clergy as mandatory reporters of child abuse and neglect. And in New Hampshire, West Virginia, North Carolina, Oklahoma, Rhode Island, and Texas, there is no exemption at all, not even in a clergy-penitent privilege in cases of child abuse.
The outcry that does not exist for duty to report abuse, even in the face of religious reasons not to report, by contrast, is a full-throated political roar in the case of paying insurance premiums that allow employees of religiously-affiliated institutions such as hospitals to obtain birth control. Why the discrepancy? That the former is a state intrusion on religious freedom and the latter is not doesn’t seem to be the answer; or at least a very incomplete answer. Rather, this looks to me like another stone to be thrown by those who don’t like contraception or the health care reform act in the first place.
Let’s compare:
One is a state concern, about laws which were probably not passed recently, and probably doesn’t have many prosecutions. For example, I doubt many Indiana residents know the context of I.C. 31-33-5-1. Also of note is the fact that many people aren’t really crazy about the idea of protecing child abusers.
The second is a federal matter, affecting organizations nationwide, which was implemented by an unpopular president, in an election year no less, and occurred without any due process, requiring an immediate change to the way these organizations function.
I note some differences here which might explain the difference in concern level.
Your explanations of differences are not unreasonable. But, they aren’t distinctions based on the bounds of religious freedom. (The state versus federal distinction kind of goes in that direction, but states aren’t permitted to violate the First Amendment either.)
(and if you’re wondering, my personal view is that everyone should have access to birth control.)
Reasonable question from Doug; reasonable answer from Paul, although not necessarily the exclusive one. I’m still trying to figure out, though, presuming that the judiciary has a role in determining why and how the First Amendment may dictate one result in the contraceptive area and another when it comes to reporting sex abuse, what CONSTITUTIONAL principles apply to differentiate. Paul, elsewhere you’ve said that the judiciary ought not to be engaged in policy decisions, and I don’t disagree, but what in these examples would distinguish the application of “constitutional principles” from “policy determination”?
Don: It is possible you have me confused with another poster on this site (there appear to be a few Pauls, and recently a few Brads). It is my opinion that the whole “activist judges” battle cry is a bit of a red herring, but that judges should try to narrowly interpret the law whenever possible.
To answer your question though, at first blush, I see little difference between the two (other than the state federal issue, which doesn’t really matter anymore). Both are attempts to regulate conduct that are focused on certain behavior, and don’t provide an exclusion for religious groups.
I would say that both actions are probably constitutional, but that does not make either action “good policy.” People tend to argue that any law they like is constitutional, and any law they don’t like isn’t. But to me, there is a big difference between arguments of policy and arguments of constitutionality. Good laws can be unconstitutional and bad policy can be constitutional.
Discrepancy in outcry? When conscience somehow requires Clergy not to report child abuse, they quietly don’t report and with extremely rare exceptions, nothing happens (to them). They can’t quietly flout the insurance mandate.
Not to shamelessly change the subject, but however sleazy their methods may strike one, Live Action (or whatever the name is of those conservative guerilla videographers who shamed ACORN) have publicized numerous instance of Planned Parenthood expressing willingness to perform abortions on putatively underage girls, “impregnated” by the guys who brought them in.
Systemic failure to report by PP versus episodic (or merly hypothetical) failure to report by Clergy. I know which one outrages me more.
First, I am not an attorney nor involved in any of several groups that seem exempt from requirements on disclosure–I am a retired school teacher and the rules/laws as to a teacher reporting have become almost unrealistic. That is, ANY possible thought of possible sexual abuse including things like hickies on the neck, etc. etc. and certainly if student sought to discuss with teacher or counselor. Where should the line be drawn as to must report (or should line be drawn). Example: person confesses to religious leader? underage seeks abortion?? nurse or doctor sees signs of possible??? and–should an attorney (such as defense attorney) be required to report???
Jack, this is very neatly answered by The Onion.
Nation’s 10-Year-Old Boys: ‘If You See Someone Raping Us, Please Call The Police’ ‘Doesn’t Matter Who, Doesn’t Matter Where,’ Children Say
http://www.theonion.com/articles/nations-10yearold-boys-if-you-see-someone-raping-u,26724/