Revisiting “Religious Freedom”–Again

When Indiana went through the “great RFRA battle,” the focus of the arguments pro and con centered on the law’s impact on LGBTQ citizens .The measure was seen as an effort to legitimize discrimination against the gay community (and as a defiant response to the Supreme Court’s same-sex marriage decision), since that was transparently the intent of its supporters.

But the law was not limited to matters of sexuality.

A more recent assertion of religious liberty–and the question of the degree to which RFRA protects that liberty over and above the requirements of the Free Exercise Clause–illustrates the more fundamental and wide-ranging conflict between the rights of individuals who are acting on the basis of their religious beliefs, and the duty of government to act on behalf of the public good.

An Indianapolis woman who severely beat her seven-year-old son with a coat hanger is defending her actions as “biblical.”

30-year old Kin Park Thaing is a good Christian woman who feared for her son’s salvation when the 7-year old allegedly engaged in what she says was dangerous behavior that would have harmed his 3-year old sister. So she beat him with a plastic coat hanger to save his soul and teach him how Jesus wants him to behave. She is fully within her right to do so, based on her deeply held religious beliefs, under Indiana Governor Mike Pence’s Religious Freedom Restoration Act (RFRA), her attorney is arguing in Marion Superior Court before Judge Kurt Eisgruber.

“I was worried for my son’s salvation with God after he dies,” Thaing, a Burmese refugee here under political asylum, says in court documents, according to the Indianapolis Star. “I decided to punish my son to prevent him from hurting my daughter and to help him learn how to behave as God would want him to.”

Unfortunately, we live in an era that doesn’t “do” nuance, doesn’t recognize complexity and rarely engages with the genuinely difficult questions that arise in diverse societies when government tries to respect everyone’s individual rights–the right of religious people to live in accordance with their sincerely held beliefs, and the right of others not to be victimized by those beliefs. So we are unlikely to engage the really hard questions.

When does protection of religious liberty function to privilege certain people and their beliefs to the detriment of those with different (or no) faith commitments? What sorts of harms may government forbid, even when those harms are inflicted by sincerely religious people?

If the welts and bruises inflicted by this mother had been the result of a temper tantrum or a drunken rage, she would clearly be guilty of child abuse. Does her religious motivation insulate her from legal sanction? If so, who protects that child from further, possibly more serious harm?

The First Amendment’s Free Exercise Clause protects the rights of Americans to believe anything, but it has never been interpreted to allow citizens to act on the basis of those beliefs if such action would violate otherwise valid laws of general application.

If your assertion of religious liberty requires harming someone else, or denying them rights  or protections to which they are otherwise entitled, surely RFRA doesn’t prevent government from intervening.

But that, evidently, is the argument. [To be continued…]

 

35 thoughts on “Revisiting “Religious Freedom”–Again

  1. I think she’s a pawn in this whole religious freedom mess. She’s probably a poorly integrated, already victimized refugee doing things like they’d be done at home. She needs to quit beating her son, but here are better ways to approach that than by running her through the criminal justice system. This looks like another way to put Indiana in the national news. Will we legalize child abuse (with pictures)? Or will we persecute a poor young refugee mother (likely with a heart-wrenching back story) who makes a tragic mistake? None of this is about protecting children. This is more RFRA circus with different performers.

  2. Creative defense lawyer reaching for anything to get his guilty client off?

    Theocracies are really bad ideas, as Pence learned via humiliation on a national stage. But, but, if you look closely, there are many who endorse using Biblical Law over man’s laws. Senator Inhofe recently denounced climate change theories because of Biblical writings. The same senator once threw a snow ball in congress during winter to prove global warming a hoax – over half the congressional attendees applauded.

  3. What is coming from the pulpits of right wing churches that allows for the continuation of the false interpretation of the First Amendment so evident in this news story?

    I believe that over the past two plus decades the paranoia emanating from the right has been embraced by some churches, most notably the Evangelicals. There that paranoia has been turned into a belief that “Christianity” is under attack. From pulpits, in bible study, in meetings of all kinds, a grossly distorted interpretation of the Constitution has emerged. What may have started out as an effort to protect believers has turned into a political/social movement to build a power base for those who cannot accept diversity or dissent.

  4. Here we go again – the archaic teaching of the Bible like the woman and man stuff. “Spare the rod and spoil the child” is another example requiring interpretation. Should it mean use modern behavior modification techniques or should it mean “beat the child”?
    Depends on who is speaking for God. Really?
    Jail time, or even a chewing out by the court for the parent-perpetrator, can modify behavior.

  5. “If your assertion of religious liberty requires harming someone else, or denying them rights or protections to which they are otherwise entitled, surely RFRA doesn’t prevent government from intervening.

    But that, evidently, is the argument. [To be continued…]”

    Thanks Sheila, for noting that this issue WILL be continued. Any of us can claim any reason for our behavior, actions, lack of action when needed, with no way to prove what was in our mind at the time or if our reason is based in reality. The “Stand your ground” claim worked well for George Zimmerman in Florida but failed for the ex-wife who fired her gun into her own ceiling as a warning to prevent being further abused by her ex-husband. Christianity seems to the primary source of reasoning today for many questionable acts. We each have our own views on our religious beliefs whatever religion we choose to follow – or no religious belief – to explain our actions, or non-action.

    If RFRA is protecting Ms. Thaing, there are many questions to be answered by her, her legal representation, the prosecution and the Judge. Her defense is merely the reason she gave authorities with no way to prove what was in her mind. There are state laws to protect all children from being emotionally, physically and sexually abused by anyone – along came Pence’s RFRA to deny entire groups of people, evidently including children, protection under previously written laws. We are operating under the eeny-meeny-miney-moe system of picking which law to use against a suspect and which law to use to protect them.

  6. If a child dies from pneumonia because his parents chose to pray over him rather than seek medical help, is RFRA applicable? If in this case, if the child had died from the beathing, would RFRA be applicable. If not, how badly can she beat a child before the law holds her responsible?

    I think that the problem here is not religion, but the belief that children “belong” to their parents, under all conditions.

  7. To place this in perspective from the link – A physician “found 36 bruises across the boy’s back, thigh and left arm. Three photographs submitted to the court show deep purple lines striping the boy’s back and several welts on his arm. The boy has one curved bruise on his cheek in the shape of a hook on a coat hanger.”

    I am no biblical expert but I do not recall Jesus beating children with coat hangers, etc. I really do not care what religion this person is or what “culture” she came from. She is here in the USA and should be expected to abide by our laws which should forbid child abuse because that is what this is.

    I suppose the “mother” could learn from this experience and try waterboarding next time, it leaves no bruises.

  8. I think what’s creepy is that people don’t understand normal Burmese culture and assume it’s criminal behavior when maybe it’s a bit overblown. People spanked children, even used paddles and belts at school, back in the 1970s. If the lady crossed the line into sadistic abuse of a child, then maybe she should be held accountable, but clearly she loved her kids. That’s not even a religious thing.

  9. It seems to me that once you allow what people claim are their deeply held religious beliefs to supercede law, the door to anarchy is opened. How can any court define and determine deeply held religious beliefs? That could define anything.

  10. “chewing out by the court for the parent-perpetrator, can modify behavior”.

    No, it can’t–or, at least, it doesn’t. Very rarely if ever. Seen enough chewing outs by enough judges to know that this is one the least useful behavioral modification tools available. Judges (and some members of the public-at-large) may believe this works, but it doesn’t.

  11. The law tells us so much about the people who proposed/wrote it. These folks have to be so self-centered that they are thinking only about the consequences for themselves in a vary narrow context. They didn’t seem to consider that these laws constitute the sword that cuts both ways, and if assiduously applied may even be used to remove the heads of those who wrote the law.

  12. Since RFRA is being used as a defense for her actions, I believe that Mike Pence should be asked what his opinion about this is. Would he find her actions defensable under his law?

    The media should publicly ask for his comment on this matter.

  13. The law in America unfortunately was built on some assumptions of what should be intuitively obvious like what a “militia” is or a “religion”.

    Unfortunately huge money can now be made obfuscating what was assumed to be intuitively obvious.

    Now anarchy is trying to sneak through the same assumption.

  14. Nancy,

    “The media should publicly ask for his comment on this matter.”

    I agree wholeheartedly, except how about substituting MUST for should? We need to put more pressure on the media. In many respects, they’re our biggest problem.

    “Who elected the reporters and editors? Why should they be able to set the political agenda according to their own peculiar tastes and interests?…..That familiar complaint is not the heart of the matter, however. The press has always served American democracy as an important and controversial mediating voice for citizens, a corrective mechanism that both speaks to power and sometimes checks its abuses. What may really distress citizens in contemporary politics is that, for all the clamor of the news, the mechanism is not functioning, at least not for people distant from power.”

    “Who Will tell the People: The betrayal of American democracy” by William Greider (New York: Simon & Shuster, 1992) p. 287-8.

  15. Much of the press has abdicated the throne that we granted them in search of money. Their former function has to be reassigned. Social media is part of the answer but it rquires educated users to sort the truth from the lies. More work is required.

  16. There is no “religious freedom” to assault another irrespective of age or relation, and if the courts hold that there is, then we are headed for chaos because there are all kinds of views that can be held to be “religious,” which would thereby give the beater the right to beat the victim on grounds of the “religion” of the beater, among other such illogical outcomes. After all, when a beater assaults the beaten, the age of the beaten and the religion of the beater are immaterial to the question of guilt or innocence of the alleged beater. Furthermore, if the courts start adopting exemptions from prosecution on religious grounds of the alleged perpetrator, and considering that there are many religions around which have their own no-noes as gospel, then the “religious” defense would let a lot of wife and child and neighbor beaters off the hook – and all in the name of the gentle Nazarene. So yes, government does have the right and even the duty via court decisions or legislative process to put an end to such supposed defenses that are immaterial to the question of guilt. This could be done at the judicial level in pretrial conference by a ruling that such a defense would not be allowed at trial since it is immaterial to any question of fact or law in determining the guilt or innocence of the defendant for the specific criminal act as charged. We have statutory rape laws where the legislature specifically sets out that consent is no defense to the defendant if the age of the victim is under a certain level and without reference to the religion of the perpetrator. That could be a template for legislation which removes “religion” of the criminal defendant in assault and other criminal acts. Thus, if “God told him or her to embezzle, assault, rob or commit other criminal acts,” should that be a defense? I hope not. Talk about slippery slopes! Let’s nip this situation in the bud before some judge gives credence to the idea of a defense exemption and starts us on the long road to the Supreme Court and all the interim chaos sure to result.

  17. Mary: “I think she is a pawn in the whole religious freedom mess.” Bravo! You have nailed it.

    It is foolish for us to be commenting on the mother’s act at all. We know nothing of the facts. What was her son doing to hurt his sister? Was he pinching her? No big deal. Was he hitter her with the coat hanger or trying to insert it into her vagina? Now that is another story.

    Is the religious freedom defense cited by the mother ridiculous? In my opinion yes. As a liberal and a pastor I have had any number of discussions–some very animated–with pastors/parishoners who preached taking the bible literally. Let me cite two examples: A man who was having an affair cited his biblicaly given “authority” over his wife. I told him that by his reasoning I had biblically given authority to gather a group of like minded individuals to stone his paramour to death. Argument over. To a pastor who was loudly and ignorantly (my opinion) proclaiming that we should be doing absolutely NOTHING the bible didn’t expressly permit, I simply asked for the title and keys to his new Oldsmobile as the bible didn’t sanction cars and I didn’t want him to sin.

    But it isn’t only righties that can be foolishly ignorant. If a 12-13 year old child of mine had gotten pregnant and went to a doctor/clinic for an abortion and they had failed to first get my opinion I would be mightily tempted to take a coat hanger or worse to him/her. Parents must have some authority over their children’s decisions. If a 12 year old isn’t “adult” enough to drink, drive or vote then she sure as hell hasn’t the right to decide to end a pregnancy. (God help me, I can hear the howling now)

    I fully support a WOMAN’s right to choose. That is between her and whoever else she wants to involve including her parents, partner, friends, counselors, ministers, etc., however I will never agree that a 12 year old has that same right barring severely mitigating circumstances such as incest. Let us use some common sense, please.

    I don’t think it is likely that the woman should have beaten her son with a hanger. But I have to acknowledge that I also don’t understand her cultural background, and, I suspect that in the governor and legislature’s ignorance in passing RFRA they may have opened the door to a legal defence for the repugnant practice of honor killings.

    Give the woman a break. Educate her, don’t punish her.

    Now you may howl.
    If you want other reasons to howl I have just begun a blog–just two posts thus far. Here is a link: http://alteregoatlarge.blogspot.com/

  18. The problem is that the religious believe, naturally, that God’s law supercede man’s. However with their religion they claim to have exclusive access to God’s law.

    I prefer written law that all have access to. Also current law not Bibical.

  19. Religious expression is not what Indiana’s Constitution and what the Constitution of the United States outline as rights and responsibilities for the workers right now must do. To get paid. Indiana is not a religion. English certainly is not. I have never read the Indiana Constitution and the USA one does not apply to Child Protection or Adult Protection workers in residence in one of the 92 counties. That’s where the complaints occur. I personally believe that educated Indiana citizens and citizens of the USA have no official rights whatsover to make any laws at all about Human reproductive rights as models of what Humans anywhere SHOULD honor as truthful for the property overseers in Indiana boundaries. Where are the Indiana Religion Laws in all the Christians’ languages even since Hebrew, Greek, Latin, Russian, all of the scribes’ versions since naught (no zero in English by 1492). What are the stories about a Marion County CPS matter going to contribute to the moral laws for the journalists’ treatment of a family so callously as to expose the entire State Capital to ridicule? Trials in the press are free of charges, not free of exploits.
    Why not cover the daily cases of institutional abuse since 1837 since there are still those talking in 1837 genderal styles?

  20. There is no god, only religion, and religion is obviously superstitious foolishness. Why are we protecting foolishness? Grow up and face the reality of death, America.

  21. We could start by taxing religion. Churches are like movie theaters – selling tickets for fantasy. Tax them.

  22. Secondly, it should be established in our constitution that the laws of this legitimate government are, in all cases, superior to the laws of other organizations of man, including those who claim to speak or write for “God.”

  23. Marv,

    As you’re a member of the Jewish community, I’m sharing a trending social media story from UCLA that highlights ‘claims’ of harassment and bullying against Jewish students and pro-Israel students by a movement calling itself Boycott, Divestment, and Sanctions (against Israel).

    http://www.algemeiner.com/2016/09/01/former-ucla-student-president-milan-chatterjee-university-administration-has-set-dangerous-precedent-by-capitulating-to-bds-movement-interview/#

  24. BSH,

    Thanks for the link.

    “As you’re a member of the Jewish community….”

    Let me explain something. I’m from a mixed Jewish-Christian background. But, I was “emotionally” abandoned at a very, very early age. My grammar school teachers were my substitute parents. Also, my gentile friends and their parents were there for me. I didn’t have the stereotype appearances or attributes that certain groups are faced with so I was accepted on that basis. It was shaky back then, but it saved me.

    Judaism is not a race. However, in Germany in the 19th century, there were anti-Semitic movements to change the focus from religion to race. And they have been very successful in doing so ever since.

    So when I went to college at the University of Pennsylvania, I was rushed by a Jewish fraternity, not so much for my mixed heritage, but for my athletic ability. They were a terrific group then and later became some of the most successful men in America.

    But, at this point in time, all of them understand why I have gone in another socio/political direction than they have, especially my fraternity roommate who has always been there for me.

    I have never had any tribal feelings toward Judaism or Christianity. There are major drawbacks to all of that, but I believe I used what appears to be a negative to most people into a positive……the ability to see the REALITY of racism and anti-Semitism in a much clearer light.

    My Jewish fraternity brothers understand the importance of my unique position. Earlier this year, I declined to attend our reunion in Savannah and, at the same time, requested that they not communicate with me. After all these years, they finally understand me real well. I want to be as free from OUTSIDE INFLUENCES as much as most people can be.

    I like it this way. And I believe my position, is the best for everyone.

  25. Marv,

    Please know that no offense was intended by sharing the above link re: UCLA nor would I wish to place any person within the parameters of any box, religious or otherwise. Perhaps I’ve misinterpreted your occasional mention of anti-Semitism together with your occasional mention of John Gresham’s early novel “The Chamber” as referencing you as being analogous to Gresham’s character, Marvin Kramer, a Jewish lawyer who was the recipient of Klan activities in the deep South. Again, please know I’ve misinterpreted your posts. Peace.

  26. BSH,

    I took no offence whatsoever. I have too much respect for you to do that.

    “Perhaps I’ve misinterpreted your occasional mention of anti-Semitism together with your occasional mention of John Gresham’s early novel “The Chamber” as referencing you as being analogous to Gresham’s character, Marvin Kramer, a Jewish lawyer who was the ricipient of Klan activities in the deep South.”

    You’re not the only one who has misinterpreted my aggressive position on anti-Semitism. Just like you, I don’t want to be prejudiced, especially coming from my background. That’s not the case with John Grisham.

    Grisham has made a big mistake by taking me on with “The Chamber.” He and his “buddies” knew I was wise to what they had planned for Jacksonville. So they came up with “The Chamber” to put me in my “Jewish place.” If I am guilty of anything, it is that I don’t take advantage of my Jewish heritage one way or the other. That isn’t the case for that “asshole” Grisham. He thought I was at a disadvantage with my Jewish heritage and would, eventually, pull back on my activities once I was aware of “The Chamber” and its connection with the Klan and me. If you haven’t gone to my website: http://www.KillingtheMessenger.info before, take a good look at it and you can see the mistake that “jerk” made with his anti-Semitism.

    The fact that I have continually fought against anti-Semitism doesn’t mean that I consider myself Jewish. Many other individuals in America also fight against it who are not Jewish for humanitarian reasons and also for the understanding that if it gets out of hand it will eventually destroy any semblance of democracy.

  27. Having a church pay taxes on its property and to fund its use of sewers, streets, electrical grids and the like is not a tax on religion; it is a tax on a consumer of public services and if exempted it thus requires that the rest of us (who may be atheists, agnostics, Unitarians or whatever) subsidize such church’s activities, thereby albeit indirectly, resulting in our hitting the collection baskets on Sunday and other mornings and evenings. To such extent, therefore, the churches who are enjoying such freedom are welfare recipients, and I daresay most of the membership of such churches are in general opposed to welfare when they themselves are “on welfare.” Que es? We are begging the issue. Activities of the consumer, whether church, temple, cathedral or mosque are immaterial to their respective statuses as consumers of public goods.

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