How the Push for Religious Accommodation Can Go Too Far: Two Important Recent Examples

By MARCI HAMILTON
Thursday, Nov. 29, 2007

I wrote my 2005 book, God vs. the Gavel: Religion and the Rule of Law, to introduce the public to the fact that religious entities have sought and received numerous privileges to get around important laws, and that a number of these exemptions have the capacity to harm others. I catalogued dozens of examples, including faith-healing interests who pushed to legally immunize parents who medically neglected their children, religious organizations that argued they should not be liable for the child sex abuse they caused, and churches that demanded the right to trump local zoning laws. A year and a half after the book was published, the New York Times ran an excellent series by Diana Henriques pointing to the same phenomenon, entitled "In God's Name."

Unlike Christopher Hitchens, Sam Harris, or Richard Dawkins, who would like to rid the world of religion and God-talk, I'm a believer - but a hardheaded one, who knows full well that religious believers are perfectly capable of abusing the power they wield in our culture. Wearing rose-colored glasses when it comes to religion is hazardous, to say the least.

Today, in 2007, the problem only continues. Indeed, there are two striking recent examples of such overreaching.

The First Example: Religious "Comp Time" for Federal Employees

Title IV of the Federal Employees Flexible and Compressed Work Schedules Act of 1978 gives time off for religious observances. Federal employees, in addition to their vacation time and their other "comp time" opportunities, are permitted to miss work for religious purposes and then can make up the missed work through overtime before or after the event. More surprising, those who do not use the hours for religious observance but apply for them nonetheless can receive pay for those hours upon retirement.

The practice caught the Washington Post's attention in October, because of the lump sum retirement payments and because some employees were using the time for recreational activities, like vacations and golf. Aside from the abuses, though, there is a real question about the constitutionality and sense of religious comp time even when used for its intended purpose.

In the 1990 decision Employment Div. v. Smith, the Supreme Court held that neutral, generally-applicable laws may apply to religious believers and held that, therefore, federal drug laws extended to the use of peyote in religious ceremonies. In dictum (that is, a passage not essential to the holding), the Court also stated that lawmakers could accommodate religious practices, if consistent with the Establishment Clause. The "religious comp time" situation raises an important question left unanswered in Smith: When does accommodation go too far?

Religious comp time breaches the line between church and state. To be sure, it accommodates religious observance, but it responds to a system that does not actually burden religious believers and creates a sui generis system of extra time off for employees based on their religious status. It therefore creates a special category of privileged workers, who have obtained an employment benefit solely because of their faith.

The bottom line is that if the government can handle employees' taking a certain amount of days off and making them up with overtime (which it obviously can), then it must hand that privilege out across the board, without reference to religion. In other words, if there is gong to be any comp time, every employee, from the devoutly religious to the atheist or agnostic, should get the same amount of comp time to be used for personal activities. It is not the government's business to determine what the employee will do with the time, whether it is religious, a doctor appointment, or needing to be home to meet the dishwasher repair person.

Federal religious comp time is a clever, but insidious extension of the Supreme Court's holding in Sherbert v. Verner. In that case, a Seventh Day Adventist woman was denied state unemployment compensation after she was fired for missing work without "good cause," because her Sabbath was on a working day, Saturday. Others could establish "good cause" with non-religious reasons, like doctor appointments, but her religious reasons were not good enough. The Supreme Court held that the state could not deny her unemployment compensation under those circumstances. In other words, the Court mandated that the state adopt a neutral program - if employees were going to be permitted to miss work for "good cause," then the reasons could not exclude religious reasons.

The Court did not, however, hold in Sherbert that there must be mandatory accommodation of religious observance from employment. Nor did the Court hold that the system could have been switched, so that the "good cause" standard could be satisfied only for religious reasons, but not secular reasons. Rather, the Sherbert Court only said that if good cause is an excuse for missed work, then religious reasons cannot be treated as less valid than non-religious ones.

The religious comp time program switches the roles of the workers in Sherbert - instead of a neutral program of comp time, it is a program under which only religious believers get the benefit. Suffice it to say that religious comp time certainly is not required under the Free Exercise Clause.

The question raised is whether its accommodation goes too far, and interferes with the Establishment Clause.

Defenders will say that this is just a form of "permissive" accommodation, which the Supreme Court upheld against Establishment Clause attack in Cutter v. Wilkinson, which I have addressed in a previous column, but that case is easily distinguished. Cutter addressed the constitutionality of the prison provisions of the Religious Land Use and Institutionalized Persons Act (RLUIPA), and held that the government could give prisoners the benefit of strict scrutiny -- the most demanding kind of constitutional review -- of prison policies, because of the unique situation in which prisoners found themselves: utterly incapable of worship without permission from the prison authorities.

By comparison, with religious comp time, the impossibility of observance is not implicated at any level; religious employees can observe their faith by taking vacation days and/or by taking advantage of other flex time opportunities. Currently, the believers are getting days non-believers cannot receive, and days even most Christians cannot receive, because their Christian faith fits neatly with the federal calendar.

The time is unjustified, because it is not redressing employment practices that are in fact burdening the religious persons involved. If there is no burden, then the special dispensation is an unconstitutional benefit granted on the basis of religious status. If some believers say there are not enough days available for their observance under current policy, then the federal government needs to provide more comp time for everyone.

The Establishment Clause analysis does not end with the analysis of benefit, however. The practice also implicates the idea of excessive entitlement, as the recently-documented abuses show: It requires monitoring of what employees are doing on their "comp days" - services or golf? Yet the government can hardly require believers to "prove up" their religious attendance or observance with a note from their pastor or rabbi.

In sum, this program is not only unconstitutional - it's just a bad idea that needs to be repealed. Even the Bush Administration, with its extraordinary deference to religious lobbyists, should be able to see that this is a government waste program that needs to be rescinded.

This is not the only arena where religious entities are demanding special privileges - as my second example shows.

The Second Example: The Roman Catholic Church Hierarchy's Attempt to Revive the All-But-Dead Doctrine of Charitable Immunity to Avoid Liability for the Childhood Sexual Abuse It Fostered

There is no need here to reiterate the mountain of facts that proves, beyond any doubt, that the hierarchy of the Roman Catholic Church has hidden the identities of child predators among its clergy for decades. Over the last decade or so, the Church has had to come to terms with the United States' legal system, which imposes criminal and tort liability on organizations that foster child abuse. The practice has hardly ended: Cardinal Francis George, the new head of the U.S. Catholic Conference of Bishops hid the identity of an abusing priest within the last couple of years. Moreover, the Jesuits, until very recently, resolutely shielded one of the worst predators of all, Fr. Donald J. McGuire, creating opportunities for him to sexually abuse one child after another, sometimes for years.

The Church hierarchy has also fought tooth and nail to avoid its well-deserved liability, in the courts and in the court of public opinion. Untold millions have been spent on public relations and lawyers to persuade the courts and the public that the hierarchy will go "bankrupt" if it is forced to face all of the harm it produced. Now, we have a fresh proposal from Chicago Auxiliary Bishop Thomas J. Paprocki, to immunize the Church from liability. He delivered his message at a Red Mass in Grand Rapids on October 10.

Paprocki's cockamamie idea is to revive the long-discredited doctrine of "charitable immunity" for religious organizations. It was a special rule for nonprofits that permitted them to avoid tort liability. Charitable immunity meant that those who injured themselves on church premises due to church negligence, or who were otherwise harmed by a religious organization, had no legal recourse. That's right -- charitable organizations were given a "pass" even on accountability and responsibility for tortious acts. If it sounds like an unfair and unjust privilege, that is because it is. These organizations need to be deterred from tortious behavior (and need to be encouraged to insure against such risks) just as much as any other.

Paprocki claims charitable immunity is needed to protect the free exercise rights of religious organizations. Actually, it is a stunningly brazen reach for power and privilege that has nothing to do with the proper relationship between church and state.

The charitable immunity doctrine was repealed in the vast majority of jurisdictions decades ago. Some vestiges remain in a few states, though they are being systematically removed. New Jersey recently repealed its doctrine in light of the revelations about serial abuse at the American Boychoir School.

Charitable immunity actually started in Britain, which almost immediately rejected it due to its one-sidedness. It lasted for several decades in the United States, but it simply could not withstand the United States' ethical culture, which rests on equal treatment of similarly-situated entities. Re-introducing the doctrine of charitable immunity would take us back to an era when Pollyanna attitudes toward religion permitted people to believe that churches did not need to be deterred by legal liability for their actions. That was when we believed that they would always do right by those injured, especially children. Now that the rose-colored glasses are off, it is laughable that the Catholic hierarchy, of all people, would have the audacity to suggest its re-introduction.

As case after case has shown, the recent settlements paid to survivors of abuse were caused by the actions of the hierarchy of the Roman Catholic Church, and they were determined according to standard tort law principles. In the California settlements, survivors did not receive a windfall, but rather a portion of what they need to attempt to make their damaged lives whole. Awards were determined by judges assessing the degree of the harm inflicted on each individual survivor.

It is far too late for Paprocki or anyone else to contest the reality of the harm, or its severe degree. In effect, he is arguing that regardless of the degree of harm, if a religious institution is involved, it should receive immunity from liability.

No secular corporation or individual could claim this mantle, but he wraps himself in the First Amendment as though it is a refuge for scoundrels, rather than a partner to the rule of law.

Despite the fact some might find some surface plausibility of Paprocki's theory of "religious liberty," this very theory reveals that his motives are not even religious. As his Red Mass homily makes clear, he is willing to hold the hierarchy responsible for its actions - it's just the payment of monetary damages that he would say the Free Exercise clause protects. The motivation here is money, and it is coming from the one of the wealthiest organizations and the largest landowner in all of the United States.

Before a single legislator takes a proposed charitable immunity draft bill from the hands of a lobbyist for her state Catholic Conference (the lobbying arm for the hierarchy in each state), she should demand proof of the financial ruin Paprocki asserts. As part of her self-education, the legislator needs to read and re-read the stunning indictment of Bishop Brom of the San Diego diocese for his deceptive financial reports to U.S. Bankruptcy Judge Adler. Crying poverty by this group is crying wolf.

The bishop makes it clear that the members of the hierarchy plan to continue its pattern of spinning theories to subvert the constitutional church-state order to avoid social responsibility to the victims they created. Their disdain for the rule of law is patent, as they continue to insist that their victims should be treated the way they want to treat them, rather than the way neutral, generally-applicable laws demand.

There is another agenda here. As I have discussed in past columns such as this one and as I detail in my forthcoming book, Justice Denied: What America Must Do to Protect Its Children, there is a grassroots movement to eliminate the state statutes of limitations for childhood sexual abuse, because the vast majority of victims cannot get to the courthouse before they expire. The movement favors elimination that is both prospective and retrospective, so that even those claims that have already expired may finally see the light of a courtroom. Such a law made the California settlements possible, and is now in place in Delaware.

Apparently seeing that it is not going to be able to stop this movement for justice and truth, the Church hierarchy's last resort is to argue that even if others should be fiscally liable for the harm they have done, the hierarchy itself should not. It is a backhanded compliment to the movement that the hierarchy has reached for such an indefensible "solution" to its problems.

In the very first column I ever wrote about the Church hierarchy's problems with clergy abuse, I stated that they had better get behind reform to aid victims of childhood sexual abuse, or they would never regain the high ground. As the hierarchy uses every means at its disposal to halt such legislation and to gain special privileges in the face of such legislation, they have forsaken the high ground for quicksand.


Marci A. Hamilton is a Visiting Professor of Public Affairs and the Kathleen and Martin Crane Senior Research Fellow at the Program in Law and Public Affairs at Princeton University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Professor Hamilton's most recent work is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback. Professor Hamilton's forthcoming book, which will be published this spring is entitled Justice Denied: What America Must Do to Protect Its Children(Cambridge 2008).

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