[NYTr] Summer 2007: 3 Major Developments in Law and Religion

[All the News That Doesn't Fit]

sen by Freedom From Religion Foundation - Sep 10, 2007
http://www.ffrf.org


FindLaw - Sep 6, 2007
http://writ.news.findlaw.com/hamilton/20070906.html


Three Important Developments Involving Law and Religion 
During the Summer of 2007

By Marci Hamilton

I took a short break from my column-writing duties this summer in order
to finish my forthcoming book. Looking back over the summer, I saw
three major developments in the area of law and religion.

The Supreme Court Narrows Taxpayer Standing in Establishment Clause
Cases

>From the moment that Justice Samuel Alito joined the Supreme Court in
the seat left by Justice Sandra Day O'Connor's retirement, there has
been reason to be concerned that the Establishment Clause would become
more watered down than it already is. The open question was would he be
an "incrementalist" who chipped away at the separation of church and
state bit by bit, or would he take the most extreme positions taken by
Justices Scalia and Thomas. In June, we learned that the answer is the
former.

The Court's decision in Hein v. Freedom from Religion ruled that
taxpayers do not have standing to challenge executive spending where
the funds were taken from "general" executive branch funds. (The
Freedom from Religion Foundation had challenged the White House's
Faith-based Initiatives funding.)

The marquee question in the case was whether Flast v. Cohen -- which
recognized that the values of the Establishment Clause permit taxpayers
to challenge government expenditures of funds for religious purposes --
would be overruled. The implicit reasoning in Flast is persuasive: When
the government expends funds in favor of religious entities, there is
injury to the taxpayer whose taxes have been used to support another's
religion. This was the heart of the reasoning in James Madison's
Memorial and Remonstrance, where Madison argued that not even "three
pence" of taxpayers' proceeds should be used to pay Christian teachers
in Virginia.

Justice Alito, joined by Chief Justice Roberts and Justice Kennedy,
took the position that although Flast should not be overruled, they
would not apply the principles of Flast to government funds that were
taken from an executive branch general fund. Rather, taxpayer standing
would only be permitted in situations where Congress had specifically
designated the funds be used for a religious purpose.

Not only is the reasoning incremental, it is also simply intellectually
and morally indefensible. The harm identified by Flast is certainly
present in Hein: taxpayers' funds were being used to support a
religious mission. In fact, the case creates an unattractive incentive
for the executive branch to curry favor with religious entities, by
immunizing it from Establishment Clause attack so long as it pulls
funds from "general" accounts. That is the kind of incentive to pander
to religion that this Administration especially does not need.

Justices Scalia and Thomas, in a principled, if utterly wrongheaded and
historically indefensible, concurrence would have jettisoned taxpayer
standing altogether. The 4-person dissent would have preserved Flast,
as is, and applied it to find standing in the case before the Court.
When combined with the three-person plurality, there were 7 votes for
the proposition that taxpayer standing in the Establishment Clause
context stands, but the parameters around Flast were definitely
tightened.

Los Angeles Archdiocese Clergy Abuse Settlement and the Slow Release of
Church Documents

One of the bigger headlines of the summer concerned the Los Angeles
Archdiocese's $660 million settlement with over 500 victims of clergy
abuse. The survivors, on average, received $1.3 million each for their
injuries. Almost half of the amount is to be paid by insurance and the
rest by the Archdiocese out of funds and properties not dedicated to
religious purposes.

These settlements are never about money alone, though that is often the
only fact the public absorbs. We saw the number $660 million in every
headline, and to a lesser extent the number of victims, but only as an
aside were readers told that important internal documents also would be
released.

In Los Angeles, an absolutely crucial element in the deal was that the
Archdiocese was required to release documents to the public involving
its knowledge of the predatory habits of its employees and clergy. A
judge is monitoring the release of the documents.

Stay tuned on this issue (as hard as it is to follow), because these
settlements benefit far more than the immediate survivors. When the
public learns how those in power have hidden abuse and abusers, and the
identity of individual abusers, it will reap precious knowledge.

As it turns out, child predators act on their urges well into their
elderly years, so knowing the identity of predators from the 70s, 80s,
and 90s is one obvious way to protect our children right now. In
addition, when the predators' names come out, other victims of the same
perpetrator are often empowered to come forward. When they do, their
secret agony can become their public vindication. Finally, we are all
better served and better armed when we are reminded: power corrupts and
absolute power corrupts absolutely. The story of clergy abuse (in every
religion) is not only about the survivors, though they are obviously
the appropriate focus, but also about the catastrophic abuse of trust
by those in power.

California and Delaware Window Legislation

As I explained in an Op-Ed in the Los Angeles Times, the Los Angeles
Archdiocese settlement was made possible by window legislation that I
have supported in past columns, such as here, and here. When California
suspended the statute of limitations on childhood sexual abuse during
the 2003 calendar year, it made it possible for over 1000 survivors of
child sex abuse to get into court and have the sort of meaningful legal
bargaining power needed to obtain justice.

Without the window, the vast majority of claims would be barred by the
statutes of limitation, leaving the survivors locked out of the
courthouse. (Why? Because the statute of limitations on childhood
sexual abuse in most states is scandalously short - so short that it is
a comfort to predators and a bar to justice for most survivors.)

In California, victims who needed and used the window were not just
those who were abused within the Catholic system. To the contrary,
suits were filed against the Boy Scouts, the Explorers, the Seventh Day
Adventists, and others. The issue, in the end, has very little to do
with religion. The sad truth is that the vast majority of child sex
abuse victims are victims of family and friends of family. The incest
victims need their day in court, too.

The Delaware legislature put that insight into reality this summer when
it passed the Child Victims Act. The Act was supported by an enormous
range of organizations and individuals. It abolished the civil statute
of limitations on child sex abuse and instituted a 2-year window.
Delaware is now the most progressive state in the country for people
who are, or were, victimized sexually during childhood.

I do not think there is much question at this point that the Boston
Globe's 2002 revelations regarding the Boston Archdiocese's clergy
abuse issues started a larger social revolution - to the benefit of all
children.

In sum, we have a setback for those who would challenge government
actions benefiting religion and involving taxpayer funds, an
opportunity for public education on crucial matters hidden to date, and
a movement that has transcended its historically religious roots.
Interesting, to say the very least.


[Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at
Benjamin N. Cardozo School of Law, Yeshiva 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 is titled, How to Deliver Us from Evil: What America Must Do to
Protect Its Children (Cambridge University Press 2008).]


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