Tag Archives: Religious Exemptions

Obama Administration Announces Plans to Revise the Contraceptives Mandate

This CNN story reports that the White House has announced “revisions” to the contraceptives mandates that was the subject of both the Hobby Lobby and more particularly the Wheaton College litigation. But after reading the body of the story, it may be more precise to say that the White House has announced that it plans to revise the mandate. Here’s a quote from an Administration official: “In light of the Supreme Court order regarding Wheaton College,” said the official, “the Departments intend to augment their regulations to provide an alternative way for objecting nonprofit religious organizations to provide notification, while ensuring that enrollees in plans of such organizations receive separate coverage of contraceptive services without cost sharing.” Though the Wheaton College order was not a final disposition on the merits but only a preliminary injunction, the announcement suggests that the Administration believes that it may lose on the merits as well.

The story reports that the revised rule will be issued “within the month.”

Rogers, “The Child Cases: How America’s Religious Exemption Laws Harm Children”

Next month, the University of Massachusetts Press will publish The Child Cases: How America’s Religious Exemption Laws Harm Children by Alan Rogers (Boston College). The publisher’s description follows.

When a four-year-old California girl died on March 9, 1984, the state charged her mother with involuntary man-slaughter because she failed to provide her daughter with medical care, choosing instead to rely on spiritual healing. During the next few years, a half dozen other children of Christian Science parents died under similar circumstances. The children s deaths and the parents trials drew national attention, highlighting a deeply rooted, legal/political struggle to define religious freedom.

Through close analysis of these seven cases, legal historian Alan Rogers explores the conflict between religious principles and secular laws that seek to protect children from abuse and neglect. Christian Scientists argued often with the support of mainline religious groups that the First Amendment s free exercise clause protected religious belief and behavior. Insisting that their spiritual care was at least as effective as medical treatment, they thus maintained that parents of seriously ill children had a constitutional right to reject medical care.

Congress and state legislatures confirmed this interpretation by inserting religious exemption provisos into child abuse laws. Yet when parental prayer failed and a child died, prosecutors were able to win manslaughter convictions by arguing as the U.S. Supreme Court had held for more than a century that religious belief could not trump a neutral, generally applicable law. Children s advocates then carried this message to state legislatures, eventually winning repeal of religious exemption provisions in a handful of states.

Does RFRA’s Least Restrictive Means Test Violate the Constitution?

Those pressing the claim that an exemption in the contraception mandate cases before the Supreme Court would violate the Establishment Clause face a few challenges–doctrinal, textual, and historical. The one that interests me in this post is that the test they favor is in considerable tension with the RFRA framework. Under the interpretation of the Establishment Clause being pressed, it seems to me that the least restrictive means test that represents the third prong of the strict scrutiny standard in RFRA and RLUIPA is constitutionally suspect.

Recall the theory: religious accommodations are unconstitutional if they shift “significant burdens” onto a “focused and identifiable class of third parties.” For the moment, leave aside the “focused and identifiable” component. We know that under RFRA, the religious claimant must allege a substantial burden on religious exercise. If it does so, the burden shifts to the government to show that the substantial burden on religious exercise it has imposed is justified by a compelling governmental interest. But the government must also show that it is using the least restrictive means to achieve its interest. So, for example, the government cannot simply say that the contraception mandate is supported by its compelling interest in good health care, full stop. Its statement of its interest is invariably focused and refined by the need to demonstrate that it has used the narrowest means available–that means which least burdens the religious claimant–to achieve its interest. And the least restrictive means component of the RFRA test is, in fact, one of the points on which it has been argued that the government’s case for the contraception mandate is weakest.

Suppose one accepts the claim that any “significant” burden resulting from cost shifting onto third parties triggers an Establishment Clause claim (again, for the moment, set to the side the question of what constitutes a “focused and identifiable” group). It seems to me that one would also be saying that the least restrictive means test is at least presumptively constitutionally suspect. The more narrowly tailored a means is so as to avoid burdens on religious objectors, the more probable it becomes that the means selected will burden third party interests. There may perhaps be rare occasions when an accommodation imposes no costs at all on third parties. But very often this will look like a sliding scale: as the imposition on the religiously burdened party decreases, the imposition on third parties increases. And by the time that one gets to the least restrictive means, the sliding scale is very much calibrated against the third party interests. By that point, it will have become highly probable–in some cases verging on certain–that the means chosen will impose “significant” burdens on third parties.

Take these cases.

Continue reading

On the Claim That Exemptions From the Contraception Mandate Violate the Establishment Clause

I am glad to see that in the wake of the cert. grants for Hobby Lobby and Conestoga Wood, there has been a frothing up of interest in the issues presented by these cases, issues that we here have been discussing for quite some time at CLR Forum. In this post, I want to address one such new claim.

Professors Nelson Tebbe and Micah Schwartzman (T&S) recently argued that an exemption from the contraception mandate under RFRA for employers like Hobby Lobby or Conestoga Wood would violate the Establishment Clause. They elaborate on their claim here and here. Many of the arguments are derived from this paper by Professor Fred Gedicks and Rebecca Van Tassell. The core of the argument is that granting an exemption from the mandate would privilege or favor religion inasmuch as it would shift the burden of purchasing contraception to third parties–i.e., the employees of the exempted corporations. The key to understanding the argument is their reliance on a Burger Court case, Estate of Thornton v. Caldor, which involved an exemption for employees from working on their Sabbath day. A Presbyterian who wished not to work on Sunday sued Caldor after the company dismissed him from a management position because he would not work Sunday. Because the law took absolutely no account of the secular interests of third parties (the employers), the law was found to violate the Establishment Clause. The “unyielding weighting in favor of Sabbath observers” resulted in a major burden on employers. T&S rely especially on this quote of Judge Learned Hand cited in Thornton: “The First Amendment … gives no one the right to insist that, in pursuit of their own interests, others must conform their conduct to his own religious necessities.” T&S (as well as Gedicks and Van Tassell) note that the principle of Thornton was restated in dicta in a more recent case, Cutter v. Wilkinson, which involved the application of RLUIPA. Justice Ginsburg, in dicta, said that in applying RLUIPA, “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.”

I think the argument is interesting, but mistaken. In truth, I have never understood Thornton very well at all and find it to be a difficult case. So I’ll start with a few basic points about exemptions and RFRA.

First, any exemption in this context will be directed toward benefiting some religious practice, and by being so directed, it will necessarily not benefit all others–i.e., “third parties.” If all choices to protect a specific form of religious exercise violate the Establishment Clause, then all exemptions for religion are Establishment Clause violations. The only thing that would be left for legislators is a law like RFRA, which accommodates religious exercise generally. Could it really be the case that the only thing the Establishment Clause permits is all or nothing? I don’t think so, and the Court has never said so. Professor Schwartzman, in other contexts, has questioned whether religion is a special category at all. If that argument were accepted and given constitutional force, then even laws like RFRA would be unconstitutional, because if the choice to protect religious exercise over non-religious ethical belief advances religion, then both specific and general accommodations are unconstitutional. The Court has not adopted that view. As Corporation of the Presiding Bishop of Church of Jesus Christ of Latter Day Saints v. Amos (1987) put it, “This Court has long recognized that the government may (and sometimes must) accommodate religious practices, and that it may do so without violating the Establishment Clause.”

Second, all exemptions burden third parties in one way or another. An exemption from laws proscribing peyote smoking imposes social costs of various kinds on third parties. An exemption from compulsory school attendance laws does so as well. An exemption for prisoners from wearing prison uniforms will burden prison officials and guards, and ultimately, everyone who is invested in a uniform system of penal justice. Indeed, one could go much further: all rights have costs that fall on third parties (you pick the context–the speech clause, Miranda rights, etc.). Thornton does not say that any time there is any shifting of burdens, the Establishment Clause is violated. Chief Justice Burger’s opinion was much, much narrower than that. It left open the possibility that a more carefully crafted Sabbath exemption law would be constitutional. That is more or less the upshot of Sherbert v. Verner (which was treated as good law by Thornton), where the Court held that a Seventh-day Adventist could not be denied unemployment compensation benefits because she refused to work on the Sabbath. In affirming that case, the Thornton Court is also affirming that it is perfectly constitutional for a state to exempt employees from Sabbath work on religious grounds, thereby imposing the costs of that exemption on third parties. All that Thornton is saying is that a law which imposes extremely severe burdens on secular interests through an “unyielding weighting of” religious interests over those other interests, and which takes no account of the secular interests at all, is constitutionally problematic. Consider an example. Under the Connecticut law at issue in Thornton, a school that is open only 5 days a week would have to provide Sabbath day exemptions to any teacher that asked for it. The burden on the school might be so severe as to impede its ability to function–compelling it even to close. The Thornton Court said that it had to “take pains not to compel people to act in the name of any religion.” (emphasis mine). It’s that kind of extreme burden on secular interests that rendered this law unconstitutional. Another obvious example might be an accommodation that interfered with a third party’s religious freedom–compelling the third party to engage in religious activities. Yet while the Court has said that “[a]t some point, accommodation may devolve into ‘an unlawful fostering of religion,'” Amos, only an extreme and absolute imposition on third party interests would justify that conclusion.

Third, both Thornton and a case like Texas Monthly v. Bullock seem to suggest that the burden imposed on secular interests must be state-imposed. Here the question is somewhat complicated inasmuch as the “burden” on employees is said to result from the combination of private claims and state power. Nevertheless, what these cases concerned is the alleviation of burdens on religious or secular beliefs imposed by the state.

Fourth, T&S wonder why nobody has made much of the Establishment Clause claim. But I think there is a good reason. RFRA incorporates certain limits to accommodation. That is, it would be a very rare RFRA (or RLUIPA) accommodation indeed which was constitutionally problematic under Thornton, because all RFRA (and RLUIPA) accommodations need to satisfy the substantial burden, compelling interest, least-restrictive-means threshold. The law at issue in Thornton, according to the Court required an accommodation “no matter what burden or inconvenience this imposes” on third parties. But the standard for RFRA accommodations is not, “you must grant the accommodation no matter what burden or inconvenience this imposes.” Accommodations must pass the government compelling interest threshold. If they do, they seem very much not to be violations of the Establishment Clause rule laid out in Thornton. In fact, many of the arguments about third party harms that T&S make have already been briefed by mandate advocates as part of the RFRA calculus. So they haven’t been ignored. They just haven’t been analyzed under the Thornton Establishment Clause framework, because Congress already saw to that in the statutes.

But let’s consider the Establishment Clause precedents on their own.

Continue reading

NYPD Beard Policy Violates the Free Exercise Clause

I am a little late in noting this decision of the United States District Court for the Southern District of New York involving a Free Exercise Clause challenge to the New York Police Department’s facial hair policy by a NYPD probationary police officer. The probationary officer is a member of the Chabad Lubavitch Orthodox Jewish community, and his faith prohibits him from cutting his facial hair. The NYPD’s policy generally prohibits the wearing of beards but makes exceptions for undercover duties, medical conditions, and religious reasons, but the last two exceptions require written approval. In practice, however, even accommodated beards may only be 1 millimeter or less in length, and the plaintiff’s natural beard grew to 1 inch. So the accommodations would not work for the plaintiff, because they would require him to trim his beard.

After his request for exemption was denied and he was eventually fired, the plaintiff sued under the Free Exercise Clause. One might think that the plaintiff would lose, because the policy was neutral as to religion and applied generally (see Employment Division v. Smith). But the plaintiff won. The City argued that the beard policy and the 1 millimeter exemption was a neutral, generally applicable rule, but the court disagreed. It said: “‘[f]acial neutrality is not determinative’ when the record shows that Plaintiff was terminated pursuant to a policy that is not uniformly enforced.”

What is particularly interesting is the nature of the exemptions that the court found trigger strict scrutiny. It isn’t just the stated exemptions in the policy. It’s the  fact that “the undisputed record demonstrates that de facto exemptions to the one-millimeter rule abound.” There were temporary exemptions to the one millimeter rule granted for religious reasons and family reasons. And there was under-enforcement of the one millimeter rule against officers who violated the policy for unspecified reasons. The court also rejected the City’s claim that shaving is necessary in order to render effective the fitness testing apparatus used by the Department, which is fitted over the officers’ mouth and needs to sit flush against the face. There was evidence that some officers were accommodated as to this requirement for medical reasons, and so strict scrutiny applied when plaintiff’s request for accommodation on religious grounds was denied. Here the court relied on then-Judge Alito’s famous police-beard case in Fraternal Order of Police Newark Lodge #12 v. City of Newark, in which the court held that where the government has made a “value judgment” that medical reasons are more important than religious reasons, strict scrutiny applies.

I’ve written before several times about the gaping hole (see Chapter Eight) in Smith that is being broadened all the time by the problem of the general applicability exception carved right into Smith itself. In this case, it isn’t only explicit exemptions to the policy that trigger strict scrutiny, but the “de facto” exemptions and accommodations in implementation and administration of the policy. If discretion in enforcement of a policy, and the exceptions that governments make all the time to their rules, really do trigger strict scrutiny, then one should expect to see the number of free exercise claims greatly increase in the coming years. Smith’s rule will look a whole lot less rule-like than it actually appears. What free exercise effect this expanding exception to Smith may have on other sorts of cases in which executive and administrative discretion as to the enforcement of the law is high remains to be seen.

Conversations: Marc DeGirolami

This summer, Harvard University Press published The Tragedy of Religious Freedomby our very own Marc DeGirolami (left), CLR’s Associate Director. In the book, Marc argues for a “tragic” understanding of religious freedom, one “that avoids the twin dangers of reliance on reductive and systematic justifications, on the one hand, and thoroughgoing skepticism about the possibility of theorizing, on the other.” This week, Marc answers some questions about his book. Among other things, he discusses the differences between “tragic” and “comic” legal theories; the value of history and tradition in judicial decision-making; and the inevitability of judicial discretion. He also explains why the Court got religious freedom wrong in Employment Division v. Smith and right in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. 

CLR Forum: Marc, explain what you mean by “comic” and “tragic” approaches to law generally. Why do you think religious freedom, in particular, should be addressed from a tragic perspective?

DeGirolami: The terms comic and tragic are ancient and have been used in classical, literary, and philosophical settings. I draw on some of these meanings in the book, but I use comic in the legal context to mean two things: (1) a preference for systematic ordering of the law by reducing legal values either to one or to a small set, in the belief that human society is progressively improved by that reduction; and (2) the marginalization of the loss of other values in the process of accomplishing (1). Tragic approaches to the law resist both of these points. A tragic approach to law says that the reasons we value a practice like religious freedom are plural and cannot be reduced. Each value struggles to avoid absorption and subordination by the others. The clash of values results both from the limits of human reasoning and from the conflict of human interests and aspirations. So in the face of conflict in law, a tragic approach affirms that the comic impulse to reduce legal values, and systematically to marginalize those that are subordinated, will exacerbate conflict and end up deforming, and perhaps eventually destroying, important social practices and institutions.

CLR Forum: You single out Employment Division v. Smith, Justice Scalia’s famous opinion in the peyote case, as an example of the misguided “comic” approach and argue that it should be gradually dismantled. What’s so wrong with Smith? And why not just overrule it? 

DeGirolami: Yes, I am critical of Smith and believe it to be an example of a comic approach. Smith reduced all possible values of free exercise under the Constitution to a single value: formal neutrality. A neutral rule that is applied generally no longer can violate the Free Exercise Clause of the Constitution after Smith, no matter how severely the rule burdens the religious free exercise of an individual or a group and no matter how insubstantial the government’s interest in enforcing the rule on a religious claimant. The Smith decision attempted to accomplish both of the comic points I listed above. It wanted to bring system Continue reading

Thoughts on the Political Psychology of Compromise

Professor Thomas Berg (St. Thomas) posted a very thoughtful comment a few days ago on two pieces about same-sex marriage written respectively by Professors Michael Perry and Rick Garnett. I’ve reprinted my thoughts about Tom’s comment below, in case it is of interest to readers here.

Reading Tom’s thoughtful comment below is a pleasure. He takes each of Michael’s and Rick’s respective pieces, notes and elaborates on areas of agreement, and proceeds to explain with care where he may have a different view. I should also say that I very much respect and admire the work that he, Professor Laycock, Professor Wilson, Rick, and Michael (among others) have been doing on the issue of religious exemptions and same-sex marriage.

The tail end of Tom’s post caught my eye: “In fact, in the long run, I think, the best hope for arguing for religious liberty is not to refuse sympathy for gay couples’ efforts to live out their deep, pervasive commitments–but rather to accord them sympathy and claim similar sympathy for the deep, pervasive commitments of religious believers individually and in their institutions.  It is frequently argued that activists for SSM, “aggressive and uncompromising,” will never return that sympathy.  But the struggle here is, as in so many other cases, to convince those in the middle.  My own judgment is that as time goes on, the effort to refuse same-sex marriage will increasingly alienate those in the middle, forfeiting the chance to win them to a “live and let live” approach that will protect traditional religious organizations’ ability to maintain their identities.”

Here are a few friendly questions for Tom about this paragraph, offered up in an appreciative spirit. The overarching question is: Why is this your judgment? More specifically, what is the basis for the judgment that, as a predictive matter, a metaphorical cessation of hostilities on the substantive question of same-sex marriage will, as time goes on, result in a metaphorical cessation of hostilities on the substantive question of religious exemption? It seems to me that in order to reach that conclusion, one would have to believe certain other things, too–things which are not necessarily particular to this debate but may reflect more general beliefs about political psychology. It is those more general beliefs that I want to explore and think about in this post.

First, it seems to me that one would need to believe in a theory of what I’ll call sympathetic reciprocity in politics (the word “sympathy” appears several times in Tom’s comment), which might go something like this: in the realm of politics or policy-making, over the long-term, people remember and respect concessions, and they respond to those concessions with concessions of their own. They reward sympathy with sympathy. And eventually, with time and good faith, a people that holds radically different beliefs about the good life can achieve a modus vivendi–a ‘live and let live’ ethic–by observing a policy of sympathetic reciprocity.

Setting aside this particular controversy, though, I wonder whether that is an accurate description of the reasons that political concessions generally get made. We do not accept a ‘live and let live’ ethic for many issues of public concern; we do accept them for others; and the issues for which we do and do not accept such an ethic are relatively stable but always changing. But is the extent to which we accept such an ethic in turn dependent on a theory of sympathetic reciprocity–that is, on the extent to which those with whom we disagree have previously extended sympathy toward the policy that we champion and that they disavow? Does politics have a sympathetic memory in this way, and does it reward those who moderate their views with reciprocal concessions? Or is the acceptance of a ‘live and let live’ ethic more dependent on considerations of public salience, political prestige and influence, effective rhetoric, cost, the vagaries of public opinion, cultural trends–in sum, is it far more dependent on considerations of cultural and political power? I grant that this is a gloomier view than I think is at work in Tom’s comment. I’m not sure that I endorse it in an unqualified way. But I hope Tom might say a little bit more about why–on what grounds–he holds (or seems to hold) to the comparatively sunny view of sympathetic reciprocity in politics.

Continue reading

Garnett on Same-Sex Marriage and Religious Freedom

Our friend Rick Garnett (Notre Dame) has a short piece on Commonweal concerning the implications of the Supreme Court’s recent same-sex marriage decisions (Rick’s primary focus is the DOMA decision, United States v. Windsor) for claims of religious freedom. The essay may be usefully read, I think, as having larger application to the issue of exemptions from generally applicable laws. A bit from the conclusion of Rick’s essay:

It is easier to respect religious freedom in law and policy when everyone agrees or when governments do not do very much. With disagreement and regulation, however, inevitably comes conflict between religious commitments and legal requirements and, when it comes, the majority tends to take care of itself. What about the rest? In a constitutional democracy like ours, we are generally willing to absorb some costs and suffer some inconveniences in order to accommodate the invocation of rights by dissenting or idiosyncratic minorities, especially when the majority thinks that it has a stake in those rights. For example, America still takes a robustly libertarian approach to the freedom of speech, and protects offensive and worthless expression to an anomalous extent, because most Americans still think that protecting misuses and abuses of the right is “worth it.”

However, as religious liberty increasingly comes to be seen as something clung to by a few rather than cherished and exercised by many, as religious traditions and teachings start to strike many as the expensive and even dangerous concerns of quirky, alien margin-dwellers, and as the “benefits” of allowing religious believers’ objections or religious institutions’ independence to stand in the way of the majority’s preferred policies begin to look more like extractions by small special-interest groups than broadly shared public goods, we should expect increasing doubts about whether religious liberty is really “worth it.” We should be concerned that the characterization by the majority in Windsor of DOMA’s purpose and of the motives of the overwhelming and bipartisan majority of legislators that supported it reflects a view that those states—and religious communities—that reject the redefinition of marriage are best regarded as backward and bigoted, unworthy of respect. Such a view is not likely to generate compromise or accommodation and so it poses a serious challenge to religious freedom.

The Look of Depraved Heart Murder: Further Thoughts on the Faith-Healing Case

In light of some reasonable questions in the comments of my faith healing post at Mirror of Justice about the distinction between ordinary recklessness and extreme recklessness showing a wanton disregard for the value of human life of the kind that can support a mens rea of malice (and therefore, in Pennsylvania, a charge of third degree murder), I thought to mention a very recent decision of the New York Court of Appeals upholding the conviction of a defendant convicted of depraved indifference murder. An important caveat: New York has a special, but I think doctrinally useful, history of attempting to pinpoint precisely what the depraved indifference mens rea looks like that does not necessarily map on to Pennsylvania law. But because I believe that the distinction between ordinary recklessness and depraved heart recklessness can only really be understood by comparing the factual particulars in actual cases–and not by recourse to any abstract principle (for those with an interest, I’ve discussed this issue previously herehere, and here)–and because the facts of the case involve a victim of similar age, the New York case is useful.

In People v. J. Borboni (decided by the Court of Appeals two days ago), the facts showed that the defendant beat a 15 month old child repeatedly around the face and body in a period of about an hour, causing massive damage. The defendant was convicted of what in New York is murder in the second degree (depraved indifference murder of a child) as well as manslaughter in the first degree (intent to cause physical injury to a child; recklessly causing the death of a child). The defendant challenged the sufficiency of the evidence as to both crimes. The standard for conviction of depraved indifference murder is that the defendant evince “an utter disregard for the value of human life,” that the defendant “did not care whether his victim lived or died.” In addition to that distinct mens rea, the state also needed to prove recklessness as to a grave risk of physical injury or death.

In upholding the conviction for depraved indifference murder, the Court distinguished another case, People v. Lewie (2011), in which the defendant “persistently left her eight month-old son with her boyfriend, whom she knew to be violent and cruel, and the man inflicted numerous wounds on the child, finally causing a brain injury that led to his death,” because the evidence was not sufficient to show that the defendant “did not care at all” about her son’s safety: “On the contrary, the evidence shows that defendant feared the worst and…hoped for the best.” Similarly, the Court distinguished People v. Matos (2012), where the defendant’s “intimate partner severely beat her 23 month-old child, resulting in his death” because there was evidence that the defendant did care about her son’s life: she “splinted her son’s leg, gave him anti-inflammatory medication, exhibited other measures to comfort him, and, when she found him bleeding and unresponsive, called 911 for help.”

In Borboni, by contrast,

[T]he jury heard testimony — including medical and forensic proof — that defendant inflicted injuries on a 15-month-old child by striking or shaking the child so brutally as to cause four distinct skull fractures. The nature of defendant’s assault on the child rendered his course of conduct more clearly depraved than had he only suspected that a third party had injured the child. Knowing the brutal origin of the injuries and the force with which they were inflicted makes it much less likely that defendant was holding out hope, as Lewie and Matos perhaps were, that the child’s symptoms were merely signs of a trivial injury or illness….

[T]he charge of depraved indifference murder here is comprised of more than the physical assault on the child; it also encompasses defendant’s inaction for the two hours that elapsed between the injuries and death. In light of the child’s vulnerability and utter dependence on a caregiver, defendant’s post-assault failure to treat the child or report his obvious injuries must be considered in assessing whether depraved indifference was shown. The People demonstrated that defendant, at the very least, left the child unattended for two hours, either disregarding, or not bothering to look for, obvious, perceptible signs that the child was seriously injured. Given defendant’s knowledge of how the injuries were inflicted and his failure to seek immediate medical attention, either directly or via consultation with his girlfriend, until it was too late, there was sufficient evidence for a jury to conclude that defendant evinced a wanton and uncaring state of mind.

The key factual difference between a case like this one and the faith healing case that I discussed yesterday involves the issue of “indifference to human life.” I only know what is contained in the report I referenced yesterday, but from those facts, it seems to me that it is very difficult to conclude that parents who believe that God will intervene to save their afflicted child have the same mens rea as someone like the defendant in Borboni. To the contrary, the most plausible conclusion is that they have just the opposite state of mind: they care deeply about their child’s well-being and believe that what they are doing is in his or her best interest.

Furthermore, I included the paragraph in Borboni relating to Borboni’s failure to report the child’s injuries to anybody else because it contrasts with what is reported in the faith-healing parents’ case. The factual similarity (failure to report in both cases) may mask the issue of motivation. The actor with a depraved heart fails to report on the victim’s condition because he doesn’t give a damn about the victim. But the faith-healing parents allegedly failed to report because they do care about the child’s condition, and they thought that by reporting they would interfere with the child’s best chance at recovery.

I emphasize again that I am emphatically not saying that the faith-healing parents do not deserve punishment. And I haven’t done the research into Pennsylvania law about depraved heart murder to really know in depth what it requires. But particularly when one is dealing with as fact-specific–and as grave–a crime as depraved heart murder, I also think it’s important to try to be precise about the nature of the defendants’ state of mind. There are lots of facts still to come out in the Philadelphia case. But in light of what has already come out, there are obvious questions about the appropriateness of a depraved heart murder charge in that case.

Ignorance, Faith Healing, and Murder

There is an awful and very difficult criminal case proceeding in Philadelphia involving parents who failed to obtain emergency medical care for their 7 month-old child. The child died of bacterial pneumonia and dehydration. The parents have been charged with third degree murder as well as involuntary manslaughter.

In this post, I want to focus on the murder charge. Pennsylvania uses the common law term, “malice,” to describe this type of murder. In Pennsylvania, murder in the first degree is done with the specific intent to kill; murder in the second degree is felony murder; and murder in the third degree is a catchall category for all other murders done with malice. In Commonwealth v. Overby, 836 A.2d 20 (Pa. 2003), the Pennsylvania Supreme Court affirmed the following jury instruction involving the charge of murder in the third degree: “Malice in Pennsylvania has a special meaning. It does not mean simple ill will. Malice is a shorthand way of referring to the three different mental states that the law requires as being bad enough to make a killing murder. Thus, a killing is with malice if the killer acted, first, with an intent to kill, or second, an intent to inflict serious bodily harm, or third, a wickedness of disposition, hardness of heart, cruelty, recklessness of consequence, and a mind regardless of social duty indicating an unjustified disregard for the probability of death or great bodily harm and an extreme indifference to the value of human life. A conscious disregard of an unjustified and extremely high risk that his action might cause death or serious bodily harm.” In New York, the equivalent of Pennsylvania’s third category of malice goes by the name, “depraved indifference” murder (that is, implied malice murder), which I’ve talked a little bit about before.  The parents face up to 40 years in prison if convicted of third degree murder.

In the report noted above, there seem to be two different defenses offered by the parents. But the defenses are conflated in the story in a way that makes it confusing to understand what seems to be the key issue with respect to the murder charge–the parents’ mens rea.

The first defense is that they “did not know their baby was sick enough to die.” This is a defense that sounds in ignorance. The idea is that if someone lacks sufficient education or background knowledge to form the requisite state of mind, he cannot be charged with a malicious intent. Though the parents may have been negligent in the ordinary tort law sense of the phrase, that negligence does not rise to the level of the sort of wanton, ‘don’t-give-a-damn’ recklessness that is necessary to sustain a charge of murder. One highly problematic factual issue with respect to the ignorance defense in this case seems to be that this has happened before. The story reports that four years ago, the parents’ two year-old child also died of bacterial pneumonia. Given this history, the defense of sheer ignorance becomes much less plausible, and the charge of wanton recklessness more plausible. If the defense is simply lack of knowledge, then there is a case to be made that when the very same disease afflicts a second child, it becomes more difficult to argue that the parents were not consciously disregarding a very high risk of death or serious bodily harm to the child in a way manifesting extreme indifference to the value of human life.

But things might be different with respect to the second defense: that they believed and trusted that God would heal their child. Here the idea would be that notwithstanding what had happened in the past, they continued to believe that God would intervene to stop death. And the reason that they failed to report on the child’s condition to state authorities was not that they were unaware that the child’s condition was mortal, but that the power of God’s “cure” would be compromised if they reported. (Incidentally, some people have argued that exempting parents from the full arsenal of criminal liability will make it more likely that parents will fail to report. But I’d like to see the statistics supporting those claims: as a matter of intuition–I have not studied the matter–it’s not clear to me that the incidence of failure to report will increase unless the full range of criminal liability is brought to bear).

One might argue that the charge of third degree murder based on extreme indifference to the value of human life is equally applicable here. But I am not so sure. If the defense is accurate, then it seems to me that what the parents manifest is not indifference, but true (from their perspective) concern. There may be exceptional cases of course–parents who truly do desire the death of their children. But as a general matter, from the parents’ perspective, they are not consciously disregarding an unjustifiable risk in a way that manifested their extreme indifference to the value of human life. They were consciously doing what they believed was in the best interests of their child. When the defense is ignorance of the danger of a particular disease, though the defense might work in the case of the first child, that ignorance becomes much more difficult to claim in the case of a second child suffering from precisely the same medical condition as the first. But when the defense is belief in the power of faith healing, it does not seem to me that the same mens rea progression is at work. In fact, the parents may believe that the risk to their children is not great, but very small, just in virtue of their belief that though things may look bad, God will intervene. The fact that God did not intervene last time does not vitiate the chances that he will probably intervene this time.

In sum: (1) the faith healing defense seems to me stronger in this case than the defense of ignorance; (2) it does not seem to me that, if one accepts the faith-healing defense, the parents are in the same category as other people who act with wanton disregard for the value of human life; and (3) the truly tough question is whether these parents are different from other parents whose gross neglect results in their children’s death.