'Free exercise' of religion & the covering up of child sexual abuse

The "free exercise" clause of the First Amendment has been used for lots of things. In a lot of different ways.

It's been understood by the Supreme Court to mean that those fired for their religion still have a right to unemployment benefits, and to mean that religious institutions have the right to define "minister" any way they want, and to fire those so designated for any reason. It has been applied to protect the rights of those who sacrifice animals, and those who are required by their faith to distribute literature. The idea that government can't rightly pass a law prohibiting the free exercise of religion has been successfully used to defend those who won't salute the American flag, those who won't send their children to public schools, those who use controlled substances in their worship, etc., etc., etc.

Now Sovereign Grace Ministries, an association of New Calvinist churches led by C.J. Mahaney, are arguing that "free exercise" also means churches can't be taken to court on charges of covering up sexual abuse.

The churches, in an official press release, argue:

SGM leaders provided biblical and spiritual direction to those who requested this guidance. This care was sought confidentially, as is a right under the First Amendment. We are saddened that lawyers are now, in essence, seeking to violate those rights by asking judges and juries, years after such pastoral assistance was sought, to dictate what sort of biblical counsel they think should have been provided. SGM believes that allowing courts to second guess pastoral guidance would represent a blow to the First Amendment, that would hinder, not help, families seeking spiritual direction among other resources in dealing with the trauma related to any sin including child sexual abuse.

On these grounds, the church is seeking to have lawsuits alleging leaders protected child predators and covered-up child sexual abuse dismissed, the Associated Press reports.

According to the lawsuit, the "biblical and spiritual direction" that was offered to help families "dealing with the trauma related to ... child sexual abuse" involved a lot of covering up evidence that crimes occurred.

Sovereign Grace Ministries is accused of forcing abused children to forgive their abusers.

They are accused of disciplining those who wanted to tell legal authorities about the abuse.

And more.

According to the suit, which was filed on behalf of eight who were once children in the church:

The Church directed members to unquestioningly 'obey' the Church in all matters, including methods of parenting, place of residence and employment .... Between 1987 and the present, the Church repeatedly confronted occasions of sexual predation of children was occurring under the Church's auspices. The Church failed to alert law enforcement authorities, and failed to take any steps whatsoever to protect the children from sexual predation. Instead, the Church taught members to fear and distrust all secular authorities, and expressly directed members not to contact law enforcement to report sexual assaults. This practice has not stopped, as is evidenced by teachings as communications as recent as August 2011. On those occasions when the Church was not successful in persuading the parents of the victim to refrain from contacting law enforcement, the Church interfered with the administration of justice by tipping off the sexual predators that they had been reported to law enforcement. The Church provided sexual predators with free legal advice and counsel on how to evade accountability, and repeatedly worked with sexual predators to mislead law enforcement. The Church was willing to, and did, make false statements to law enforcement officials and in courts of law in its efforts to protect sexual predators.

The lawyers representing the people claiming they were abused and that church leaders knew about it and didn't report it are making a fairly straightforward case that being a minister does not relieve one of all legal responsibilities. On-going crimes have to be reported. People being harmed have to be protected. Dissembling on behalf of a pedophile isn't protected by the First Amendment or any amendment, and isn't a right recognized by the United States Constitution.

As the co-council explained in an interview:

You cannot participate in wrong doing regardless of your status as a pastor. They don't have the right to put people into harm's way. And they don't have the right to step in the middle and obstruct justice. So there are duties imposed by law that when you know that you have somebody who is harming people, you are not allowed to let that person keep harming people.

Sovereign Grace Ministries' lawyers, on the other hand, is making the case that "Maryland courts can’t get involved in the internal affairs of church business." They filed a motion to dismiss the lawsuit on First Amendment grounds on Monday. They are of course also making the argument that they are not guilty of the cover-ups of which they've been accused, and have made multiple statements about the high priority they place on the protection of children against sexual assaults. The first legal line of defense they church is using though, is the argument that even if they did cover up sexual abuse of children, the courts do not have the right to "second guess" that pastoral care.

The argument is that religious institutions are -- or ought to be -- autonomous and self-governing, and courts have no right to interfere with religious groups' internal affairs. (Arguments against "second guessing" have also been used in extra-legal contexts to quell or at least quiet critiques. See Rachel Heald Evans' piece, "How [Not] to Respond to Abuse Allegations"). According to the Associated Press, this legal argument has been defended by some legal scholars and a number of judges. Courts in the states Utah, Wisconsin, and Missouri have said the First Amendment does protect religious institutions from intruding courts.

Other experts disagree with that position. One law professor, for example, told Christianity Today that "the First Amendment is not—and shouldn't be—a defense against child abuse." Even in the cases of clergy-penitent privilege, where the law doesn't require that crimes be reported, that legal protection does not normally extend to cases of child sexual abuse.

Sovereign Grace Ministries is not the first to make this case. They're following the legal strategy laid out by the Catholic Church. In Rhode Island, a decade ago, the Diocese of Providence argued that it had a First Amendment right not to turn over documents allegedly pertaining to its own cover-up of child sexual abuse. The argument worked for more than nine years, but was then rejected by the court.

The judge in that case ruled:

By no elastic stretch of the most fertile imagination can one rationally conclude that such information or any such communication deserves or merits confidentiality as expressions of religious freedom.

The church subsequently settled the suit for $13.5 million.

The next hearing in the case against Sovereign Grace Ministries is scheduled for March 8.