If you want to see how easily a so-called "religious freedom amendment" can be abused and distorted, take a look at what's going on in Milwaukee.
The Milwaukee archdiocese of the Roman Catholic Church faces myriad lawsuits stemming from its longstanding failure to protect children from repeated, ongoing molestations by Catholic priests. To shield its assets from the estimated 575 plaintiffs, the archdiocese declared bankruptcy in 2011, claiming it had no money to pay damages. But before doing so, it shifted $55 million in church funds into a newly created trust fund, ostensibly to pay for the maintenance of Catholic cemeteries in the archdiocese.
In a letter to the Vatican that sought permission for the move, the Milwaukee archbishop noted that “[b]y transferring these assets to the Trust, I foresee an improved protection of these funds from any legal claim and liability."
Not surprisingly, the victims of molestation protested the move to shield church assets. But as the Milwaukee Journal Sentinel explains, "The church maintained that forcing it to turn over even $1 in cemetery funds ... would substantially burden its free exercise of religion under the First Amendment and the federal Religious Freedom Restoration Act."
That doesn't sound like much of an argument to me, but a federal district court judge found it convincing. Judge Rudolph Randa issued a summary judgment in 2013, ruling that the assets of the cemetery trust were off-limits to abuse victims. Tapping the trust fund to help those abused by priests "would substantially burden" the church's freedom of religion, including its obligation to care for the remains of the dead, Randa ruled.
This week, the 7th U.S. District Court of Appeals overturned Randa's ruling, potentially opening the door for victims of child abuse to recover damages. But the grounds of that decision were pretty narrow. The Religious Freedom Restoration Act would protect the church from governmental actions, the appellate court ruled, but it does not protect the church against a suit that is filed by private individuals, in this case the victims of abuse.
The church is likely to appeal, with its lawyers still arguing that "the facts, the federal law and the First Amendment clearly support our position." In short, the Supreme Court may soon be asked to decide whether the banner of "religious freedom" can be used to protect religious institutions from the consequences of their behavior in areas that have nothing to do with religious faith, in this case the refusal of church authorities to protect children from pedophiles.
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