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November 15, 2019 Feature

In the Wrong Hands, RFRA Shields Perpetrators of Crimes Against Children

Marci A. Hamilton & Alice Nasar Hanan

The Religious Freedom Restoration Act (RFRA) is a federal law that sought to protect a believer’s religious exercise from being substantially burdened by any government rule of general applicability. In practice, RFRA actually forces the government to prove in every single case that a law serves a “compelling interest” before it can apply to a believer and that the law is the “least restrictive means” of furthering that interest for one believer. RFRA was held unconstitutional in Boerne v. Flores in 1997, but Congress re-enacted RFRA to apply to federal law in 2000, and states subsequently adopted their own versions of religious freedom restoration or protection legislation. With this legislative landscape, religious individuals and entities have capitalized on RFRA protections to demand rights that in many instances are harmful to children and undermine the public good.

Child Sexual Abuse

In cases of child sexual abuse, perpetrators of faith and religious institutions have launched RFRA defenses, sometimes successfully, against the production of documents, the compelling of testimony, and searches and seizures necessary for investigation. In Florida, a Catholic priest called as a witness to a child sexual assault was protected by RFRA from testifying about a confession because the court determined that the State’s interest was not compelling enough to override the priest’s religious freedom rights. In another case involving allegations of child sexual abuse in the Catholic Church, the Church attempted to use RFRA to shield itself producing documents even though the court ruled that complying with discovery did not interfere with the practice of the Catholic faith. Similarly, Warren Jeffs, the notorious polygamist, felon, and president of the Fundamentalist Church of Jesus Christ of Latter-Day Saints argued, albeit unsuccessfully, that RFRA protected him against a search of his home that was related to the criminal investigation of his sexual assaults of children.


In the children’s education context, RFRA has been asserted to protect believers against the application of a wide range of laws. Parents of homeschooled children of various faiths have argued that the protections of RFRA exempt them from state monitoring of their children’s education. Courts rejected these claims on the basis that the parents failed to establish that this monitoring “impairs or restricts the exercise, practice, conduct or expression of their religion” in any tangible way, which is a threshold requirement for RFRA protection. Parents of children enrolled in religious private schools have also claimed RFRA violations based on school districts’ refusal to provide their children with the same special education benefits as students enrolled in public schools. These RFRA claims failed because the parents failed to establish that the school districts’ refusal to extend the same benefits to private school students was a substantial burden on the exercise of their religions.

RFRA protections have been upheld to exempt students of faith from generally applicable school regulations that infringed on their religious practice. In Texas, a Native American student asserted a successful RFRA challenge to a policy mandating his long hair be worn in a bun or tucked into his shirt. The policy violated a tenet of his Lipan Apache faith, which required that his hair be visibly long, and the school district’s interest in hygiene, safety, uniformity, and discipline was not compelling enough to justify the burden.

Spiritual Treatment and Marijuana

Parents and religious leaders have asserted RFRA defenses to criminal conduct such as child abuse, medical neglect, and illegal drug use and have used the law to argue that their religion excuses them from actions that are otherwise considered to be criminal.

Parents have claimed that RFRA protects their decisions to seek only spiritual treatment for their children’s illnesses. In Tennessee, a mother who was a member of a Christian church called Universal Life brought forward a RFRA claim after being charged with child neglect when her daughter died from the delayed treatment of Ewing’s Sarcoma, a rare form of cancer. Similarly, in Oregon, a RFRA claim was brought by a member of a Pentecostal Christian church convicted of negligent homicide when his child died from untreated leukemia. While the courts ultimately held that the parents’ criminal conduct was not protected in both of these cases, the RFRA claims were dismissed on procedural grounds and not on the merits. Nonetheless, these cases provide insight into how parents can assert RFRA to shield themselves from criminal liability for the deaths of their own children.

A minister of a Christian church called Our Church also employed RFRA to try and claim that his religious belief provided him with a legal right to grow marijuana and distribute it to sick children with their parents’ permission. His RFRA defense failed and his conduct was deemed to be illegal because the court determined that the criminal laws could not have been tailored to accommodate the church’s “broad use” of marijuana, and notably its distribution to children, while still serving the government’s interest.


Upon review of the application of RFRA to laws affecting children, it is clear that, when placed in the wrong hands, RFRA can be a shield to liability and responsibility for misconduct and crimes that religious institutions and people of faith perpetrate against children. Even when RFRA claims are unsuccessful, they leave children vulnerable to abuse by those who, by law, are responsible for their protection.

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Marci A. Hamilton is the founder and CEO of Child USA, a nonprofit academic think tank at the University of Pennsylvania, where she is the Robert A. Fox Leadership Program Professor of Practice and Fox Family Pavilion Resident Senior Fellow in the Program for Research on Religion.

Alice Nasar Hanan is a staff attorney in the Child USA Legal Department. She contributes to the legal research, analysis, and development of Child USA’s Statute of Limitations Reform Initiative.