Monday, August 05, 2013

Diocese Creditors (Mostly Abuse Victims) Can’t Access $50 Million in Catholic Cemetery Trust Assets, Because of the Religious Freedom Restoration Act

• August 5, 2013 2:47 am
So holds last week’s district court decision in In re Archdiocese of Milwaukee (E.D. Wis. July 29, 2013).

I’m skeptical about this result. I do think that the Religious Freedom Restoration Act should be read to apply to such federal litigation, and it may well be that requiring a church to pay funds that it views as dedicated to Catholic cemetery maintenance is a “substantial burden” on the church’s religious beliefs. Nonetheless, under the Religious Freedom Restoration Act (and similar statutes and state constitutional rules in the about half the states that have such statutes or rules), religious exemption claims are trumped by a compelling government interest, when rejecting the claim is necessary to vindicate the interest. And it seems to me that there’s a compelling interest in making sure that people are compensated by their injurers, even when the defendants believe they have a religious duty to use the money for other purposes.

The most common claim for broad religious freedom protections is that people should free to follow their religions, so long as they don’t harm others. Jefferson’s defense of religious freedom, for instance, was justified by the argument that someone’s “say[ing] there are twenty gods, or no God ... neither picks my pocket nor breaks my leg.” Madison wrote that religion should be “immun[e] ... from civil jurisdiction, in every case where it does not trespass on private rights or the public peace.” Similarly, Michael McConnell, one of the leading authors on free exercise law, argues that we should be “free to practice our religions so long as we do not injure others.”

But here it looks like RFRA is indeed being used to do something much like “pick[ing the creditors'] pocket,” “trespass[ing] on private rights,” and “injur[ing] others” by depriving them of what would otherwise be their legally rightful compensation. That a church believes that it must use its property for some purpose other than compensating those that it has injured should not, I think, affect the legal entitlements of those who have indeed been injured.

Indeed, as I understand the court’s logic — which doesn’t seem to turn on the trust being any separate sort of entity from the church — a church could always refuse to pay a judgment (in bankruptcy out of it) if a state or federal RFRA or state constitutional religious freedom clause applied, so long as the church felt that it had a religious obligation to use that money for other purposes (burial, charity, worship, upkeep of churches, and so on). Indeed, even a religious individual could refuse to pay such a judgment to the extent that he felt a religious obligation to spend his money on other things, whether donating to his church, helping his family, protecting the livelihood his employees, or saving the world.

(If there were some religiously neutral principle of trust law under which separate trusts such as this aren’t reachable by creditors, then the church should prevail, because the law in that instance would not be treating those assets as something to which the creditors have a right. But I don’t think the court’s opinion relies on any such general trust law principle; instead, it apparently denies creditors compensation out of funds that would normally be available to them, if defendant didn’t have religious obligations.)

I realize that some cases have held that RFRA protects debtors’ rights to continue tithing their property to a church, even when creditors claim that this money should be rightfully paid to them. (The opinion in this case cites those cases.) But I’m skeptical about those cases, too — and an opinion such as this one is something of a reductio ad absurdum of the logic of those cases, since it uses RFRA to shield not just 10% of creditors’ usually rather meager income, but $50 million.

Whether churches should indeed be liable to abuse victims for negligently hiring or negligently supervising priests is an interesting question. But once a church is indeed held liable, it seems to me that those creditors’ — and other tort creditors’ — claims to church property shouldn’t be trumped by the church’s felt religious obligations.


"Jews For Money" -- Without Any Shame!