Mike Pence’s signature law, Indiana’s Religious Freedom Restoration Act, is now being used to defend child abusers. And the abusers—one in particular—will probably win.
On Feb. 3, 2016, Khin Park Thaing, a 30-year-old asylee from Burma, beat her son 36 times with a coat hanger. She was arrested for felony abuse and neglect after a teacher noticed the boy’s dark purple welts and bruises.
As reported in the Indianapolis Star, Thaing’s lawyers cited the Bible (“If you strike him with a rod, you will save his soul”) in her defense, and said that her abuse is a legally protected form of religious practice.
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Thanks to the RFRA, she is probably right.
As we have reported many times, RFRAs make it very hard for the government to do anything when someone claims a religious belief. Legally speaking, it requires laws to have a “compelling state interest” and be “narrowly tailored” to achieve it. This standard is quite different from ordinary ones, and stacks the deck in favor of religious defendants.
At first, RFRA was a shield that guarded against government persecution of minorities. It was first passed after Native Americans were found to have violated drug laws by ingesting peyote as part of a religious ritual.
In the last 10 years, however, RFRA has become a sword allowing religious people (and corporations) to harm others: specifically, Christians who want to discriminate against women and LGBT people. Under state and federal RFRAs, corporations may withhold insurance coverage for contraception, businesses (including doctors and pharmacists) may decline to serve LGBT people, and companies can fire transgender people and gays.
But the law of unintended consequences means RFRA has also been used for other means. In Indiana, for example, one man started a “church of pot” to extol the virtues of marijuana as part of his religion. Muslim cab drivers have argued that they shouldn’t have to transport drunk passengers.
And now, just as liberal activists have warned, child abuse.
Thaing is likely to win, for three reasons.
First, while protecting child welfare is a compelling state interest, Indiana’s law has no exemption to accommodate religious believers. That means it is insufficiently “narrowly tailored” to pass muster under RFRA. It would be easy for the state to carve out such an exemption, and since they didn’t, the existing law is too broad. Indeed, unlike other states, Indiana doesn’t have an exemption for parental discipline at all.
Second, what Thaing did isn’t so different from what’s already allowed in Indiana. A 2008 court case held that “whooping” a child on the buttocks with a belt or an extension cord did not constitute child abuse. Even though Indiana’s criminal code didn’t specifically define what forms of corporal punishment were allowed, the court held that five to seven beatings on the buttocks were part of that parent’s “parental privilege” under common law and the Constitution.
Third, while Thaing’s actions were far worse—36 beatings, with a coat hanger, all over the back—one local Burmese-American advocate quoted in the Indianapolis Star said that this was “a matter of cultural practice” in Burma. (Thaing recently came to the United States and does not speak English.) Some might see Thaing as a child abuser, but a court might well see her as a refugee from another country whose actions reflect sincere religious and cultural differences.
Indeed, although Thaing’s asylum documents have not been made public, it’s quite possible that she obtained asylum because as an evangelical Christian, she was part of a small minority in the Buddhist-majority (and nationalistic) Burma.
However we may see the case personally, RFRA has changed the rules legally. That’s why it’s been invoked by the Catholic Church seeking to worm out of paying sexual abuse settlements and by a fundamentalist Mormon to avoid child labor laws. Not all of these cases win, but the reason they’re even considered is that when it comes to balancing civil rights and religious liberty, RFRA puts its finger on the scale.
Not surprisingly, RFRA’s advocates have ignored these cases, focusing instead on sympathetic bakers who don’t want to put two men on a wedding cake. But Khin Park Thaing’s case isn’t only about the law of unintended consequences. Actually, the lessons from cases like hers also apply to the bakers, doctors, hospitals, malls, and hobby stores. When religious freedom is a sword as well as a shield, vulnerable people will get hurt.
