As the old saying goes, "Bad cases make bad law."
This is, in my opinion, doubly true in matters of church and state. One of my professors in graduate school always used to say, "Lots of people with whom you would not want to have dinner have purchased your religious liberty." What he meant is that courts cannot afford to get involved in issues of doctrine except in extreme cases. Thus, some radical people are going to be able to practice their radical faiths in a radical manner.
This brings us to a recent New York Times story that I know has interested several GetReligion readers, the one with the headline, "Trials for Parents Who Chose Faith Over Medicine." Here is the sad, tragic lede:
WESTON, Wis.-- Kara Neumann, 11, had grown so weak that she could not walk or speak. Her parents, who believe that God alone has the ability to heal the sick, prayed for her recovery but did not take her to a doctor.
After an aunt from California called the sheriff's department here, frantically pleading that the sick child be rescued, an ambulance arrived at the Neumann's rural home on the outskirts of Wausau and rushed Kara to the hospital. She was pronounced dead on arrival.
And this leads us into a courtroom:
About a month after Kara's death last March, the Marathon County state attorney, Jill Falstad, brought charges of reckless endangerment against her parents, Dale and Leilani Neumann. Despite the Neumanns' claim that the charges violated their constitutional right to religious freedom, Judge Vincent Howard of Marathon County Circuit Court ordered Ms. Neumann to stand trial on May 14, and Mr. Neumann on June 23. If convicted, each faces up to 25 years in prison.
"The free exercise clause of the First Amendment protects religious belief," the judge wrote in his ruling, "but not necessarily conduct."
That sound you hear is thousands of church-state lawyers shuddering.
The free exercise clause does not protect acts in the real world that are based on private beliefs? I have to say this again: Take that, the Rev. Martin Luther King, Jr. You too, Cesar Chavez.
The question is where courts draw the line on religious freedom, especially in limiting the rights of parents. As a rule, the limits are defined in terms of fraud, profit and clear threat to life.
But what is a CLEAR THREAT? That's the issue. Is practicing Christian Science or being a Jehovah's Witness a clear threat? Courts tend to say no, especially since those groups tend to have good lawyers. The big question is what to do in precisely this kind of case.
This brings us back to the story.
Wisconsin law ... exempts a parent or guardian who treats a child with only prayer from being criminally charged with neglecting child welfare laws, but only "as long as a condition is not life threatening." Kara's parents, Judge Howard wrote, "were very well aware of her deteriorating medical condition."
About 300 children have died in the United States in the last 25 years after medical care was withheld on religious grounds, said Rita Swan, executive director of Children's Health Care Is a Legal Duty, a group based in Iowa that advocates punishment for parents who do not seek medical help when their children need it. Criminal codes in 30 states, including Wisconsin, provide some form of protection for practitioners of faith healing in cases of child neglect and other matters, protection that Ms. Swan's group opposes.
Shawn Peters, the author of three books on religion and the law, including "When Prayer Fails: Faith Healing, Children and the Law" (Oxford, 2007), said the outcome of the Neumann case was likely to set an important precedent.
This is where the story, in my opinion, falls short. The Times team seems to know that the clear threat standard exists. I mean, it's there in the law. It appears that there is now a coalition -- maybe -- seeking to redraw the line, to make it easier to attack these kinds of radical believers.
What legal standard are these people proposing? Do they want to throw out church-state law as it currently stands? That appears to be the case. The story needs to tell us what they are proposing. What is the new line? Did anyone ask? Did anyone know to ask?
UPDATE: Lots of helpful information and new links over at the BaptistPlanet weblog, which is new to me and relatively new to cyberspace. BaptistPlanet bills itself as:
... (A) multiblog written by two prize-winning, veteran mainstream daily newspaper and online journalists. We cover every aspect of religion that is of interest and importance to our audience, not just matters of Southern Baptist concern.
I cannot find names on the site. Can anyone else? So I'll ask: Who are these folks?