UNITED STATES
Verdict
The Seventh Circuit Injects Common Sense into Religious Liberty Debates with Official Committee of Unsecured Creditors v. Listecki
Marci A. Hamilton
There are times when I despair that the United States will never return to the common sense religious liberty principles established by the Framers and respected by the Supreme Court in its long line of First Amendment, free exercise decisions. From Reynolds v. United States through Employment Div. v. Smith and Church of Lukumi Babalu Aye v. Hialeah, the Court has held the line on extreme demands for religious liberty rights. They—the Framers and the Court—have been responsible for creating a system of ordered liberty where believers are full-fledged members of the community, accountable to the laws that apply to everyone else, while having the ability to request legislative exemptions, which have been granted hundreds of times. It’s a system that has worked for centuries (including for the Native American Church members who lost in Smith).
Congress let loose the furies when it caved to demands for extreme rights with the Religious Freedom Restoration Act (“RFRA”) and its unfortunate “least restrictive means” test, which persuades believers (and courts) that the laws that apply to everyone else should be shaped specifically to a believer’s particular beliefs. This reasoning has opened a new and scary dialogue about carving back the public accommodations laws to permit believers to refuse service to those they disapprove, e.g., Arizona’s state RFRA, which was vetoed last year, and this year’s pending Indiana RFRA. The public rhetoric has been about the LGBTQ community and same-sex marriage, which is bad enough, but the principle equally applies to discrimination based on race, gender, and national origin. Such reasoning is poisoning the United States and threatening the Court’s careful and delicate balance between extraordinary religious diversity, the rule of law, and plain old common sense.
With these thoughts in mind, last week’s unanimous opinion by the United States Court of Appeals for the Seventh Circuit involving the Milwaukee Archdiocese bankruptcy is a much-needed breath of fresh air.
The Milwaukee Archdiocese Bankruptcy Is Filed to Avoid Compensating Survivors of Clergy Sex Abuse
As I discuss here, Timothy Cardinal Dolan, when he was Archbishop of Milwaukee, set into motion the conflict between the Archdiocese and its creditors that culminated in the dispute decided last week. He engaged in scorched earth tactics in the few live clergy abuse cases, including pursuing extreme religious liberty arguments; blocked statutes of limitations reform with the argument that the Archdiocese would be “bankrupt” if it had to pay the victims for what it had done to them; he moved $55 million to a “trust” for purposes of avoiding compensating victims; and negotiated settlements with victims that were pennies on the dollar of what the victims deserved, in effect removing them from the pool of victims who could sue in the event of SOL reform or who would be part of a bankruptcy if it were ever filed.
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