It’s Not the Thought that Counts: Tragic Case Highlights Flaws in “Religious Liberty” Debate

Originally posted at Religion Dispatches on October 20, 2015.

By Kara Loewentheil

We hear a lot about the ways that religious exemptions impact the divisive cultural issues of our day—like abortion, marriage equality, and increasingly basic vaccinations. But the resistance to science of some fundamentalist religious sects is not limited to these hot topics.

In Oregon in 2011, a married couple, members of the Followers of Christ Church, were sentenced to prison because they didn’t seek medical help for their prematurely born infant despite the baby’s obvious illness and distress.

The parents appealed their conviction on the grounds that because their failure to seek medical care was based on their religious beliefs, the State should have to prove that they had knowledge that that illegal result (their baby’s death) would happen as a consequence of their failure to act. Last week, the Oregon Supreme Court rejected their claim, holding that their religious motivation was irrelevant when it came to proving the requirement elements of the crime.

This seems like a just and reasonable result. But in fact, in a majority of states, parents who cause harm to their children by not providing necessary medical care are protected from criminal liability if their failure to do so is religiously-motivated. Which perhaps should not surprise us because this story is really just a more extreme version of the vaccination situation, in which a refusal to vaccinate a child for religious reasons may subject the child—and other children or immune-compromised people—to harm.

It’s a very strange concept when you think about it. We criminalize child neglect because of the harm it causes to the children, not because we want to punish people for having the desire or intent to neglect their children, regardless of the outcome. So if the neglect happens, and the harm results, why should the religious motivation have any bearing on the punishment?

That’s an oddity that gets to the heart of what is peculiar about religious exemptions in general. In many cases, it’s a request to be allowed to cause harm to innocent third parties—sometimes third parties who have no way to escape the harm—because your reason is religious in nature.

There are certainly crimes where intent matters—you can’t prove murder (versus manslaughter or negligence, for instance) without proving the intent to murder. We want to distinguish between accidents and intentional bad acts.

But religious exemptions aren’t actually a question of intention—and in fact with negligence, it may be that the non-religious negligent parent had no intention, and just acted out of laziness or a lack of care, whereas the religious parent made an intentional choice to take the action that produced harm. Exempting the parent in that case is the opposite of how we normally proceed when we can prove there was an intention to take the action that caused the harm, if the harm could reasonably have been predicted (which is certainly the case when you have a premature infant who is in physical distress and you don’t seek medical care).

This is why the emphasis on third-party harms in religious exemption doctrine is so important. Because going by intention as the guide to when an exemption should be allowed produces normatively undesirable results; but focusing on whether harm has been caused to third parties allows us to keep a stable set of priorities when evaluating claims for religious exemptions in the first place.