III. Why Repeal Does Not Violate Religious Freedoms
Why Repeal of the Massachusetts Religious Exemption Law Does Not Violate Fundamental Religious Freedoms

The first amendment to the United States Constitution provides guarantees of religious freedom. The "free exercise" clause states: "Congress shall make no law prohibiting the free exercise of religion." Repeal of the Massachusetts religious exemption would not violate first amendment guarantees of the free exercise of religion.

United States Supreme Court Decisions:

The U.S. Supreme Court, which has final authority in interpreting the Constitution, has for over one hundred years consistently ruled that the first amendment does not permit one person, in the name of religion, to endanger the life of another.

The U.S. Supreme Court, as far back as 1879, in Reynolds v. U.S., (the case striking down Utah's polygamy laws), drew a clear distinction between religious beliefs which are absolutely protected and religious expression or practice, i.e., an individual's actions, which the state may limit. In the Reynolds case, the court ruled that an individual's religious practice does not include the right to endanger the life of another person.

In Prince v. Massachusetts (1944), the U.S. Supreme Court unmistakably declared that parents do not have the right, in the name of religion, to endanger the lives of their children:

The family itself is not beyond regulation in the public interest, as against a claim of religious liberty. And neither the rights of religion nor the rights of parenthood are beyond limitation…The right to practice religion freely does not include the right to expose the community or the child to communicable disease or the latter to ill-health or death…

Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they can make that choice for themselves.

More recently in 1972, in Wisconsin v. Yoder, the U.S. Supreme Court ruled:

The power of the parent, even when linked to a free exercise claim, may be subjected to limitation under Prince if it appears that parental decision will jeopardize the health or safety of the child.

In 1990, the U.S. Supreme Court made it absolutely clear in Oregon Department of Human Resources v. Smith that first amendment guarantees of religious freedom do not constitutionally require states to grant religious exemptions to child neglect and manslaughter laws. (Religious exemptions to medical care for children in most states are exemptions to child neglect statutes; proponents of exemptions have also claimed that such exemptions also extend to manslaughter laws.) The first amendment does not grant parents the right to let their children suffer and die because of their refusal, on religious grounds, to obtain essential medical care. The court ruled that to allow religious exemption to a wide variety of criminal laws would make it impossible for our society to function, and

...would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind - ranging from…the payment of taxes, to health and safety regulations, such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws and traffic laws…

These cases make clear that the Massachusetts legislature is fully empowered by the U.S. Constitution to repeal the state's religious exemption law. Any claim that the first amendment guarantees a religious exemption to provide children with necessary medical care is entirely erroneous.

The U.S. Supreme Court has more specifically addressed whether a parent may constitutionally, on religious grounds, allow a child to die by entirely substituting prayer for life-saving medical care:

In Oklahoma v. Funkhauser (1989), the Court let stand the manslaughter conviction of a couple who withheld medical care from their three-year-old son, who subsequently died of pneumonia. The parents, because of their religious beliefs, chose only to pray for their son during his two-week illness. The conviction of the parents by a jury was reviewed and upheld by Oklahoma's highest court before the U.S. Supreme Court's consideration of the case.

In Pennsylvania v. Barnhart (1988), the U.S. Supreme Court by a 9-0 vote let stand a Pennsylvania conviction of a couple for involuntary manslaughter and child endangerment of their two-year-old son. The Barnharts for religious reasons withheld medical care from their son who died of a Wilms's tumor. With early medical intervention this form of childhood cancer has a 90 percent cure rate. As members of the Faith Tabernacle, the Barnharts believed that the Bible opposes aall medical and surgical practice. Despite a Pennsylvania religious exemption law, the Pennsylvania Supreme Court upheld the parents' conviction. Likewise, the U.S. Supreme Court refused to consider the Pennsylvania religious exemption law as a justification for the child's death.

Decisions by Massachusetts and Other State Courts:

On January 15, 1991, the Massachusetts Supreme Judicial Court ruled In the Matter of Elisha McCauley that:

The right of free exercise of religion, including the interests of parents in the upbringing of their children is, of course, a fundamental right protected by the Constitution. However, these fundamental principles do not warrant the view that paretntstreatment for their children on religious grounds…When a child's life is at issue, it is not the rights of the parents that are chiefly to be considered. The first and paramount duty is to consult the welfare of the child.

The court went on to say that the State has a clear interest in "having a dangerously sick child receive medical treatment over her parents' religious objections."

This decision should be a clear communication to the Massachusetts legislature that the Supreme Judicial Court does not countenance the view, put forward by some supporters of the religious exemption law, that parents, on religious grounds, have the right to withhold necessary medical care from a dangerously sick child.

Recently, several state courts have ruled that religious exemption laws do not entitle parents to withhold necessary medical care from a seriously ill child, nor do such exemptions to child neglect laws provide a defense to the separate crime of manslaughter when a child dies due to lack of medical care.

In Massachusetts, in 1989, in the Twitchell case (two Christian Science parents were convicted of involuntary manslaughter in the death of their two-year-old son from an operable bowel obstruction), the trial court judge ruled that the Massachusetts religious exemption law does not exempt parents from their duty to obtain medical care if a child is in jeopardy of "serious bodily injury or death." The judge also ruled that the religious exemption to child neglect did not exempt the parents from the separate crime of manslaughter.

Both the California and Colorado State Supreme Courts have also ruled that religious exemptions to lesser crimes such as child neglect do not provide an exemption to the separate crime of manslaughter. In 1988, in People v. Walker, the California Court ruled that the California religious exemption law (very similar to the Massachusetts law) did not bar the prosecution of a Christian Science mother on charges of involuntary manslaughter for refusing her four-year-old daughter life-saving medical care. The girl died of bacterial meningitis, an illness which is 90 percent curable with proper use of antibiotics. In People of Interest of D.L.E., the Colorado Court made a similar finding.

Any claim by faith-healing groups of a religious right to withhold necessary medical care from children must fail in the light of court decisions striking down other, less harmful, religious practices. The U.S. Supreme Court has ruled that the Mormons do not have a protected right to practice bigamy. Courts have repeatedly ordered blood transfusion for the children of Jehovah's Witnesses - even though such transfusions go against religious beliefs of the parents. In Massachusetts, the Supreme Judicial Court recently ruled that adults cannot claim a religious right to smoke marijuana.

Right of the Christian Science Church to Claim Religious Exemption is Undermined by its Condradictory Position Concerning the Use of Medical Care:

The Christian Science Church has been in the forefront of efforts to claim protection under religious exemption laws for parents who choose to withhold essential medical care from their children. Legally, a claim of religious exemption cannot be maintained unless objection to medical care is a fundamental doctrine or central tenet of the religion; if a church permits each member individual discretion for the utilization of medical care according to a variety of considerations and circumstances, then objection to medical care could not be considered a strongly-held belief and would, therefore, not be subject to religious exemption.

However, the Christian Science Church claims, alternately:

1. that complete reliance on spiritual healing to the exclusion of medicine is a fundamental requirement for being a Christian Scientist, and
   
   
2. that a Christian Scientist may remain a Christian Scientist if he or she occasionally chooses to rely on medicine.

Christian Science provides that no person may become a member of the church unless he or she is prepared to rely completely on spiritual healing as practiced in Christian Science…Thus spiritual healing is the sine qua non of Christian Science and a religious imperative for members of the church.

(From an amicus brief filed by the church in People v. Walker to the U.S. Supreme Court)

However, when the political context requires the church to appear flexible and reasonable, such as before legislatures and in various public fora, the church then asserts that members have the freedom, based on their individual judgement, to occasionally seek medical treatment.

...the church sets up no abstract criteria for determining what injuries should be treated by prayer or other methods but rather leaves such questions to individual decisions in concrete instances…If some turn, in what they think is an urgent time of need, to medical treatment for themselves, or their children, they are not, contrary to some recent charges, stigmatized by their church.

Nathan Talbot, international spokesman for the church, in "The Position of the Christian Science Church," New England Journal of Medicine, vol. 309, 1641-1644, December 29, 1983.

Hence a claim by the Christian Science Church that it should be protected by religious exemption laws is clearly suspect.

Massachusetts Religious Exemption Violates First Amendment Guarantees Against the Establishment of Religion, That Is, Against Granting Special Preferences to Individual Religions:

State religious exemption laws, and particularly the Massachusetts religious exemption law, clearly appear to violate a second provision of the first amendment relating to freedom of religion - the "establishment clause." This provision of the first amendment states: "Congress shall make no law respecting the establishment of religion." The purpose of this provision, written by the Founding Fathers, was to ensure the separation of church and state; that is, to prevent discrimination among religions or the granting of special preferences to one religion.

According to the American Academy of Pediatrics:

...it can be argued that the states' exemption of a religious group from legal responsibility in an otherwise prosecutable offense (child abuse or neglect) is showing favor to one religion in the establishment of law; thus being unconstitutional.

More specifically, according to Wendy Mariner, associate professor of health law at Boston University:

The religious exemption appears to violate the establishment clause because it exempts from misdemeanor liability only those who provide spiritual treatment that is both in accordance with a recognized church or religious denomination and provided by duly accredited practitioner. [This is the working of the Massachusetts law and many of the other state laws.] Thus, there is no exemption for parents who may pray for their children if they are not affiliated with a recognized church or if their church does not accredit practitioners.

There is no secular purpose to justify the preference given to the very few church members that qualify for the exemption. The exemption was expressly enacted to protect one or two religions. That is an unconstitutional preference.

In fact, in 1971, the Massachusetts Supreme Judicial Court in the Dalli case, struck down the wording of a Massachusetts religious exemption from compulsory inoculations and vaccinations granted for members of a "recognized church or religious denomination."

The court stated that such wording granted a preference to church members as opposed to non-members who wished to pray. This decision has a direct bearing on the constitutionality of the present Massachsuetts religious exemption law.

Religious Exemptions to Necessary Medical Care for Children are Morally and Religiously Indefensible:

A civilized understanding of religious values does not permit the religious sanction of the unnecessary and preventable death of children due to parental refusal to provide necessary medical care.

Some proponents of religious exemption laws have argued that the relatively small number of preventable childhood deaths does not warrant interference with religious freedom and the practice of certain religious groups. However, our deepest values should hold that not even one child is unimportant, nor should even one child be allowed to die an unnecessary and preventable death. Religions cannot expect such unreligious privileges at the expense of even one sacred life.

And what of the religious rights of the child? Alan Dershowitz, a leading advocate of the first amendment rights, has written:

Once the children have become adults, they will have an entire lifetime to practice their chosen religion. But children don't always follow their parents' religious practices into adulthood. Children have the right to make an eventual choice as to their religious and secular destiny. But if their parents' choices are imposed on them in life and death situations, the children of Christian Scientists may never get the opportunity to make their own religious decisions as adults.

"Let's Not Sacrifice Children to Religion," Boston Herald, September 18, 1990

 

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