Court protects church that shielded abuser, who’s protecting children?

The following opinion was originally published in the Arizona Capitol Times April 17th, 2023.

Justice for children is hard to find. The LDS church shielded a sexual abuser for a decade in Cochise County. When sued, the church sought to escape responsibility by scurrying behind robes. When the Cochise County judge ordered that the bishops and the clerk had to testify, the church filed a special action.

Division 2 issued a non-published, eight-page opinion that the bishop and clerk did not have to testify. The court agreed that the clergy privilege belongs to the penitent not the church, but although the father publicly bragged about his abusive actions, the church could still claim a privilege. The court transformed a clerk into a clergy contrary to an Arizona ruling to minimize the definition of “clergy” because it interferes with the court’s fact-finding function. The appeals court upheld the priest-penitent privilege on the narrow ground that although the abuser had made his abuse public, he did not specifically make public the facts of what he said to the clergy. This is an absurd distinction without a difference.

For decades, in fact centuries, churches have been havens for child abusers. The April release of the Attorney General’s Report on Child Sexual Abuse in the Archdiocese of Baltimore listed 156 church officials found to have been involved in child abuse or covering it up. Monthly, FFRF has a two-page spread of Black Collar Crime with hundreds of criminal and civil abuse cases against religious personnel of all stripes. The hysteria about “grooming” requires us to look at the churches and religious homes not in the gay community.

LDS church, sexual abuser, court, Cochise County

Dianne Post (Photo by Martha Lochert)

The children in Cochise County then petitioned the Arizona Supreme Court that issued a one-sentence decision denying the petition. Short shrift for children.

When the abuser went public, he said he was grateful he didn’t have to hide anymore. The church could have helped him and the children by reporting 10 years earlier. Instead, the church helped no one, but facilitated the abuser’s criminal activity, aided and abetted his violence, and conspired to keep it secret.

This isn’t the first time the LDS has held beliefs contrary to the rest of society. In the Reynolds v. U.S. case in 1878, a Mormon was found guilty of violating the law by committing bigamy. His main argument was that his behavior was not a crime because his church believes polygamy is mandatory for men and religious beliefs should not be punished.

The court said religious beliefs should not be punished; but actions can be. Religious belief cannot be accepted as justification for an overt act that violates the law. The court outlined the history of religious persecution in the colonies where people were taxed against their will for support of sects they did not believe in, they were punished for not attending public worship for groups whose tenets they did not subscribe to, they were charged for so-called heretical opinions, including blasphemy, when they disagreed.

The court outlined the actions of Madison and Jefferson to ensure that religion could not be used to coerce anyone but remained separate from government. The court paraphrased a quote from the Bible to give what belongs to the church to the church and what belongs to the state to the state. Claiming something is a religious belief does not make it protected by the First Amendment. When the state declares it illegal to sexually abuse children, the church must not hide those behaviors to protect their members, their reputation, or their bank account.

Churches are not free to harbor criminals, facilitate abuse, or harm children. “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.” To allow the church to shield a child abuser for 10 years, “…would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” Government cannot exist under such circumstances.

Despite the 1878 ruling, the church continued to violate the law. In Mormon Church v. United States (1890), the church was unincorporated, and its property seized because of its continuous violation of the law. As the court said, the legislature has the power of parens patriae over infants and has all the powers necessary to protect them. That did not happen here as the courts are allowing the church to facilitate child abuse. The 1890 court was very clear that, “The pretense of religious belief cannot deprive …” governmental bodies from prohibiting actions that are determined by the body politic to be a crime. For years, legislators have introduced bills to prohibit the protection of child abusers by a clergy collar. This year’s bill was HB2454 introduced by Representative Travers. The party in control continues to refuse to hear the bills.

In 1890, the court said, “It is true infants are always favored.” Today, protecting the church and abusers seems to be favored. First the church covers up; then the courts shield them. Who is protecting the children?

Dianne Post is Legal Director for Secular Coalition for AZ.

Dianne Post, Legal Director Secular AZ
Legal Director at Secular AZ