Legal counsel: Religious freedom never justifies abuse

Indianapolis, Ind., Sep 2, 2016 / 15:39 pm

An Indiana woman who allegedly beat her 7-year-old with a coat hanger is citing religious freedom as her defense against felony abuse charges, saying her disciplinary tactics were inspired by her Evangelical Christian faith.

But Kellie Fiedorek, who serves as legal counsel with Alliance Defending Freedom, rejected the idea that religious liberty can be used to defend abuse. The U.S. has provisions built into federal law to protect against such misuses of religious freedom claims, she said.

The alleged abuse occurred in February, when Thaing hit her son with a plastic coat hanger hard enough to leave multiple bruises. Two days later, a teacher discovered and reported the abuse when she tried to pat the little boy on the back and he flinched. Doctors counted 36 bruises on the boy, according to reports from the Indy Star.

The woman, 30-year-old Kin Park Thaing, is a refugee from Burma (now known as Myanmar) who was granted political asylum in the U.S. In court documents, she quoted Scripture and cited cultural differences as part of her defense.

Thaing quoted verses from Proverbs in her defense, saying that a parent who "spares the rod, spoils the child" and: "Do not withhold discipline from a child; if you strike him with a rod, he will not die. If you strike him with the rod, you will save his soul from Sheol."

Fiedorek told CNA that this is not the first time someone has tried to use religious freedom as a defense for child abuse or domestic abuse.

"First of all child abuse and domestic abuse are crimes, and those who engage in that kind of behavior will be prosecuted," she said.

"And religious freedom laws have never been successfully used as this woman is attempting; they've never been successfully used in justifying child abuse or domestic abuse," she added.

According to the Indy Star, Marion County Deputy Prosecutor Matt Savage said in an eight-page rebuttal that the beating "(goes) beyond these religious instructions she cites from the Bible."

The other part of Thaing's defense has to do with a 2008 decision in the Indiana Supreme Court, which determined that parents are protected in some cases of "reasonable corporal punishment."

Thaing may be protected because her disciplinary measures, while considered extreme in the United States, would be considered reasonable in Burma.

However, the religious freedom defense is likely to fail, Savage wrote.

U.S. legal tradition has broad allowances for religious liberty, a principle that is enshrined in the First Amendment alongside freedom of speech, press, assembly and petition. But there are limits.

Like many other states and the federal government, Indiana has a Religious Freedom Restoration Act, which was signed into law in 2015 by now-Republican vice president nominee Mike Pence. The law says that the government cannot "substantially burden" a person's religious liberty unless it can prove that it is furthering a compelling state interest and using the least restrictive means of doing so.

James Dwyer, a law professor at William and Mary who studies child welfare and the First Amendment, told The Atlantic that in this case, it is unlikely that Thaing can prove a substantial burden on her religious freedom and that even if she does, the government still has a strong compelling interest in protecting the child.

In the case of child abuse, Fiedorek agreed, the government clearly has a compelling interest in protecting the safety of children.

Religious freedom laws like the one in Indiana are about balance, she added.

At the time it was passed, the Indiana Religious Freedom Act sparked controversy, with some people concerned that it allowed too much license based on religious liberty.

But Fiedorek maintained that despite the criticisms, religious freedom laws do not guarantee a free pass to anyone, they simply allow people to receive a fair hearing in court.  

"The reality is that a religious freedom act is not a guaranteed win," she added. "You can do a defense, you have your day in court, but the judge ultimately decides whether or not the government has a compelling interest to use the least restrictive means to justify burdening that person's religious beliefs."

"It's checks and balances. Religious freedom acts do not pick winners or losers."