Rules Are for Schmucks: What Hath RFRA Wrought?

The picture released (warning, graphic) last month by the Indiana prosecutor’s office of the seven-year-old boy’s back is horrifying. There are thirty-six angry welts and bruises in all, plus another injury not shown to the boy’s ear.

According to the unnamed boy’s mother, a devout Christian named Kin Park Thaing, she caught her son and his three-year-old sister in the act of discovering that they looked somewhat different from each other below the waist. God doesn’t like that at all. So she took a plastic coat hanger and let him have it. She beat the little girl also, though not quite as severely.

When the school discovered the boy’s injuries, Thaing was charged with the felonies of battery against a child and neglect of a dependent. Her defense, at least in part, is that Indiana’s new Religious Freedom Restoration Act (RFRA) allows her to live out her Christian faith by disciplining her children in a biblical manner.

There is no doubt that she has her theology right. The Bible is a little murky in some spots, but it’s clear as a bell on how parents should deal with troublesome children: beat the hell out of the little brats. “Withhold not correction from the child: for if thou beatest him with the rod, he shall not die. Thou shalt beat him with the rod, and shalt deliver his soul from hell.” Whole books have been written by Christians about this. The advertising for one such book claims it has sold over a million copies.

It’s not just evangelical Christians who believe this. At the Catholic St. Augustine’s high school in New Orleans, for example, corporal punishment is expressly authorized in the school handbook. In England, Muslim students are beaten in their madrassas. Ayaan Hirsi Ali, as a child, had her skull fractured by a Muslim teacher to whom she did not show proper respect.

When RFRA was being debated in Indiana last year, the National Organization for Women pointed out the risk that it it could be used to justify the religious evasion of laws designed to protect women and children from domestic violence. But the legislature didn’t care. The Marion County prosecutor’s office explicitly asked that the bill be narrowed to exclude exemption from criminal laws like the ones Thaing is accused of violating. But the legislature didn’t care about that, either. All they cared about was giving the God lobby what it wanted. So we now see RFRA used as a defense not only against child abuse, but also against violations of Indiana’s drug laws and criminal tax laws.

RFRA advocates assure us that Thaing’s defense cannot possibly win. One even smells a liberal plot to discredit RFRA by pushing it to an extreme. I’m not so sure about that. Indiana already has a state Supreme Court precedent allowing a mother to beat her son with a belt and/or an electrical cord. That case, Willis v. Indiana, was decided years before RFRA was enacted, and involved no religious aspects. If the intent of RFRA was to “restore” religious freedom beyond what already pertained, well, is a coat hanger that much different than a belt?

Whether or not you agree with the opinion in Willis—and one Indiana justice did not—I think it does an excellent job of approaching the question in the right way. The circumstances under which government should punish parents for inflicting corporal punishment constitute a line-drawing problem. Whether or not your own view of parenting is that corporal punishment is sometimes permissible, most people would agree that our jails would fill up quickly if every parent who spanks a child gets locked away. At the same time, most people would also agree that, leaving religion aside, it is possible to go too far with corporal punishment, and the state on occasion must act to protect a child. The Willis court carefully weighed the age of the child involved there (eleven, not seven), the number of blows (seven, not thirty-six), and the severity of the injury inflicted (the child testified that it did not hurt the next day, unlike the welts in the picture).

These are the factors a court should be looking at. Whether the mother was following her religious belief shouldn’t enter into the equation at all. That is the evil of RFRA.

One handwringing commentator who loves special privileges for religion but who doesn’t like being associated with pictures like these tries purple prose: “The ocean of religious liberty stops at the shore of child welfare. But how far does it stretch beyond that? Only time—and lawsuits like this one—will tell.”

First of all, this is not a lawsuit—it’s a criminal case. Second of all, it seems unlikely that this case actually will tell us anything at all about the reach of RFRA. There is indication that Thaing is showing due remorse and is taking parenting classes on teaching children good behavior without physical punishment. If the prosecutor is persuaded she’s learned her lesson already, this could be an ideal situation for a plea deal involving something along the lines of probation before judgment, which would keep her record clean if she avoids future problems. That could be a lot better than putting a mom in jail.

It also could be better than risking an adverse court ruling. Government at all levels is notorious for cringing before the God lobby, even when it comes to child abuse. Four years ago, Tampa Bay Times reporter Alexandra Zayas published a brilliant series—a finalist for the Pulitzer Prize—about her yearlong investigation of the extensive torture of children perpetrated at Florida’s Christian “children’s homes.” These institutions operate under a sweeping religious exemption from any regulation by the state. So what has the government of Florida done about this? Nothing. Who wants to step on Christian toes? An Indiana court with the same lack of intestinal fortitude in dealing with self-righteous Christians could produce a precedent that would be damaging indeed.

The real problem here is not what a court will ultimately do about Thaing. The real problem is that, once again, the message has gone out loud and clear that religion is above the law. Leaving aside all the fine legal nuances, that’s the issue all of Indiana was in an uproar about during the months before Thaing decided to horribly beat her little boy. The religious privilege crowd won that fight, and everyone—quite possibly including Thaing—knew it. It would not be surprising at all if she had at least a vague faith that religion is above the law in Indiana, and it will be even less surprising when the next debacle sparked by the same idea erupts. Only by repealing RFRA and all its related laws can we get back to the principle that there is one law, and everyone, regardless of their personal beliefs, needs to follow it.