The tragic case of Kara Neumann highlights one of the problems with robust protection for the free exercise of religion. Kara died of untreated diabetes because her parents chose to pray rather than take her to the doctor. Both have been convicted of second degree reckless homicide. How does their prosecution square with robust protection of religious freedom?
The difficulty with strong free exercise protection is not simply how to cabin the freedom (by saying that the state may restrict it only if necessary to serve a compelling state interest) but how to define what constitutes a religious claim and to assess the strength of the religious claim asserted. The problem is that the notion of religious freedom cuts against the evaluation of the strength or reasonableness of religious claims and that leaves us with a potential universe of claims that is limited only by Revelation or imagination. That is no limit at all.
This is, I think, one of the reasons that the United States Supreme Court has not afforded generous protection to free exercise, holding that neutral laws of general applicability not aimed at suppressing religious exercise are not subject to heightened scrutiny. But Wisconsin interprets the protection of religious belief and freedom of conscience included in its Constitution differently. It does afford strict scrutiny to the substantial burdens on the free exercise of religion.
State law prohibits charges of child neglect based solely on healing by prayer. But it provides no such exemption for more serious charges such as reckless homicide. There are, I think, two principal questions.
First, must the state permit parents to heal by prayer? My own view is that the state has a compelling interest in protecting life and that interest can justify interfering in parental prerogatives.
Second, does a more robust protection for religious free exercise require any - or a broader - exemption from criminal prosecution? It is, after all, one thing to say that one has no right to deny medical treatment for one's child and another to say that, if one does so, one should be prosecuted. Not everything that can be prohibited (or prevented) ought to be criminalized.
Perhaps Wisconsin has it right. Maybe the state's interest in prosecuting such conduct does not become compelling until it inflicts the more substantial injuries that support a charge other than child abuse, such as reckless homicide or the infliction of substantial bodily injury.
Cross posted at Marquette University Law School Faculty Blog.