Healing: The church-state line? (updated)

hand-old-bible-web-744575As the old saying goes, “Bad cases make bad law.”

This is, in my opinion, doubly true in matters of church and state. One of my professors in graduate school always used to say, “Lots of people with whom you would not want to have dinner have purchased your religious liberty.” What he meant is that courts cannot afford to get involved in issues of doctrine except in extreme cases. Thus, some radical people are going to be able to practice their radical faiths in a radical manner.

This brings us to a recent New York Times story that I know has interested several GetReligion readers, the one with the headline, “Trials for Parents Who Chose Faith Over Medicine.” Here is the sad, tragic lede:

WESTON, Wis.– Kara Neumann, 11, had grown so weak that she could not walk or speak. Her parents, who believe that God alone has the ability to heal the sick, prayed for her recovery but did not take her to a doctor.

After an aunt from California called the sheriff’s department here, frantically pleading that the sick child be rescued, an ambulance arrived at the Neumann’s rural home on the outskirts of Wausau and rushed Kara to the hospital. She was pronounced dead on arrival.

And this leads us into a courtroom:

About a month after Kara’s death last March, the Marathon County state attorney, Jill Falstad, brought charges of reckless endangerment against her parents, Dale and Leilani Neumann. Despite the Neumanns’ claim that the charges violated their constitutional right to religious freedom, Judge Vincent Howard of Marathon County Circuit Court ordered Ms. Neumann to stand trial on May 14, and Mr. Neumann on June 23. If convicted, each faces up to 25 years in prison.

“The free exercise clause of the First Amendment protects religious belief,” the judge wrote in his ruling, “but not necessarily conduct.”

That sound you hear is thousands of church-state lawyers shuddering.

The free exercise clause does not protect acts in the real world that are based on private beliefs? I have to say this again: Take that, the Rev. Martin Luther King, Jr. You too, Cesar Chavez.

The question is where courts draw the line on religious freedom, especially in limiting the rights of parents. As a rule, the limits are defined in terms of fraud, profit and clear threat to life.

But what is a CLEAR THREAT? That’s the issue. Is practicing Christian Science or being a Jehovah’s Witness a clear threat? Courts tend to say no, especially since those groups tend to have good lawyers. The big question is what to do in precisely this kind of case.

This brings us back to the story.

Wisconsin law … exempts a parent or guardian who treats a child with only prayer from being criminally charged with neglecting child welfare laws, but only “as long as a condition is not life threatening.” Kara’s parents, Judge Howard wrote, “were very well aware of her deteriorating medical condition.”

About 300 children have died in the United States in the last 25 years after medical care was withheld on religious grounds, said Rita Swan, executive director of Children’s Health Care Is a Legal Duty, a group based in Iowa that advocates punishment for parents who do not seek medical help when their children need it. Criminal codes in 30 states, including Wisconsin, provide some form of protection for practitioners of faith healing in cases of child neglect and other matters, protection that Ms. Swan’s group opposes.

Shawn Peters, the author of three books on religion and the law, including “When Prayer Fails: Faith Healing, Children and the Law” (Oxford, 2007), said the outcome of the Neumann case was likely to set an important precedent.

This is where the story, in my opinion, falls short. The Times team seems to know that the clear threat standard exists. I mean, it’s there in the law. It appears that there is now a coalition — maybe — seeking to redraw the line, to make it easier to attack these kinds of radical believers.

What legal standard are these people proposing? Do they want to throw out church-state law as it currently stands? That appears to be the case. The story needs to tell us what they are proposing. What is the new line? Did anyone ask? Did anyone know to ask?

UPDATE: Lots of helpful information and new links over at the BaptistPlanet weblog, which is new to me and relatively new to cyberspace. BaptistPlanet bills itself as:

… (A) multiblog written by two prize-winning, veteran mainstream daily newspaper and online journalists. We cover every aspect of religion that is of interest and importance to our audience, not just matters of Southern Baptist concern.

I cannot find names on the site. Can anyone else? So I’ll ask: Who are these folks?

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About tmatt

Terry Mattingly directs the Washington Journalism Center at the Council for Christian Colleges and Universities. He writes a weekly column for the Universal Syndicate.

  • Jerry

    “The free exercise clause of the First Amendment protects religious belief,” the judge wrote in his ruling, “but not necessarily conduct.”

    That sound you hear is thousands of church-state lawyers shuddering.

    The free exercise clause does not protect acts in the real world that are based on private beliefs?

    I think you should have given more wait to not necessarily. And that is I think a very key couple of words because it includes Muslims who refuse to carry certain passengers in cabs, plural marriages, “sacramental” drugs etc. What constitutes “not necessarily” is the subject of much debate such as druggists and birth control, but the principle that there’s a limit to acceptable conduct is a key part of our system.

    So I do agree with your question The question is where courts draw the line on religious freedom but think you overreacted to the judges statement.

  • FW Ken

    I would have settled for a voice challenging both the simplistic, and cliched view of faith – “rigid belief systems” and “religious extremists” – and the bad theology that denies a plain fact: medical care may be the answer to prayer. Where is the sane voice affirming that God may act through the doctors, nurses, medical procedures, and medications?

    Which isn’t to say that I don’t believe in the prayer of healing. It’s just that God might answer that prayer through many means.

  • http://www.twitter.com/kennyk3 Kenny

    I’ve been in the presence of many situations in which a group of people have prayed and prayed and prayed… and prayed, for someone to be healed (even a man in a wheel chair) and I have yet to experience anyone remotely effected by those prayers.

    Maybe, somehow, if Christians could prove that prayer is an effective way to heal the sick, it would be easier to clarify the church-state line.

  • http://www.dannyhaszard.com Danny Haszard

    Jehovah’s Witnesses and freedom of speech.

    They have won 37 of their 46 Supreme court cases assuring us all of freedom of speech and assembly and equal protection under the law.
    The sad irony is that the Watchtower Society *daily* abuses the human rights of thousands of its members. It denies current members the right of free speech by forbidding them to speak to former members, even close family members.
    And it denies former members their right of freedom of worship by refusing to allow them to leave the religion with dignity, should they come to disagree with Watchtower’s practices or doctrines.

    Jehovah’s Witnesses are self promoting from the get-go.

  • http://www.tmatt.net tmatt

    Ah, sounds like you guys are in favor of religious liberty — as long as the people share YOUR beliefs and make the choices that you would make.

    Anyone here for civil tolerance? Are there any traditional liberals in the house?

  • Pingback: When faith’s dictates result in a child’s death: Redrawing the legal line « BaptistPlanet

  • danr

    From the article: “An essay on the [web]site [from their pastor] states that the Bible calls for healing by faith alone. ‘Jesus never sent anyone to a doctor or a hospital,’ the essay says. ‘Jesus offered healing by one means only! Healing was by faith.’”

    A journalist who got religion might’ve challenged that with Matthew 9:12, where Jesus said “It is not the healthy who need a doctor, but the sick.”

    Kenny, I have witnessed God answer prayer, and many times it’s while the person has also responsibly gone to a doctor/hospital. There need be no conflict.

    And Christ also miraculously multiplied bread and fish to feed thousands, but one can’t simply pray for Him to put food in your kids’ stomachs – you’ve got to feed them. Religious freedom in a civil society must always be constrained by reasonable adherence to civil law.

  • FW Ken

    tmatt -

    What does being a “traditional liberal” have to do with letting children die? Wouldn’t that be “libertarian”, although I can’t remember how libertarianism manages familial bonds and duties. Yes, there are boundaries to religious liberty, just as there are boundaries to free speech and press. Sorting it out is what the political process does, sometimes wrongly.

    Not sure if it makes me a traditional liberal, but I’m perfectly content to see my neighbor worshiping, say, the Aztec gods, as long as he doesn’t sacrifice human victims to them. OR suppress my freedom to disagree with his theology.

    And Kenny, the miracles associated with places like Lourdes are subjected to rigorous medical examination and accepted only when a verified medical explanation isn’t found. For myself, I’ve seen prayer affect things, including physical health. But prayer is a relationship, not an incantation to get what we want. And yes, many of my prayers seemed unanswered, only to learn later that I just didn’t recognize the answer, or, at times, put myself in the place to receive it.

  • http://spiritualbrother.blogspot.com SpiritualBrother

    Groups like JW’s seem to be getting a lot of bad press these days.

  • Joe

    It Is odd that tmatt does not view the body of a dead child as evidence that the religious expression is a ” threat to life,” one of the traditional exceptions. Would procuring an honor killing also be acceptable under tmatt’s calculus?

  • http://www.tmatt.net tmatt

    JOE and KEN:

    Then you agree with the current state of church-state law. So do I.

    The issue is how invasive government can be on this issue.

    Let’s take religion out of this. Should asthmatic children be allowed to live with smokers? How about children in the home of people who drink, struggle with depression and collect guns?

    The question, in the past, is whether religious freedoms will be viewed as uniquely dangerous, uniquely worthy of distrust (especially when they are practiced by small, powerless sects without good lawyers).

    In the case of JW’s, their opposition to blood transfusions is controversial. Are they trying to die? Well, no. Their beliefs have led to major breakthroughs in some forms of low-blood-loss surgery.

  • Pingback: OD Today: 26 January 2009 (early edition) « Online Discernment Today

  • Dale


    I found the trial judge’s written opinion here. As with many recent church-state cases, its reasoning is inconsistent; that’s not the fault of the trial judge, it’s the fault of the appellate courts who have constructed a patchwork of conflicting authority dictated by outcome in individual cases. This is why hard cases make bad law.

    Older cases suggest a higher level of protection, called “strict scrutiny”, for any statutory interference with the right of free exercise of religion under the First amendment. Under “strict scrutiny”, a state or federal statute that limits or interferes with the First Amendment right of free exerecise must 1) protect a “compelling state interest”; 2) be narrowly tailored to achieve the compelling state interest and 3) cause the minimal amount of interference with the protected constitutional right in order to protect the state’s interest.

    In this specific case, the trial judge recognizes that the U.S. Supreme Court applied the strict scrutiny test to First Amendment free exercise cases. However, recent U.S. Supreme Court decisions have used a less protective standard, the “rational basis” test, to decide free exercise cases.

    The “rational basis” test permits statutory interference with a constitutional right provided that: 1) the statute achieves a legitimate state purpose and 2) the statute uses an arguably rational means to achieve that purpose. Given the two conflicting standards (“strict scrutiny” and “rational basis”) applied by the U.S. Supreme Court in free exercise cases, the trial court has to decide which standard to use in this case. The trial court applies the standards according to the subject matter of the statute in question. For reasons it doesn’t explain, the trial court determines that “strict scrutiny” is applicable to government employee cases, while “rational basis” is applicable to criminal law cases. In more concrete terms, the trial court decides that the law provides more protection to the free exercise rights of state employees than defendants in criminal prosecution.

    Is there a legitimate reason to apply two different standards in free exercise cases? In contrast, U.S. Supreme Court decisions have generally applied the “strict scrutiny” standard to protect that other First Amendment right, free speech. Why does free exercise receive less protection? Why are the free exercise rights of an employee greater than that of a criminal defendant? Also, the U.S. Supreme Court has generally applied the “strict scrutiny” standard to the “right of privacy” cases, like abortion and contaception restrictions. How is it that a right not even included in the text of the U.S. Constitution is accorded more protection than the explicit guarantee of free exercise?

    A story like this one will be extremely difficult to cover if a journalist doesn’t have a legal education. Many issues underlying the case aren’t obvious. For example, a more carefully drafted state statute and a “strict scrutiny” standard could protect the lives of children without creating a precedent that risks free exercise.

  • Bruce G

    I wonder if we’ll reach a point where a parent will be prosecuted for refusing to treat his child with embryonic stem cells.

  • Jerry


    Thanks for that informative post. It illustrates yet again what level of skill is required to properly cover news stories in this complex world.

  • http://www.followingthelede.blogspot.com Sabrina

    “The free exercise clause of the First Amendment protects religious belief,” the judge wrote in his ruling, “but not necessarily conduct.”

    Hmmm. Raises intriguing questions. Where will this eventually go? What religious practices would be considered “normal” enough to be exempted? How about religious practices that are (medically) elective, have a low-mortality rate, but inflict pain and/or suffering on a child? Could this be applied, for example, to male and female circumcisions?

    A fascinating choice for a topic, tmatt. I wish more had been written about it.

  • http://www.tmatt.net tmatt


    Yes, thanks for the wave of info.

    I agree that legal knowledge is a must. In my case, I did a degree in church-state separation studies.

    But I tried to underline a lower, more practical standard in my post. The team that did the story could have AT LEAST asked the logical questions out of the info that it reported.

  • http://lawandfaith.blogspot.com/ Shawn Peters

    What complicates these cases, too, is that specific religious exemptions for spiritual healing practices are written into the criminal codes in most states (30+). So the question is often not so much whether these prosecutions can pass First Amendment muster (I think they do, clearly) but whether they present a potential due process of law problem. Defendants essentially ask: FA issues aside, how can I be prosecuted for conduct that seems to be specifically exempted from prosecution in the criminal code? (That’s not a bad argument, and it has worked on appeal in several cases.)

    An interesting question is: where do these faith healing exemptions come from? The issue is making headlines here in Wisconsin, and I did some digging on it today for my blog, http://lawandfaith.blogspot.com/. (Basically, lawmakers in Wisconsin let the Christian Science Church write a faith healing exemption in 1987, and then accepted it, lock, stock, and barrel.)

  • Dale


    In my case, I did a degree in church-state separation studies.

    I inferred that from your previous statements about Baylor being your “alma mater”. :-)

    I tried to underline a lower, more practical standard in my post.

    I understand, but I think your post jumped ahead of the actual legal argument made by the court. You raised the concept of “clear threat”, which I understand to mean an imminent risk of serious harm, such as in the incitement exceptions to free speech protection (shouting “fire” in a crowded theater; yelling “kill him” during a riot). “Clear threat” only becomes an issue when the court applies the “strict scrutiny” test. If there’s a “clear threat” or an imminent risk of serious harm, the state arguably meets the “compelling state interest” requirement to limit speech or free exercise of religion. In this case, the court never reached the issue of “clear threat”, because it applied the rational basis test rather than strict scrutiny. Under the rational basis test, the state only has to prove that there may be a risk, and that the restriction is meant to counter the risk. That’s a much lower hurdle than clear threat.

  • Jerry Jones


    The following website summarizes?over 900 U.S. court cases and lawsuits affecting children of Jehovah’s Witness Parents, including over 400 cases where the JW Parents refused to consent to life-saving medical care for their dying children:



    The following website summarizes?over 500 court cases and lawsuits involving Jehovah’s Witness Employees and their Employers, including dozens of court cases involving the refusal of blood transfusions and other health and medical issues unique to JW Employees:



  • BJohnD

    Giving my inner lawyer free rein here, I just want to point out that the old axiom is, “HARD cases make bad law.”