What’s novel about this case, though, is that Thaing is invoking Indiana’s Religious Freedom Restoration Act in her defense. It was signed into law last spring by Mike Pence, now the Republican vice-presidential candidate, amid intense protests. The National Organization for Women and other progressive advocacy organizations alleged that the new law would enable religious defenses for child abuse. On its face, Thaing’s case seems to be proof that they were right.
But the problem with this argument is that the law, commonly known as RFRA, does not simply allow religious people to selectively follow the law. Indiana’s RFRA, which is modeled on a former version of a federal law and similar to measures in states around the country, has two parts. First, a person must prove that a law or government action places a “substantial burden” on their ability to exercise their religion. If they succeed, the state has to prove that it has a “compelling interest” in upholding the law or taking the action in question, and that it has found the “least restrictive means” of furthering that interest.
Dwyer was skeptical that Thaing could even pass the first part of the law’s test to prove that the state was interfering with her religious practice. “You have to show some burden beyond the trivial,” he said. Even if she were able to do that, though, the state would have a very strong argument in defense of its choice to take away Thaing’s son and charge her with a crime, he said.
Even if Thaing’s defense fails, though, the high-profile case could have an effect on the way religious-freedom laws are perceived in the United States. Even though versions of RFRA have been around for decades, in recent years, the law has become a symbol of conflict over religious rights, particular when it comes to LGBT issues. The protesters in Indiana last spring argued that the law would allow any business owner—whether it was a restaurant or hardware store or barber shop—refuse to serve LGBT people. While the measure was eventually revised to make it clear that this was not the case, its opponents still viewed it as a license to discriminate.
Thaing’s case isn’t about LGBT rights, but it’s about something equally controversial. Many parents would condemn a decision to beat an elementary schooler with a coat hanger dozens of times, hard enough to leave significant bruises. When someone like Thaing tries to use the Bible and religious-freedom laws to justify her actions, “it makes the public and judiciary in general skeptical and hostile to those sorts of claims,” Dwyer said. While the RFRA argument may not hurt Thaing’s chances in court, “it will hurt the cause of religious parents who might want to assert the defense in the future,” he said, particularly because this was “such an extreme form of punishment.”
It’s not uncommon for parents to use religious justifications for the way they raise and treat their kids. Many states given religious families latitude on education, for example, or, more controversially, decisions to forgo standard medical care when a child is sick.
This, however, is a rare kind of case. It’s true that “some level of corporal punishment is legal” in Indiana, wrote Rick Garnett, a law professor at Notre Dame, in an email. “Abuse and neglect, however, are not.”
