There is no doubt that the sexual abuse of children occurs within religious organizations and that these organizations too often operate to perpetuate cycles of abuse. There was a time when such a statement was counter- intuitive, but it is now merely a statement of fact. One difficult question to answer is how the law has failed to protect the vulnerable in religious organizations. Misguided reliance on the First Amendment is partly to blame.
There are many reasons why the law has been insufficient to protect children in religious organizations, some more obvious than others. First, children have not had the legal capacity until relatively recently to challenge their abusers.1 Second, the statutes of limitations for child sex abuse have been constructed in a way to make it virtually impossible for the vast majority of victims to get to a prosecutor and/or civil courts before their claims have expired.2 Third, as a society, we have tended to adopt a "romantic attitude" and trust most religious organizations, which gave them latitude to hide abuse.3 That changed in 2002 when the Boston Globe revealed that the Boston Archdiocese of the Roman Catholic Church had covered up horrendous abuse by serial pedophiles, including Father Paul Shanley and Father John Geoghan.4 While there had been trickles of information to the public before then,5 it was not until the larger picture of the Catholic hierarchy's handling of abuse that the public started to comprehend that its practices were uniform across dioceses, and even other countries,6 and then that such practices were not peculiar to the Catholic Church.7
There have been two other hurdles to adequate legal protection for children at risk in religious organizations, both of which have originated from religious groups themselves. One important reason for the law's ineffectiveness has been the intentional opacity, or secrecy, of religious organizations on these issues.8 For a number of religious organizations, there are built-in theological or religious rules that keep child abuse in particular secret.9 When that dynamic is combined with the fact that most perpetrators against children abuse more than one child,10 cycles of abuse become entrenched within the organization and far more children are abused than would have been had the organization not kept abuse internal. Sealing off abuse from the legal and social forces constructed to protect children disables legal efficacy in this field and creates a system within which more children are abused.
The second way in which religious organizations have impeded the capacity of the law to protect children is the perverse decision to defend their actions establishing the conditions for abuse by invoking federal and state religious liberty guarantees.11 Typically, the sexual abuse practices are not supported by the religious beliefs of these organizations.12 Fundamentalist polygamous groups, though, raise a slightly more interesting issue under religious liberty theory, because their sexual abuse of children and child bigamy are rooted in the religious edicts of powerful spiritual leaders. The purpose of this Article is to show that even when abuse is rooted in such religious sources, conduct involving illicit sex, including child sex abuse, was never meant to be constitutionally protected and should be categorically excluded from religious liberty protection.
It was widely understood by English and American society before and when the First Amendment and state constitutions were drafted that there can be too much liberty, which they called "licentiousness."13 They tended to view certain actions as beyond any religious liberty guarantee. This means that certain actions were never intended to receive protection under religious liberty guarantees. Among the liberties that were never intended to be protected, clearly, were polygamy and sexual abuse. They were consciously excluded from free exercise protection.
In this Article, I will first briefly examine the beliefs and practices ofthe fundamentalist polygamists, primarily but not exclusively the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS), which have led to a cycle of severe and entrenched child sex abuse. …