The Volokh Conspiracy
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From today's opinion in Blattert v. State, decided by the Indiana Court of Appeals (Judge Derek Molter, joined by Judges Patricia Riley & Margret Robb):
The State of Indiana charged Scott A. Blattert, Jr. with aggravated battery (Level 3 felony), strangulation (Level 6 felony), five counts of domestic battery resulting in bodily injury to a person less than fourteen years of age (Level 5 felony), and three counts of domestic battery resulting in moderate bodily injury (Level 6 felony). The charges were based on the allegation that Blattert repeatedly punished his children by beating and strangling them. He claims a defense under Indiana's Religious Freedom Restoration Act ("RFRA"), which provides a defense to criminal prosecutions that substantially burden religious exercise unless the State shows the prosecutions are the least restrictive means of furthering a compelling governmental interest….
Blattert contends he satisfied his prima facie burden [under RFRA] by testifying he belongs to the Ellettsville Church of Christ; that his church relies on biblical teachings for religious instruction on how to live one's life; that he must follow God's commands as conveyed through the Bible; and that those commands include physically punishing his children as he sees fit. He argues the conduct the State alleges—punching his children in the face, striking their heads with his elbow, and choking them—all falls within the authority God commands him to exercise, and by prosecuting him the State is burdening his sincerely held religious beliefs. Because we can decide this case on other grounds, we assume, without deciding, that Blattert's testimony satisfies his prima facie burden to establish the State is substantially burdening his religious exercise….
The burden then shifts to the State to show this prosecution is the least restrictive means to further a compelling interest. Blattert contends these are questions for the jury to decide, but he is mistaken. Whether the State's interest is sufficiently compelling and whether the State has chosen the least restrictive means to further that interest are purely legal issues for the court to decide.…
The State satisfied its burden to show that its prosecution furthers a compelling governmental interest. Compelling governmental interests are "only those interests of the highest order," and Indiana's courts routinely recognize that protecting the welfare of children is one of them. While a parent has a fundamental interest in directing "the upbringing and education of children," which may include "the use of reasonable or moderate physical force to control behavior," the State also has a "powerful interest in preventing and deterring the mistreatment of children." …
Blattert … argues that the "parental privilege" is an exception to the statutes he is charged with violating, and exceptions to a statute "undermine an argument that there is a compelling interest." This argument fails because the parental privilege does not offer any exceptions related to the interests the State seeks to advance through this prosecution….
"A parent is privileged to apply such reasonable force or to impose such reasonable confinement upon his or her child as he or she reasonably believes to be necessary for its proper control, training, or education." … [T]he parental privilege is an exception to a criminal prohibition on some corporal punishment which might otherwise be prohibited even though it is reasonable. But the compelling governmental interest the State seeks to advance here is protecting children from … unreasonable corporal punishment, and the parental privilege does not offer any exception to that restriction. Rather than providing an exception undermining the notion that Blattert's prosecution advances a compelling interest, the parental privilege operates to ensure the State has chosen the least restrictive means to advance its interest, which leads to the next element of the State's burden.
The least-restrictive-means standard invokes a "comparative analysis." We must take the State's preferred means—imposing criminal penalties on those who use unreasonable physical force when disciplining their children—and then we must "lay such preferred means side by side with other potential options." Because it is the State's burden to satisfy this test, it "must address those alternatives of which it has become aware during the course of th[e] litigation.
Therefore, the State's "burden is two-fold: it must support its choice of regulation, and it must refute the alternative schemes offered by the challenger." "If a less restrictive means is available for the [g]overnment to achieve its goals, [it] must use it."
The State has satisfied this part of its burden because it offers the parental privilege as a defense to battery and similar crimes rather than completely banning the practice of corporal punishments. This accommodates religious practices which require reasonable corporal punishment. While it does not accommodate religious practices requiring unreasonable corporal punishment, there is no apparent accommodation of those practices which would still allow the State to achieve its compelling interest in protecting children from physical abuse.
Tellingly, Blattert does not proffer an alternative scheme which is less restrictive than the State's proposed means. While it is the State's burden to show it has chosen the least restrictive means, it need not refute the "universe of all possible alternatives." "It would be a herculean burden to require [the State] to refute every conceivable option in order to satisfy the least restrictive means prong of RFRA." Without an immediately apparent less restrictive means, and without identifying any less restrictive means, Blattert cannot carry his burden as the appellant to persuade us that the trial court erred….