The Wisconsin State Journal reports:
A Dane County judge on Thursday denied a motion to dismiss charges against a Black Earth pastor convicted of conspiracy to commit child abuse for advocating the use of wooden rods to spank children as young as 2 months old.
Philip Caminiti, 55, pastor of the Aleitheia Bible Church, was convicted in March of eight counts of conspiracy to commit child abuse for instructing church members to punish children by hitting them on the bare buttocks with wooden dowels to teach them to behave correctly, in keeping with the church’s literal interpretation of the Bible.
The motion to dismiss the charges alleged Caminiti had been deprived of his constitutional right to religious freedom.
Circuit Judge Maryann Sumi found that Caminiti had “a sincerely held religious belief” as a Christian fundamentalist that requires using a rod to discipline children beginning at a young age. But Sumi said Caminiti failed to show the state’s child abuse statute “places a burden on his sincerely held religious belief.”
“Scripture doesn’t specify how and when the rod should be used,” Sumi said, adding that Caminiti also was willing to modify the church’s practices to comply with the law....
If Caminiti had simply preached the propriety of such behavior in the abstract, I think such a conviction would likely be unconstitutional under the Free Speech Clause without regard to any special religious freedom claim, given Brandenburg v. Ohio (1969), even if the hitting of the children would indeed be a crime. (It probably would be; note that, according to the sheriff’s department, “the dowels were described as being 12-18 inches long with a diameter about the size of a quarter.”)
Teaching that it’s proper or even obligatory to commit a crime is generally constitutionally protected unless it’s intended to and likely to yield imminent crime, which is to say crime some time in the immediate future, likely within a few hours or at most days, and not “at some indefinite future time.” That’s why it’s not a crime to teach that it’s proper or even religiously obligatory to use marijuana, or to refuse to register for the draft, or to engage in jihad. And it sounds from news accounts that the minister’s teachings were not intended to yield such imminent conduct, but instead were meant as guidance for “some indefinite future time.”
But if Caminiti had specifically counseled particular parents about what to do with their particular children in particular contexts — “minister, my child did this-as-such; should I beat him tonight for it?” — this might qualify as either incitement of imminent criminal conduct, or as constitutionally unprotected solicitation of crime (see United States v. Williams (2008)). The line between solicitation, which is unprotected even when it calls for action in the indefinite future (e.g., “please send me some child pornography, whenever you happen to have some”) and incitement, which is protected unless it calls for imminent action, is unclear. Urging people that some general course of action is morally obligatory, without reference to a particular proposed action dealing with a particular person or a particular item, would be a classic example of material covered under Brandenburg (general advocacy) rather than Williams (solicitation). But the more specific the advocacy, the more likely it is to be seen as unprotected solicitation (or as unprotected incitement, if it’s advocacy of what the parent is to do right away).
Note that Wisconsin courts have interpreted the Wisconsin Constitution to require, in some situations, religious exemptions from generally applicable laws, under the Sherbert/Yoder regime. But it’s not clear to me that, even so, the best argument for the minister is a religious freedom argument. The protection offered by free speech law in such cases should, I think, be rather greater than the protect offered by religious exemptions law. And if the pastor’s speech is unprotected by the Free Speech Clause, I doubt that courts would find it protected even under the state constitution’s religious freedom guarantee, even using the Sherbert/Yoder test.
If anyone can point me to any reasoned opinions on the judge’s part in this case — or to more facts on the subject — I’d love to see them. All I could find myself online is the docket sheet, which doesn’t have the documents. Note that “Caminiti was not charged with having committed any abuse himself.” Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.