Negligent supervision of clergy

[Patrick J. Schiltz]

Rick Hills asks several hard questions about what protection churches might
enjoy under RFRA in clergy sexual misconduct litigation.  A couple of points:

First, most of the courts that have found protection for churches in these
cases have done so under the Establishment Clause, and not under either the
Free Exercise Clause (even pre-Smith) or RFRA.  Specifically, most courts
have relied upon the entanglement prong of Lemon.

Second, I didn't even mention RFRA in my post, much less make the arguments
that Prof. Hills ascribes to me.  I said that I find the question of whether
and to what extent churches should have "immunity" in these cases -- whether
that immunity is based upon the Establishment Clause, the Free Exercise
Clause, or RFRA -- to be difficult.

When one asks the question similar to the way Prof. Hills does -- e.g.,
"Surely RFRA does not protect a church who lies about a child abusing
priest?" -- most of us would be inclined to answer the "no."  But a lot more
than that is going on in these cases.  Among other things, courts are
dictating to churches (through the imposition of civil liability) what
courses they must offer in seminary, what screening they must do of
seminarians, how they must structure the relationship between bishops and
priests, whether they must adopt sexual misconduct policies, what must be in
those policies, how their ecclesiastical proceedings must be structured,
what pastors may say in pastoral counseling, what pastors may say from the
pulpit, and even what religious services pastors may perform.

Prof. Hills recalls that the jury in the Tenantry case was "deeply worried
about what looked like pressure from the Diocese to get Mary Moses to shut
up."  I defended "Tenantry" claims in which the bishop was being sued for
advising a victim *to* disclose her experience (this, it was alleged,
subjected the victim to "blame the victim" recriminations) and in which the
bishop was being sued for advising a victim *not* to disclose her experience
(this, it was alleged, forced the victim to "live with the secret").  In
both cases, the bishop was sued for advice that he gave the victim in the
course of providing pastoral care to her.  In both cases, the plaintiff's
attorney retained as an expert witness a pastor from a different
denomination to testify that she would have given the victim different
advice if she had been providing pastoral care to her.

The notion that RFRA -- or the First Amendment -- might have *something* to
say in these situations -- situations in which courts dictate to churches
who preaches from their pulpits and when confessions can be heard and what
can be said in pastoral counseling -- does not seem "terminally silly" to me.

PJS




At 05:15 PM 4/16/97 -0400, you wrote:
>Patrick Schiltz writes:
>
>        "few negligent hiring, training, or supervision cases involve
situations
>in which a church "kept parishioners in the dark about a priest's past
>sexual misconduct."
>
>        Maybe: this is his area, not mine.  There is a trial counsel with
whom I worked in Colorado who thinks otherwise.  (I wrote my account of
Moses/Tenantry based on pure memory of my writing briefs against the
Episcopalian Diocese and review of the trial record -- but it has been three
years).
>
>        But so what?  Can a church's RFRA immunity from tort suit really
turn on how badly (in a secular sense) its religious doctrine makes it
behave? Suppose that a church did conceal the past transgressions of a
priest or pastor and urged a congregation to hire the person, based on some
sort of sincerely believed doctrine of penance/forgiveness/etc.   Would RFRA
suddenly cease to protect the church from tort liability?  Or would the
sincerely held belief defeat state tort law?
>
>        Do we resolve this issue by measuring whether the state law serves
a "compelling" interest?  This strikes me as bizarre.  Is Professor Schiltz
arguing that the state of Colorado might have a compelling interest in
stopping the Episcopalian Diocese from engaging in outright (but religiously
motivated) fraud but not in stopping negligent failure to disclose?  (I
think that the jury in the case was deeply worried about what looked like
pressure from the Diocese to get Mary Moses to shut up).  To make RFRA's
application turn on such distinctions strikes me as the worst indictment of
the statute that one could make: it is (to coin a phrase) terminally silly.
Or terminally muddled.
>
>        Rick Hills
>        University of Michigan law School
>
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Patrick J. Schiltz                      Phone:  (219) 631-8654
Associate Professor of Law              Fax:    (219) 631-4197
Notre Dame Law School                   E-Mail: Schiltz.2 at nd.edu
Notre Dame, IN 46556
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