sexual misconduct by clergy

[Lupu]

I cannot untrouble Marci with respect to the article that Bob Tuttle 
and I just posted.   Nor will I try on this list to explain and defend the 
entire piece; it's on SSRN for those who wish to look at it.  I will say 
only this:

1) Thanks to Marty Lederman for his kind words about the piece.
2) The issue of criminal and civil liability for a member of the clergy 
who sexually abuses a child is indeed very simple, and is in no way 
influenced by First Amendment considerations.  Our paper says 
exactly that.  What is NOT simple, and what is the subject of most 
of our paper, are the following three categories of issues:  a) suits 
for breach of fiduciary duty against clergy by adults with whom the 
clergy-defendant has had consensual sexual relations as well as 
some sort of counseling relation; b) suits against religious entities 
for negligent ordination, hiring, supervision, retention, etc., of clergy 
who commits acts of sexual misconduct (sometimes vs. children, 
sometimes vs. adults) in cases in which the entities' leaders did not 
have actual knowledge of prior sexual misbehavior by the 
clergyman; and c) suits against religious entities for breach of 
fiduciary duties to the victims of misconduct, in cases in which the 
entity intervened but arguably did not do enough for the victim.  

These situations, though not the ones in the public mind these days, 
do indeed present difficult issues of the intersection of tort law and 
the First Amendment.   And cases presenting such issues are 
abundant.  I hope that our paper contributes in some small way to 
their intelligent discussion and resolution.   

Chip Lupu

On 1 Mar 2004 at 19:37, Hamilton02 at aol.com wrote:

> 
> Well, let me just say that I find Chip's and Bob's article on church
> autonomy posted today troubling. It was part of a church autonomy
> conference at BYU earlier this month. I will be posting my article for
> the conference on SSRN in the near future. I don't think the issues
> are obscure or complex. Rather, the public good is the only correct
> guiding principle in deciding whether generally applicable, neutral
> laws apply to religious institutional conduct, not whether religious
> groups should be shielded from the application of general laws.
> Belief, and therefore internal structure, may be protected, a la
> Reynolds and Smith, but there is no reason to give religious
> institutions special treatment relieving them from obligations under
> general laws. There is no philosophical or theological or legal theory
> that supports shielding religious groups in this way. It's all a
> hearkening back to the clergy privilege in England that rightfully was
> rejected eventually. Children are seriously, and I mean seriously, at
> risk under any version of church autonomy. Lipservice to children is
> not enough; the law must make it possible for them to be fully
> protected. An overreading of the Court's religious institution cases
> led the Catholic Church to believe it had a right to "autonomy" and
> therefore to some of its worst errors involving children in the last
> several decades.
> 
> I totally agree with Marty on vaccinations. I also agree with Marty
> that the key with understanding RLUIPA is the assessment of harm on
> each side, and I find the assessments by the religious groups to be
> divorced from any consideration of the general public good. I find it
> amusing, though, that Marty would say that when state and local
> interests are important, they will prevail. The California RLUIPA bill
> that was killed proposed that many interests dear to the hearts of
> private homeowners can never be considered to be "compelling." The
> push by those defending RLUIPA is to say that NOTHING satisfies the
> compelling interest test but the very RARE land use law. This is an
> attempt to takeover land use law for the benefit of religious groups,
> period. And I don't see the federal government's intervention in these
> cases muting that point at all. I wish it were otherwise.
> 
> Marci
> 
> 
> n a message dated 3/1/2004 7:16:45 PM Eastern Standard Time,
> marty.lederman at comcast.net writes:
> 
>     Well, I think I do agree with Marci on one thing: Among the worst,
>     least defensible religious accommodations are "exemptions for
>     clergy for child abuse reporting and for medical neglect of
>     children." Indeed, I've posted several times here that I think
>     many religious exemptions from vaccination requirements are
>     unconstitutional. Even here, however, the questions are often very
>     complex. In the child-abuse setting, for example, see the
>     questions examined with care in the extremely detailed and
>     thoughtful draft article to which Chip Lupu linked earlier today.
> 
>     Marci's principal point -- and it's one for which I have a great
>     deal of sympathy -- is that religious accommodations ought to be
>     suspect if they impose significant costs on other private parties.
>     I think the Court agrees with this, too -- see, e.g., Caldor,
>     Hardison and Walsh. Indeed, it's difficult to find anyone who
>     doesn't agree with this. Even Michael McConnell has written that a
>     release-time program such as that at issue in Zorach would be
>     unconstitutional if "the nonparticipating students were inflicted
>     with 'an entirely wasted hour of school.'"
> 
>     The question on which Marci and her RLUIPA detractors primarily
>     disagree is whether and to what extent RLUIPA imposes significant
>     costs on neighbors of the religious properties. In my view, this
>     is best viewed not as a debate about the constitutionality of
>     RLUIPA itself, but instead as a dispute about its case-specific
>     application. In cases where the state can demonstrate such harmful
>     effects, it will prevail under the RLUIPA test, particularly where
>     the state has been unwilling to impose those costs on others in
>     the context of exemptions for nonreligious properties. If the
>     state can't prove such harms, or where it has been willing to
>     permit such harms in nonreligious cases, the exemption for the
>     analogous religious use will be reasonable and constitutional. 
> 
>     ----- Original Message ----- 
> 
> 
> 



Ira C. ("Chip") Lupu
F. Elwood & Eleanor Davis Professor of Law 
The George Washington University Law School 
2000 H St., NW
Washington D.C 20052

(202) 994-7053

ICLUPU at main.nlc.gwu.edu
ICLUPU at law.gwu.edu