church liability for harm and the First Amendment

Hamilton02 at Hamilton02 at
Fri Apr 8 10:47:20 PDT 2005

Some of the cases do indeed ask the question whether a church is liable for  
covering up pedophile behavior among its clergy (though that is only one part 
of  the sex abuse and churches category).  Courts have rejected clergy  
malpractice claims on the ground that courts have no business determining what a  
reasonable clergy person would do.  That makes a lot of sense. 
 The majority of courts, however, have held or are moving toward a  rule that 
churches can be held liable for negligent supervision and retention,  because 
the standard is not what a reasonable church would do vis-a-vis  children, 
but rather what any reasonable employer would do when it has the  knowledge that 
an employee is a danger to children and makes the decision  whether to place 
the adult within easy access of children or not.  
By way of observation and not judgment, I have yet to see any case  involving 
a church as a defendant (regardless of the harm, tort, or crime  alleged) 
where the church does not raise some First Amendment claim to  avoid liability 
and/or to narrow the claim. 
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