Religion-only accommodation question

[Douglas Laycock]

    No court has held, and I believe no defendant has argued, that sexual abuse is protected by the First Amendment.  
 
    The abuser is of course liable.  All or nearly all courts have held that the abuser's employer is not liable on a theory of respondeat superior, because the abuser was so clearly acting for his own benefit and not in the course or scope of employment.
 
    Most successful claims have alleged negligent retention or supervision of the abuser.  Where the abuser is a clergy person, defendants have argued that liability for negligent retention or supervision interferes with the relationship between the church and its clergy, which is immune from government regulation under the well-established clergy exception in employment law.  In the early years of this litigation, these cases went both ways; since the massive publicity from Boston, I think the churches have consistently lost on this defense.
 
     In the employment cases, the plaintiff is the clergy person; in the sexual abuse cases, the plaintiff is a member of the church.  Courts have persisted in treating the plaintiffs in these cases as outsiders, third parties, not part of the church, which seems clearly wrong.  It is easy to say that church members do not consent to sexual abuse, but that is not the question.  Plainly they do consent to a form of church governance, which varies from church to church on grounds that are usually theological.  Children consent to nothing, but their parents chose a church with a particular form of church governance.  Probably the way to have written these opinions in jurisdictions that ruled for plaintiffs is that the clergy exception is clearly implicated, but there is a compelling interest in making some financially responsible entity responsible for protecting children.  Courts have not bothered with that analytic step.
 
     The problem with the relationship-with-clergy defense is that it is all or nothing.  If accepted, it leaves no remedy against a financially responsible defendant; if rejected, it leaves no limit on the scope of liability.  A more sensible source of constitutional defenses would be by analogy to the free speech cases (defamation cases and NAACP v. Claiborne Hardware), where the Court insists on objective standards of liability, heightened mental states, clear and convincing evidence, tighter rules of causation, and tighter judicial control of juries.  In practice the development of these tools has been less than ideal.  But these techniques for limiting liability give scope to both the tort and First Amendment interests.     
 
     Other claims have sought to impose vicarious liability for sexual abuse on far more attenuated grounds, often no more than denominational affiliation.  In a denomination organized congregationally, the denomination does not hire or fire or supervise clergy, and negligent retention or supervision claims run only against the congregation.  In the Catholic cases, the bishop or diocese is responsible for supervision and retention, but other Catholic entities are not -- the National Conference of Catholic Bishops, or Notre Dame, or Catholic Charities, are not liable just because they are Catholic.  This may sound obvious, but it was not obvious to plaintiffs' lawyers, or even some trial judges.  So far as I am aware, it has been universally clear to appellate judges.
 
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
512-232-1341
512-471-6988 (fax)

________________________________

From: religionlaw-bounces at lists.ucla.edu on behalf of Lund, Christopher 
Sent: Fri 4/8/2005 11:08 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Religion-only accommodation question



            I don't know much about this and want to learn more.  Are religious institutions really able to use judicial or legislative exemptions to defend themselves against crimes of physical or sexual abuse?  It seemed to me that virtually any harm to others was enough to get your judicial claim for exemption quickly denied or your existing legislative exemption deemed unconstitutional.  What concrete examples are there where religious entities have used religion-only accommodations (legislative or judicial) to pull off such harm?  (I know that religious entities can use religion-neutral laws or accommodations to harm people, but that's true for all groups, not just religious ones.  And I know that religious entities have sometimes tried to use religion-only accommodations to impose harm on others, but in the examples I have seen, they always lose.)

 

            Chris

 

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