Religion-only accommodation question
Hamilton02 at aol.com
Hamilton02 at aol.com
Sun Apr 10 13:23:49 PDT 2005
As I've said before, I would not read the "clergy exception" quite so
expansively. It is not a shield of autonomy from legal accountability, but rather
an acknowledgment that an adult clergy member has clearly assented to a
religious institution's rules and requirements, so that when religious rules are
applied to employment decisions, the courts should not become involved. Any
party outside that relationship introduces an entirely different legal
scenario. The fact that the tort and/or criminal victim is a member of the church
should not be enough to put the mantle of the "clergy exception" on the
religious entity. Surely, the children's involvement provides a reason to say
compelling interest is met, but I see no reason to apply the exception where the
actions are taken for secular purposes, as in the clergy abuse cases.
But I do completely agree that believers consent to church governance, and
that for that reason, they bear at least partial responsibility when their
unchecked leaders abuse the public trust. There are rank-and-file Catholics who
do agree with this view and feel the Church is financially responsible to
the victims it created. There are others who argue that they knew nothing and
therefore the money they gave to the church should not go to victims'
In a message dated 4/9/2005 11:53:53 A.M. Eastern Standard Time,
DLaycock at law.utexas.edu writes:
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.
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