[*PG1089]STATING CLAIMS AGAINST
RELIGIOUS INSTITUTIONS
Abstract: Although the U.S. Constitution protects the rights of religious institutions, it confers no general immunity from liability for their contracts and torts. This Article’s study of the case law indicates that claims may be stated against religious institutions if those institutions had the corporate power or ecclesiastical responsibility for the specific matter in dispute, or had themselves taken action in the matter. A general assertion of the potential to take action or potential to control is insufficient to result in a claim against the institution. Liability would reside, if at all, in the entity that has both the juridic power (under the religious polity) and the civil duty to answer for the actions of persons or other entities in the religious structure. Departure from these principles could result in an unconstitutional exercise by a court. This Article then applies these principles in a critique of tort liability asserted against religious institutions.
In other eras, it would have been unimaginable for churches and other religious institutions to be sued. Like other charitable institutions in American society, religious institutions enjoyed a privileged status, protected not only by legal immunity for their benefits to the greater society but also held in a place of honor and respect by ordinary citizens. We still admire charities and still hold religion in a place of honor, but we expect religious institutions to be accountable when they make mistakes. It was the reality, and remains so today, that religious institutions make contracts that they break, create risks for which they must be responsible, and conduct many activities in the larger society that impact the general public, beyond their members. There is no longer any serious debate that religious organizations are held responsible for the consequences of their actions. The demise of [*PG1090]charitable immunity generally, and its limitation in virtually every jurisdiction, means that these entities must pay attention to their legal relationships and conduct.1
For religious organizations there is another concern: that they might be held responsible for the conduct of a member, employee, or agent, or even the conduct of another related group or its members, employees, or agents, including volunteers. Religious organizations are sometimes very complex organisms. The largest consist of relations among tens of thousands of local churches, hundreds of regional judicatories, and millions of adherents bound together not by a contract of law but the bonds of a common commitment in faith. They relate to each other and to national and international religious bodies according to the dictates of religious principles and doctrines, sometimes millennia old. It is most certainly not General Motors or IBM. Even the smallest church bodies, a single church structure governed by a group chosen by the faithful, who call a pastor and follow what they hear as the Lord’s voice, is not analogous to a neighborhood business. Indeed, analogies to the corporate world fail to capture the nature of religious institutions in the United States. Yet, the dawn of the twenty-first century witnesses the continuation of the litigation explosion of the last century, an explosion in which religious institutions have routinely been made defendants in various actions. The difficulty comes in identifying which entity properly is the defendant and on what bases claims might lie against it.
It is undeniable that the scandals occurring in religious institutions, especially Catholic dioceses and orders vigorously reported throughout 2002 and 2003, have also had an effect on the perception [*PG1091]of the public, the press, and the courts in assessing the culpability, if not the liability, of religious institutions. In some states, at this writing, there are well-organized campaigns to narrow the defenses available to charitable institutions that care for children,2 strip all religious institutions of the confidentiality that is expected to attach to a communicant’s penitential communications,3 and open private personnel files for public rummaging.4 Such is the state of litigation in 2003. Although it is tempting to think that the scandal has ripened full blown into open litigation season on religious institutions, most religious institutions have reported an increase in litigation for many years5 and the situation today in the United States is but the latest example of this phenomenon. In more recent times the task of allocating responsibility, and then liability, and stating a sound and constitutional basis on which the case may move forward has become more—not less—complicated.
Consider this example.6 A volunteer in a local church offers to install a storm window on the church. It is the last window to be installed and, by coincidence, is on the very top story of the front of the church. The ground is sloped, the ladder is old, the window is large, and the volunteer is alone. On this particular windy Saturday, working many feet off the ground, the volunteer pushes the window (and himself) towards its space. As he does, the ladder moves, and he falls with it to the ground. The volunteer is severely injured. Who is in the wrong here?
A few more facts will muddy the water. The volunteer is a safety engineer at a power plant. He has taken safety courses and has years [*PG1092]of experience using ladders. He knows what he is doing and has violated every safety rule in the book. He tries to take his accident in stride. He returns to work and has received substantial personal assistance from members of his local church (they cook meals, they drive him to medical appointments, they offer to help with expenses, etc.). After all, he was helping his church. But, looking forward, he realizes that his own savings might not be enough to allow him to cope with future medical costs. He files suit. His lawyer studies the church structure and makes defendants of his local church, the ecclesiastical regional body in which the local church is located, and the national denominational body. The theory under which the ecclesiastical regional and national bodies were named is that both bodies occasionally offer workshops to local churches in risk management: “Someone should have instructed the local church to assure that all volunteers are well-trained before they are allowed to perform maintenance and certainly to use a spotter when a volunteer is working on a ladder.” In fact, the local church did send members to attend a risk management workshop in which common accidents in local churches were covered, including falls, and there was an emphasis on training.
On the eve of trial, the volunteer dismissed his local church from the lawsuit. The case went to a jury, which returned a verdict in favor of the national body but against the regional body. Allocating the fault between the regional body and the volunteer, the volunteer received a verdict of $783,000. At some point in the deliberations, the jury must have concluded that the regional church was somehow the supervisor of the local church on property maintenance matters. Its liability derived from the actions, or more properly in this case the inactions, of the local church.
An important reason why litigants may seek some form of liability deriving from the actions of others turns on simple economics. It is relatively easy for a plaintiff to establish that a particular individual drove a vehicle negligently, or did not check to see what volunteers were up to, or made a poor business judgment or otherwise acted improperly. It is sometimes easier to establish this layer of liability than to establish the same kind of direct liability in an organization. Here, no one from the local church was checking on the activities of our claimant volunteer that Saturday. Because local churches depend on the willingness of members to volunteer for tasks to hold down the cost of operations and allow more funds for charity, the offer of a volunteer to install that last window would not be remarkable; it would be welcome. The local church might be the responsible defendant here. But like many local churches, this one doesn’t have many funds [*PG1093]and there is still the reality that this church was very helpful to this injured member. So one looks for other possible defendants, more distant from the community with more assets, hence the naming of the regional and national bodies. If one of those entities can be forced to take responsibility for those actions committed by the member or the leaders of the local church as if they were its own, then financial recovery may be simpler.7
Yet a proper application of the body of law in this area shows that ultimate success against his regional church body should have been more problematic for this plaintiff. For courts trying to apply the law rather than an instinct for justice, the subtleties of the law can be deceptive. As shown below, liability depends on the nature of the conduct, its relationship to the community’s mission, and the character of the organization’s operations. The effort to find an organization liable in these kinds of situations is called, in some circles, “ascending liability.” I believe the term “derivative liability” more accurately reflects the law and the litigation experience.8 An extremely complex [*PG1094]bundle of law and policy, “derivative liability” refers to the potential institutional responsibility that rests on, and is derived from, the actions of others.
This Article reviews the theories under which liability might attach to religious organizations for the actions of others, their employees or volunteers, or even the actions of related church entities.9 It also examines selected areas of liability, attempting to distinguish between cases that may properly fall within accepted and ordinary liability theory and those which seem outside.10 Finally, it offers some critique of the efforts to rewrite traditional tort law as applied to religious institutions.
In its broadest sense, liability follows responsibility. The goal of the claimant is to find some (solvent) defendant who can be forced to take legal responsibility for the harm. The goal of the defendant is to avoid the damages or, in multiparty cases, let the other defendants take responsibility. Liability law attempts to sort out these demands and ascertain fairly who should respond to the claim in damages. In litigation involving more complex organizations like religious organizations that have clustered together a variety of local, regional, and national entities, all flying the banner Catholic, or Lutheran, or Methodist, it is often the job of defense counsel to sort out the relationships to identify the “proper” defendant(s). “Derivative liability” is an attempt to describe how liability law works, and should work, in complex organizations. It provides a way for courts to navigate the turbulent waters of complex cases to a fair resolution.
In this most basic sense, derivative liability encompasses traditional tort policy concepts, both financial risk-spreading and social-reform goals. Indeed, social-reform and risk-spreading considerations are behind decisions in which one entity must answer for the actions of a related entity’s minister, staff, or volunteer. This is more apparent in attempts to force liability on larger national or regional groups affiliated with smaller local groups. The courts presume that, if a “superior” body, however defined or connected, can be forced to take charge of the responsibility for the local matter, harm to future plaintiffs might be precluded. Thus, although this form of liability action has at its root the most basic litigation urge to find a solvent or in[*PG1095]sured defendant, it also includes an element of social purpose, to enforce some greater responsibility through the liability system and deter future harm. The dilemma confronting the legal system is how best to allocate responsibility among the parties.
Conversely, where a litigant seeks to force a religious defendant to assume the legal responsibility for the misdeeds of a member, an employee, a leader, or even another part of the larger religious organization, the fact that all the entities bear a name of a religious faith does not make them all liable for the mistakes of everyone else. In an extreme example, a group of plaintiffs sued the Presbyterian Church (U.S.A.), a civil corporation, and its national assembly, an ecclesiastical body, for damages occurring in the sexual assault of the claimants by a minister who served in presbyteries (regional judicatories) in two states.11 The theory of the case was that under the Book of Order, the actions of one Presbyterian are supposed to be the actions of all, a religious principle about solidarity and unity in the faith community.12 In the hands of the plaintiffs’ attorneys, the negligent acts of one were the negligence of all Presbyterians. The trial court clearly saw the case as an attempt to premise liability on a religious principle and dismissed through summary judgment on constitutional grounds.13 The state supreme court affirmed but on the more narrow grounds that the national church bodies had no knowledge at all of the minister and under church rules would not be in a position to have done anything about it.14 Dismissal was the proper remedy. To have done otherwise would have been to rewrite the polity.
Religious organizations organize themselves according to religious principle, vesting responsibilities in certain entities (a local church for property issues, a national church for doctrine), and not in others. Suing a local church over a doctrinal matter would be improper even if constitutional; suing a national church because someone fell through the roof of a parish church is likewise not proper in this example. Derivative liability describes how the law sorts out these [*PG1096]cases. It reflects a good measure of corporate law and constitutional principle.15
For some, to deny recovery based on immunity or corporate distinctions may seem artificial, unfair, or outdated. Religious entities, like their secular counterparts, however, need the assurance that “corporate” independence will be respected.16 As my ladder example notes, religious entities, to a greater extent than secular entities, rely on the unbridled goodwill and good-faith efforts of volunteers to make their operations run. Occasionally these entities seek to structure their operations as separate civil units to guard against the possibility that another unit (or the whole body) might be made more vulnerable by the actions of an individual acting on its behalf or even alone. Having chosen to plan operations in a particular way following the dictates of the civil law, religious entities should not fear that these “corporate” structures will be imploded in litigation.17
When the individual actor who caused the damage was an agent or employee (for example, in general terms, a minister or volunteer) of a religious organization, there is inevitably an effort to pass the liability to the religious organization that, in the broadest sense, “employs” the individual. In that sense, the liability may be shifted to the institutional body. There may also be an effort to shift the liability to a coordinate or superior ecclesiastical entity. In one case, the plaintiff seeking damages for a personal injury sued the individual minister, the local church, the church school, the regional ecclesiastical authority, and the national and international bodies that were alleged to be responsible for the affairs of the religious organization.18 In this case, the international organization and those who governed it were al[*PG1097]leged to be ultimately responsible for an injury suffered at a local level.19 It was up to the defendants to sort out the various layers of civil responsibility.
To that extent, the term “ascending liability” (as used by commentators)20 most plainly denotes a hierarchical form of religious organization.21 Authority and power are presumed to descend through the various layers of the organization to the individual adherent. Obedience is presumed to ascend through the organization with each individual adherent or intermediate group presumably acting at the behest of the next higher group in the organization. Ultimately, such authority presumably resides in a religious superior or entity at the top of the organizational chart. Using the “ladder” case as an example, the duty to control the actions of the local church was alleged to ascend through the hierarchical structure resting ultimately with the national denominational leaders.
Indeed, civil responsibility does follow the discipline of ecclesial principle through the various layers of the organization, but not haphazardly or according to the pleadings of a claimant who may plead a polity or a set of relationships that describe the church along lines favorable to the claimed liability. In fact, as shown below, unless one wants to violate both corporate and constitutional law, liability should reside, if at all, in that entity which has both the juridic power (under the polity of the religious organization) and the civil duty to answer for the actions of individuals or organizations at a lower level in the hierarchy.
[*PG1098] This principle is also seen in litigation targeting related religious corporate entities and ecclesiastical “coordinates” in congregational or connectional polities. For example, in one instance the organizing religious body was found liable for the unpaid bills of a senior citizen center on the grounds that the superintendent of the center was the agent of the religious entity.22 These claims do not concern “superior,” but “coordinate” religious organizations for the actions of separate civil (even secular-appearing) corporations. Responsibility may shift from one corporate entity to another even though they are in a more “horizontal” relationship than entities in a hierarchical polity. Yet the litigation effort to shift responsibility from one level to another in a congregational body has all the trappings of litigation involving layers of a hierarchical body and, for this reason, appears with cases in which liability “ascends” or “descends,” under the heading “derivative liability.”
Derivative liability applies in diverse factual settings involving all forms of religious polity.23 Although most easily illustrated in tort cases, for completeness, it should be noted that attempts to shift responsibility to another layer in the religious organization is seen in cases involving the contracts or debts of its agents or employees, the fraud or intentional misconduct (even crimes) committed by agents or employees, and the actions of ministers in full accord with religious doctrine. Furthermore, although the doctrine is most easily illustrated by reference to incorporated religious bodies, following the various ecclesial links in a civil corporate chain, it is also seen in efforts to hold unincorporated religious associations, for the most part congregational churches or synagogues, responsible for the conduct of a member, staff or cleric, or agent. Indeed, changes in the statutory treatment of unincorporated associations make it easier for these entities to sue or be sued in their own name.24 Therefore, it is easier for [*PG1099]plaintiffs to have a defendant that is statutorily able to take responsibility for the actions of individuals alleged to act in its name.
From the study of models of different church organizations, whether incorporated or unincorporated, hierarchical or congregational, and the legal opinions governing liability, certain principles emerge that unify a divergent and complex body of law. Cutting across polities and corporate forms and governing the imposition of responsibility (in the broadest sense), these principles describe the circumstances under which liability may be shifted. Although the law does not always admit of clarity, three general lines of inquiry appear, and liability will not be imposed absent an affirmative finding that the religious organization has exercised at least one of the following levels of responsibility over the matter being litigated.
These three principles for the imposition of responsibility are:
1. Statutory or Corporate Responsibility (the civil organizing or operational documents expressly place responsibility for the matter disputed in a particular inferior, superior, or coordinate group);
2. Denominational Responsibility (the ecclesial discipline of the body expressly places responsibility in, or denies it to, a particular group within the body); and
3. Situational Responsibility (notwithstanding the above principles, a particular group has specifically involved itself in the underlying dispute or transaction giving rise to the litigation).
Whether liability is ultimately proved such that the organization must pay for the damage is a question which goes to the merits. Given the high incidence of settlement, merely allowing the lawsuit to proceed may cause an organization to make the prudential judgment to resolve a claim rather than either risk an adverse decision or expend its resources in a defense. Thus, consideration of these principles under which a claim for derivative liability may be stated is very important [*PG1100]for the ultimate resolution of a liability claim. This Part deals with each of these areas in turn.
Through its civil (as opposed to ecclesial) governing documents, articles of incorporation or bylaws, policy or personnel manuals, or similar documents, the coordinate or superior body may be held to answer for claims if it has reserved to itself the authority over the matter in contention. Often this question is resolved under state statutory or common law. In 1924, in Roman Catholic Archbishop v. Industrial Accident Commission, the California Supreme Court held that the “Archbishop of San Francisco, a Corporation Sole” was responsible for workers’ compensation claims of tradesmen injured on parish property.26 A responsibility of the corporation sole was to hold title to real property of the religious body.27 In the opinion of the California Supreme Court, this responsibility included the necessary power to make arrangements for its maintenance and repair, such that the action of an individual pastor was attributable to the corporation.28 The corporation was estopped from denying its ultimate responsibility for such matters.29 The court viewed its holding as an unremarkable application of the California law authorizing religious corporations.30
Conversely, where there is no legal basis to impute the matter in dispute to the power and authority of the corporation, the corporation may be dismissed from an action. For example, in an action which sought damages for a sexual assault, a corporation sole, organized under the laws of Rhode Island, was dismissed through summary judgment.31 Plaintiffs had contended that the bishop conducted all priestly supervision through the corporation sole and therefore the corporation sole (which also presumably held the assets) should be responsible for the control and direction of the negligent priest.32 The bishop responded that under the 1900 legislation that allowed [*PG1101]the creation of a corporation sole, the legislature provided that the corporation sole had no ability to control or supervise the functioning of the individual priests.33 Rather, as a creature of state law, the corporation sole had specifically limited powers relating to the purchase, holding, and conveyance of property for religious purposes.34 The court agreed,35 and dismissed the corporation from the litigation through summary judgment.36
Although more easily illustrated by reference to large hierarchical religious bodies organized along corporate lines, the same result is seen in litigation involving single congregations. For example, in a case arising in congregational polity, a court rejected a writ of execution against real property held by a person, not as an individual, but in his capacity as “presiding apostle” of a church, a corporation sole.37 The appellate court indicated that the assets of the corporation sole are not the “personal assets of its titular head,” and therefore could not be used to satisfy personal debts.38 Even in these polities the courts distinguish between personal/ecclesial and civil/corporate powers.
Denominational responsibility has as its starting point whether, in ecclesial documents or expressions of authority, the coordinate or superior body proposed as a defendant has reserved authority over the matter in dispute to itself. In other words, does the entity reserve to itself the authority to supervise or resolve the particular matter at the center of the dispute? Ecclesiastical control is not always identical to civil control, meaning that the control exercised by the related religious entity rests on the consent or adherence of the other person or entity to religious doctrine. Although the judicial development of this principle involves courts in the close scrutiny of discipline of the body itself, often this scrutiny is invited by the religious entity which has pleaded its governing ecclesial documents as a means to avoid ultimate responsibility for the matter in dispute. Courts here walk a fine constitutional line.
Illustrating this principle is Eckler v. General Council of the Assemblies of God.39 In this case, in 1990, the Court of Appeals of Texas ruled that regional and national church bodies were not liable to answer in tort for damages resulting from the actions of a minister teaching at a school operated by a local church affiliated with the denomination.40 No relationship existed between the local church and the denomination’s General Council under the church’s organizational structure sufficient to warrant the imposition of liability.41 The constitution and bylaws of the denomination itself gave a District Council (an intermediate structure) the responsibility for the selection and endorsement of prospective ministers.42 Those documents also gave the authority to investigate, file charges, and conduct hearings on alleged allegations of misconduct to the District Council.43 Because each individual local church was self-governing, the General Council of the Assemblies of God had no civil duty, based on an asserted ecclesial right, to supervise or control their internal affairs.44 Even though the General Council would ordain and license ministers, their actual supervision would be in the hands of local churches or, at most, a District Coun[*PG1103]cil.45 Indeed, when a complaint is made about ministerial misconduct, the complaint is referred to the appropriate District Council rather than the General Council for investigation and disciplinary action.46 Liability for failure to take disciplinary actions creating a risk of future misconduct would follow the denomination’s decision to vest such responsibility in a particular entity, and not be spread throughout the denomination generally or its national institution.47
In 1999, in N.H. v. Presbyterian Church (U.S.A.), the Oklahoma Supreme Court resolved a dispute about the authority of the national body of the Presbyterian Church to have responsibility for the misconduct of individual ministers on the basis of the absence of knowledge in the national body.48 It might also have resolved the case according to the principle that the power to supervise and discipline Presbyterian ministers resided in the first instance with the regional bodies, the presbyteries. To have held that the national body had powers beyond its charter and the Church’s Book of Order would have been incorrect and unconstitutional.
Churches fix the authority or lack thereof for specific tasks in particular church entities. It is well settled that the power to engage in this kind of self-governance is beyond the constitutional power of the civil courts and authorities.49 If the state lacks the authority to dictate how a religion is organized and governed, it follows that the courts may not allow a claim to proceed on the false or erroneous assertion of ecclesiastical power in some body, or on the notion that some religious doctrine “must” provide for this kind of claim.50 For example, if a party pleaded that the Catholic Church was a corporate monolith, or even a General Motors, and attempted to fix liability for a particular harm occurring in one local church on the whole faith community, that set of facts is subject to attack and the claim subject to dismissal as unconstitutional. There is no rule that requires false facts to be taken as true on a motion to dismiss when the consequence is allowing for an unconstitutional assertion of judicial power over a fictitious relig[*PG1104]ious polity. On the contrary, in 2002, in Hiles v. Episcopal Diocese, the Massachusetts Supreme Judicial Court held that the propriety of such constitutional assertions should be raised on motions to dismiss with the burden of proof shifting to plaintiffs.51 Otherwise, a religious organization’s constitutional right to self-governance could easily be violated.52
Conversely, where polities do place the denominational responsibility or supervision in the hands of a larger regional or other governing body, liability may attach to this body. For example, in Olson v. Magnuson, the Evangelical Covenant Church of America, an Illinois corporation, was named as a defendant in a complaint for its alleged failure to supervise adequately one of its ministers serving at an affiliated church in Minnesota.53 The national church body unsuccessfully moved to dismiss the case for lack of personal jurisdiction.54 On appeal the appellate court noted that the bylaws of the national church specifically provided for the formation of a “board of ministry” to supervise the conduct of, license, investigate, and discipline its ministers.55 Because the national church had held itself responsible for investigating claims of impropriety lodged against local church ministers and administering any discipline, the court found, from the church’s own rules and regulations, that the national church body should be held to answer for the claimed misconduct.56 Although par[*PG1105]ticular constitutional considerations need to be evaluated in these circumstances,57 generally the religious entity itself has invited a court to consider its governing documents to avoid responsibility.
The mere potential to exercise ecclesial discipline is not sufficient to impose liability. The governing body must either assert or reserve authority over the particular matter in question. For example, to assert liability against a church for a deliberate personal injury committed by a minister, it is not enough that the church has exercised general ecclesial discipline or offered some general statements of concern. There must be some connection between the particular expression of ecclesial discipline and the particular matter in dispute.58 The mere right to control conduct generally for ecclesiastical [*PG1106]purposes does not make a religious body civilly responsible for all of the actions of any person related to it. As one court explained: “If ecclesiastic control is to be sufficient, the Holy See would be exposed to limitless liability for any tortious acts by individuals who choose to commit themselves to the church’s religious calling.”59 Should ecclesiastical direction be manifest in the actions of the individual, there is little doubt under the principles established above that a higher ecclesial body would at least be held to answer in such a case in order to discern whether in fact it was negligent.
The third principle for the imposition of responsibility shows that liability may be asserted even in the absence of secular statutory or corporate responsibility over the matter in question, and in the absence of denominational authority to resolve the matter being litigated. The actual conduct of an organization can cause it to become involved situationally in the matter in review. For charitable institutions occupied with righting wrongs and doing justice, the temptation to become involved in the affairs of some related part of the religious organization, notwithstanding the lack of civil or ecclesial authority to do so, is sometimes too great to bear.
For example, in 1990, in Eckler,60 the Court of Appeals of Texas scrutinized the record to ascertain whether, notwithstanding the limitations in the governing documents, the General Council had involved itself in the situation sufficiently so as to be fairly subject to suit.61 In this case the court found no record that the General Council even knew that a complaint had been made against the local minister.62 The record also established, without dispute, that had the Gen[*PG1107]eral Council become aware of such a complaint made against the local minister, the matter would have been referred to the District Council for resolution.63 Thus, the case implies situational responsibility as a separate governing principle for the assertion of derivative liability. When justified by the record, courts specifically determine whether a coordinate or superior body has so insinuated itself in a particular set of actions in the related entity that it can rightly be held in the given case as a defendant and therefore risk ultimate liability.
Conversely, even where an organization has insinuated itself into a situation, its liability is dependent on the liability of its agents. For example, where a religious organization has engaged itself in the placement of children for foster care and ultimate adoption, its liability for damages for injuries arising out of these placements derives from the actions of the individuals with whom children were placed. In 1989, in LDS Social Service Corp. v. Richins, the Georgia Court of Appeals held that the religious corporation was not liable, as a matter of law, where no liability had been found in the actions of the foster parents who had oversight of the child when the child was injured.64 This principle should be understood as a rule of caution. When no statutory or denominational basis on which liability may fairly shift otherwise exists, a court may nonetheless seek just results in particular cases by scrutinizing the underlying transaction for actual involvement, not in the general subject matter, but in the specific situation that is the subject of the complaint.
The above liability principles—statutory/corporate responsibility, denominational responsibility, and situational responsibility—are not mutually exclusive. Each functions in the alternative, though an affirmative answer on any one level of inquiry can be enough to hold a defendant in a case. As illustrated above, these principles cut across denominational, corporate, organizational, and polity lines. Illustra[*PG1108]tions of how these principles apply in given situations are discussed in the next Part.
Examining how the above principles apply in decided tort cases shows that most courts in fact reach decisions consistent with them. Although religious institutions must also be measured by what the U.S. Constitution permits, there is no general barrier to the adjudication of tort claims through the First Amendment.65 In each area of law that follows, these principles make for order and the hobgoblin, consistency, in the chaotic world of torts.
Under the doctrine of respondeat superior an employer or master is liable for the torts committed by employees or agents within the scope of their duties. For liability to shift (in those cases not involving direct negligence), the plaintiff must prove both aspects of a two-part test. First, the person who committed the tort must be found to be the agent, employee, or servant in a relationship with the religious organization. Even if a relationship can be established, without negligence in the actor, no derivative organizational responsibility can be placed.66 Second, the activity in question must be determined to be within the scope of duties the person was to perform, or a foreseeable consequence of that person’s normal activities in the task. As liability is asserted to higher or coordinate bodies, the principles articulated in Part II above are employed. Torts are claimed for actions which are sometimes contrary to religious doctrine,67 sometimes in accord with religious doctrine,68 and sometimes on which religious doctrine has no bearing.69
The process by which one assesses responsibility for an accident involving a volunteer or employee of a religious body is normally straightforward. For example, if a staff member driving a church vehicle causes an accident on the way to or from a field trip, or a custodian fails to correct hazardous conditions on or near the property, the employing entity, even though a church, may be responsible. Such cases turn on a policy determination that the employee or supervising entity, even though a religious organization, has not only the opportunity, but the duty, to address hazardous conditions and address them properly.70
The complicating features in this area of the law occur when liability is asserted against related church entities. For example, in the ladder case noted above, the original defendants included the local church and regional and national judicatories. In maintenance-of-property cases or control-of-volunteer cases, the primary focus, in fact, is the local church entities. Neither regional nor national bodies have an opportunity, much less the right, to control the actions of individual volunteers doing specific maintenance tasks of local churches. The verdict against the regional body, however much motivated out of the sense of justice or concern for the volunteer injured, cannot be sustained by any analysis under ordinary derivative liability principles, unless the regional body maintained some form of direct control over the use and maintenance of property or insinuated itself into local property matters.71 It is unclear whether the volunteer in question even could have received compensation from his local church.72
A case raising similar concerns was reversed on appeal.73 A jury had found that a regional ecclesiastical body was the supervisor of a local Episcopal church and ultimately responsible for damages caused by a vestryman who injured his own son while performing voluntary [*PG1110]gardening work for his own local church community.74 The jury found the negligence of both the volunteer and the local church could be attributed to the Episcopal diocese.75 The District Court of Appeal reversed, holding that the diocesan church, through denominational documents as well as civil statutes, exercised neither civil nor ecclesiastical control over the local church in the area of property maintenance to allow for an assertion of an agency relationship.76 The temporal affairs of the local church, including the maintenance of property, were in the hands of the local church, which alone was responsible for the actions and negligence of its employees and volunteers.77 Reviewing the record, the appellate court determined that the diocese had not insinuated itself into the conduct of maintenance activities of the local church such that the imposition of liability could be justified.78 The jury verdict was set aside.79
Another issue which continues to occur from time to time is the doctrine that some have termed “canonical agency.” Under this doctrine, every activity of a member of the clergy, all day, every day, is attributable to his or her ecclesiastical superior.80 Without deciding [*PG1111]whether such a claim of agency is constitutionally proper, most courts have routinely rejected such a broad notion of agency as inconsistent with the general law of the jurisdiction. As stated by the Kansas Supreme Court, if a person is conducting his business through others, “he is bound to manage them so third persons are not injured.”81 This rule is therefore “‘a rule of policy, a deliberate allocation of a risk.’”82 Although a religious leader may have substantial ecclesiastical control over the comings and goings of individual ministers, that control does not include all day-to-day activities of the minister, such as whom he might visit and when.83
Abuse of minors and the exploitation of vulnerable adult counselees are two of the more difficult areas of liability for religious entities. These actions are rightly condemned as possibly criminal (depending on the age of the victim), possibly creating liability (depending on whether the person legally could give consent) but always sinful and wrong. The areas of liability generally do not involve respondeat superior liability, as almost every court holds, correctly, that a sexual assault is not part of the expected duties of a minister or other person serving a religious entity. There are a variety of theories in which liability is asserted against a religious entity, or even against a series of related entities, sounding in negligence, however: hiring, retention, supervision, and fiduciary duty. These liability theories occasionally flirt with the constitutional boundary between church and state when the evidence on which the claim depends is a religious doctrine or principle, or when the claim involves the courts in critiquing policies or doctrine rooted in religious values or teaching, or when a secular yardstick is proposed by which to measure the activities of religious leaders.
The short answer is “no.” The longer answer engages the question of the appropriate role of courts and the relationships that exist between ecclesial defendants.
Courts have universally rejected claims of clergy malpractice.84 One cannot sue a minister for failing to discharge duties defined by church law, doctrine, or practice. For example, one cannot sue a minister for bad sermons, poor counsel, poorly-led worship, or a misinterpretation of scripture, because the criteria by which one judges a minister’s sermon, counsel, liturgical skills, or scriptural interpretation are decidedly religious and ecclesial, and hence outside the constitutional orbit of government. For the government to impose special duties on persons simply by virtue of their ministerial or ecclesial status would amount to a special disability on religion, a targeting of religion for disadvantageous treatment, which is constitutionally impermissible.85 Just as the government cannot establish the qualifications of ministers,86 it cannot enforce ministerial qualifications by providing a remedy when ministers fall short of them. It makes no difference whether the creation and enforcement of ecclesial or ministerial duties is attempted by a legislature or by a court, for the First Amendment operates as a limitation on all of government, not just on one branch.87
The constitutional issues at stake here are clear from the perspective of intrusion of the secular state into setting standards for ministry. The secularization of ministry through the importation of secular workplace standards and yardsticks by which to measure performance are a sufficiently grave infringement88 that a separate cause of action [*PG1113]for “clergy malpractice” is to be resisted.89 There are, after all, other tort remedies available.
Jeffrey Scott E. v. Central Baptist Church reflects the overwhelming majority rule that religious organizations are not liable for sexual assaults committed by those who minister for them under the doctrine of respondeat superior.90 Such actions are not only unforeseeable but they violate the very things held sacred by the church. Arguments that ministers routinely have access to vulnerable persons and minors because they can exploit positions of trust have not persuaded courts to alter this majority rule.91 In only one jurisdiction have the courts adopted a different view of vicarious liability, holding that juries may assess, as a question of fact, the degree to which the person was acting for his own selfish or criminal motives as opposed to acting for his religious employer.92
In these times, it is not likely that a jury, when given such a case, will find that a person acted entirely out of his own selfish designs unless the evidence is overwhelming and clear. This extreme version of vicarious liability must therefore be seen as a rule approaching strict liability, reflecting a policy that the vulnerable deserve an extraordinary protection against the supposedly dangerous people who are al[*PG1114]lowed to minister in religious organizations in the United States today. The better view is that criminal impulsive and abusive behavior, contrary to religious teaching and law, is not even remotely in the service of the religion. Such personal acts bar a cause of action here.
Far more likely are claims based around negligent hiring, retention, and supervision. These claims depend for success on the existence of antecedent knowledge in the possession of religious superiors who were in a position to act on the knowledge so as to have prevented the sexual misconduct from occurring. Just stating the question indicates the number of potential difficulties in asserting this kind of liability consistent with the U.S. Constitution.
Some courts reason that the First Amendment “does not grant religious organizations absolute immunity from tort liability,”93 which is true but not helpful because it fails to address the question of when such organizations are immune from tort liability or whether liability is appropriate under the precise circumstances of the case under review. Other courts employ the familiar Reynolds v. United States distinction94 between belief and acts.95 This too is unhelpful because it fails to consider the circumstances in which conduct is constitutionally protected and fails to distinguish those circumstances from others. Plainly a constitutional guarantee of free exercise of religion must protect at least some conduct against government intrusion. The belief/acts distinction only skirts the problem. Still other courts reason that negligent hiring claims require no inquiry into religious beliefs.96 If this were true, it would be insufficient to prove justiciability.97 Otherwise, many employment discrimination claims by ministers could be decided by courts, at least when the defending church agrees that it does not discriminate on the basis alleged by the plaintiff or asserts [*PG1115]nonreligious grounds for its decision. We know from the consistent case law upholding the ministerial exception that this is not the case.98
The recent decisions by the Florida Supreme Court in Doe v. Evans99 and Malicki v. Doe100 illustrate the difficulties in articulating such a cause of action. The Florida Supreme Court, in Malicki, stated that:
(1) the employer was required to make an appropriate investigation of the employee and failed to do so; (2) an appropriate investigation would have revealed the unsuitability of the employee for the particular duty to be performed or for employment in general; and (3) it was unreasonable for the employer to hire the employee in light of the information he knew or should have known.101
According to the court, these inquiries do not violate the U.S. Constitution because a religious entity condemns sexual abuse and the autonomy rules are limited to a specific subset of disputes inapplicable to tort cases.102 These limitations on the court’s analysis miss the point: the nature of the dispute is not determinative but, rather, one must focus on how a court is to determine the meaning of key terms in the legal standard—“appropriate investigation,” “unsuitability,” “particular duty,” “employment,” “employment in general,” etc.—without probing deeply into basic religious questions for a faith community.
The claim that negligent hiring requires no inquiry into religious beliefs or practices seems questionable. Applied to churches, that would seem to call for evidence of what various levels of authority within a church actually do when the church selects someone for ministry, and why. The process a church actually undertook with respect to determining fitness for ministry will then be measured by a jury or other fact finder against a secular (i.e., court-imposed) standard. It would seem difficult to complete such an evaluation without in some sense trolling through religious beliefs and practices.
[*PG1116] For example, negligent hiring means that the person placed in ministry should not have been “hired.” The “hiring decision” between a religious body and those who minister for it are often themselves religious acts, ordination or call, conducted according to the precepts of religious law and practice. Moreover, the antecedent knowledge supposedly available to religious leaders to prevent such a “hiring” often would occur during the period of religious formation for ordination or call. In these circumstances, it would be profoundly difficult for a court to be able to separate secular aspects of a so-called hiring decision from religious actions undertaken exclusively under religious law and practice.103
Similarly, the question of retaining a person in ministry is often bound up in questions of religious doctrine about reconciliation, restoration, and penance. Whether a minister is defrocked or otherwise removed from the roster of clergy or reduced to the lay state is a question of one’s religious status as a “minister.” Plainly such a decision can have civil consequences, especially when one reflects on the issue of exploitation. It seems to me, however, that to allow a cause of action for negligent retention, as that term is commonly used by religious organizations, like the cause of action for negligent hiring of ministers, is ultimately a challenge to religious doctrine and practice.104
A different question is presented under negligent supervision. In those cases, the issue is not whether one should have been ordained as a minister or whether the religious body is negligent in failing to defrock a minister, but rather whether religious leaders were in possession of information which, if acted upon, could have prevented the harm upon which the lawsuit is based. The question is complex. To recognize a claim of negligence in supervising a minister, on the one hand, creates a risk of imposing upon the church, and upon the relationship between minister and church—what elsewhere has been called the “lifeblood” of an organized church105—a structure that may be inimical to it. One court has observed that imposing secular duties and liabilities with respect to ministerial supervision would “infringe upon [the church’s] right to determine the standards governing the [*PG1117]relationship between the church, its bishop, and the parish priest.”106 On the other hand, when a minister has seriously harmed others, and the church knows of a continued and substantial risk that he or she will seriously harm others again, there are societal interests in allowing recovery against the church whose failure to mitigate the known risk may have created an opportunity for additional harm.
The Florida Supreme Court in Malicki, like other courts, found no barrier to a negligent supervision claim.107 It found that the subject matter of the “dispute,” sexual misconduct, did not create a conflict between religious duties and the civil law.108 Because both condemn abuse, there is no conflict and no constitutional problem.109 That simplistic approach does not deal with the issue, which does not concern the dispute, but how the dispute must be resolved. The U.S. Supreme Court has said not just the resolution of the dispute but “the very process of inquiry” can create constitutional problems.110 So too here, if the plaintiff’s claims depend on a court reviewing internal policies and protocols, scrutinizing a religious chain of discipline, and assessing culpability because the religious entity emphasized reconciliation and not punishment, the “very process of inquiry” may lead to an unconstitutional exercise.111
Where such antecedent knowledge is both clear and in fact available to religious leaders, and directly relevant to the subject matter of the underlying lawsuit,112 a claim based on a failure of supervision might constitutionally be stated.
[*PG1118] In such cases, every possible defendant bearing the label Lutheran or Buddhist is not responsible for the negligent supervision. It may be difficult to identify a “supervisor” in the strict sense. Some churches are hierarchical in structure, others congregational. If there is no mediating authority, is the congregation that calls a minister itself responsible for “supervising” him? If the congregation is unincorporated, do the pockets of each and every member of that congregation become subject to a lawsuit? In a hierarchical church, if responsibility for the placement of a minister rests in the hands of a specific religious superior, does that person then assume a secular duty for the kind of oversight and day-to-day supervision that the law expects of supervisors in a commercial setting? The imposition of such a secular duty carries a risk of subtly altering the church’s internal structure. A number of courts have held that allowing such a deep probe into the allocation of power within a church would violate the First Amendment.113
Applying the defendant-identifying principles set forth above, one must identify which religious entity within the denominational polity has the juridic authority and power to act in the particular area. In a congregational polity, the defendant might be the local church and its leaders who were given the power and ability to select and supervise a minister. For hierarchical bodies, very often it is a regional religious body that is in the sole position to have acted to prevent the harm. In those polities, neither the local church nor the church-wide bodies have the power and ability to prevent the harm from occurring.114 Pressing more broadly framed assaults on religious entities [*PG1119]that lack the ecclesial competence to have prevented the claimed harm only invites more bad law and injustice to the common good.
Once the proper defendant is identified, the framing of the supervision claim in the way least likely to engage a court in an unconstitutional oversight of a religious entity is the “intentional failure to supervise” cause recognized in the Missouri courts.115 The basis on which the religious entity failed to act would have to be clear and direct, not based on supposition or inferred knowledge perhaps not even technically available (such as through sacramental confession). There the standard for inaction is clear, not negligence but a deliberate inaction. And the focus is on some intent to allow a well-known harm to occur.
Fiduciary duty has been radically expanded in this area of the law. Unmooring this cause from its traditional foundation in the law of trusts, courts have entertained such claims with increasing frequency in cases involving ministerial misconduct in the last ten years. These claims present whether the minister, or more accurately those who supervise the minister, have a relationship of trust and confidence with the victim such that the religious entity responsible for the minister must take added care for the wellbeing of the victim. Mere membership in the church body generally is not enough to create a fiduciary relationship between the victim and the church body.116
Of those courts that have reached the constitutional issue,117 many have rejected fiduciary duty claims against churches on constitutional grounds.118 Courts commonly reason that such a claim would [*PG1120]require them to define, and in turn measure a minister’s conduct against, a standard of care applicable to ministers as such.119 A breach of fiduciary duty can “only be construed as clergy malpractice, since it would clearly require a determination concerning [the minister’s] duties as a member of the clergy,” thereby requiring the court to “’venture into forbidden ecclesiastical terrain.’”120 In such cases religion is found to be the foundation for the relationship between the plaintiff and the wrongdoer, not something “‘merely incidental.’”121 The minister-counselee or pastor-parishioner relationship is “inescapably premised upon the cleric’s status as an expert in theological and spiritual matters.”122 The fact that the wrongful conduct is not religiously motivated is therefore irrelevant123 because pastoral and spiritual responsibilities in such a case form the very basis for relief, a fact that renders unconstitutional both the proceedings and the relief sought.
In one case, a child molested by a peer claimed that his minister and church owed the victim a fiduciary duty which the church defendants breached by advising him to forgive and forget, and by referring him for counseling to someone who claimed to be, but was not, a licensed mental health professional.124 The Utah Supreme Court determined that the fiduciary duty claim was “merely an elliptical way of [*PG1121]alleging clergy malpractice.”125 “[B]ad advice” from a minister is not actionable.126 The courts could not decide such claims “without first ascertaining whether the [church defendants] performed within the level of expertise expected of a similar professional, i.e., a reasonably prudent bishop, priest, rabbi, minister, or other cleric in this state.”127
Courts that have allowed fiduciary duty claims against ministers and churches usually do so because the wrongful conduct was not part of the defendants’ religious beliefs or practices or does not require interpretation of religious doctrine.128 When fiduciary duty claims arise out of sexual or other misconduct between minister and counselee or parishioner, the conduct complained of is rarely, if ever, religiously motivated. If the absence of grounding in specific religious beliefs or practices were sufficient to permit a claim of fiduciary duty, those claims (and, indeed, many others) would not be barred. Claims for racial discrimination under Title VII or clergy malpractice would be similarly permissible, at least when no defense was predicated on religious belief or church doctrine.129
Courts have generally suggested only one other reason for allowing fiduciary duty claims—namely, that the plaintiff in fact reposed trust in the minister and church.130 Is this reason sufficient to permit a fiduciary duty claim and to overcome the constitutional objection? Examination of two cases may help answer the question.
In Moses v. Diocese of Colorado, a female counselee had a sexual relationship with her Episcopal minister.131 The counselee’s husband, and later the counselee herself, disclosed the affair to the bishop and sought his intervention.132 The bishop, who the counselee and her husband thought would resolve the problem, told the woman she should keep the matter in confidence.133 The woman later sued the [*PG1122]minister and the bishop, the latter for breach of fiduciary duty.134 Among other things, the jury was instructed, without objection, to consider whether the plaintiff’s “repose of trust was justified; whether the Diocese or [the bishop] knew, or should have known, that [plaintiff] was relying on [the] [b]ishop . . . to look out for her interests,” and whether the bishop “invited” her trust.135 The jury returned a judgment in favor of the plaintiff and against the bishop.136 An appeals court affirmed, holding that the bishop “held a position of authority in the church and had the power to resolve conflicts in the church.”137 The bishop’s role in meeting with the plaintiff, the appeals court concluded, was “as a counselor” to her.138 The plaintiff believed that the bishop “had the power to decide if she would lose her salvation,” and therefore felt constrained to follow his advice.139 There was evidence, the court wrote, that the bishop undertook “to resolve the problems” the plaintiff presented to him.140 “Once a member of the clergy accepts the parishioner’s trust and accepts the role of counselor,” the court concluded, “a duty exists to act with the utmost good faith for the benefit of the parishioner.”141 Under the general principles of the law, a direct undertaking by a person with authority to act for the benefit of the other would be enough to sustain a conclusion that there exists a fiduciary duty.142
[*PG1123] In Martinelli v. Bridgeport Roman Catholic Diocesan Corp., the plaintiff claimed that the diocese owed him a fiduciary duty to investigate reports of sexual abuse of other persons by a priest who had allegedly sexually abused the plaintiff, and also to inform the plaintiff of his possible injuries, the memories of which he was said to have repressed.143 The evidence that plaintiff presented indicated no special undertaking by the diocese as to him.144 His experience as a member of the local church, except for the fact that he was abused, was no different than that of his peers: he attended youth activities, camps, field trips, and was confirmed.145 This was enough, the appeals court concluded, to support the jury’s finding of a fiduciary relationship between the plaintiff and diocese.146 The court rejected the diocese’s First Amendment objection because the jury had not been asked to consider the validity of any religious teaching or to enforce church law.147 The jury had been asked, in the court’s view, only to decide whether a relationship of trust and confidence existed between the plaintiff and the diocese.148
Ministerial status is generally not a defense against fiduciary duty claims arising from factors separate from one’s ecclesiastical or religious duties. The minister who holds himself or herself out as a financial advisor owes the same duty of care with respect to his or her client’s investments as any other financial advisor. The minister who practices psychiatry owes his or her patients a fiduciary duty not to engage in sexual relationships with them in the same manner as any other psychiatrist.149 But the minister who holds himself out as a min[*PG1124]ister, the bishop who holds himself out as a bishop, and the rabbi who holds himself out as a rabbi, does not assume civil duties by virtue of having assumed religious ones.150
In considering what it determined to be evidence of a fiduciary relationship, the court in Martinelli seemed remarkably unperturbed by reliance upon such religious teachings as that which holds a bishop to be a “shepherd” of his flock.151 The court likened its consideration of such teachings to rules of hearsay, in which a statement is admitted into evidence not for the truth of the assertion, but to prove some other fact.152 What the analogy overlooks is that when the character of a religious leader’s office is admitted into evidence, the applicability of a secular standard is made to depend upon an ecclesial one. In this case, evidence was admitted on whether the defendant invited, and the plaintiff reposed, trust in the bishop as shepherd of his flock.153 The bishop, after all, had not held himself out as an investment counselor or psychiatrist. He had held himself out as a bishop. Hence the reasonableness of his actions, the scope of his pastoral obligations, the reasonableness of the plaintiff’s expectations—all of these were defined by the bishop and plaintiff’s shared religion, and, of course, other religions may define these obligations and expectations differently as to their own religious leaders. To hear evidence about the character of a religious office, and then, based on those characteristics, to impose and enforce civil duties upon religious leaders by virtue of their position and role as religious leaders, clearly seems to be an unconstitutional exercise of government power.
This brief Article cannot evaluate all the various claims that could be presented against religious bodies. The task confronting courts is to identify the proper defendant against which constitutionally stated claims could lie. The identification of the defendant is an exercise in reviewing the corporate and ecclesial documents of the religious organization to decide which entity in the polity has the precise authority to act on the complaint underlying the lawsuit. In addition, courts do not limit their inquiries to these documents but may place responsibility on a part of the polity that, notwithstanding its civil or ecclesial authority to act, has insinuated itself into the dispute. Courts looking for a reliable way to apportion responsibility in complex tort cases against religious organizations would avoid unconstitutional action if they more routinely followed these principles.
In addition, application of these principles in particular (and popular) areas of tort law shows how courts should and should not act. In those cases, especially courts looking for ways to punish religious bodies for their failure to prevent abuse by individual ministers, often there is a willingness to lower standards of knowledge and accountability, even importing secular standards. Religious entities are responsible for the mistakes they make, and recovery in tort is one way to assess that responsibility. But wholesale disregard of constitutional principle also sacrifices well-established liability principle for short-term punishment.