* John H. Watson, Jr. Professor of Law, Harvard Law School.
1 See Scott C. Idleman, Tort Liability, Religious Entities, and the Decline of Constitutional Protection, 75 Ind. L.J. 219 (2000) (reviewing many of the important cases); see also Malicki v. Doe, 814 So. 2d 347, 351 n.2, 358 n.10 (Fla. 2002); James T. O’Reilly & JoAnn M. Strasser, Clergy Sexual Misconduct: Confronting the Difficult Constitutional and Institutional Liability Issues, 7 St. Thomas L. Rev. 31, 38–59 (1994).
2 U.S. Const. amend. I; 322 U.S. 78, 86–87 (1944).
3 See United States v. Seeger, 380 U.S. 163, 173–85 (1965) (discussing the meaning of religion in provision for exemption of conscientious objectors in selective service law).
4 322 U.S. at 79–81.
5 Jones v. Wolf, 443 U.S. 595, 602–06 (1979); Presbyterian Church v. Mary Elizabeth Blue Hull Mem’l Church, 393 U.S. 440, 445–52 (1969).
6 Wolf, 443 U.S. at 602–06; Blue Hull, 393 U.S. at 445–52.
7 Wolf, 443 U.S. at 597; Blue Hull, 393 U.S. at 441–43.
8 See Wolf, 443 U.S. at 602–05; Blue Hull, 393 U.S. at 445–47, 449–50.
9 See Wolf, 443 U.S. at 602–05; Blue Hull, 393 U.S. at 449–50.
10 See Wolf, 443 U.S. at 602–05; Blue Hull, 393 U.S. at 445–47, 449–50.
11 See Swanson v. Roman Catholic Bishop, 692 A.2d 441, 444 (Me. 1997) (“To determine the existence of an agency relationship based on actual authority, the trial court will most likely have to examine church doctrine . . . .”); Heroux v. Carpentier, No. C.A. PC 92-5807, 1998 WL 388298, at *9 (R.I. Super. Ct. Jan. 23, 1998) (determining whether relation between bishop and priest is sufficiently agent-like to give rise to duty of care would require consideration of church doctrine and policies); L.L.N. v. Clauder, 563 N.W.2d 434, 443–44 (Wis. 1997) (determining whether knowledge of one priest concerning behavior of another should be attributed to the diocese would require consideration of first priest’s authority under church law, which is barred by First Amendment); Pritzlaff v. Archdiocese of Milwaukee, 533 N.W.2d 780, 791 (Wis. 1995) (indicating that tort of negligent supervision cannot be asserted because it would require inquiry into church laws, policies and practices).
12 The duty suggested, however, must be carefully scrutinized to see if it does truly avoid reference to religious ideas. See, e.g., C.J.C. v. Corp. of the Catholic Bishop, 985 P.2d 262, 275 (Wash. 1999) (finding that notice to church official of risk of sexual molestation of children created duty to protect, founded upon secular facts such as that church brought children into contact with molester under circumstances that provided peculiar opportunity for misconduct); Sanders v. Casa View Baptist Church, 134 F.3d 331, 337 (5th Cir. 1998) (finding that minister who held himself out as professional marriage counselor could be held liable not because of violation of standard of care defined by religious teachings, but because of violation of professional standard of care); see also Dausch v. Rykse, 52 F.3d 1425, 1433 (7th Cir. 1994) (Ripple, J., concurring in part and dissenting in part) (pastoral counseling contrasted with secular counseling and holding oneself out as providing services of psychological counselor). In the hypothetical in the text—one person directing another to engage in an activity—would evidentiary use of church law to show that a bishop knew or ought to have known that a priest would act on his direction violate the Blue Hull-Wolf prohibition?
13 See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533–38 (1993) (holding that “targeting” religion violates the Free Exercise Clause).
14 But see Moses v. Diocese of Colo., 863 P.2d 310, 329–31 (Colo. 1993) (finding required relationship existed between diocese and priest, but that the priest’s sexual conduct was not within the scope of employment); M.K. v. Archdiocese of Portland, Civ. No. 01-1544-AS, 2001 U.S. Dist. LEXIS 23625, at *11–12 (D. Or. Dec. 13, 2001) (magistrate recommendation) (finding it permissible to look to church law to determine priest’s job description), adopted and remanded by 228 F. Supp. 2d 1168 (D. Or. 2002).
15 See O’Reilly & Strasser, supra note 1, at 47 (“Beliefs in penance, admonition and reconciliation as a sacramental response to sin . . . .”).
16 See Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 18–20 (1989) (finding an exemption of religious publications from sales tax violated Establishment Clause); Estate of Thornton v. Caldor, 472 U.S. 703, 710–11 (1985) (finding that requiring employers to give each employee his or her Sabbath off violated Establishment Clause). But see Corp. of Presiding Bishop v. Amos, 483 U.S. 327, 335–40 (1987) (finding the exemption of religious organizations from the prohibition of religious discrimination in employment did not violate Establishment Clause).
17 494 U.S. 872 (1990).
18 See infra Part V.
19 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533–38 (1993).
20 See supra Part II.
21 494 U.S. 872, 884 (1990).
22 Id.; Sherbert v. Verner, 374 U.S. 398 (1963). Sherbert presented a situation involving “individualized assessment” because in it administrators and courts were required to develop views concerning the reasons an individual might have for not working. See id. at 403–06.
23 See Smith, 494 U.S. at 873, 884.
24 See 374 U.S. at 399–402; Ayon v. Gourley, 47 F. Supp. 2d 1246, 1249 (D. Colo. 1998) (stating that a claim of negligent supervision requires a “more subjective judgment” than applying the prohibition in Smith).
25 It is difficult to understand what position the church could have taken in Malicki v. Doe, 814 So. 2d 347, 361 (Fla. 2002), to justify the court’s statement that the church did not “claim that the reason they failed to exercise control over Malicki was because of sincerely held religious beliefs or practices.”
26 406 U.S. 205, 219 (1972); see also Swanson v. Roman Catholic Bishop, 692 A.2d 441, 445 (Me. 1997) (finding that compelling state interests did not justify diocese’s liability for negligent supervision of priest who became sexually involved with woman he was counseling); cf. Heard v. Johnson, 810 A.2d 871, 884–85 (D.C. 2002) (finding dismissed pastor’s interest in reputation—in a suit against trustees of the church for defamation—was not compelling, but noting that the interest might be compelling in egregious circumstances).
27 E.g., McKelvey v. Pierce, 800 A.2d 840, 850–51 (N.J. 2002).
28 E.g., Bryce v. Episcopal Church, 289 F.3d 648, 655–56 (10th Cir. 2002); see also Combs v. Cent. Tex. Annual Conference, 173 F.3d 343, 349 (5th Cir. 1999) (rejecting an action for sex discrimination in ministerial appointment because of the Free Exercise right of the church to manage its own affairs).
29 In Van Osdol v. Vogt, a dismissed minister sued the church on the ground that her dismissal was in retaliation for her complaint of sexual abuse against a church official. 908 P.2d 1122, 1124 (Colo. 1996). The court held that the First Amendment barred entertaining the suit, distinguishing the dismissal of clergy from the type of situation involved in Smith. Id. at 1129–31. Applying an antidiscrimination law to churches “would require a judge to question the belief system of the church, to validate certain interpretations of religious doctrine over others, or to compel the church to accept certain ideas into their belief system.” Id. at 1131.
30 See, e.g., Combs, 173 F.3d at 350; EEOC v. Catholic Univ., 83 F.3d 455, 464–65 (D.C. Cir. 1996); Schmoll v. Chapman Univ., 83 Cal. Rptr. 2d 426, 427, 430 (Ct. App. 1999); McKelvey, 800 A.2d at 850 (quoting NLRB v. Catholic Bishop, 440 U.S. 490, 502 (1979)); see also Corp. of Presiding Bishop v. Amos, 483 U.S. 327, 341–46 (1987) (Brennan, J., joined by Marshall, J., concurring) (finding Establishment Clause was not violated by the exemption of nonprofit religious organizations from prohibition against religious discrimination in employment, even with respect to secular jobs, because of the importance of protecting church autonomy and avoiding entanglement).
31 E.g., Heroux v. Carpentier, No. C.A. PC 92-5807, 1998 WL 388298, at *1, 9 (R.I. Super. Ct. Jan. 23, 1998).
32 See, e.g., Franco v. Church of Jesus Christ of Latter-day Saints, 21 P.3d 198, 205 (Utah 2001).
33 E.g., Lemon v. Kurtzman, 403 U.S. 602, 615–25 (1971) (describing “excessive entanglement” under the Establishment Clause); Malicki v. Doe, 814 So. 2d 347, 357 (Fla. 2002) (describing “excessive entanglement” pursuant to Free Exercise protection).
34 E.g., Amos, 483 U.S. at 339; see Walz v. Tax Comm’n, 397 U.S. 664, 674–75 (1970).
35 E.g., Catholic Univ., 83 F.3d at 465–67.
36 See generally Catholic Bishop, 440 U.S. 490.
37 Id. at 491.
38 29 U.S.C. �� 151–169 (2003); Catholic Bishop, 440 U.S. at 499–501.
39 See Catholic Bishop, 440 U.S. at 504–07.
40 Id. at 501–04.
41 For an additional example, see Rayburn v. Gen. Conference of Seventh-day Adventists, where the court found that applying a prohibition against racial discrimination in employment to a church’s pastoral position violated both religion clauses. 772 F.2d 1164, 1168–71 (4th Cir. 1985).
42 Combs, 173 F.3d at 349; see also Rayburn, 772 F.2d at 1168–71.
43 See, e.g., Vogt, 908 P.2d at 1130–31.
44 See Swanson v. Roman Catholic Bishop, 692 A.2d 441, 445 (Me. 1997) (“The imposition of secular duties and liability on the church as a ‘principal’ will infringe upon its right to determine the standards governing the relationship between the church, its bishop, and the parish priest.”).
45 Would the tort of breach of fiduciary duty, if formulated as a duty of A to act to protect B if A caused B to trust him, a reasonable person in A’s position would have realized that B would trust him and B did in fact trust him, escape violation of the Blue Hull-Wolf prohibition if applied in a church context? In Martinelli v. Bridgeport Roman Catholic Diocesan Corp., a bishop was held to have violated a fiduciary duty to the plaintiff when the bishop had reason to know that a priest had molested one boy, but did nothing to protect other boys, including the plaintiff. 10 F. Supp. 2d 138 (D. Conn. 1998). The court thought the church had encouraged the plaintiff and his parents to view the bishop as an authority and to trust him and that they had trusted him. Id. at 148, 156. It seems unlikely that a legal definition can be attached to the term “trust” that does not require consideration of the meaning the parties attached to communications between them, which in the context of this case certainly were intended to be viewed from a religious perspective.