The First Amendment: churches seeking sanctuary for the sins of the fathers.

• Author: Anderson, Jeffrey R.

PROLOGUE

Imagine you are ten years old. You are proud and honored that one of the most revered, respected, and loved men in your community pays you special attention--he gives you gifts, and invites you to go on special trips. A man who, in your eyes, your friends' eyes, and the eyes of your parents, is the embodiment of God. He is your local parish priest. But he is the furthest thing from God. He has betrayed you, the parish, the community, his vows, and God-he has repeatedly sexually molested you.

Now suppose that your trusted bishop knew this priest was a pedophile. Suppose the bishop not only knew the priest had sexually molested parish youth, but had hidden that fact, both from members of the church and the laity. Rather, the bishop clandestinely placed the priest in the parish without any precautions. Reading this, it would seem obvious that the diocese or any other church defendant, like any other employer, would be held legally responsible for the harm caused by its reckless conduct. Even the most fertile imagination cannot create or divine a lawful, just, or defensible reason why any church defendant should be treated differently than any other entity that places children in harm's way. Especially, when the church defendant does not dispute that the abuse occurred, that it knew about the priest's "problem," or that it played a significant part in allowing it to happen. How, then, does a church demur in a situation as described above?

In an act of unparalleled audacity and brazen legal maneuvering, the church often argues that the First Amendment of the United States Constitution provides it unfettered immunity and insulation from any accountability to its parishioners or society at large. In so doing, the church perverts our nation's constitution into a form of unholy absolution for the most unholy of acts. This argument, however, is of no avail to the church--it has sought refuge in a legal illusion.

The First Amendment contains two clauses addressing religion-the Free Exercise Clause and the Establishment Clause. (1) First Amendment jurisprudence also addresses religion through the judicial abstention doctrine. (2) While these rights are firmly established, their limits and boundaries continue to be defined today. The nation's highest court has yet to address the issue of whether, in the name of the First Amendment, religious institutions can be shielded from otherwise cognizable tort claims caused by their agents and employees. (3) In cases of sexual abuse that involve church defendants, tort claims usually allege negligence, negligent supervision, negligent retention, breach of fiduciary duty, and vicarious liability. (4) Most state courts have held that the First Amendment does not provide any protection from these claims. (5) As the

Florida Supreme Court recently stated, "to hold otherwise and immunize the Church Defendants from suit could risk placing religious institutions in a preferred position over secular institutions, a concept both foreign and hostile to the First Amendment." (6)

As this Article will explain, the Constitution does not provide a religious institution the right or privilege to operate as a law unto itself--the institution must comply with the law of civil government. Part I will provide a brief introduction and background on the First Amendment. Parts II, III, and IV will analyze the Free Exercise Clause, judicial abstention doctrine, and the Establishment Clause, respectively, and how each operates in relation to sexual abuse claims against clergy.

INTRODUCTION

I esteem it above all things necessary to distinguish exactly the business of civil government from that of religion and to settle the just bounds that lie between the one and the other. (7)

The need to distinguish between government and religion was as clear and salient to John Locke in 1687 as it is to our nation today. Written over three centuries ago, his words indicate that the struggle between protecting the freedom to practice religion while maintaining a civil government had formed long before the Constitution and Bill of Rights were enacted. As history has shown, establishing a line separating the secular from the sectarian in American life has been elusive. (8) Nevertheless, through the First Amendment, the "just bounds" required between government and religion emerged: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." (9) By these sixteen words, the Framers of the Constitution pronounced one of our most important, but elusive rights.

1. THE FREE EXERCISE CLAUSE

   1. Actions Speak Louder (and Mean More) Than Words

      The Supreme Court first applied the principles behind the First Amendment nearly 125 years ago, in Reynolds v. United States. (10) In Reynolds, the Court held that a statute prohibiting polygamy could be applied constitutionally to those whose religious beliefs commanded the practice. (11) In so doing, the Court recognized that while the law may not govern beliefs, it can, and must, govern actions:

      Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances. (12) Thus, the formation and development of First Amendment jurisprudence began. While phrased or emphasized differently, the same core principle holds as true today as it did over one-hundred years ago when enacted; the Free Exercise clause "embraces two concepts,--freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society." (13) As the Supreme Court more recently explained:

      We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.... We first had occasion to assert that principle in Reynolds v. United States, where we rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. "Laws," we said, "are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices...." (14) Therefore, while the freedom to follow a religion is unqualified, the freedom to act pursuant to that religion is not. Indeed, it is hard to imagine a more compelling reason for limiting the right to act when the action or conduct includes unleashing a known pedophile into a community.

   2. The Eleventh Commandment: Thou Cannot Commit a Tort with Impunity

      In cases involving allegations of sexual abuse against a priest or religious institution, the Free Exercise analysis must start with the basic and universal premise that religious organizations are liable for their torts. (15) In order to raise a Free Exercise claim, the church defendant must show coercion of a sincerely held religious belief. (16) Put another way, the issue is whether the conduct sought to be regulated is "rooted in religious belief." (17) Generally, negligent employment claims in these cases involve the limited issue of whether the church defendant's decision to place a known child abuser in an unsupervised position, where he was allowed to counsel, teach, or administer to parish youth, is conduct based upon a sincerely-held religious belief. (18) The church defendant, therefore, must argue that its religious beliefs, disciplines, and government truly required, encouraged, or even authorized the church defendant to place a vulnerable child in the hands of a known pedophile. (19) It defies credulity, and the furthest stretch of the imagination, that such a decision could be made based on a sincerely held religious belief. (20) Church defendants cannot claim that such conduct is mandated, authorized, or even supported by church law, or that it is in any way based upon a sincerely held religious belief. Thus, church defendants have no standing to even challenge the negligent employment claims based upon the free exercise of religion. (21)

      Even if a church defendant could assert a burden on some religious conduct, it is well established that the "right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." (22) Negligent employment tort law is a valid and neutral law of general applicability to all employers. (23) In these cases, plaintiffs simply seek that this law be applied to the church defendants in the same manner it is applied to all employers.

      Accordingly, a church defendant does not have the right, under the guise of the Free Exercise clause, to place priests it knew were sexual predators in positions of authority where they can victimize parishioners. A religious institution does not have the right to break the law...