Religious Organizations in Missouri Continue to Escape Liability in Negligence Actions Involving Abuse of Children Under the Guise of the First Amendment.

AuthorTaylor, Rachel M.

    "Church allowed abuse by priest for years" was the headline of the Boston Globe on Sunday, January 6, 2002. (1) Reporters at the Boston Globe exposed the truth about the horrendous decades of child sexual abuse at the hands of Catholic priests in the Boston area. (2) This story launched the Catholic Church's secrets into public view and helped unravel the pattern of abuse perpetuated by its leaders for decades. (3) The abuse, however, was not limited to the city of Boston--or even just the United States. (4) Claims of sexual abuse spanned the globe. (5) Thousands of priests have been accused, and the Catholic Church has paid almost $4 billion in lawsuits stemming from sexual abuse allegations. (6) Church officials often swept these abuse allegations under the rug and effectively allowed priests to continue abusing children for decades. (7) This represents a deeply-rooted systemic problem--church leaders protected priests and the image of the Catholic Church at the expense of children. (8) When allegations came to light, rather than hold abusers accountable for their actions, church leaders would simply move the abusers to another diocese where they could continue harming children. (9)

    The Supreme Court of Missouri confronted the atrocities of the Catholic Church in Doe 122 v. Marianist Province of the U.S. (10) A former student of Chaminade College Preparatory School ("the High School") in St. Louis, Missouri was sexually abused by a priest who worked at the High School. (11) The student filed suit against the High School and the Marianist Province of the United States ("the Marianist Province") claiming six counts including negligent supervision and negligent failure to supervise children. (12) In a previous case--Gibson v. Brewer--the Supreme Court of Missouri held that claims of negligent supervision, hiring, ordination, and retention against religious entities were barred by the First Amendment due to excessive entanglement between church and state. (13) The Doe 122 court refused to overturn this precedent and upheld the dismissal of Doe's claims. (14)

    Not all victims of abuse share their experience. And those who do come forward must relive their trauma while seeking redress. This trauma is exacerbated when, like in Doe 122, victims are denied the right to confront their perpetrators on the basis of First Amendment violations. This Note will address the Supreme Court of Missouri's decision in Doe 122 v. Marianist Province of the U.S. and argue that it is time for Missouri to allow plaintiffs' recovery for negligence-based claims against religious organizations.


    While Doe was a senior at Chaminade College Preparatory School in 1971, he was sexually abused by Brother John Woulfe ("Brother Woulfe"). (15) Brother Woulfe was a Marianist brother and also Doe's counselor at the school. (16) During Doe's senior year, Brother Woulfe and Doe met eight to ten times. (17) These meetings, however, were not typical meetings between a counselor and student. (18) Brother Woulfe gave Doe Playboy magazines and cigarettes and encouraged Doe to masturbate while viewing the magazines. (19) At times, Brother Woulfe would also masturbate in front of Doe. (20) Eventually, Brother Woulfe touched Doe's penis, and in their last meeting, put his mouth on Doe's penis. (21)

    Doe graduated from the High School and attempted to put the abuse behind him. (22) After 1973, Doe had no further memories of the abuse he endured at the hands of Brother Woulfe. (23) This lasted until 2012 when Doe received a letter from Father Solma, a priest at the Marianist Provincial. (24) The letter said the High School and the Marianist Province (together, "Chaminade") had received an allegation of sexual abuse against Brother Woulfe, and this revelation brought back the memories of Doe's abuse. (25)

    Doe filed suit against Chaminade in November 2015 alleging six counts of tortious action. (26) Among the claims, Doe alleged negligent supervision and negligent failure to supervise children. (27) Following a period of discovery, Chaminade moved for summary judgment. (28) In March 2019, the circuit court granted the motion, finding that the Supreme Court of Missouri's decision in Gibson v. Brewer barred Doe's negligence-based claims. (29) Doe appealed, and the court of appeals transferred the case to the Supreme Court of Missouri pursuant to Missouri Rule of Civil Procedure 83.02. (30)

    On appeal, Doe argued that the circuit court erred in dismissing his negligence-based claims "because Gibson was wrongly decided." (31) Doe contended the Gibson decision was wrong because: (1) the duty to exercise reasonable care to supervise employees who work with children to prevent sexual abuse was a neutral principle of law regulating conduct rather than beliefs, which would not violate the First Amendment's Free Exercise Clause; and (2) the court's decision in Gibson created a "privileged class of religious employers," and as such, Gibson violated the First Amendment's Establishment Clause. (32)

    After expressing the importance of honoring precedent and the absence of guidance from the United States Supreme Court, the Doe 122 court refused to overturn its decision in Gibson. (33) Thus, it held that the First Amendment barred Doe's negligent supervision and negligent failure to supervise children claims. (34)


    The Free Exercise and Establishment Clauses of the First Amendment state, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." (35) Generally, victims of sexual abuse may pursue remedies under theories of negligent hiring, retaining, and supervising. (36) However, various interpretations of the Free Exercise and Establishment Clauses often prevent plaintiffs from pursuing those claims against religious officials. (37) In some jurisdictions--as held in Gibson v. Brewer--courts allow religious organizations to use this language to shield themselves from liability in sexual abuse cases. (38) Because negligence claims against a religious entity or its clergy require courts to determine whether the defendant's actions were reasonable, there is concern that such analysis is effectively a conclusion about the reasonableness of a religious activity itself. (39) Thus, the Free Exercise and Establishment Clauses prohibit many negligence-based legal claims because they necessitate the resolution of religious questions. (40)

    1. The Evolution of United States Supreme Court Case Law

      The United States Supreme Court has held that the Free Exercise Clause prohibits government interference with religious beliefs and opinions. (41) The language of this clause, however, still requires compliance with valid and neutral laws. (42) Thus, to raise a free exercise claim, religious defendants must show that the conduct sought to be regulated is "rooted in religious belief." (43)

      In United States v. Reynolds, the Court applied the Free Exercise Clause for the first time. (44) The Court was tasked with determining whether a law prohibiting polygamy in the Utah territory was unconstitutional when the practice of polygamy was part of religious belief in the Mormon Church. (45) The Court held that though the law "cannot interfere with mere religious belief and opinions," it may interfere with religious practices. (46) Thus, an individual could not avoid prosecution under the anti-polygamy statute merely by claiming a religious exemption. (47) Consequently, the Court recognized that the Free Exercise Clause contains two independent concepts: (1) the freedom to believe; and (2) the freedom to act. (48)

      In Employment Division, Department of Human Services of Oregon v. Smith, the Court reiterated that the Free Exercise Clause does not insulate an individual from compliance 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)." (49) In Smith, plaintiffs were fired from their jobs because they ingested peyote for religious purposes as part of the Native American Church. (50) Oregon law prohibited the knowing or intentional possession of a controlled substance, and peyote fell under this classification. (51) The state of Oregon was permitted to deny unemployment benefits to people discharged from their jobs because of peyote use. (52) The Court held that the Oregon law did not violate the Free Exercise Clause because it was not an attempt to regulate religious beliefs. (53) Rather, the Court concluded the law was a neutral regulation of certain drug use that applied to all citizens equally, and therefore, it was constitutional under the First Amendment. (54)

      Thirty years later in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Court held that "requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision." (55) Thus, such state action violates the Free Exercise Clause by interfering with the "internal governance of the church" and depriving the church of control over the choice of those who will exemplify its beliefs. (56)

      The Establishment Clause prevents the government from enacting laws that have the purpose or effect of promoting or restricting religion. (57) In Lemon v. Kurtzman, the Supreme Court held that a government cannot become excessively entangled with religion. (58) The Court explained that the Establishment Clause was intended to protect against "sponsorship, financial support, and active involvement of the sovereign in religious activity." (59) However, since the Supreme Court of Missouri decided Doe 122, the United States Supreme Court handed down a decision--Kennedy v. Bremerton School District--expressing that the Court had abandoned Lemon long ago. (60) Instead, the Court reasoned, it had previously instructed that the Establishment Clause be...

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