Church Liability for Sexual Conduct

An Overview: 13 of the most significant risks associated with sexual conduct plus strategies to manage each.

Of all the legal risks confronting churches, those associated with sexual conduct are of special relevance, for two reasons. First, in recent years sexual misconduct claims have been one of the most common forms of litigation involving churches; and second, many of the largest verdicts and settlements in litigation involving churches are associated with sexual misconduct claims.

What is the relevance of this information for pastors and lay church leaders? They must take affirmative steps to inform themselves about these risks, and implement appropriate risk management strategies. Such steps not only will reduce the risk of litigation, but more importantly, will help safeguard the congregation, and especially its most vulnerable members. The responsibilities of a “pastor” demand no less.

Following are 13 of the most significant risks associated with sexual conduct, and some risk management strategies to reduce your risk.

Risk 1: Negligent Selection of Church Workers

In recent years, several churches have been sued as a result of the sexual molestation of minors by church workers on church property or during church activities. Common examples include the molestation of children and adolescents by youth pastors, camp counselors, Sunday school teachers, church custodians, volunteer youth workers, and others. In many of these cases, the victim alleges either or both of the following two theories: (1) the church was negligent in hiring the offender without adequate screening or evaluation, or (2) the church was negligent in its supervision of the offender. The second of these theories (negligent supervision) is discussed later in this article.

Negligence refers to conduct that creates an unreasonable risk of foreseeable harm to others. It connotes carelessness, heedlessness, inattention, or inadvertence. Negligent selection simply means that a church failed to act responsibly and with due care in the selection of workers (both volunteer and compensated) for positions involving the supervision or custody of minors. Victims of molestation who have sued a church often allege that the church was negligent in not adequately screening applicants.

A single incident of abuse or molestation can devastate a church. Parents often become enraged, the viability of the church’s youth and children’s programs is jeopardized, and church leaders may be blamed for allowing the incident to happen. But far more tragic is the emotional trauma to the victim and the victim’s family, and the enormous potential legal liability the church faces.

There is good news, however. Church leaders can take relatively simple yet effective steps to significantly reduce the likelihood of such an incident occurring, including the following:

1. A Written Application Form

Churches can significantly reduce their risk of legal liability for negligent selection (and the likelihood that an incident of abuse or molestation will occur) by having every applicant for youth work (volunteer or compensated) complete a “screening application.” At a minimum, the application should ask for the applicant’s name and address, the names of other youth-serving organizations in which the applicant has worked as an employee or volunteer, a full explanation of any prior criminal convictions, and the names of two or more references. The application should be completed by every applicant for any position involving the custody or supervision of minors. The application should also be completed by current employees or volunteers having custody or supervision over minors.

2. Contact References

Having current or prospective employees and volunteers complete an application form does not significantly reduce a church’s risk of negligent selection. Significant risk reduction occurs if the church takes the following additional steps:

  • If an applicant is unknown to you, confirm his or her identity by requiring photographic identification (such as a state driver’s license). Child molesters often use pseudonyms.
  • Contact each person and organization listed as a reference in the application, and request a written reference. If you do not receive back the written reference forms, then contact the references by telephone and prepare a written memorandum noting the questions asked and the reference’s responses. Sample reference forms (for use by mail or telephone) are contained in the resources mentioned below. Show the date and method of the contact, the person making the contact as well as the person contacted, and a summary of the reference’s remarks. Such forms, when completed, should be kept with an applicant’s original application. They should be kept permanently.

There are two basic kinds of references: personal and institutional. Personal references are persons that an applicant lists on his or her application. Usually, church leaders are not familiar with such references, and so they are of limited value. Further, the FBI profile on preferential child molesters states that one of the characteristics of pedophiles is that there only adult friends tend to be other pedophiles. This further diminishes the value of personal references.

The best reference is an institutional reference. This is a reference from another institution with which the applicant has worked with minors either as a paid employee or an unpaid volunteer. Obviously, obtaining a positive reference from one or more other institutions that have actually observed the applicant interact with minors is the gold standard in terms of references. Some applicants have not worked with other youth-serving institutions in the past, and so no institutional reference is available. In such cases, a church’s only option is to obtain personal references. However, risk can be reduced by limiting personal references to members of the church.

For nonminister employees and volunteers, the best references will be from other churches or charities in which the applicant has worked with minors. Examples include Boy Scouts, Girl Scouts, Big Brothers/Big Sisters, YMCA, public or private schools, youth sports, or other churches or religious organizations. Seek a reference from every such organization in which the applicant has served. Your application form should ask applicants to list all such organizations, including contact information.

Tip. Be sure you are aware of any additional legal requirements that apply in your state. For example, a number of states have passed laws requiring church-operated childcare facilities to check with the state before hiring any applicant for employment to ensure that each applicant does not have a criminal record involving certain types of crimes. You will need to check with an attorney for guidance.

3. Interviews

The final candidates for a church position should be interviewed. This will provide the church with an opportunity to inquire into each applicant’s background and make a determination as to each person’s suitability for the position under consideration.

Higher risk individuals (e.g., single males) and persons applying for higher risk positions (e.g., boys groups, scouting groups, camps, overnight or largely unsupervised activities involving either male or female children or adolescents) should be interviewed by a staff member who has been trained to identify child molesters. Law enforcement personnel and local offices of state agencies responsible for investigating reports of child abuse often have materials that can be used to train the staff member who will conduct interviews. Employees of these agencies ordinarily are more than willing to assist a church in learning how to identify potential child molesters during an interview. These resources should be utilized.

4. Six Month Rule

Churches can reduce the risk of incidents of sexual molestation by adopting a policy restricting eligibility for any volunteer position involving the custody or supervision of minors to those persons who have been members in good standing of the church for a minimum period of time, such as six months. Such a policy gives the church an additional opportunity to evaluate applicants, and will help to repel persons seeking immediate access to potential victims.

5. Criminal Records Checks

Criminal records checks will further reduce a church’s risk of being found liable for the negligent selection of youth workers, and should be considered. See Table 1 for additional information.

6. Other Background Checks

There are other aspects of an applicant’s background that can be checked. These include:

  • Educational background (one of the most common misrepresentations that is made on employment application forms);
  • Employment (confirming that the applicant worked for prior employers listed on the application form);
  • Motor vehicle records;
  • Social security number check (confirms identity and residential history);
  • Credit history; and
  • Professional licenses and certifications.

Tip. The types of searches selected for any particular applicant will vary depending upon the risks and responsibilities associated with the position.

7. Limit “Second Chances”

Church leaders often “err on the side of mercy” when making employment decisions. This attitude can contribute to a negligent selection claim-if a church gives an applicant a “second chance” despite knowledge of prior sexual misconduct, and the conduct is repeated. What the church views as mercy may be viewed as negligence by a jury.

Risk 2: Negligent Retention of Church Staff

A church may use reasonable care in selecting youth workers and other church staff but still be responsible for their misconduct if it “retained” them after receiving information indicating that they posed a risk of harm to others.

How can churches reduce the risk of liability based on negligent retention of a minister or lay worker who engages in inappropriate conduct with an adult or child? While churches cannot eliminate this risk, they can take steps to reduce it. Consider the following:

(1) Investigate. Whenever a church leader receives credible information suggesting that a church employee or volunteer may represent a risk of harm to others, an immediate and thorough investigation should be initiated. Remember this-once such information is received, the church is “put on notice” of the risk and may be legally responsible on the basis of negligent retention for future acts of misconduct by the same person if it does nothing to investigate or respond to the information.

(2) Restrictions. If the church’s investigation results in credible evidence to support the victim’s allegations, then the church can reduce its risk of negligent retention by imposing appropriate restrictions on the alleged wrongdoer. The nature and extent of such restrictions will vary depending on a number of circumstances, including the nature and severity of the alleged wrongs and the strength of the evidence. If a church ignores credible evidence of wrongdoing and imposes no restrictions on the alleged wrongdoer, it is exposed to liability based on negligent retention from the time it learned of the allegations.

Key point. Churches that ignore allegations of wrongdoing by a pastor or lay worker face a number of risks in addition to negligent retention. These include (1) liability based on “ratification” of the minister’s actions; (2) punitive damages, which are not covered by insurance; and (3) possible personal liability for members of the church board.

Table 1 Criminal Records Checks: A Summary Of The Options

Criminal records checkAdvantagesDisadvantagesComments
County recordsThe most accurate criminal records check• Limited geographical coverage

• Requires consent of applicant

• More effective for persons who have lived and worked in the same county for several years

• Doing multiple county checks increases their effectiveness, but at a higher cost

Risk 3: Negligent Supervision of Church Staff and Activities

Churches can use reasonable care in selecting workers, but still be liable for injuries sustained during church activities on the basis of negligent supervision. Negligent supervision refers to a failure to exercise reasonable care in the supervision of church workers and church activities. Churches have been sued on the basis of negligent supervision in several contexts, including child molestation, injuries to children participating in church-sponsored events, and injuries to infants in a church nursery. Churches are not “guarantors” of the safety and well-being of those persons who participate in their programs and activities. Generally, they are responsible only for those injuries that result from their negligence.

There are a number of precautions that churches can take to reduce the risk of liability based on negligent supervision. To illustrate, here are some precautions that churches have used to reduce the risk of a negligent supervision claim involving an injury to a child:

(1) Adopt a “two-adult” policy specifying that no minor is ever allowed to be alone with an adult during any church activity. This rule reduces the risk of child molestation, and also reduces the risk of false accusations of molestation.

(2) Only release minors from church activities to the parent or legal guardian who brought them, or to a third person that the parent or guardian has authorized in writing to receive custody of the child. Churches are legally responsible for the safety of a minor from the time they receive custody until the time they return custody of the minor to his or her parent or legal guardian. As a result, a church may be liable for injuries occurring to a child who is released prematurely.

(3) Consider adopting a “claim-check” policy for children in the church nursery. As a parent drops a child off at the church nursery, pin a plastic number on the child’s clothes and give the parent an identical number. Inform parents that only those persons presenting the corresponding number will be given custody of children. This policy is designed to prevent the kidnapping of children by noncustodial parents, or by child molesters. Numbers should be assigned on a random basis for each service. Unfortunately, in many churches the nursery is staffed by minors who are inclined to transfer custody to anyone who asks for a child.

Tip. Sets of plastic numbers can be obtained from a variety of manufacturers. Ask a local restaurant that has a “coat check” booth. The concept is the same.

(4) If an incident of child molestation occurs on church premises, or in the course of a church activity off of church premises, the church’s duty of supervision increases. The church will be held to a higher standard of supervision because of such knowledge. It is important for church leaders to be aware of this, and to be diligent in implementing some or all of the risk management procedures mentioned in this section.

(5) The installation of video cameras in strategic locations can serve as a powerful deterrent to child molesters, and can reduce a church’s risk of negligent supervision. Video cameras are especially helpful in a church’s nurseries, since infants and very young children are present who are incapable of explaining evidence of molestation.

Video cameras in strategic locations can serve as a powerful deterrent to child molesters.

(6) Any activity involving minors should be staffed with an adequate number of qualified adults. This will help to demonstrate that the church exercised reasonable care in the supervision of minors, and reduce the risk of liability based on negligent supervision in the event that a minor is molested.

Tip. It is often helpful to contact other institutions for assistance with staffing ratios. For example, some churches base their adult to child ratio in the nursery to what the state requires of licensed day care facilities. You may also contact the Red Cross, Salvation Army, or similar organizations. The point is this: if you can demonstrate that you based your adult to child ratio on the established practices of other similar organizations in your community, then this will be a strong defense in the event you are accused of liability (for an injury to a child) on the basis of negligent supervision.

(7) Be especially careful of off-site activities such as field trips and camping. These outings can be difficult to control. It is essential that an adequate number of adults are present. While on the trip, precautionary measures must be implemented to assure adequate supervision of the group. For example, some churches group children in pairs, always keep the entire group together, and have frequent “roll calls.” Once again, you can call other community- based organizations for guidance.

(8) Church restrooms present a unique risk of molestation. They are frequented by children, they are easily accessible, and they often are in remote locations that are not adequately supervised. Church leaders can take steps to reduce this risk. Consider the following:

  • Using video cameras outside of church restrooms is a powerful deterrent to molesters, and provides the church with helpful evidence in the event of an allegation of molestation. This precaution is described above.
  • Restrict young children’s restroom breaks to restrooms that have limited access to adults, if this is possible.
  • Have two adults accompany children in groups to the restroom, whenever possible. Do not allow one adult to take one or more children to the restroom.
  • Consider installation of “half doors” that will permit adults to have partial vision into restrooms used by young children.
  • Unauthorized access to nursery areas by outsiders should be discouraged or prevented by the physical layout. Many churches accomplish this with counters staffed by an adult worker or attendant.
  • State regulations that apply to licensed child care facilities ordinarily do not apply to church nurseries, but they will contain a wealth of information that may be useful in adopting policies to reduce the risk of molestation and other injuries. Further, compliance with selected regulations can be cited as evidence that your church should not be legally responsible on the basis of negligent supervision for such incidents.
  • Churches should discourage parents from allowing their children to wander around unaccompanied on church property. This notification can take place in parents’ meetings, in church bulletins or newsletters, or through direct appeals prior to or during worship services.
  • The risk of liability can be reduced by restricting access to unsupervised restrooms where molestation may occur. If possible, lock doors to cut off access to remote and unused areas of the church.
  • A church can exercise supervision over its restrooms by having ushers observe access to them during services.

(9) Acts of child molestation on church premises often occur in remote, unsupervised rooms or areas. A church can reduce its risk of liability based on incidents of molestation occurring in such locations by restricting access to them. If possible, lock vacant rooms that are not being used, or exercise supervision over them. For example, the church could designate a board member or other responsible adult to roam throughout the church during worship services. Such a policy will deter potential molesters, and will help to demonstrate that the church is exercising reasonable care in the supervision of its premises.

(10) Install windows in all doors to classrooms and other areas that are frequented by minors. This will reduce isolation and make it easier to supervise activities.

(11) Adopt an appropriate policy addressing access to church property by registered sex offenders.

(12) The fact that a church promotes small group meetings exposes it to potential liability for injuries that occur to children who are being supervised. Those injuries may arise in a number of ways, and could include child molestation by a volunteer worker, parent, or an older child; personal injuries occurring during games, “horseplay,” or fighting; choking; or poisoning. All of these risks can be greatly reduced if a church adopts certain safeguards, including the following:

  • Use at least two volunteer workers to oversee the children. One worker is unacceptable. If only one worker shows up for a particular meeting, then a member of the small group will have to assist in the supervision of children, or the meeting must be canceled.
  • Segregate the children into different groups based on age, if possible, with two volunteer workers in each group (risks increase dramatically if “power inequity” exists, such as older children being grouped together with preschoolers).
  • Volunteer workers should be adults. The risk of injury and molestation increases moderately if one adult and one adolescent worker are used together; and the risk increases dramatically if only minors are used to supervise children. One obvious solution is to have parents themselves take turns serving as supervisors for the children.
  • Volunteer workers must be screened (application, reference checks, criminal records check).
  • If young children (preschoolers) are present, the area where they will be supervised should be thoroughly inspected prior to each meeting to remove any toxic or dangerous substances or devices.
  • Individual members of the small group should make unannounced and periodic visits to the area where children are being supervised.
  • Older children should be encouraged to report any inappropriate behavior that occurs during these meetings.
  • Restroom breaks present a signifi-cant risk. Appropriate safeguards will depend on the layout of the home and the age of the children. Children must not be allowed to wander off to a restroom alone, or with one or more older children. The best practice would be to contact parents and have them escort their child to the restroom. Most other responses will create unacceptable risks. Some cases of child molestation occurring in private homes during small group meetings have involved children wandering off to unsupervised areas of the home.

Safeguards must not be viewed as “nuisances” to be ignored, but rather as essential measures to ensure the safety and well-being of vulnerable children.

There have been cases of children being sexually molested, or injured, during small group meetings in members’ homes, so this is a risk that churches must take seriously. Safeguards must not be viewed as “nuisances” to be ignored, but rather as essential measures to ensure the safety and well-being of vulnerable children. If meaningful and effective precautions cannot be implemented, then the church has no alternative but to discontinue child care at these meetings.

(13) It is absolutely essential to familiarize youth workers with the church’s policies and to be sure that these policies are followed. At a minimum, this should be part of an orientation process for all new workers (both paid and volunteer). Periodic training sessions are also desirable to reinforce nursery policies.

(14) It is a good practice to have your risk management procedures reviewed periodically by a local attorney and by your church insurance agent. Such a review will help to ensure that your policies are current and effective.

Risk 4: Counseling

Most churches offer some form of counseling services. The most common example would be counseling of church members by a minister. Many churches also offer lay counseling services. Some limit these services to members of the congregation, while others target the general public and promote their counseling ministry in the local media and telephone directory. Some churches use counselors or psychologists who are licensed by the state, while others use unlicensed laypersons with little if any professional training.

Counseling ministries can provide an excellent and needed service, and represent a “point of contact” with the community. However, there are a number of important legal concerns that should be considered by any church that offers such services, or that is considering doing so in the future, including liability associated with sexual misconduct. Churches that offer counseling services can reduce this risk in various ways, including the following:

(1) Adopt a policy prohibiting any male minister or counselor on staff from counseling privately with an unaccompanied female (i.e., opposite sex counseling) unless a third person is present. The third person may be the minister’s or counselor’s spouse, another minister on staff, or a mature and trusted church employee (preferably female). Some churches have limited such a policy to counseling that occurs off of church premises, or on church premises when no other church staff are present and visible.

(2) Since the vast majority of cases of inappropriate sexual behavior involve male counselors and female counselees, churches can significantly reduce their risk by using women to counsel women.

(3) Install a window in the pastor’s office making all counseling sessions clearly visible to office staff. Of course, such a precaution is effective only if other staff are present and visible throughout the counseling session. This means that the church should implement a policy limiting counseling sessions to office hours when other staff are present and visible.

(4) Some counselors conduct counseling sessions in a room with an open door, so that office staff can clearly see the counselor or counselee. Of course, such a precaution is effective only if other staff are present and visible throughout the counseling session. This means that the church should implement a policy limiting counseling sessions to office hours when other staff are present and visible.

(5) Many smaller churches have no “staff” that is present and visible in the church office during counseling sessions. Some of these churches limit opposite sex counseling sessions to those involving a third person or those that are conducted by telephone.

(6) Some churches have installed a video camera (without audio) in the office where counseling occurs. The video can be transmitted to a monitor in another location in the church where it is observed by a church employee. Or, the camera can simply record the entire session. If sessions are recorded, tapes should be retained indefinitely, or until they are reviewed by two designated church members who prepare a written summary stating whether or not they observed any inappropriate acts. This review can be performed in “fast forward” mode, and should not take long.

(7) Implement appropriate “boundaries.” Many courts have recognized the psychological principle of “transference.” To illustrate, one court defined transference as “a process whereby a patient undergoing psychotherapy for a mental or emotional disturbance (particularly a female patient being treated by a male psychotherapist) develops such overwhelming feelings of warmth, trust, and dependency towards the therapist that she is deprived of the will to resist any sexual overtures he might make.” Pastoral and lay counselors often are tempted to engage in inappropriate sexual contact with a counselee because of unfamiliarity with this phenomenon. They misinterpret transference as affection, and fail to engage in anti-transference precautions that reduce the risk of inappropriate physical or emotional bonding. These precautions can include one or more of the following:

  • Require a third person to be present for any counseling occurring off of church premises;
  • Allow one-on-one counseling on church premises only during office hours if other staff members are present and visible;
  • Limit counseling sessions to 45 minutes; and
  • Permit no more than 5 counseling sessions with the same person during a calendar year.

Key point. Churches that adopt any of these other measures must recognize that they are not reducing risk as much as if they applied the “third person rule” or required women to counsel women. It is imperative that churches adopting these lesser measures incorporate them into official church policy and strictly monitor them to prevent any deviations. Remember, windows or open doors are of no value if a counseling session extends beyond normal office hours and the church staff leaves.

Key point. Does the presence of a third person negate the “clergy-penitent” privilege for clergy counselors, meaning that either the pastor or counselee can be compelled to answer questions in a court of law regarding the communications? Not necessarily. In some states, the privilege applies so long as no one other than persons “in furtherance of the communication” are present. It is possible that a court would conclude that a third person who is present during a pastoral counseling session as a matter of church policy is present “in furtherance of the communication.” As a result, the privilege may be preserved. Further, some courts have ruled that the clergy-penitent privilege is not negated by the presence of a guard during pastoral counseling with prison inmates if the guard’s presence is required by law or prison policy. A court may reach the same conclusion in the context of a church policy mandating the presence of a third person during “opposite sex” pastoral counseling sessions. Even if the privilege is negated by the presence of a third person, this risk must be weighed against the reduced risk that will occur.

Risk 5: Child Abuse Reporting

Child abuse is of epidemic proportion in our country. Ministers often learn of incidents of abuse in the course of counseling, or from reports they receive from nursery or youth workers. It is essential for ministers to understand clearly their responsibilities under state law to report known or reasonably suspected incidents of abuse. In many states, ministers are “mandatory reporters,” meaning that they can be criminally liable for failing to report. Several states now permit a minister who is a mandatory child abuse reporter under state law to be sued for money damages by a victim of child abuse who discovers that the minister was aware of the abuse but did not report it.

A number of courts have rejected the defense made by some ministers that they failed to report abuse because they wanted to deal with the problem “within the church” as a matter of discipline. Some states excuse ministers from the reporting obligation if they learn of child abuse in the course of a privileged communication. Be sure to check your state law at least a few times each year, since this is an area of law that changes often.

Risk 6: Criminal Liability

Sexual contact between clergy and a counselee may constitute a crime under state law. Many states have enacted legislation making it a crime for “psychotherapists” to engage in sexual contact with a counselee, and some of these laws define the term psychotherapist to include clergy. Other states have enacted legislation giving counselees a statutory right to sue counselors for sexual misconduct.

Example. A Minnesota appeals court ruled that a minister could be criminally liable for sexually seducing a female counselee. The minister was approached by a married female church member who desired counseling. At the conclusion of one counseling session that explored the subject of grief, the pastor gave the woman a brief hug. The following week she asked the pastor if they were engaged in “normal counseling,” and he replied that he loved her. The session ended with the two engaged in hugging and passionate kissing. Two days later, the woman went back to clarify that their relationship would remain “platonic” and non-sexual. At that meeting, the two engaged in hugging and kissing. The pastor gave the woman a rose as a symbol that their relationship would forever remain “pure and chaste from afar” and that he would “maintain her virginity.” A month later, the two went to a motel and engaged in sexual intercourse for the first time. The woman testified that the pastor assured her that it was a “good” sexual encounter because he was unselfish. He also informed her that sex between a counselor and counselee was a felony in Minnesota. The two engaged in sexual intercourse on at least two other occasions over the next few months. The woman testified that the pastor assured her that sexual contact and intercourse was consistent with her “treatment” because it would remove her inhibitions about sex and “set her free” from her sexual “hang-ups.” The pastor was later prosecuted for criminal sexual contact under a state law prohibiting sexual contact by a “psychotherapist” with an “emotionally dependent” patient, or sexual contact by a psychotherapist with a patient occurring by means of “therapeutic deception.” A jury convicted the pastor on four felony counts, and he appealed. In upholding the conviction, a state appeals court concluded that the pastor was a psychotherapist since he had assumed the role of a counselor, and that he had in fact committed both sexual contact and sexual intercourse with an “emotionally dependent” patient, and that the sexual contact and intercourse occurred because of “therapeutic deception.”

Example. A minister was sentenced to two consecutive life sentences for three acts of rape and eight first-degree sexual offenses perpetrated on four women. The minister professed his innocence during his trial, but the prosecutor introduced into evidence several “love letters” the minister had written to at least one of the victims, along with several pornographic magazines and videos found in the minister’s apartment. The magazines and videos were introduced by the prosecutor to rebut the minister’s attempt to portray himself as an exemplary “family man” and minister. A North Carolina appeals court rejected the minister’s claim that the two consecutive life sentences constituted “cruel and unusual punishment” in violation of the Constitution. This case illustrates the significant criminal liability that clergy face for acts of sexual misconduct. Of course, this is in addition to civil liability.

Risk 7: Computer Access

Churches sometimes come across inappropriate material on an employee’s computer and are faced with the decision of whether to discipline or dismiss the employee. It is important to recognize that disciplining or dismissing an employee under these circumstances exposes a church to potential legal liability. The bottom line is this- any unauthorized access to an employee’s church-provided computer may violate federal and state electronic privacy laws and also may constitute an invasion of privacy.

Employees can consent to the inspection of their church-provided computer so long as their consent is voluntary, they clearly understand what they are consenting to, and they receive something of value (“consideration”) in exchange for their consent. Consent can be express or implied. Express consent means that an employee signs a statement consenting to the inspection of his or her church provided computer at any time and for any purpose. Implied consent means that the circumstances in the office suggest that consent has occurred. This happens in large corporate offices where computer technicians frequently upgrade and maintain computers. This will not be true in most churches. So, you will need to adopt a policy, and have employees sign a statement agreeing to be bound by it.

With new employees, this is done at the time of hire. With current employees it is a little more difficult since they must receive some form of “consideration” (something of value) in order for their consent to be enforceable. You could give them a token cash amount or wait until the next cost of living pay raise. In either case, it is imperative that the “consent” refer to the consideration that was received by the employee in exchange for his or her consent to the computer policy.

Accessing Employees’ Telephone Calls and Computers

Church employees should refrain from intercepting or recording employees’ telephone calls or inspecting employees’ private email unless they are familiar with the following rules:

  • The federal Electronic Communications Privacy Act (also known as the Wiretap Act) prohibits the intentional interception of telephone calls without consent. But, under the so-called “business extension exemption,” an employer may listen in on an employee’s telephone calls on an “extension telephone” so long as this is done in the ordinary course of business. This will be harder to prove if employees are permitted to use church telephones for personal calls (even if doing so violates a written policy).
  • When a church employee picks up a telephone and hears another conversation in progress, he or she must immediately determine if the conversation is business or personal. If it is personal in nature, then the employee should hang up the telephone. Continuing to listen in on a personal telephone call may subject the employee, and the church, to criminal and civil liability.
  • A church does not violate the Wiretap Act when it intercepts employees’ telephone conversations if the employees have consented to the interceptions. It is possible to obtain employees’ consent through appropriate policies that are explained to and acknowledged by the employees.
  • The Electronic Communications Storage Act is violated when an employer accesses without consent an employee’s email account directly on the “electronic communication service provider” (such as Hotmail) and in addition “obtains, alters, or prevents authorized access” to an electronic communication “while it is in electronic storage in such system.” While a church may not violate the Act when it accesses an employee’s email after it has been downloaded to the employee’s computer hard drive, it may invade the employee’s privacy by doing so.
  • Several states have their own electronic privacy laws that may apply to the interception of telephone calls and inspection of emails on church computers. These laws should be consulted.
  • Even if state or federal electronic privacy laws are not violated by an interception of a church employee’s telephone call, or inspection of the employee’s email or computer, such acts could amount to an invasion of privacy for which the church may be liable.

Jacobs v. Mallard Creek Presbyterian Church, 214 F.Supp.2d 552 (W.D.N.C. 2002)

A federal court in North Carolina dismissed a lawsuit brought by a pastor against his former church in which he claimed that the church had violated his rights under federal electronic privacy laws by searching his laptop computer for pornography, failing to follow denominational procedures in investigating him, and defaming him. The court concluded that the First Amendment guaranty of religious freedom prevented it from resolving the pastor’s claims: “Each allegation [in the pastor’s lawsuit] relates to him in his capacity as the church’s senior pastor. Thus, in deciding the issues raised in his lawsuit, the court would in essence be made to inquire into the church’s decisions regarding its own internal management, and discipline of its clergy. Furthermore, if the court did not agree with the procedure used and the effects therefrom, in holding the church liable, the court would be substituting its laws and disciplinary action for that of the church.”

Mitnaul v. Fairmount Presbyterian Church, 778 N.E.2d 1093 (Ohio App. 2002)

An Ohio court ruled that a church could be sued for invasion of privacy as a result of an announcement on the church’s website disclosing the music director’s psychological disorder and that he was being hospitalized for it. The court observed, “The right of privacy is the right of a person to be let alone, to be free from unwarranted publicity, and to live without unwarranted interference by the public in matters with which the public is not necessarily concerned.” The court concluded, “The comments made on the church’s website were based purely on [the music director’s] private affairs, i.e. his hospitalization for depression. While he did inform those necessary persons about his condition-the pastor and a few close friends who belonged to the church-this cannot be seen as a waiver to enter his private life …. While the church’s publication could be based upon informing the congregation of [his] return to the church, the inclusion of the additional personal information about his bi-polar illness could be viewed as offensive or objectionable to a reasonable person.”

Tip. Churches that provide employees with computers that include Internet access should adopt a computer use policy that authorizes the inspection and monitoring of computers as well as discipline or dismissal for unauthorized or inappropriate use. Such a policy should be consented to by all employees. It is not clear whether such a policy can apply to current employees unless they provide the church with something of value. This is a result of the basic principle of contract law that no contractual commitment is binding unless a party gives up something of value. This problem may be avoided by having current employees sign a written form (agreeing to the policy) at the time they receive a pay raise. This is an issue that should be addressed with a local attorney. The policy should be explained to all new employees at the time of hiring, and they should be required to sign a statement acknowledging that they understand and agree to the policy.

Risk 8: Liability of Church Board Members

Most states have enacted laws limiting the liability of church officers and directors. In some states, these laws protect all church volunteers. In some cases, the statute may protect only officers and directors of churches that are incorporated under the state’s general nonprofit corporation law. The most common type of statute immunizes uncompensated directors and offi- cers from legal liability for their ordinary negligence committed within the scope of their official duties. These statutes generally provide no protection for “willful and wanton” conduct or “gross negligence.”

Indifference by church leaders to information that clearly demonstrates improper behavior by a staff member or volunteer worker can be viewed by a court as gross negligence, and this will make it more likely that the church leaders will be sued personally.

Example. Bob is a registered sex offender who previously was convicted of molesting a child. He served time in prison, but was released a few years ago. He has started attending a church, and the church board learns of his background. Some members of the board are concerned about having Bob attend the church, and they speak with him. Bob assures them that he was “rehabilitated” while in prison, and no longer poses a risk of harm to anyone. Nothing is done to monitor Bob. Several months later, Bob is charged with the molestation of a child on church property. The board is distressed by this development, but take comfort in the fact that they are immunized from personal liability by state law. They should not assume that they are protected against personal liability by a state law conferring limited immunity from liability on the acts of uncompensated church board members. Such laws generally do not apply to gross negligence or willful and wanton misconduct, and it is possible that a court would conclude that the board was guilty of such behavior by allowing Bob unrestricted and unsupervised access to church property despite its knowledge that he is a registered sex offender.

Risk 9: Dealing with Sex Offenders Who Want to Attend Your Church

When a church allows a registered sex offender to participate, without limitation, in the normal activities of the church, this exposes the church and member of the church board to legal liability. If the sex offender should ever have sexual contact with a minor or adult on church premises, or in the course of church activities, the church could face a significant degree of liability at the hands of a jury that would be incredulous that such a person was allowed to have unrestricted access to the church.

When the senior pastor, or any member of the church board, is informed that a registered sex offender is attending the church, there are steps that can be taken to manage risk. These include the following:

1. Obtain a record of the sex offender’s prior criminal convictions by conducting a national criminal records check. The church must be fully informed regarding the sex offender’s criminal background.

2. If the sex offender is on probation, identify his or her probation officer and ascertain the conditions that have been imposed. In some cases, sex offenders are not even allowed to attend church. If the probation officer says that the offender is free to attend church, ask the officer if he or she would recommend that the offender be allowed to attend church, and if so, under what conditions. Obtain this information in writing, or, if that is not possible, make a detailed written account of the officer’s response.

3. Condition the sex offender ‘s right to attend church services and activities on his or her signing a “conditional attendance agreement” that imposes the following conditions:

  • The sex offender will not work with minors in any capacity in the church.
  • The sex offender will not transport minors to or from church, or any church activity.
  • The sex offender will not attend any youth or children’s functions while on church property, except for those involving his or her own child or children, and only if in the presence of a chaper-one (see below).
  • The sex offender will always be in the presence of a designated chaper-one while on church property. This includes religious services, educational classes, activities, and restroom breaks. The chaper-one will meet the sex offender at the entrance of the church, and accompany the sex offender on church premises until returned to his or her vehicle.
  • A single violation of these conditions will result in an immediate termination of the sex offender ‘s privilege to attend the church.
  • The conditional attendance agreement option will not be available unless the church’s insurer is informed and confirms that coverage will not be affected.

4. In some cases, exclusion of the offender from church is the only viable option. This option is advisable if (1) for any reason the conditional attendance option is not feasible or enforceable; or (2) if the offender’s crimes are so frequent or heinous that exclusion is the only appropriate option; or (3) one or more of the offender’s victims attends the church. This will be a judgment call made by the pastor and board.

5. It is often desirable to draft a short policy addressing the church’s response to registered sex offenders attending the church, and have it adopted by the congregation during an annual or special business meeting. This would allow the membership to discuss this issue in a rational manner.

6. Seek legal counsel in formulating the church’s response.

Risk 10: Sexual Harassment

Sexual harassment is a form of “sex discrimination” prohibited by Title VII of the Civil Rights Act of 1964. Equal Employment Opportunity Commission (EEOC) regulations define sexual harassment as follows:

(a) Harassment on the basis of sex is a violation of Sec. 703 of Title VII. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

This definition illustrates that sexual harassment includes at least two separate types of conduct:

(1) “quid pro quo” harassment, which refers to conditioning employment opportunities on submission to a sexual or social relationship, and

(2) “hostile environment” harassment, which refers to the creation of an intimidating, hostile, or offensive working environment through unwelcome verbal or physical conduct of a sexual nature. Tip. Title VII applies to any church that has at least 15 employees (full-time or part-time), and is engaged in interstate commerce. The definition of “interstate commerce” is very broad, so a church with at least 15 employees should assume that it is subject to Title VII unless it receives an attorney’s opinion to the contrary.

Tip. Most states have enacted their own civil rights laws that bar sexual harassment in employment, and it is more likely that these laws will apply to churches since there is no “commerce” requirement and often fewer than 15 employees are needed to be covered by the law.

Key point. A woman’s “consent” is not a defense to an allegation of sexual harassment. The United States Supreme Court has observed: “The fact that sex-related conduct was voluntary in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit …. The gravamen of any sexual harassment claim is that the alleged sexual advances were unwelcome …. The correct inquiry is whether [the victim] by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary.” In other words, a female employee may engage in voluntary sexual contact with a supervisor because of her belief that her job (or advancement) depends on it. While such contact would be voluntary, it is not necessarily welcome. Sexual harassment addresses unwelcome sexual contact, whether or not that contact is voluntary.

Churches can be liable for their employees’ conduct that constitutes sexual harassment. Consider the following rules:

• If a supervisor conditions employment opportunities on an employee’s submission to a sexual or social relationship, and the employee’s “compensation, terms, conditions or privileges of employment” are adversely affected because of a refusal to submit, this constitutes quid pro quo sexual harassment for which the employer will be legally responsible. This is true whether or not the employer was aware of the harassment.

It is essential for any church having employees to adopt a sexual harassment policy.

EEOC regulations address employer liability for the sexual harassment of nonsupervisory employees as follows:

• With respect to conduct between fellow employees, an employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action.

EEOC regulations address employer liability for the sexual harassment of nonemployees as follows:

  • An employer may also be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases the Commission will consider the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees.
  • If a supervisor creates an intimidating, hostile, or offensive working environment through unwelcome verbal or physical conduct of a sexual nature, this is “hostile environment” sexual harassment for which the employer will be legally responsible if the supervisor takes any “tangible employment action” against the employee. A tangible employment action includes “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” The employer is liable under such circumstances whether or not it was aware of the harassment.
  • If a supervisor creates an intimidating, hostile, or offensive working environment through unwelcome verbal or physical conduct of a sexual nature, this is “hostile environment” sexual harassment for which the employer will be legally responsible even if the supervisor takes no “tangible employment action” against the employee.
  • If a supervisor engages in hostile environment sexual harassment but takes no “tangible employment decision” against a victim, the employer may assert an “affirmative defense” to liability. This defense consists of two elements: (i) The employer “exercised reasonable care to prevent and correct promptly any sexually harassing behavior.” This generally means that the employer adopted a written sexual harassment policy that was communicated to employees, and that contains a complaint procedure.

    (ii) The victim “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” This generally means that the victim failed to follow the complaint procedure described in the employer’s sexual harassment policy.

It is essential for any church having employees to adopt a sexual harassment policy, since this will serve as a defense to liability for a supervisor’s acts of “hostile environment” sexual harassment to the extent that a victim of such harassment does not follow the policy.

Key point. A written sexual harassment policy does not insulate a church from all sexual harassment liability. It will not serve as a defense in any of these situations: (1) a “tangible employment decision” has been taken against an employee; (2) incidents of quid pro quo sexual harassment; or (3) a victim of a supervisor’s hostile environment sexual harassment pursues his or her remedies under the employer’s sexual harassment policy.

Key point. EEOC guidelines contain the following language: “Prevention is the best tool for the elimination of sexual harassment. An employer should take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under Title VII, and developing methods to sensitize all concerned.”

Tip. The assistance of an attorney is vital in the drafting of a sexual harassment policy.

Tip. Church insurance policies generally do not cover employment related claims, including sexual harassment. If your church is sued for sexual harassment, you probably will need to retain and pay for your own attorney, and pay any judgment or settlement amount. This often comes as a shock to church leaders. You should immediately review your policy with your insurance agent to see if you have any coverage for such claims. If you do not, ask how it can be obtained. You may be able to obtain an endorsement for “employment practices.” Also, a “directors and officers” policy may cover these claims.

Jonasson v. Lutheran Child and Family Services, 115 F.3d 436 (7th Cir. 1997)

A federal appeals court ruled that a church-operated school was guilty of sexual harassment as a result of its failure to address its principal’s offensive behavior with several female employees. A denominational agency operated a residential school for emotionally and physically impaired children. Over the course of several years, the principal of the school was accused on many occasions of sexual harassment by female employees. There was substantial evidence that school officials were aware of many of these complaints. School officials launched an investigation into the sexual harassment charges. They found that there was a significant basis to the harassment complaints. The school suspended the principal for five days without pay, ordered him to submit to a psychological assessment, and placed him on three months’ probation. It also invited an outside consultant to conduct several days of seminars on sexual harassment. Even after this corrective action, there were several instances of inappropriate behavior involving the principal. During this same year, the principal was given a satisfactory performance evaluation and a raise. Several female employees who had been harassed by the principal sued the denominational agency on the ground that it was legally responsible for the principal’s acts because of its failure to respond adequately to the accusations against him. A trial court ruled in favor of the women, and awarded them $300,000 in damages. A federal appeals court upheld this ruling. It referred to the “long-term, ostrich-like failure” by denominational and school officials to “deal forthrightly with [the principal’s] treatment of female employees.” The court observed that “the jury was entitled to conclude that [the agency] not only looked the other way for many years but that its corrective action was woefully inadequate, as demonstrated by [the principal’s] later conduct.” This case illustrates the importance of dealing promptly with complaints of sexual harassment. Letting years pass without addressing complaints of harassment will only increase significantly a church’s risk of liability. After several years of complaints, the agency finally suspended the principal for five days, ordered a psychological assessment, imposed a three-month probationary period, and invited consultants to conduct sexual harassment training. These acts may seem thorough and adequate, but the court concluded that they were not sufficient to avoid liability for sexual harassment, because (1) the complaints against the principal had occurred over so many years; (2) the principal’s acts of harassment were so pervasive; (3) the agency waited years before acting; (4) the agency’s response was insufficient, since the principal continued to engage in harassment even after he was disciplined; and (5) the principal received a satisfactory employee evaluation and a raise during the same year that he was disciplined for harassment.

Smith v. Raleigh District of the North Carolina Conference of the United Methodist Church, 63 F.Supp.2d 694 (E.D.N.C. 1999)

A federal court in North Carolina ruled that the First Amendment did not prevent it from resolving a sexual harassment claim brought by two nonminister church employees against their church. A church’s receptionist and the pastor’s secretary (both of whom were female) claimed that the pastor had sexually harassed them, and they sued the church and a denominational agency for damages. They claimed that the church defendants were responsible for the pastor’s repeated acts of hostile environment sexual harassment since he was a supervisory employee. In particular, the women alleged that the defendants failed to take timely and appropriate action to correct the problem. The court noted that the women were “secular, lay employees who performed non religious, administrative tasks for a religious institution,” and that a resolution of their sexual harassment claim would not violate the First Amendment. It further noted that “an employer’s liability for its employee’s sexual harassment of another individual may be premised on the employer’s own negligence. An employer is negligent with respect to sexual harassment if it knew or should have known about the conduct but failed to stop it.” The court concluded that it could decide whether or not the church and denomination “took some action that was reasonably calculated to put an end to the abusive environment” without any inquiry into religious doctrine.

A number of courts have ruled in recent years that homosexuality does not disqualify someone from working with minors.

Risk 11: Using Homosexuals as Youth or Children’s Workers

Does the use of homosexual adults as volunteers in a church’s youth or children’s program expose the church to an increased risk of liability? A number of courts have ruled in recent years that homosexuality does not disqualify someone from working with minors. To illustrate, one federal court observed that there was not “one scintilla of credible evidence to suggest that homosexuals pose a greater risk of committing sexual molestation, assault, or criminal conduct than heterosexuals” and that “to find otherwise would be to hold that homosexuals are predisposed towards molesting or sexually assaulting minor males simply by virtue of their sexual orientation. The court cannot and will not adopt such a position absent sufficient evidentiary support.” Doe v. British Universities N.A. Club, 788 F. Supp. 1286 (D. Conn. 1992).

In 2000, the United States Supreme Court ruled, by a vote of 5-4, that a New Jersey civil rights law requiring the Boy Scouts to use a gay activist as a scout leader violated the Boy Scouts’ First Amendment right of association. Boy Scouts of America v. Dale, 530 U.S. 640 (2000). This case is significant because four of the Court’s nine justices saw no reason why homosexual men should not be allowed to oversee adolescent males in scouting programs, and the other five justices did not specifically address the issue.

Key point. These cases do not suggest that churches are legally required to employ homosexuals as volunteer or compensated youth workers. Rather, they suggest that churches that choose to utilize homosexuals as children’s and youth workers are not exposing minors or themselves to an elevated risk so long as they use the same procedures employed in screening heterosexual volunteers and uncover no information suggesting that the person poses a risk of harm to minors.

Risk 12: Employment Discrimination Based on Sexual Orientation

Several states have enacted laws prohibiting employers from discriminating against employees and applicants for employment on the basis of their sexual orientation. All of them contain an exemption for religious organizations. Even without such an exemption, it is unlikely that the civil courts would apply such a law to the relationship between a church and its ministers.

A few courts have addressed the liability of religious organizations for discriminating against employees on the basis of their sexual orientation. Illustrative cases are summarized below.

Bryce v. Episcopal Church in the Diocese of Colorado, 289 F.3d 648 (10th Cir. 2002)

A federal appeals court ruled that it was barred by the First Amendment guaranty of religious freedom from resolving a claim that a church had engaged in unlawful sex discrimination by dismissing a non-ordained female youth pastor because of her “marriage” to another woman. It noted that “the courts have recognized a ministerial exception that prevents adjudication of Title VII employment discrimination cases brought by ministers against churches. The right to choose ministers is an important part of internal church governance and can be essential to the well-being of a church, for perpetuation of a church’s existence may depend upon those whom it selects to preach its values, teach its message, and interpret its doctrines both to its own membership and to the world at large.” The court concluded that “when a church makes a personnel decision based on religious doctrine, and holds meetings to discuss that decision and the ecclesiastical doctrine underlying it, the courts will not intervene.”

Callahan v. First Congregational Church, 808 N.E.2d 301 (Mass. Sup. 2004)

A Massachusetts court ruled that the civil courts are barred by the First Amendment from resolving clergy employment disputes regardless of whether the church is congregational or hierarchical in polity. A church dismissed its pastor. The former pastor sued the church on several grounds, including unlawful employment discrimination based on his “perceived sexual orientation.” A state appeals court concluded that the First Amendment barred the civil courts from resolving all clergy employment disputes regardless of church polity. It concluded, “Congregational as well as hierarchical churches are entitled to autonomy over church disputes touching on matters of doctrine, canon law, polity, discipline, and ministerial relationships. To conclude otherwise would violate fundamental precepts of the First Amendment … guaranteeing free exercise of religion.”

Risk 13: Same-Sex Marriages

In recent years, a number of state courts and legislatures have recognized the legal validity of same-sex marriages. Such precedent raises a number of important questions for churches and clergy, including the following:

  • Can ministers who are opposed to same-sex marriages on the basis of religious convictions be liable for refusing to perform a same-sex marriage for a couple who asks them to do so?
  • Can a church be liable if it refuse to allow same-sex couples to use its facilities for a marriage ceremony?

The highest courts in four states have recognized the legal validity of same-sex marriages. In each case, the court expressly ruled that ministers and churches are not required to perform or accommodate a same-sex marriage in violation of their religious convictions.


In a 2003 ruling, the Massachusetts Supreme Judicial Court recognized the legal validity of same-sex marriages, but made the following statement:

Our decision in no way limits the rights of individuals to refuse to marry persons of the same sex for religious or any other reasons. It in no way limits the personal freedom to disapprove of, or to encourage others to disapprove of, same-sex marriage. Our concern, rather, is whether historical, cultural, religious, or other reasons permit the State to impose limits on personal beliefs concerning whom a person should marry. Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003).


In a 2008 ruling that was later overturned by Proposition 8, the California Supreme Court recognized the legal validity of same-sex marriages, but made the following statement:

Affording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.

The Court cited Article I, Section 4, of the California Constitution as support for this conclusion. This section, which was added to the California Constitution in 1974, provides, in relevant part: “Free exercise and enjoyment of religion without discrimination or preference are guaranteed.”

The Court’s ruling, then, contains an unequivocal recognition of two fundamental principles: (1) no church would be required to perform a same-sex marriage, or any other marriage, that violates its religious beliefs; and (2) no minister would be required to perform a marriage in violation of his or her religious beliefs. And, on these points, the court was unanimous. In re Marriage Cases, 43 Cal.4th 757 (Cal. 2008).


In a 2008 ruling, the Connecticut Supreme Court recognized the legal validity of same-sex marriages, but made the following statement:

Finally, religious autonomy is not threatened by recognizing the right of same sex couples to marry civilly. Religious freedom will not be jeopardized by the marriage of same sex couples because religious organizations that oppose same sex marriage as irreconcilable with their beliefs will not be required to perform same sex marriages or otherwise to condone same sex marriage or relations. Because, however, marriage is a state sanctioned and state regulated institution, religious objections to same sex marriage cannot play a role in our determination of whether constitutional principles of protection mandate same sex marriage. Kerrigan v. Commissioner of Public Health. 957 A.2d 407 (Conn. 2008).


In a 2009 ruling, the Iowa Supreme Court recognized the legal validity of same-sex marriages, but made the following statement: It is quite understandable that religiously motivated opposition to same-sex civil marriage shapes the basis for legal opposition to same-sex marriage, even if only indirectly. Religious objections to same-sex marriage are supported by thousands of years of tradition and biblical interpretation. The belief that the “sanctity of marriage” would be undermined by the inclusion of gay and lesbian couples bears a striking conceptual resemblance to the expressed secular rationale for maintaining the tradition of marriage as a union between dual-gender couples, but better identifies the source of the opposition. Whether expressly or impliedly, much of society rejects same-sex marriage due to sincere, deeply ingrained-even fundamental- religious belief ….

We, of course, have a constitutional mandate to protect the free exercise of religion in Iowa, which includes the freedom of a religious organization to define marriages it solemnizes as unions between a man and a woman. This mission to protect religious freedom is consistent with our task to prevent government from endorsing any religious view. State government can have no religious views, either directly or indirectly, expressed through its legislation. This proposition is the essence of the separation of church and state ….

In the final analysis, we give respect to the views of all Iowans on the issue of same-sex marriage-religious or otherwise by giving respect to our constitutional principles. These principles require that the state recognize both opposite-sex and same-sex civil marriage. Religious doctrine and views contrary to this principle of law are unaffected, and people can continue to associate with the religion that best reflects their views. A religious denomination can still define marriage as a union between a man and a woman, and a marriage ceremony performed by a minister, priest, rabbi, or other person ordained or designated as a leader of the person’s religious faith does not lose its meaning as a sacrament or other religious institution. The sanctity of all religious marriages celebrated in the future will have the same meaning as those celebrated in the past. The only difference is civil marriage will now take on a new meaning that reflects a more complete understanding of equal protection of the law. This result is what our constitution requires. Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009).

Like the California Supreme Court, the Iowa Supreme Court unequivocally recognized two fundamental principles: (1) no church will be required to perform a same-sex marriage, or any other marriage, that violates its religious beliefs; and (2) no minister will be required to perform a marriage in violation of his or her religious beliefs. In other words, the very concerns that formed the basis for the above-mentioned recommendations were effectively addressed by the Court.

In summary, every state supreme court that has recognized the validity of same-sex marriage has also recognized the freedom of clergy and churches not to participate in such marriages. Other courts, in future cases, may not reach this same conclusion. But, given the current understanding of the First Amendment religion clauses, such an outcome appears very unlikely for the foreseeable future.

Key point. Several decisions of the United States Supreme Court strongly suggest that the civil courts are barred by the First Amendment guaranty of religious freedom from compelling ministers to perform marriages in violation of their religious beliefs, or subjecting them to civil or criminal liability for refusing to do so. To illustrate, in 1952 the Supreme Court observed that its prior decisions “radiate a spirit of freedom for religious organizations, and independence from secular control or manipulation, in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952).

Key point. Several state constitutions define marriage as a union between a man and a woman. State supreme courts are powerless to alter such provisions.


No one understands or appreciates risk better than insurance companies. Risk evaluation is their business. As a result, it is very important to observe that a number of church insurance companies have reduced the insurance coverage they provide for sexual misconduct, and in some cases they have excluded it entirely. Some insurance companies are suggesting that these incidents are excluded under the provision in most policies excluding damages based on intentional, criminal conduct (most acts of sexual molestation involve criminal activity).

Church leaders should review their church liability insurance policy to determine whether the church has any coverage for acts of sexual misconduct, and if so, whether such coverage has been limited in any way. If you fit within either category, consult with your insurance agent and an attorney to evaluate the sufficiency of your coverage.

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

This content is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. "From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations." Due to the nature of the U.S. legal system, laws and regulations constantly change. The editors encourage readers to carefully search the site for all content related to the topic of interest and consult qualified local counsel to verify the status of specific statutes, laws, regulations, and precedential court holdings.

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