Court Could Resolve Malpractice Suit Against Deacon

The First Amendment does not necessarily bar all claims that may touch upon religious conduct.

Key point 4-05 . Most courts have rejected clergy malpractice as a basis for liability in all cases. A few courts have found clergy members guilty of malpractice for engaging in sexual misconduct with an adult or minor, or if they engage in “nonreligious” counseling.

A Texas appeals court ruled that it was not barred by the First Amendment or “ecclesiastical abstention doctrine” from resolving a clergy malpractice lawsuit against a religious organization.


A married couple were active members of a Catholic church for 15 years. The wife sought out a church deacon for marriage and family counseling.

In time, the husband (the “plaintiff”) noticed an unusual closeness between the deacon and his wife, and he discovered that the two were having an affair. The couple later divorced.

Appeals court: not all religious conduct claims are necessarily barred

The plaintiff sued the deacon and archdiocese on several grounds, including malpractice (negligent counseling). A trial court dismissed all claims, and the plaintiff appealed.

On appeal, the plaintiff argued that the trial court should have allowed the claims of professional malpractice to proceed to trial because some courts have recognized causes of action for such claims.

The appeals court made the following observation:

Pursuant to the First Amendment, government action is not permitted to burden the free exercise of religion by interfering with an individual’s observance or practice of a particular faith or by encroaching on a church’s ability to manage its internal affairs. . . . Accordingly, the First Amendment “severely circumscribes” the role that civil courts may play in resolving church-related ecclesiastical disputes. . . . For example, civil courts cannot inquire into matters concerning “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them.” (Serbian E. Orthodox Diocese for U.S. of Am. & Can. v. Milivojevich, 426 U.S. 696, 713-14 (1976)). This constitutional limitation is implemented in Texas through the ecclesiastical abstention doctrine.

However, the First Amendment does not necessarily bar all claims that may touch upon religious conduct. . . Churches, their congregations, and their hierarchies function within the civil community and, where appropriate, are subject to rules governing property rights, torts, contracts, and criminal conduct. . . . Texas courts decide non-ecclesiastical issues based on the same neutral principles of law applicable to other entities while deferring to religious entities’ determinations on ecclesiastical and church policy questions.

As the Texas Supreme Court noted, the “differences between ecclesiastical and non-ecclesiastical issues will not always be distinct” because many disputes “require courts to analyze church documents and organizational structures to some degree.” Masterson v. Diocese, 422 S.W.3d at 606 [2013]. Therefore, the court must determine whether a particular dispute is “ecclesiastical” or simply a civil law controversy in which a church or church official happens to be involved—a determination made by examining the substance and effect of the plaintiff’s petition . . . (“the key inquiry is whether a judicial resolution will encroach on the institution’s governance and affairs”).

The court noted that “courts have addressed a wide variety of disputes involving religious organizations; here, we focus on those analyzing the ecclesiastical abstention doctrine in the counseling context.” The deacon and archdiocese argued “that claims based on marital counseling services provided by a member of the clergy impinge on a church’s ability to manage its affairs” and therefore are barred by the ecclesiastical abstention doctrine. The court disagreed:

[T]he allegations at issue here do not clearly intrude upon a religious matter or interfere with the Archdiocese’s ability to manage its internal affairs. [The plaintiff] does not allege that the conduct forming the basis of his claims (i.e., the family and marriage counseling . . .) was grounded in religious doctrine or otherwise undertaken pursuant to guidance from the Archdiocese. Instead, [the plaintiff] alleges that [the deacon] was having [an affair with his wife] and had a history of “inappropriate relationships with others.” These general allegations do not implicate any religious standards or indicate that judicial resolution of this dispute will encroach upon the Archdiocese’s internal affairs or religious doctrine. Therefore, they do not affirmatively demonstrate that the underlying dispute is inherently ecclesiastical as necessary to warrant First Amendment protection.

What this means for churches

Ministers who engage in counseling as a part of their ministry should be aware of the following conclusions regarding “clergy malpractice”:

  1. No court has found a minister liable on the basis of malpractice for the content of his or her counseling.
  2. Most courts have refused to find ministers liable on the basis of malpractice for sexual misconduct with counselees, on the basis of either or both of the following two grounds.

    First, by exempting clergy from the licensing requirements that apply to other counselors, most state legislatures recognize that “the secular state is not equipped to ascertain the competence of [pastoral] counseling.” Second, “it would certainly be impractical, and quite possibly unconstitutional, to impose a duty of care on pastoral counselors” since such a duty “would necessarily be intertwined with the religious philosophy of the particular denomination or ecclesiastical teachings of the religious entity” (the court quoting from a 1981 law review article).

  3. A few courts have recognized malpractice claims against clergy in either or both of the following two situations: sexual misconduct with an adult or minor, or “nonreligious” counseling.
  4. It is advisable for churches to obtain counseling liability or malpractice insurance. While the likelihood of a church being successfully sued for clergy malpractice is very remote, the likelihood of being sued for clergy malpractice is conceivable. With malpractice insurance, the insurer will be responsible to retain and pay for the church’s legal defense.
  5. Mosby v. Kleinguetl, 2021 WL 824779 (Tex. App. 2021).

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