Key point 10-10.02. Many courts have ruled that the First Amendment prevents churches from being legally responsible on the basis of negligent supervision for the sexual misconduct of ministers.
This section reviews court decisions in which a church or other religious organization was found not liable on the basis of negligent supervision for a minister’s sexual contact with an adult. Many courts have concluded that the First Amendment’s “nonestablishment of religion” and “free exercise of religion” clauses prevent the civil courts from resolving negligent supervision claims involving clergy misconduct. To illustrate, the United States Supreme Court observed in a landmark case more than a century ago: “It would therefore also be inappropriate and unconstitutional for this court to determine after the fact that the ecclesiastical authorities negligently supervised or retained the defendant Bishop. Any award of damages would have a chilling effect leading indirectly to state control over the future conduct of affairs of a religious denomination, a result violative of the text and history of the establishment clause.”128 Watson v. Jones, 80 U.S. 679 (1871).
Some courts have noted the inherent difficulty of supervising ministers in the performance of their duties, and in particular their counseling activities. As one court observed:
By the nature of the position, a clergyperson has considerable freedom in religious and administrative leadership in a church. The clergy also require privacy and confidentiality in order to protect the privacy of parishioners. There was no evidence that the supervision provided by [the church] differed from the supervision a reasonable church would provide. Nor was there any evidence of further reasonable supervision that could have prevented [the pastor] from abusing [the victim]. There was not enough evidence from which a reasonable jury could conclude that [the church] negligently supervised [the pastor].129 M.L. v. Magnuson, 531 N.W.2d 831 (Minn. App. 1995).
Tip. A number of courts, in addressing the question of whether clergy are employees or self-employed for federal income tax reporting purposes, have observed that churches generally exercise relatively little supervision or control over clergy.130 See, e.g., Weber v. Commissioner, 60 F.3d 1104 (4th Cir. 1995).Such cases can be used by churches in defending against negligent supervision claims involving clergy misconduct.
- A federal appeals court ruled that a religious order was not responsible for the alleged seduction of a female parishioner by a Catholic priest.131 Doe v. Cunningham, 30 F.3d 879 (7th Cir. 1994).The woman sued the religious order claiming that it was responsible for her injuries on the basis of several grounds, including negligent supervision. The court concluded that the order was not responsible for the priest’s misconduct on the basis of negligent supervision, since it had no duty to supervise him. While it was true that the order had received a complaint about the priest’s behavior with another woman some eight years before, the priest performed his duties under the direction and control of the archbishop and was accountable to the archbishop. Accordingly, the order had no duty to supervise the priest’s actions.
- The Colorado Supreme Court ruled that a diocese was not responsible for a priest’s sexual contacts with a woman during counseling.132 Destefano v. Grabian, 763 P.2d 275 (Colo. 1988).The woman sued the diocese on the basis of a number of grounds, including negligent supervision. Specifically, she alleged that the diocese had knowledge of previous indiscretions by the same priest, which had the effect of imposing upon the diocese a duty to supervise him. The court observed that a religious organization may be liable for negligent supervision if it has reason to know that a minister is likely to harm others. Liability results “because the employer antecedently had reason to believe that an undue risk of harm would exist because of the employment.” The court concluded that “a person who knows or should have known that an employee’s conduct would subject third parties to an unreasonable risk of harm may be directly liable to third parties for harm proximately caused by his conduct.”
- A federal court in New York refused to find a pastor guilty of malpractice on the basis of his sexual seduction of a church member he had counseled for several years.133 Schmidt v. Bishop, 779 F. Supp. 321 (S.D.N.Y. 1991).The woman sued the church and a denominational agency on the basis of several grounds, including negligent supervision. In rejecting this basis of liability, the court observed, “[A]ny inquiry into the policies and practices of the church defendants in hiring or supervising their clergy raises … First Amendment problems of entanglement … which might involve the court in making sensitive judgments about the propriety of the church defendants’ supervision in light of their religious beliefs. Insofar as concerns retention or supervision, the pastor of a Presbyterian church is not analogous to a common law employee. He may not demit his charge nor be removed by the session, without the consent of the presbytery, functioning essentially as an ecclesiastical court. The traditional denominations each have their own intricate principles of governance, as to which the state has no rights of visitation. Church governance is founded in scripture, modified by reformers over almost two millennia. As the Supreme Court stated [long ago]: ‘It is not to be supposed that the judges of the civil courts can be as competent in the ecclesiastical law and religious faith of all these bodies as the ablest men in each are in reference to their own. It would therefore be an appeal from the more learned tribunal in the law which should decide the case, to the one which is less so.’134 Watson v. Jones, 80 U.S. 679 (1872).It would therefore also be inappropriate and unconstitutional for this court to determine after the fact that the ecclesiastical authorities negligently supervised or retained the [pastor]. Any award of damages would have a chilling effect leading indirectly to state control over the future conduct of affairs of a religious denomination, a result violative of the text and history of the [First Amendment].”
- The Ohio Supreme Court ruled that a church was not liable on the basis of negligent supervision for a pastor’s sexual contact with a woman during counseling.135 Stock v. Pressnell, 527 N.E.2d 1235 (Ohio 1988).The church had been sued by the former husband of the woman, who claimed that the pastor’s conduct resulted in the breakdown of their marriage. The supreme court concluded that the First Amendment guaranty of religious freedom did not prevent churches from being sued on the basis of a minister’s sexual misconduct since “we find it difficult to conceive of pastoral fornication with a parishioner or communicant as a legitimate religious belief or practice in any faith.” The court concluded, however, that the minister could not be liable for any injury suffered by the former husband, since any liability based on “alienation of affections” had been abolished by the legislature several years before. The court concluded that the church could not be liable if the pastor was not: “[A]n underlying requirement in actions for negligent supervision and negligent training is that the employee is individually … guilty of a claimed wrong against the employer. Because no action can be maintained against [the minister] in the instant case, it is obvious that any imputed actions against the church are also untenable.” The court emphasized that it found the alleged conduct on the part of the minister to be “reprehensible,” but concluded that there was no basis for relief available to the husband.