Bartrum on Religion and the Restatements

Here’s a very interesting piece by Ian Bartrum (UNLV) on the ways in which the Restatements of Law (assembled by the American Law Institute, the Restatements aim to condense and synthesize bodies of law) incorporate or otherwise treat religion, and how they might do so more effectively. Because the abstract is very short, but because there is a request not to cite from the paper, I’ll just say quickly that Ian divides up the treatment of religion into two components which correspond roughly to the two guarantees of religious freedom under the religion clauses. There are provisions in various Restatements that approach religion as a matter of “natural” or fundamental right (as in the Restatement of Foreign Relations and in the Restatement of Servitudes [who knew that there was a Restatement of Servitudes!?]). But there are other provisions that seek to avoid judicial entanglement in issues of personal or institutional autonomy–such as in the “Principles of the Law of Family Dissolution” involving the religion of children of divorced couples and the extent to which courts should involve themselves in making comparative judgments about religions–reflecting familiar establishmentarian concerns.

After considering several examples where the Restatements seem to evince cross-cutting views about religion, Prof. Bartrum notes a few places where the Restatements might give greater (or even some) attention to religion. The Restatement of Torts, for example, might attend to some of the recent issues involving church autonomy and the ministerial exception. And the Restatement of the Conflict of Laws might consider some of the recent issues involving the enforceability of arbitration decisions in religious contexts. I hope these suggestions are adopted by the American Law Institute.

Clergy Libel Suits and the Limits of Hosanna-Tabor

At my panel at the Federal Bar Council retreat this past weekend, someone from the audience asked the following question. After Hosanna-Tabor, last term’s Supreme Court decision endorsing the ministerial exception to the employment discrimination laws, what happens to tort claims by clergy against their churches? For example, what if a priest sues his church for defamation? Would Hosanna-Tabor bar such an action?

It turns out this is a real, live case. The New York Times reports that a defrocked Catholic priest, Charles Kavanaugh, has sued the Archdiocese of New York for defamation. Kavanaugh alleges that the archdiocese libeled him when it stated in a recent press release that a church tribunal had found him guilty of multiple counts of sexual abuse. Kavanaugh says this statement is untrue. The details aren’t really important here. The question is whether Hosanna-Tabor bars Kavanaugh’s suit.

The short answer appears to be no. The Hosanna-Tabor Court expressly declined to decide whether the ministerial exception barred “actions by employees alleging . . . tortious conduct by their religious employers.” So the question remains open. Would the logic of the ministerial exception bar a claim like Kavanaugh’s? It wouldn’t seem so. Kavanaugh does not seek to be returned to the ministry or even damages for wrongful dismissal. If he wins, a victory would have absolutely no effect on what Hosanna-Tabor says is the principal concern underlying the ministerial exception: a church’s ability to select those who will lead it and express its message.  Of course, if Kavanaugh’s claim turns on some matter of religious doctrine, for example, whether he was espousing authentic Catholic teaching, that would be different. Civil courts are not going to get entangled in that sort of dispute. But courts should be able to decide a straight-up defamation claim on neutral principles of law. I don’t think Hosanna-Tabor poses a problem here.

Florida Appellate Court: Church Autonomy Doctrine Does Not Require Dismissal of Tort Claims

Readers may remember that in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Supreme Court explicitly put to the side the question of the ministerial exception’s application to tort actions.

Here’s an interesting Florida appellate court case decided yesterday which describes some of the contours of the church autonomy doctrine in the context of relatively simple defamation and breach of fiduciary duty claims.  The plaintiff joined the First Pentecostal Church of South Brevard, Inc. and he befriended the pastor at the time.  The two developed a personal and professional friendship, and the pastor even sponsored the plaintiff to obtain a minister’s license in the greater Pentecostal church.  At some point, however, the relationship soured when the pastor accused the plaintiff of being gay and published those accusations to the congregation, including to the plaintiff’s fiancée’s father. 

Plaintiff filed a complaint for defamation and other causes of action and the defendant pastor moved to dismiss for lack of subject matter jurisdiction on the basis of the church autonomy doctrine.  The lower court dismissed.

The Florida appellate court reversed.  After finding that the church autonomy doctrine acts as a jurisdictional bar (rather than an affirmative defense…note that Hosanna-Tabor took a different view of the ministerial exception, and see also Howard Wasserman’s very good piece), the court held that the church autonomy doctrine did not shield an action by a minister of a church where there was no evidence that “the conduct in question had been undertaken ‘in furtherance of a sincerely held religious belief,’ and no claim that the church had failed to exercise control over its clergyman because of sincerely held religious beliefs and practices.”  The First Amendment, the court concluded, “does not grant Myers, as pastor of FPC, carte blanche to defame church members and ex-members . . . . This claim can be properly adjudicated without implicating the First Amendment.”

The case is Bilbrey v. Myers, 2012 WL 2465242 (Fla. App. Dist. June 29, 2012).

Hensler on Sports at a Fundamentalist Christian University and the Nature of Tort Law

Louis W. Hensler III (Regent U. School of Law) has posted Torts as Fouls: What Sports at a Fundamentalist Christian University Taught Me About the Nature of Tort Law. The abstract follows.

This essay is largely a response to John C.P. Goldberg & Benjamin C. Zipursky, Torts as Wrongs, 88 Tex. L. Rev. 917, 918 (2010). I propose a refinement of Goldberg and Zipursky’s vision. In my view, tort is better seen, not as recourse for “wrongs,” but rather as sanction for “fouls.” In other words, tort merely forces the rule-breaker to consider the consequences of his conduct rather than prohibiting the conduct altogether by a punitive sanction. I believe this refinement solves some of the problems presented by Goldberg and Zipursky’s approach.

I first started thinking about the distinction between providing recourse against a wrongdoer and sanctioning a rule breaker while I was a participant and spectator in the intramural sports program at a fundamentalist Christian university where the intentional foul (e.g., to stop the clock while time was running out in a basketball game) was not allowed. This approach seemed generally consistent with the overarching philosophy of the school – all conduct was either right or wrong. Violating rules was wrong. Intentionally violating rules, even with a willingness to accept the sanction provided by the rules of the game, was wrong. The intentional foul was an implicit rejection of moral absolutes and acceptance of moral pragmatism. I never quite came to fully accept that view of the intentional foul. Read more

English High Court Rules Catholic Priest Is Diocesan Employee, Raises Possibility of Vicarious Liability for Clergy Sex Abuse

A judge on the High Court of England and Wales ruled this week that a Catholic priest qualified as an employee of his diocese, thus exposing the diocese to vicarious liability for clergy sex abuse. The decision came in a case brought by a woman who claims that a priest abused her when she was a child. Although the priest did not have an employment contract with the diocese, the judge ruled, the diocese trained him, appointed him to his position, and held him out to the public as its representative. It provided “the premises, the pulpit, and the clerical robes” and sent the priest out into the community.

This is apparently the first time a court in the UK has held a priest to be an employee of his diocese. Dioceses usually lack day-to-day supervisory authority over priests; for this reason, courts often hold that priests are not employees, but independent contractors. The plaintiff’s victory may be less valuable than it appears, however. Vicarious liability exists where the employee commits torts while acting within the scope of his employment, and assaulting parishioners obviously falls outside a priest’s job description. The judge gave the diocese extended leave to appeal the decision. – MLM