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Tort Claims Against Churches and Ecclesiastical Officers: the Irsf T Amendment Considerations Carl H University of Missouri School of Law Scholarship Repository Faculty Publications 1986 Tort Claims against Churches and Ecclesiastical Officers: The irsF t Amendment Considerations Carl H. Esbeck University of Missouri School of Law, [email protected] Follow this and additional works at: http://scholarship.law.missouri.edu/facpubs Part of the Religion Law Commons Recommended Citation Carl H. Esbeck, Tort Claims Against Churches And Ecclesiastical Officers: The irF st Amendment Considerations, 89 W. Va. L. Rev. 1 (1986) This Article is brought to you for free and open access by University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of University of Missouri School of Law Scholarship Repository. West Virginia Law Review Volume 89 Fall 1986 Number I TORT CLAIMS AGAINST CHURCHES AND ECCLESIASTICAL OFFICERS: THE FIRST AMENDMENT CONSIDERATIONS CARL H. ESBECK* t © 1986 I. INTRODUCTION ............................................... 2 II. THE INSTITUTIONAL INTEGRITY OF CHURCHES IN THE FIRST AMENDMENT ................................................. 8 A . The Theory ............................................. 8 B. The Supreme Court Case Law ............................ 14 1. Ecclesiastical Disputes ................................ 14 2. Establishment Clause ................................. 23 3. Free Exercise Clause ................................. 32 4. Freedom of Expression ............................... 35 III. THE CHURCHES' VIEWS ....................................... 38 A. The History of Church Discipline and Confession .......... 40 1. Early Centuries ...................................... 40 2. M iddle Ages ........................................ 53 3. Reformation Era .................................... 58 B. Current Practices of Representative Denominations ......... 63 1. Roman Catholic ..................................... 63 2. Episcopalian ......................................... 67 * Professor of Law, University of Missouri-Columbia. B.S., 1971, Iowa State University; J.D., 1974, Cornell University. The author acknowledges Mr. Jared R. Cone, J.D., 1986, University of Missouri-Columbia, for his able work on part III of this article. t Copyright 1986 by C. H. Esbeck. HeinOnline -- 89 W. Va. L. Rev. 1 1986-1987 2 WEST VIRGINIA LAW REVIEW [Vol. 89 3. United M ethodist .................................... 69 4. Presbyterian ......................................... 72 5. Congregational/Bapist ................................ 74 IV. THE TORT CLAIMS ........................................... 76 A. Pastoral Counseling and Spiritual Guidance ................ 78 1. Clergy M alpractice ................................... 78 2. Breach of Confidential Communication ................ 84 3. Seduction & Child Molestation ........................ 87 4. Alienation of Affections .............................. 88 B. Church Discipline ....................................... 91 1. Selection, Discipline & Removal of Religious O fficers ............................................. 91 2. Discipline of Church Members ........................ 97 C. Tort Claims Arising Outside the Course of Counseling and Discipline ...................................... 104 D. Religious Fraud ......................................... 107 E. Alleged "Mind Control" and New Religious M ovements ......................................... 109 V. CONCLUSION ...................................................... 113 I. INTRODUCTION Federal and state courts are increasingly confronted with the unenviable task of giving legal definition to matters affecting relations between religion and gov- ernment.' Many of the lawsuits pitting church against state are surface manifes- tations of a more fundamental disintegration of an American public philosophy.2 I The Religious Freedom Reporter, a monthly publication of the Center for Law and Religious Freedom, has been digesting cases concerning religious liberty in the state and federal courts since January 1981. Approximately 1,000 known cases are currently pending at various trial and appellate levels in the United States. Roughly one-third of these cases concern the religiously motivated actions of individuals and two-thirds involve the relationship between government and organized religion. 2 See generally A. REICHLEY, RELIGION IN AMERICAN PUBLIC LIFE (1985); R. NEUHAUS, THE NAKED PUBLIC SQUARE: RELIGION AND DEMOCRACy IN AMERICA (1984); M. HARRINGTON, THE POLITICS AT GOD'S FUNERAL: THE SPIRITUAL. CRIsFs OF WESTERN CIVILIZATION (1983); W. SULLIVAN, RECON- STRUCTING PUBLIC PHILOSOPHY (1982); Reich, Toward a New PublicPhilosophy, ATL. MONTHLY May 1985 at 68; Krauthammer, America's Holy War: Proposalfor an Arinistice, NEw REPUBLIC Apr. 9, 1984 at 15; Stackhouse, An Ecumenist's Plea for a Public Theology, THIS WORLD Sp./Sum. 1984 at 47. HeinOnline -- 89 W. Va. L. Rev. 2 1986-1987 19861 TORT CLAIMS AGAINST CHURCHES Simply put, the unabated expansion of our much-celebrated democratic pluralism has also considerably diminished those ultimate values on which Americans can claim a broad political-moral consensus. 3 If there are rents in the social fabric, ideological border wars will surely follow. This is especially inevitable in the case of organized religion, for most world religions make theological claims beyond the personal and the private.4 Both Judaism and Christianity, for example, are ways of looking at the totality of reality. Thus, uncompromising claims are made by them concerning the nature and limited role of the state, and qualifications are placed on the individual believer's allegiance to the state and its civic demands for compliance with public duties.5 As the state also makes affirmative demands on citizens and social institutions, often imposing a uniformity insensitive to the very religious pluralism it promotes, tensions follow many of which find their 6 way into civil court. By and large, the legislative and executive branches can maneuver around these border clashes by simply refusing to deal with them. Not so with the civil courts, for if the matter is justiciable, their duty is to hear the parties out and render a judgment. A final judgment is a very particularistic result, necessarily yielding a "winner" and a "loser." This is bound to stir emotions and generate sharp debate, for the social implications of deeply held religious views are simply not amenable to judicial resolution such as, for example, the terms of a com- mercial transaction gone awry. At the level of the United States Constitution, the courts have at their disposal a regrettably tentative, tersely expressed, and by no means umambiguous set of legal categories, since those provided by the first amendment7 and Article VI, para. [3]8 supply but limited direction. Most opinions by the United States Su- preme Court following the 1947 decision in Everson v. Board of Education9 have been read by some as shameful concessions to organized religion, and by others as reinforcing the secularization of public life and the concomitant privatization of religious faith.'0 The result has been that all the disputants are dissatisfied at I Canavan, The Pluralist Game, 44 LAW & CONTEMP. PROBS. 23 (1981); Hitchcock, Church, State, and Moral Values: The Limits of American Pluralism, 44 LAW & CONTEMP. PROBS. 3 (1981); Hitchcock, Competing Ethical Systems, IMpRimIs Apr. 1981 at 10. 4 See H. BERMAN, THE INTERACTION OF LAW AND RELIGION (1974) (all traditional religions in the West have a concern for social order and social justice that causes them to be concerned with government and law). See, e.g., Noll, Is This Land God's Land?, 30 CHRISTIANITY TODAY July 11, 1986 at 14. Carlson, Regulations and Religion: Caesar's Revenge, REGULATION May-June 1979 at 27. U.S. CONST. amend. I. The Establishment and Free Exercise Clauses together read: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." Id. U.S. CoNsT. art. VI, provides in pertinent part: "[N]o religions Test shall ever be required as a Qualification to any Office or public Trust under the United States." Everson v. Bd. of Educ., 330 U.S. 1 (1947). 10 Compare Note, Rebuilding the Wall: The Case for a Return to the Strict Interpretation of the Establishment Clause, 81 CoLuM. L. REv. 1463 (1981) with J. WHITEHEAD, THE SEPARATION ILLUSION (1977). HeinOnline -- 89 W. Va. L. Rev. 3 1986-1987 WEST VIRGINIA LA W REVIEW [Vol. 89 some time, and the "troops" are further activated for a sustained campaign in or against the halls of justice. Clarity is only momentarily achieved by each of the Court's judgments, the concurring and dissenting opinions taking their toll, and the justices seem resigned to await another opportunity to rethink their po- sition and decide again next term. This, of course, is how the law grows. But it is also the means by which confusion-and some mistakes-are introduced into juridical arrangements that were thought to be settled. This peculiarly American zeal for progress through judge-made law, an attitude that gives little regard for social conventions of the past, along with increased litigiousness in society, are responsible for the rash of new theories sounding in tort being filed against churches, clerics, and lay religious officers. Such tort claims are properly seen as part of an overall increase in government intervention in religious affairs." However, unlike those church-state conflicts involving direct federal and state
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