Document Type


Publication Date





This paper critically analyzes the possibility and structure of First Amendment defenses to actions, both private and public, arising out of sexual misconduct by members of the clergy. Part I traces the expansion of relevant theories of tort and criminal liability, and the waning of immunities, constitutional and statutory, that once applied to such actions. Part II of the paper advances a normative theory of the constitutional distinctiveness of religion, and ties that theory to the possibility of ecclesiastical immunity. Most conceptions of such immunity represent assertions of the liberty of religious organizations, and are grounded in the Constitution's Free Exercise Clause. Our approach, however, is grounded in the Establishment Clause, and proceeds from a vision of jurisdictional limits on civil government. Part III of the paper then brings the lessons of Part II to bear on the particular problems of sexual abuse by clergy, and the criminal and civil liability of secondary actors and enterprises for such misconduct.

Woven into the fabric of Part III are three major themes. First, those who perpetrate sexual harms against children, or against others who lack capacity to consent, have no claim of ecclesiastical immunity. Second, the religious status of persons, and the religious character of institutions should not give rise to fiduciary duties as a matter of law. The judicial creation of such duties violates the constitutional prohibition on discrimination against religion as compared with its secular counterparts. Third, adjudication of wrongful acts in the hiring and supervision of clergy must be conducted with sensitivity to constitutional concerns of both substance and process. Borrowing from the law concerning First Amendment limitations on the tort liability of the press, we argue that liability of supervising institutions should be limited to cases involving an intentional failure to supervise, and that processes of adjudication should be tailored to maintain compliance with that standard.

Included in

Law Commons