Separation, Neutrality, and Clergy Liability for Sexual Misconduct

Immediately after a church service, a cleric approaches a woman congregant (whom he knows only through her attendance at church services) and asks her to meet with him in his church office. During that meeting, he raises with her the importance of their faith and religious tradition and tells her that if she were a true believer, she would agree to give him physical comfort in order to provide him the strength necessary to pursue his religious mission.1 She agrees to the sexual relationship. Some time later, she develops anxiety and other psychological ills as a result of her guilt and stress surrounding this relationship. Eventually, she sues him in civil court for violating his fiduciary duty to her as her minister. Should the court recognize her claim, or should her action be dismissed as violative of the religion clauses of the First Amendment? I. INTRODUCTION The issues raised by the foregoing hypothetical are as intricate and as troubling as any that exist in the area of law and religion.2 Whether, or when, clergy and religious institutions should be liable for sexual misconduct3 is a question as politically charged as it is complex, involving matters as diverse as defining the scope of vicarious corporate liability, mapping the constitutional boundaries in the relations between church and state, and exploring the power imbalances inherent in consensual sexual relations between group leaders and followers. There are no easy ways to balance the many competing interests at stake, and there are no easy answers. Professors Ira C. Lupu and Robert W. Tuttle, however, take on the considerable challenges posed by the clergy and church sexual misconduct question in their remarkable paper, Sexual Misconduct and Ecclesiastical Immunity.4 It is an outstanding work. Despite the difficulties inherent in their project, Professors Lupu and Tuttle address the numerous issues at stake with exceptional dispassion and rigor, and they do not shy away from making the hard decisions. Their solutions, I am sure, will not fully satisfy any of the competing interests involved.5 No one, however, will fairly be able to criticize the power and honesty of their arguments.6 Nevertheless, one of the matters over which Professors Lupu and Tuttle are likely to generate criticism is their response to the question posed in our introductory hypothetical-should the civil courts recognize a breach of fiduciary duty claim for sexual misconduct against a cleric brought by one of his adult congregants?7 To Professors Lupu and Tuttle, the answer is no (unless the cleric is acting, in effect, as a secular therapist)8-on the basis of what is, essentially, a jurisdictional ground. They contend that submitting the clergy-congregant sexual misconduct issue to civil courts violates structural concerns of church-state separation9 because it requires judges to investigate the religious significance of the clergy-congregant relationship and therefore improperly enmeshes the civil courts in resolving internal church issues such as the meaning of a sect's theology or the nature of its polity.10 Such matters, according to Professors Lupu and Tuttle, are simply beyond the civil courts' competence.11 Professors Lupu and Tuttle's conclusion that clergy should not be liable for sexual misconduct with adult congregants is, of course, controversial in result. Some courts and commentators, for example, have taken precisely the opposite view and have suggested that fiduciary liability may arise from the religious quality of the clergy-congregant relationship.12 The authors' reasoning, however, is also controversial because it is based on a premise that is the exception in contemporary religion clause jurisprudence.13 Generally, as Lupu and Tuttle note,14 First Amendment law posits that religion and nonreligion are indistinct for constitutional purposes (the "neutrality" or "equality" model).15 Accordingly, the central constitutional inquiry is whether religion and nonreligion are being treated equally with respect to the matter at hand. …