An Itty· Bitty Immunity and Its Consequences for The Church of Jesus Christ of Latter·day Saints: A Response to Professors Lupu and Tuttle

I. INTRODUCTION The confluence of religion and sexual abuse has become a matter of substantial debate. Everyone agrees that sexual abuse by a member of the clergy is wrong. The arguments erupt when we begin to tease out when sex is abusive and what to do about it, particularly what the law should do about it. For those committed to the preservation of religious autonomy in the United States, the unfettered tort liability of religious institutions is not a comfortable prospect, although the train seems to have left the station headed in that direction.1 Finding a compromise between using social and state authority to address the admitted evil of the abuse of power-particularly as it rains down primarily on women and children-and preserving of religious freedom is a daunting task. Professors Ira C. Lupu and Robert W. Tuttle's paper, Sexual Misconduct and Ecclesiastical Immunity? effectively traces the history and status of the ecclesiastical immunity doctrine and then attempts to provide a framework for understanding a widely divergent and inconsistent body of case law arising from claims of sexual abuse by clergy. They categorize cases by their doctrinal premises, providing a basis for a clearer and more consistent understanding of existing law. Professors Lupu and Tuttle then provide a normative argument for preserving some form of ecclesiastical immunity from the onslaught of unrestricted tort liability,3 but only in "highly particularized legal contexts."4 Professors Lupu and Tuttle assert that the free exercise approach to ecclesiastical immunity is a dead end.5 They resort instead to the Establishment Clause and the notion that with Separationism "government is constitutionally disabled from addressing or asserting control over ultimate questions."6 Based on this principle, they propose, first, to shield the individual priest/perpetrator when the abuse involves an adult victim, is not a crime, and does not arise during a secular7 or secular-like8 counseling relationship. With respect to individual liability, Professors Lupu and Tuttle argue that, when claims reach beyond offending clergymen9 to the sponsoring organization, such claims "cannot help but touch the institutional arrangements and theological understandings that inform the structure of faith communities and their leadership,"10 since churches will feel the pressure to "internalize state-imposed changes in organizational structure"11 and will ultimately be forced to "rearrange[] . . . structure, policy or practice."12 Professors Lupu and Tuttle then offer suggestions for the protection of churches and supervisors, including primarily a proposal to limit liability for negligent hiring, training, and supervising to cases in which the defendant had "actual malice," as that standard has developed in the freedom of the press cases.13 I ally myself with Professors Lupu and Tuttle on many fronts. I am sympathetic to the concerns raised in Sexual Misconduct regarding the risks to churches, and I endorse Professors Lupu and Tuttle's stated objective of finding "an optimal legal arrangement [that will] balance the concerns of the tort system ... on one hand, with the constitutional concerns regarding structural autonomy of religious institutions, on the other."14 I also accept, for purposes of this Article, Professors Lupu and Tuttle's position that the Establishment Clause, for the reasons given in Sexual Misconduct, provides doctrinal support for at least some protections to religious organizations from the consequences of tort liability. I assume, for purposes of this response, that adult victims15 are almost exclusively female.16 Finally, I accept Professors Lupu and Tuttle's notion that standards drawn from the law of libel can provide a structure for reconciling tort law and the constitutional interests of religions in the context of liability for the wrongful hiring, training, and supervising of clergy.17 Beyond these points of consensus, however, I fear that the "legal arrangement"18 offered by Professors Lupu and Tuttle provides an insufficient account of the "distinctive constitutional place of religious institutions. …