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When the First Amendment Doesn't Apply

Why the Church is Not always Protected by the First Amendment

(and shouldn’t be!)

Many churches believe they are above reproach when it comes to abuse. These churches falsely believe that they are protected by the first amendment to the United States Constitution which grants us our God given right to “Freedom of Religion.”  While the church is protect under this amendment in some cases, it only applies to things such as religious beliefs, tenants, etc., as it pertains to the free worship of ones religion, for ones own self. However, the church is not protected by the first amendment in many cases, such as cases of abuse, coercion, theft, etc.


Amendment I

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." 

-United States Constitution

Let’s talk about the first amendment and the rights we are given by it.” 


What does this amendment actually say? Lets break it down. Although this amendment has been interpreted by the courts as applying to all of the  federal government, the amendment itself only gives the expressed applicability to the United States Congress.  There are two clauses in this amendment in regards to religion. The first is the Establishment Clause and the second is the Free Exercise clause. Both of these clauses work together, but have very specific purposes 


The “Establishment clause” protects us from the government establishing a single religion, or giving special preference to one religion over another. It makes sense that this was put in to the Bill of Rights since from the very start, those who came over on the Mayflower came for freedom from religious persecution. They were persecuted for not following the politically prescribed religion of the Church of England.


The “Free Exercise Clause” prohibits the government from interfering with an individual’s practice of religion in most cases. This does NOT apply to religious practices that involve abuse or other illegal activities, or activities that don't pertain to the establishment and free exercise clauses.


So what about a pastor who violates his profession by abusing vulnerable woman for his own pleasure while counseling her? And what about the churches legal responsibility? Can they use the first amendment defense as protection under the law? The answer is absolutely not! The first amendment protection doesn’t apply. There is no violation of anyones “free exercise” of their religion. There is no forced “establishment” of their religion either.  So what is there?


There is an absolute breach of fiduciary duty. There could be negligent hiring, supervision and retention. Depending on how the church responded to the victim, there may be an action for libel, especially in the age of social media. However, there is almost always emotional pain and suffering. This rises to the level of intentional infliction of emotional distress if the church intentionally re-victimized the woman who was taken advantage of by a member of the clergy, an all to often occurrence. Other areas of civil liability that could arise as a claim include, but are not limited to direct negligence, respondeat superior, or agency.


Fiduciary duty refers to the responsibility of caregivers (doctors, therapists, lawyers, clergy, social workers, etc.) to "do no harm."  Society's expects these caregivers to take care of the needs of those in their care to the best of their ability, and to refrain from causing any harm. Caregivers are prohibited by many state’s criminal statutes, fiduciary duty laws and by codes of ethics from exploiting their clients, patients or parishioners to meet their own emotional and psychological needs.When someone in one of these authority positions violates this trust, it can cause lifelong psychological trauma to the one who should have been able to trust them, thus creating emotional trauma, pain and suffering.


A cause of action exist for fiduciary duty when a fiduciary relationship between the victim and the church hierarchy. Section 784 of the restatement of torts “[a] fiduciary relationship exists between two people when one of them is under the duty to act for or to give advice for the benefit of another upon matters within the scope of the relationship.” Fiduciary relationships are “founded on the trust and repose by one person in the integrity and fidelity of another.” The Florida supreme court as well as the 4th and 5th DCA’s have held that action for fiduciary duty does exist if a counselor/counselee relationship existed, despite the fact that parishioners don’t contract with the church prior to counseling. (Doe v. Evans. 814 So. 2d 370, Shelly v. Masters 821 So. 2d 821, Evans, 814 So. 2d at 375)


Although intentional infliction of emotional distress is a fairly new cause of action, it is gaining recognition in many states. The Florida Supreme Court first recognized this cause in 1985. (Metropolitan Life Insurance Co. v. McCarson) The court then identified the four elements in Dependable Life Insurance Co. v. Harris. Florida courts have defined the elements as:

: (1) The defendant must have engaged in the deliberate or reckless infliction of mental suffering, (2) The conduct must be outrageous; (3) The conduct must have caused emotional distress; (4) the distress must have been severe. Florida’s 5th District court of appeals later helped to define these terms. They stated that the defendant had to act with purpose or recklessness, which means they either knew, or should have reasonably known that their actions would cause the plaintiff distress. would their actions be considered indecent or intolerable by a reasonable person. (reasonable person standard and Williams v. City of Minneola, 619 So. 2d 983 Fla 5th DCA 1993) 


Then there is respondeat superior. This action can be brought forth even if the church itself has committed no wrongs separate from the wrongs of the offending clergy. This is because the church hierarchy (governing body, such as the board) has vicarious liability for the conduct of it’s employees. The doctrine of respondeat superior, the employer is liable for the tortious or criminal conduct of an employee if the misconduct occurred during the course of the employment.


Now we come to negligent hiring, supervision, and retention. While respondeat superior can be brought forward as an action, negligent hiring, supervision and retention has an easier standard of proof. While both are similar, and hold the employer liable for the employees misconduct, it doesn’t require the plaintiff to allege the misconduct was within the scope of employment.


The Second Restatement to Torts explains that :

“a master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him rom intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them if (a) the servant (i) is upon the premises in possession of the master or upon which the servant is permitted to enter only as his servant, or (ii) is using a chattel of the master. and (b) the master (i) knows or has reason to know that he has the ability to control his servant, and (ii) know or should know of the opportunity for exercising such control.”             (Second Restatement of Torts)


In Mallory v. O’neil, The Florida Supreme Court held that an employer may be liable when he knowingly employed a dangerous person, or should have known the potential for the employee to do harm. This is because:


  1. the employer was required, but failed to make appropriate investigation of the                            employee.

  2. An appropriate investigation would have revealed the unfitness of the employee for a         particular duty to be preformed or for employment in general.

  3. It was unreasonable for the employer to hire the employee in light of the information he knew or should have known. (reasonable foreseeability)

So, when a church fails to do a due diligent search on the backgrounds of the new clergy, they are risking the safety of the congregants. Did they call the former church to ask why the pastor was removed and credentials revoked? Did they ask the former church or churches rather than the employee the reason for his sudden resignation? If they had knowledge that the potential pastor had been fired from, or resigned from other churches, did they do any checking as to the reason why outside of the story the potential pastor gave them?


Now back to why the first amendment doesn’t apply. In the beginning I gave you a brief overview of the First Amendment to the Constitution, as well as the two clauses regarding religion therein. The Supreme Court of the United States has made the first amendment applicable to the states through incorporation into the fourteenth amendment. While states must determine whether pursuing actions against a religious entity has violated the first amendment, they have however recognized the purpose of the two clauses.


The Free Exercise Clause gives us the right to believe and profess whatever religious doctrine one desires. But, the U.S. Supreme court also states that this “embraces two concepts.” (Cantwell v. Connecticut) These are freedom to believe, and freedom to act. The first is an absolute, you have the freedom to believe what you want. However, the freedom to act by its very nature can’t be an absolute. We must make sure that by exercising ones religious beliefs it does not become a danger to society. Will the freedom to act cause harm to others? 


When we look at the Establishment Clause, it clearly prevents the establishment of a government religion, or enacting laws that benefits or prefers one religion over another. Basically, the government cant play favorites. Seems pretty simple to me. The courts uses multiple tests to determine whether the first amendment applies to a case. The Lemon test (Lemon v. Kurtzman), the “endorsement” test (first articulated by Justice O’Connor), and the “coercion” test. (Lee v. Weisman) Most commonly used is the Lemon test.


The Lemon test is a three part test to determine if a  law violates the establishment clause:

    (1) The legislation must have a secular purpose

    (2) The legislation must not have the primary effect of advancing or inhibiting religion; and

    (3) The legislation must not promote an excessive entanglement with religion.

So , when reviewing causes of action against a church or religious entity for abuse we must first decide if the church has a legitimate first amendment defense . According to the first amendment itself, and the rulings or the U.S. Supreme court as well as many State’s Supreme Courts, They might not. 


In many states, penal statutes have also been enacted to support the criminal prosecution of clergy who engage in sexual misconduct and abuse of their congregants beyond just civil actions. Some states include Arkansas, Connecticut, Delaware, Iowa, Kansas, Minnesota, Mississippi, New Mexico, North Dakota, Texas, South Dakota, Utah, Wisconsin and the District of Columbia. These statutes most commonly include language specifying  misconduct that occur within the confines of the counseling relationship.  Examples of theses statutes are as follows:

5-14-126. Sexual assault in the third degree.

(a) A person commits sexual assault in the third degree if the person [is]:

(B) A professional under Arkansas Code Ann. 12-12-507(b) or a member of the clergy and is in a position of trust or authority over the victim and uses the position of trust or authority to engage in sexual intercourse or deviate sexual activity…

(2) (b) It is no defense to a prosecution under this section that the victim consented to the conduct.

Minnesota. Chapter 609 Criminal Code. (609.344) 609.344.

Criminal sexual conduct in the third degree.

Subdivision 1. Crime defined. A person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if any of the following circumstances exists:
(1) the actor is or purports to be a member of the clergy, the complainant is not married to the actor, and:
(ii) the sexual penetration occurred during a period of time in which the complainant was meeting on an ongoing basis with the actor to seek or receive religious or spiritual advice, aid, or comfort in private. Consent by the complainant is not a defense…


New Mexico. Chapter 30 Criminal Offenses. (30-9-10)


Article 9. Sexual Offenses.

As used in Sections 30-9-10 through 30-9-16 NMSA 1978:

A. "force or coercion" means:

(5) the perpetration of criminal sexual penetration or criminal sexual contact by a psychotherapist on his patient, with or without the patient's consent, during the course of psychotherapy or within a period of one year following the termination of psychotherapy.

F. "psychotherapist" means a person who is or purports to be a:  (11) minister, priest, rabbi or other similar functionary of a religious organization acting in his role as a pastoral counselor…



These states and many more have realized that the there is little difference between the counseling of a licensed therapist, doctor, or psychologist, and that of the clergy who engages in counseling with a parishioner. In fact, when a minister crosses the line into sexual misconduct with a member in the court of counseling, the effects are even greater than that of a secular counseling relationship. This is because this form of abuse not only follows the usual patterns of emotional, sexual, and sometimes financial abuse, but it enters the realm of spiritual abuse which can be far more damaging long term. 


As believers and parishioners we can’t allow our church leadership to hide behind the veil of the first amendment. By doing so, they aren’t showing love to the victim or the abuser, or their families. Forgiveness doesn’t mean not holding clergy accountable. When we sweep things under the rug, and hide things, we are causing far more damage. We are actually allowing the cycle of abuse to continue when we don’t expose it and call it out by name. There should still be consequences, thats part of loving them.


As Americans we need to protect our first amendment from church abuse and make sure that it is properly defined and used. Misuse of our first amendment as a defense erodes the meaning and protection we have under it. Our first amendment is a fundamental part of our freedom and we must ensure that we protect it and fight for it. When we allow churches and other religious entities to erroneously bring it as a defense to protect themselves from liability in claims of abuse, we are allowing them to slowly strip it away. 


However, most importantly, we must protect those within our community who are vulnerable from those who would  abuse and take advantage of them. But what can we do? We can assist law makers regarding clergy sexual misconduct/abuse and the churches who re-victimize the vulnerable woman who have been hurt? We can write letters to our state congressmen and senators to write bills and enact legislation that protects those in our society who need protection. We need to march on our state capitals and demand justice for those who can’t speak for themselves because of fear of community shunning and persecution. We must stand by woman who speak out and tell their stories, and give them their voice. We need to give them dignity. We need to give religious organizations a clear message that we wont tolerate misuse of our constitutional rights. They need to know when the first amendment does and does not apply.


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