Innocents Beware: On Religion Clause Jurisprudence and the Negligent Retention or Hiring of Clergy
22 William and Mary Bill of Rights Journal 177-210 (2013)
Posted: 23 Nov 2013
Date Written: November 22, 2013
Abstract
Over the past several decades, state and federal courts have been forced to consider the circumstances, if any, under which a religious organization might be held civilly liable for the tortious conduct of clergy in their employ. There is a clear divide separating the courts — some refuse to impose liability on the employers citing First Amendment concerns whereas others see no First Amendment impediment to the imposition of liability on religious institutions as long as the courts are applying secular law and are not delving into religious matters. This article discusses the developing jurisprudence regarding negligent hiring and retention of clergy by religious institutions, analyzing both the clear split within the lower courts and how Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission might affect the developing case law. The article concludes that the Court must both clarify existing law at its earliest opportunity and forestall some of the broad interpretations that would otherwise result from some of the unfortunate language in Hosanna-Tabor.
Keywords: clergy, liability, first amendment, Hosanna-Tabor, children, vulnerable adults
JEL Classification: K10
Suggested Citation: Suggested Citation