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

See all articles by Mark Strasser

Mark Strasser

Capital University - Law School

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

Strasser, Mark, Innocents Beware: On Religion Clause Jurisprudence and the Negligent Retention or Hiring of Clergy (November 22, 2013). 22 William and Mary Bill of Rights Journal 177-210 (2013), Available at SSRN: https://ssrn.com/abstract=2358458

Mark Strasser (Contact Author)

Capital University - Law School ( email )

303 E. Broad St.
Columbus, OH 43215-3200
United States
614-236-6686 (Phone)
614-236-6956 (Fax)

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