Lacey Turley Most
Turley Law Firm
SPRING 2021 ISSUE:
In recent years, sexual abuse reports have garnered greater attention and credibility. As we make strides in believing survivors, recognizing the nature of abuse, and working to heal the scars of abuse that reverberates throughout their lives, abuse survivors still face constant challenges as they seek justice. These challenges include: the statute of limitations because many survivors do not report the abuse until years later, the claim that a child did not resist enough or fight back at the time of the abuse, and the disturbing argument that mental injuries such as post-traumatic stress disorder and depression were caused by something else as abusers frequently target vulnerable children. We are slowly reckoning with the dark reality that most abusers know the victim and frequently abuse a position of trust and respect, such as religious leaders, to perpetrate the abuse.
Sexual abuse perpetuated by religious leaders and organizations present their own set of additional challenges, including the Ecclesiastical Abstention Doctrine. This doctrine is derived from the First Amendment right to religious freedom. It prevents courts from adjudicating claims involving internal policies, such as policies involving prevention and response to sexual abuse within religious organizations.1 In the context of sexual abuse claims, this doctrine can be used to shield religious organizations from scrutiny in regards to their internal practices related to sexual abuse by the clergy. In other words, the Ecclesiastical Abstention Doctrine may enable religious organizations to get cases involving sexual abuse by clergy thrown out of court simply because the dispute involves a religious organization.
Applying Religious Freedom to Real World Disputes
The First Amendment of the Constitution protects religious freedom. Courts have struggled to apply and interpret this abstract concept on to real world disputes. For example, should someone be allowed to use an illegal hallucinogenic as part of a religious ritual? Can a televangelist2 promise that someone’s prayers will be granted if they send in tithes?3
Courts have several options when they confront these questions in balancing rights and interests. Courts can try to decide the matter without delving into religious questions, determine that the interest at issue (e.g., preventing crime, fraud on the public, etc.) outweighs the interest in religious freedom, or refuse to adjudicate the matter to protect the organization’s right to religious freedom.
The Ecclesiastical Abstention Doctrine: Courts Dismiss Cases Involving Religious Organizations
The Ecclesiastical Abstention Doctrine basically means that courts cannot decide a dispute involving the internal management of a religious organization. The idea being that secular courts should not be involved in religious disputes as it would inherently “chill” religious freedom. It was born out of concern in preventing our courts from becoming heresy courts4 where judges and juries would decide the merit of a religious belief and whether someone was correctly abiding by those beliefs.
How Does This Doctrine Function?
When a religious organization is sued, it requests that the Court dismiss the lawsuit because the court lacks jurisdiction (i.e., the court cannot render a decision on the case). These are often filed early in litigation prior to significant discovery in the case. If granted, the case is dismissed with prejudice meaning the Plaintiff cannot refile the case. In other words, the case is thrown out without reaching the merits.
Why Do We Have the Ecclesiastical Abstention Doctrine?
The basis for the Ecclesiastical Abstention Doctrine is sound. Most can agree that we do not want courts interpreting religious texts such as the Bible, Torah, or Quran, and deciding whether the parties are correctly following these teachings. On its face, it appears straightforward and clear that courts should not decide who should or should not be a minister.
However, the issue becomes greyer when recognizing that religious organizations serve roles beyond interpreting and fulfilling religions, that religious organizations often serve secular functions, and that issues beyond religious thought are implicated and compromised by the actions and decisions of religious organizations. For example, many religious organizations manage parochial schools tasked with religious teaching, secular education, and keeping children in their care safe while at school.
Sexual Abuse and Ecclesiastical Abstention
Cases involving church action related to sexual abuse can easily become swept up in the Ecclesiastical Abstention Doctrine. For example, with cases involving sexually abusive priests, the argument is often made that the religious organization reasonably should have known that the individual was likely to sexually abuse children and should not have been allowed to use his position as a priest to facilitate abuse of children. The Ecclesiastical Abstention Doctrine allows religious organizations to argue that the Court should not let the case proceed because it requires the Court to determine who should and should not be a religious minister.
Similarly, religious organizations may merge religious practices and beliefs with policies in place to prevent child abuse or sexual harassment. If someone sues for failure to follow those policies, religious organizations can argue that the Ecclesiastical Abstention Doctrine prohibits the Court from exercising jurisdiction because the policy at issue includes interpretation of religious beliefs.
How did we end up here?
Our law has developed over the years as courts apply legal concepts to real world disputes. Many of the recent cases filed in Texas involving the Ecclesiastical Abstention Doctrine addressed cases where the religious implications of the lawsuit were difficult to avoid, namely minister employment and church membership.
Is there a way around it?
Neutral principles of law.
If the dispute can be resolved by reliance on secular law without evaluating religious doctrines, the court can exercise jurisdiction. Claims unrelated to religious doctrines—e.g., whether a minor or vulnerable adult was sexually abused and response to a sexual abuse report—should be resolved by applying neutral principles of law. The Supreme Court of the United States held that states may adopt a neutral principles of law approach to resolve disputes involving religious organizations that do not involve consideration of religious doctrines.5
The neutral principles approach frees civil courts from the entanglement of religious doctrines and allows courts to rely upon well-established legal concepts. As such, the neutral principles approach “is completely secular in operation, and yet flexible enough to accommodate all forms of religious organizations and polity.”6
The Supreme Court of Texas adopted the neutral principles of law approach and prohibited courts from “delegat[ing] their judicial prerogative to ecclesiastical decision makers when claims can be resolved by applying neutral principles of law.”7
Texas courts recognize that “[p]roperly exercising jurisdiction requires courts to apply neutral principles of law to non-ecclesiastical issues involving religious entities in the same manner as they apply those principles to other entities and issues.”8 Civil courts have jurisdiction to adjudicate claims involving religious entities as long as “doing so does not implicate inherently ecclesiastical concerns.”9
However, this is usually only applied in property disputes. Courts have been reluctant to extend the neutral principle approach beyond property issues. So, even a seemingly neutral case may be thrown out.
If a case can be decided on whether a concrete act was performed without delving into the religious motivation behind that act, courts can exercise jurisdiction. For example, in Tilton v. Marshall, plaintiffs filed several fraud claims against a televangelist. These included claims that the televangelist promised to lay hands (e.g., a promise to personally physically touch objects) on specific items belonging to plaintiffs and claims for unanswered prayers (e.g. the televangelist promising that an illness would be cured in exchange for donations and prayers). The court held that permitting fraud claims for unanswered prayers violated the First Amendment. However, the court held that plaintiffs’ claims for Tilton’s failure to fulfill his promise to lay hands on specific items could proceed. The court explained that the question of whether Tilton took a specific action—laying hands on an item—could be determined without considering the religious doctrine behind the action.10
Compelling government interest.
No right is absolute. There is competing tension between our most sacred rights. The protection of children and vulnerable individuals from sexual abuse is a compelling government interest. Although Texas appellate courts have not directly addressed the Ecclesiastical Abstention Doctrine in cases involving sexual abuse of minors and vulnerable individuals, other courts have held that the Ecclesiastical Abstention Doctrine does not deprive courts of jurisdiction to adjudicate cases involving sexual abuse of children.11
In a case brought by minor victims of a sexually abusive priest, the Supreme Court of Mississippi stated:
We are satisfied that the cloak of religion, which does not shield religious institutions from civil responsibility for fraud or breach of contract, surely cannot serve to shield such institutions from civil responsibility for more abhorrent conduct such as sexual molestation of a child. Nor should it shield those who fail in their duty to protect children from it.12
What should courts do?
Abstention—refusing to hear a case to protect religious freedom—should be a last resort for courts. Courts can and should expand the use of neutral principles of law in cases involving sexual abuse of children.
How do we protect ourselves now?
First, recognize the risks. Courts favoring abstention over using the neutral principles approach means that religious organizations may not be held to the same standard or evaluation as similar secular organizations (e.g., schools, community centers, etc.). Protect yourself by recognizing these risks when allowing yourself or your child to participate in these organizations. Do not assume that a sexual abuse prevention policy that incorporates religious doctrines, rules, or beliefs will be subject to the same level of scrutiny as a similar policy at a non-religious organization or any scrutiny.
Second, insist on separate policies for religious practices and for policies in place to protect against criminal activity. While this is not a guarantee that courts can adjudicate, there is a stronger argument that courts can and should interpret application of sexual abuse prevention and response policies when they rely solely on secular law and definitions.
1 Serbian E. Orthodox v. Milivojevich, 426 U.S. 696, 713–14 (1976).
2 Televangelists are ministers who devote a large portion of their ministry to television broadcasting.
3 Tithes are monetary contributions to a religious organization.
4 For example, ecclesiastical courts or disciplinary proceedings that evaluate whether an adherent is correctly following religious teachings.
5 Jones v. Wolf, 443 U.S. 595, 602–04 (1979).
6 Id. at 603.
7 Masterson v. Diocese of Nw. Texas, 422 S.W.3d 594, 606 (Tex. 2013); see also Episcopal Diocese of Fort Worth v. Episcopal Church, 422 S.W.3d 646, 650 (Tex. 2013).
9 Mouton v. Christian Faith Missionary Baptist Church, 498 S.W.3d 143, 150 (Tex. App.—Houston [1st Dist.] 2016, no pet.).
10 Tilton v. Marshall, 925 S.W.2d 672 (Tex. 1996).
11 See Roman Catholic Diocese of Jackson v. Morrison, 905 So. 2d 1213, 1248 (Miss. 2005); accord Doe v. Diocese of Raleigh, 776 S.E.2d 29, 41 (N.C. 2015).
12 Roman Catholic Diocese of Jackson v. Morrison, 905 So.2d 1213, 1237 (Miss. 2005).