The Ultimate Test of Religious Freedom: The Constitution Bars Civil Authorities From Judging How Well, or How Badly, Church Officials Supervise and Assign Priests, Even Sexual Predators

Abstract

The First Amendment guarantees the “free exercise” of religion. This constitutional guarantee creates a “ministerial exemption” under which civil courts are denied jurisdiction to second-guess the decision by authorities in a hierarchical Church about whom to ordain or assign to ministry or to permit to teach religion. Not sufficiently recognized, however, is how this constitutional immunity drawing a vital line between the roles of Church and State limits the power of civil courts and juries to impose financial liability on Churches or clerical superiors for failing to detect or prevent the horrific abuses committed by individual priests or other ministers of religion. Clerical superiors have made some serious and destructive mistakes. But under the Constitution, it is the sole responsibility of the bishop and his advisors to make judgments about whether to retain an accused priest or restore him to ministry, even if he has been accused of child abuse and even if he previously was known to have engaged in such reprehensible and perverted conduct. Civil courts may not second-guess that decision by threatening or imposing financial liability on the Church (through the bishop or diocese) for any alleged error in making the decision.