When can one sue a church?

		Eye on the  Capitol  John Huebscher

This last in a series of columns on issues related to sexual misconduct by clergy takes up the question of whether and under what conditions victims should be able to bring civil suits against churches.

The law gives us the right to sue those who injure us. But the law also limits the right to sue in various ways. For example, the law places a limit of $50,000 on most damages that may be awarded in suits against units of government.

This limit reflects a view that taxpayers should not be forced to pay for misconduct or bad judgment over which they had no control. For similar reasons, some states limit damages in suits against charitable agencies.

In the context of sexual misconduct, some have argued that courts make it impossible to sue churches for the acts of clergy. They have pressed the legislature to create a "cause of action" that will permit such lawsuits.

Not immune

Have the courts made it impossible to sue churches? A review of the record suggests otherwise.

First and foremost, churches do not enjoy blanket immunity from lawsuits. Churches, like other entities, can be sued for damages when they are truly at fault. For example, a person who is injured in a fall on an icy sidewalk because the church failed to remove the ice could sue for negligence. It is for just such eventualities that churches carry liability insurance.

Actions, doctrines

However, like other employers and institutions, churches are not responsible for actions by clergy or other employees that are clearly illegal and not at all related to their duties or ministries.

A court would not find an airline responsible for the fact that one of its pilots committed sexual assault. A newspaper would not be held liable for a similar offense by one of its reporters. Neither would a court hold a church responsible for abuse committed by its clergy.

Courts have also ruled that churches can't be held liable for their religious doctrines. In 1995, the Wisconsin Supreme Court ruled that a church cannot be found liable for the misconduct of its clergy solely because a priest fails to live up to its doctrine requiring priests to be celibate.

Some years later, the courts also ruled that a bishop is not presumed to have knowledge of or be responsible for every action of a priest in his diocese merely because he is the bishop. Something more than a hierarchical relationship must be proven before a bishop or diocese can be deemed negligent for a priest's misconduct.

Maintaining balance

It does not follow from this, however, that churches are immune from suits alleging negligence. In cases involving churches, courts in other states have specifically ruled that the First Amendment imposes no bar to negligence suits if church officials had actual prior knowledge of sexual misconduct by their clergy and reassigned the clergy anyway.

Such legal judgments are possible if they are based on the actual facts of a specific case. But the law does not make a church liable on the basis of its doctrine as to how its clergy should live.

Nor does the law impose a different legal liability on churches that employ a hierarchical organizational scheme than it does on those with a more horizontal, congregational structure. Rather, courts define responsibility based on the facts of each case and neutral principles of law.

Laws to clarify these issues should maintain this balance between accountability and religious freedom.

John Huebscher is executive director of the Wisconsin Catholic Conference.