Forgive Me, Your Honor, For I Have Sinned: Limiting the Ecclesiastical Abstention Doctrine to Allow Suits for Defamation and Negligent Employment Practices

Alexander J. Lindvall

The First Amendment’s religion clauses read: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” These sixteen vague words have spawned volumes upon volumes of scholarly work and countless court battles. The debates surrounding these clauses tend to revolve around religious exemptions from generally applicable laws, religious symbols on government property, prayer in schools and other government-run institutions, and government subsidies given to religious organizations. 

But there is an important First Amendment doctrine that has received surprisingly little attention from scholars: the ecclesiastical abstention doctrine. Under this doctrine, civil courts cannot delve into matters that focus on “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of a church to the standard of morals required of them.” More specifically, courts generally agree that they cannot (a) consider employment disputes between a religious institution and its clergy, (b) resolve conflicts between different factions within a religious organization, (c) resolve property disputes that would require the court to interpret religious doctrine, or (d) resolve contract disputes that involve membership in a religious institution. Inserting the court’s secular values into religious affairs, the rationale goes, would inject the “power of the state into the forbidden area of religious freedom contrary to the principles of the First Amendment.” 

Courts, however, have split on two important issues concerning the ecclesiastical abstention doctrine: (1) whether the doctrine provides religious officials with immunity from defamation suits when the allegedly defamatory statement was made during a religious proceeding and (2) whether the doctrine prevents religious institutions from being sued for negligently hiring, retaining, or supervising members of their clergy.   

On the former issue, at least three state supreme courts and the Sixth Circuit have held that religious officials cannot be sued for defamation if the statement at issue was made during a religious proceeding, while five other state supreme courts (including the District of Columbia) and the Eighth Circuit have reached the opposite conclusion. On the latter issue, several state and federal courts have also reached diverging conclusions. The Supreme Courts of Missouri and Wisconsin, for example, have held that religious institutions cannot be sued for the negligent hiring and retention of a clergy member because the tort would necessarily require courts to evaluate whether the institution’s practices were “reasonable.” The Supreme Courts of Florida and Colorado, on the other hand, have held that religious institutions can be sued for the negligent hiring and retention of clergy members because these issues can be decided through a neutral application of tort principles.