What Happens When Forgiveness Is Not Enough: The Ministerial Exception and Sexual Abuse Claims

Elizabeth Reinhardt - UC Davis School of Law
Vol. 56
April 2023
Page 1849

With respect to instances of sexual abuse by clergy members, religious institutions often use the First Amendment as an affirmative defense that bars all claims of negligence. There is currently a split amongst lower courts on whether this “ministerial exception” prevents an individual from bringing a claim of negligent hiring, supervising, and retention against churches. The Second, Ninth, and Tenth Circuits have barred claims of negligent hiring, retention, and supervision, reasoning that examination into a church’s employment of an accused abuser would violate the First Amendment by interpreting church doctrine. The First Circuit has not barred such claims, believing that no interpretation of religious doctrine was necessary to determine liability. This Note will argue that broad application of historical practices and understanding, first developed in the United States Supreme Court case Kennedy v. Bremerton and used to determine whether a government act violates the Establishment Clause, bestows upon courts the power to adjudicate negligence claims of secular injury, including sexual abuse, against religious institutions.

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