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Churches seeking shield from lawsuits

A Colorado bill responds to growth of cases against religious bodies.

By Jillian LloydSpecial to The Christian Science Monitor / October 28, 1999



DENVER

In this age of multimillion-dollar jury awards, a judgment of liability can bankrupt a business instantly - and few Americans are especially troubled by that fact. But what if the financially ruined business is a church?

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Claims against churches range from the standard slip-and-fall accident to far more potent charges of "clergy malpractice" and sexual misconduct. "There has been an explosion of litigation against churches," says the Rev. Oliver Thomas, special counsel on religious and civil liberties for the National Council of Churches in Washington.

Religious leaders argue that the loss of a church can devastate a community. Now lawmakers in Colorado are moving to protect its religious institutions from having their coffers emptied by lawsuits. The move is attracting national attention from other states grappling with whether churches should be subject to the same legal principles as any other organization. "The courts have struggled with this issue, and they haven't done a very good job of resolving it," says Steve Smith, who teaches religious freedom and jurisprudence at the University of Notre Dame in South Bend, Ind. But having secular judges rule on church matters is problematic, he says. "It undermines the value of religious freedom."

The lawsuits are a thoroughly modern phenomenon. Historically, churches were shielded under the principle of "charitable immunity," which has fallen by the wayside in most states.

Beginning in the 1980s, lawsuits against churches began a quick and precipitous climb on court dockets. Thousands of cases later, churches have been sued for wrongful death, by families of church members who have committed suicide, and even for allegations of brainwashing.

Under Colorado law, churches are particularly vulnerable to litigation, and religious leaders representing every major sect are pushing for legislation to shield churches from certain lawsuits.

"Churches provide so many social services, from day care to shelters for the homeless to food and clothing for the poor," says Mr. Thomas. "Compensatory awards you can understand, but when you get into punitive awards of millions of dollars ... you have to wonder if this is what society wants."

Although still in draft stage, the proposed bill aims to modify Colorado's "fiduciary duty" law, which applies to those in positions of trust (such as a physicians and attorneys) who provide advice. The law most often is cited in civil lawsuits alleging sexual abuse, which often produce high-dollar awards or settlements.

In a 1993 ruling, the Colorado Supreme Court became the first state to uphold the fiduciary law. The suit, against the Episcopal Diocese of Colorado, claimed sexual misconduct by a priest, and resulted in a $700,000 award for the plaintiff, a female church member who'd sought counseling for marital problems. That verdict set the stage for a slew of similar cases around the nation.

"It was like throwing a match to dry timber," says Patrick Schiltz, a Notre Dame law professor who has defended churches against some 500 sexual-abuse lawsuits. Until the 1980s, such cases were unheard of, he says.

Outside Colorado, a number of states have ruled that a relationship between a pastor and a church member is not a breach of fiduciary duty. And a few - including California - have even shortened the statute of limitations for suing churches (although not for suing clergy).

That option is under consideration in Colorado, but it may be insufficient, says state Sen. John Evans (R). Last April, he sponsored a bill that would have prevented suits against churches under the fiduciary-duty law.

"When these claims are made, whether they are true or not, it's like a cluster bomb that devastates the organization," Senator Evans says. "Anyone who deals with the public is impacted by this law - including schools and hospitals and counselors."

The bill failed by one vote.

A new bill, no doubt, will face similar challenges. Colorado Sen. Mary Anne Tebedo (R), who cast the swing vote defeating Evans's bill, says she hasn't changed her mind: "If you can't trust the people in churches, there's something wrong with this country. It just wrecks the concept of going to someone in a church" for help.

By any standard, it is a sensitive area. And while no one is suggesting that sexual misconduct go unpunished, talk of providing a legal shield to churches does have that appearance.

"I think we can all agree that pastors should not be having sex with church members," Thomas says. But the difficulty lies in holding churches liable for the acts of wayward clerics, he says. "Nine times out of 10, the acts of the errant clergy were unknown to the church."

Yet under the law, churches are legally liable for the behavior of their employees. "When people are working for a company, and they're within the scope of their employment, the employer is responsible," says Bob Schuetze, president elect of the Colorado Trial Lawyers Association.

Moreover, exempting churches from liability, even if only under certain circumstances, can have unforeseen, disastrous consequences, he argues. "You limit people's rights for protection and justice. What I'm concerned about is that if we pass a law to help a few churches, we're going to create all kinds of problems for legitimate causes and cases."

(c) Copyright 1999. The Christian Science Publishing Society