First Amendment Defense Signaled in Sex Abuse Case

By Eric Tucker
The Post-Crescent
February 21, 2013

http://www.postcrescent.com/viewart/20130221/APC0101/302210167/First-Amendment-defense-signaled-sex-abuse-case

A small evangelical Christian denomination called Sovereign Grace Ministries was already grappling with fractured leadership, outside scrutiny of its policies and public criticism from former members when a new round of problems emerged.

A lawsuit last fall brought by former members accused church officials of covering up allegations of child sexual abuse committed by its members. Then a onetime member of the church’s former flagship congregation was indicted in December on charges that he molested multiple boys in the 1980s while involved in ministries.

The church hasn’t yet answered the specific accusations, but has signaled that it may lean on the First Amendment — a defense that religious institutions have used repeatedly and with some limited success in the last decade to inoculate themselves from sex abuse claims.

A statement issued in response to the lawsuit, filed in Maryland, says permitting courts to second-guess confidential advice given by church leaders to congregation members would “represent a blow to the First Amendment.”

“We are saddened that lawyers are now, in essence, seeking to violate those rights by asking judges and juries, years after such pastoral assistance was sought, to dictate what sort of biblical counsel they think should have been provided,” the statement said. The church’s formal response to the lawsuit, due Monday, is expected to provide a window into its legal strategy.

The First Amendment argument, advanced by some legal scholars, derives from a belief that churches ought to be considered autonomous, self-governing institutions whose internal decision-making is off-limits to secular courts. Religious institutions, including the Roman Catholic Church, have invoked the Constitution in arguing that they shouldn’t be liable for the hiring or supervision of a priest facing abuse allegations.

“To the extent there’s a First Amendment issue they’re talking about, it is not about sexual abuse as a First Amendment right. It is about the church deciding for itself how to respond to claims of misconduct among its members,” said Douglas Laycock, a University of Virginia law professor who specializes in the law of religious liberty.

Marci Hamilton, a church-state expert at the Benjamin N. Cardozo School of Law, said she was aware of only three states — Utah, Missouri and Wisconsin — whose highest courts have recognized the First Amendment as a barrier for pursuing church sex abuse claims. But that hasn’t stopped religious institutions in other states from raising the same arguments, at least as an initial line of defense.

“One of the goals here in the litigation is for the defendant to intimidate the judges into being fearful of violating the Constitution if they apply the law to them. There was an era when these kinds of arguments would have been intimidating,” Hamilton said.

The principle isn’t new but it has been tested time and again in the decade since the Catholic church sex abuse scandal broke.

“From our point of view, they are often more successful than they should be,” said David Clohessy of the Survivors Network of those Abused by Priests. “Very simply in our view, the First Amendment says you can believe whatever you’d like but not behave however you’d like. And tragically, especially in child sex abuse cases, many religious figures try to blur that difference and exploit the First Amendment for selfish purposes.”

With some limited exceptions, most courts haven’t been receptive to the argument.

The Tennessee Supreme Court ruled last year that a man who said he was abused by a priest in the 1970s could proceed with his lawsuit against the Catholic Diocese of Memphis, which had argued that secular courts lacked jurisdiction over its hiring decisions.

The Catholic diocese in Burlington, Vt., fending off a recent sex abuse lawsuit, cited the First Amendment in 2011 in warning that a stream of cases carrying multimillion-dollar judgments threatened to shut down the church and impede “the Catholic faithful in the free and unhindered exercise of religion.” A judge called the argument in that particular case premature and allowed it to move forward. It has since settled.

“The liability cannot be so extensive that the church can be put out of business,” Thomas McCormick, a lawyer for the diocese, said in describing the defense.

There was some movement in Wisconsin in 2007, when the state Supreme Court — which had earlier held that the First Amendment shields churches from lawsuits for negligent supervision of priests — ruled that the Archdiocese of Milwaukee could be sued for fraud in sex abuse cases.

The U.S. Supreme Court, asked recently to weigh in on the issue, declined last year to take up an appeal of a Missouri state court ruling in favor of the Archdiocese of St. Louis, which had similarly relied on a First Amendment defense against sex abuse claims.

In Maryland, lawyers for Sovereign Grace Ministries, which was established in 1982 and says it has more than 80 congregations in its fold, either declined to comment about their legal strategy or didn’t return phone messages. Besides suggesting a possible First Amendment defense, the church group has attacked the lawsuit as containing misleading allegations and “mischaracterizations of intent.” The church invoked the First Amendment in a November statement posted on its website, but didn’t reference it in a subsequent statement issued in response to new allegations last month.

The suit filed in October accuses church officials of concealing sex abuse committed by its members and of discouraging victims from reporting allegations to the police. The case was initially brought on behalf of three women associated with the church, including one who says she was molested as a child and then directed by church officials to meet with the man she accused of assaulting her. More plaintiffs have been added, and a former member of the church’s flagship congregation, Covenant Life Church in Gaithersburg, Md., was indicted on sex abuse charges in December.

The civil and criminal allegations are the latest problem for a church riven by disputes among leaders and external criticism over its handling of sex abuse claims and its emphasis on sin and redemption.