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Thursday, Jan. 16, 2003

Lately, the Catholic Church's Boston Archdiocese has spent months in court, in the clergy abuse litigation, trying to avoid discovery but failing. Now the Church has a new gambit to resist discovery: It has raised a First Amendment defense - based on either the right to free exercise of religion, or the government's duty not to establish a state religion, or both. The argument, which is not new, is that the church deserves operational "autonomy," and thus may not be brought into the courts to defend its handling of its clergy.

The Archdiocese has said that it raised this defense reluctantly, and only because its insurance carrier required it to. But regardless of who is to blame, there can be no question that raising the defense is folly - wrongheaded, frivolous, and futile.

The Church, on behalf of the insurance company, is attempting to cloak itself with the First Amendment, hoping the Constitution will somehow provide a blanket of protection for its institutional wrongdoing. Though it's not a winning strategy, it's one that does have some history behind it. Over the years, those fond of this approach have tried to make it law, by dubbing it the "church autonomy doctrine."

In fact, there is no such doctrine. To claim such a doctrine exists is either wishful thinking, or willful misinterpretation of the Constitution.

A Supreme Court Case Decimates the Church's Defense

In its 1990 decision in Employment Division v. Smith, the Supreme Court made clear that there is no First Amendment religious freedom defense to a generally applicable criminal law. There, Native Americans sought an exemption from general anti-drug laws for their religious use of peyote. Since the anti-drug law did not specially target them, but rather applied to every citizen, the Court rejected their claim.

The Court did the right thing, and is unlikely to reconsider its wise ruling soon. In a nutshell, Smith stands for the simple and fundamental proposition that the rule of law applies to everyone - regardless of their beliefs and regardless of their place in society. It applies to the President (as the Supreme Court's Clinton v. Jones ruling also made clear), and it applies to the religious believer. Smith is all about personal responsibility, and the obligations of those who live within society to follow society's rules.

The Smith Case Cannot Be Persuasively Distinguished By the Church

So what is the Church - or the insurance company - thinking, when it raises this already-rejected defense? Perhaps its plan is to argue that there is an exception to Smith for religious institutions, as opposed to religious individuals. If so, this is a clever ploy to attempt to limit liability, but it is not consistent with the First Amendment.

Under that Amendment, both individuals and institutions have the right to the free exercise of their religion, and under Smith, that right stops where the law starts. The First Amendment routinely has been applied to individuals and organizations, not only individuals.

Perhaps, then, the Church may try to evade the consequences of its actions by arguing that Smith applies only to criminal, not civil law. The law at issue at Smith was a criminal one, and the law the Church seeks to avoid in the relevant litigation is civil. (Of course, the Church also may well have committed crimes, or aided and abetted them, but they are not at issue in this particular litigation).

This, however, is a distinction without a difference. Smith's logic applies equally to criminal and civil law; for both, the concept of personal responsibility is the same. Moreover, Smith was, if anything, a harder case than this one, and the Court still resolved it in favor of accountability, and against the First Amendment defense - even though the result was that criminal penalties and the civil liability that flows from infringing criminal law would apply to a religious believer's religious practice.

Perhaps the Church will argue that Smith does not apply because it is claimed to only have aided and abetted wrongdoing by its priests, and not to have directly perpetrated it. But again, the distinction does not hold water. Smith made no exception for aiding and abetting liability when it came to crimes, so why should vicarious or contributory liability under the civil law be exempt?

Also, who is to say that the Church was not itself the perpetrator? While the institution did not actually perform the abuse, its employees did, and the institution enabled it in so many ways.

The Constitution Stresses Accountability, Rather than Allowing Avoidance of It

In the end, what the Church is asking with this First Amendment defense is to be immunized from the fundamental principle - embodied not only in Smith, but throughout the civil and criminal law - of accountability for bad acts. But freedom of religion is not a license to break the law.

The First Amendment gives the Church the power to be free from the government's interference with its prerogative to discern its mission here on earth, to believe in that mission and to worship accordingly. But it gives no license for conduct and certainly does not give the Church the ability to hide from criminal responsibility for acts that are heinous - especially where, as here, those acts are not required by religious principles and, indeed, entirely contravene them.

Claiming that the First Amendment is a license to lawbreak turns the Constitution precisely on its head. The framing generation did not, and probably could not have, instituted the rule of law by simple fiat from the Constitutional Convention. Rather, they were invaluably aided by sermons that came from the pulpits of religious leaders who preached an obligation of obedience to the secular law - and indeed, a higher such obligation for believers than nonbelievers.

"Licentiousness" was what they decried; abiding by the civil and criminal law was what they demanded. For the Church to now invoke their legacy to try to shield itself from responsibility for harming hundreds, if not thousands, of women and children is black humor at its blackest.

Believers were supposed to be not only model Christians, but model citizens, setting the standard for a free society, ordered by law. Religion was not seen as providing carte blanche to break laws at will, but rather as imposing a special obligation to set an example for others by following the law scrupulously.

This strain of American history is a powerful, resonant one - and it may be why this scandal has hit Americans, not just Catholics but many others, so hard. If anyone is going to obey the laws protecting children, it ought to be the Church. That principle is in our constitutional blood.

Insurance Companies Should Drop the Purported Church Autonomy Doctrine

Since the Church has tried to shift the blame for its reliance on the First Amendment's freedom of religion on its insurance company, let's look at whether it really makes sense for the insurance company to insist on it. Even a cursory examination indicates the answer is no. Not only is the doctrine bad law, it's also bad strategy where the industry is concerned.

Unfortunately, it's also a fairly longstanding strategy. This is not the first time the insurance industry has pushed the church autonomy doctrine in an attempt to keep liability down. For instance, in Colorado, when the Presbyterian and Catholic Churches pushed for a bill that would immunize them from liability for clergy abuse, the insurance industry stood solidly behind them. (Luckily, the bill did not pass.)

The strategic problem for the industry is this: Even winning immunity for acts like these, if it could be done, would only be a Pyrrhic victory. With immunity like this, the Church will continue to act as if none of the secular law applies to it, and eventually, in this climate, will do something that must fall outside the immunity (though if abusing children does not reach the limits, one wonders what is left--murder?). And then the insurance carrier will really be stuck.

A better strategy is simply to refuse to insure intentional lawbreaking, as many insurance companies do - creating an exception to the policy for intentional torts and for criminal behavior. If insurance companies' policies for the Church already contain these exceptions, they should start enforcing them. If not, they should bite the bullet and pay the tab for the level of wrongdoing they foolishly insured. After all, someone must be accountable. That is the American way.

The tragedy is that the Church was supposed to be a leader in virtue and values. It has been anything but, and for that, it should be accountable. After all, if the Church itself won't repent, who else will? And if the consequences are dire, so be it. Better to let legally bankrupt churches go fiscally bankrupt, than to let them morally bankrupt the country and its most valuable principles.

Marci Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. Her columns on the Catholic Church scandal and other church/state issues appear on an archive on this website. Her email is

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