Why Punitive Damages Awards Against Religious Institutions Are Unconstitutional
By JARED LELAND
|Tuesday, Sep. 14, 2004|
The sexual abuse of children is a heinous crime, perhaps among the worst imaginable. And the harm it causes is that much greater when the abuser is someone as trusted as a religious minister.
Unmistakably, anyone who sexually abuses a child--including a religious minister--should be prosecuted criminally to the fullest extent of the law. Such punishments are generally severe, as well they should be.
Sexual abusers--religious and nonreligious alike--should also be subject to civil liability for money damages. Money is, of course, a paltry remedy for such a devastating harm, but it helps nonetheless. It can compensate--at least in part--for pain and suffering and can cover any out-of-pocket expenses that flow from it, such as medical bills, lost wages, and the like.
But individual religious ministers are often judgment proof, or close to it. And sometimes--though certainly not always--a religious institution is partially responsible for the injuries incurred.
Accordingly, where a victim can demonstrate that a religious institution should in fact share in the blame, compensatory damages should be (and routinely are) awarded against it.
This much is uncontroversial in the courts of law and public opinion.
Punitive Damage Awards Go Above and Beyond Due Compensation.
Punitive damages, yet another facet of civil liability, are strictly imposed to punish--and make an example of--an entity or institution and by no means compensate the victim for injuries actually sustained.
Courts should certainly impose such damages on those directly responsible for the abuse: the individual perpetrator or minister. But should the institution itself and innocent congregants--by and through their charitable donations that finance the operations and ministries of the church--bear that same burden?
The answer quite simply is no, as this would raise serious constitutional concerns.
First and foremost, punitive damages are notorious for being awarded on a standardless basis. Unlike compensatory damages that are reasonably calculated in light of--and based on--the actual harm suffered, punitive damage awards result from crafty lawyering and impassioned impulses. The amount often depends on whether the jury is tempted to swing at the pitch.
It is this discretionary, case-by-case application of damages--notorious for concealing religious bias and discriminatory motive--that is regarded by Free Exercise Clause jurisprudence as a system of "individualized assessments."
Second, punitive damage awards are often colossal--capable of destroying entire ministries, institutions, and all the public goods that naturally flow from them. In the Free Exercise context, such a devastating impact on religious exercise is called a "substantial burden." As detailed below, when such a burden is imposed through this system of "individualized assessments," strict constitutional scrutiny is triggered.
Third, these devastating, discretionary burdens fail strict scrutiny review because they have--at best--an attenuated link to deterring sexual abuse by individual ministers.
Punitive Damage Awards against Religious Institutions Are Arbitrarily Imposed.
The U.S. Supreme Court recently flagged the dangers and inconsistencies in imposing punitive damage awards in civil cases in its 2003 decision in State Farm Mutual Auto. Ins. Co. v. Campbell:
Although these awards serve the same purposes as criminal penalties, defendants subjected to punitive damages in civil cases have not been accorded the protections applicable in a criminal proceeding. This increases our concerns over the imprecise manner in which punitive damages systems are administered.
The Court continued:
We have admonished that '[p]unitive damages pose an acute danger of arbitrary deprivation of property. Jury instructions typically leave the jury with wide discretion in choosing amounts, and the presentation of evidence of a defendant's net worth creates the potential that juries will use their verdicts to express biases . . . .'
The danger in permitting juries to determine punitive damage awards in civil cases with both sympathetic plaintiffs and deep-pocketed defendants is obvious. As the Supreme Court warned in State Farm, the fear that punitive damage awards will be imposed to punish the religious institution for the "perceived deficiencies" or "unsavory" reputation of the church--and not for the conduct that actually harmed the plaintiff(s)--is both real and legitimate.
Such damages--arbitrarily imposed against the institution simply to satisfy impassioned impulses or outrage (however legitimately motivated)--unconstitutionally deprive the church of property without Due Process of the law.
Punitive Damage Awards against Religious Institutions Are Excessively Imposed.
Clergy-abuse lawsuits filed against churches regularly seek millions of dollars in punitive damages. The Diocese of Brooklyn in New York, for example, was threatened with a 100 million dollar punitive damages suit in 2002, while a 33 million dollar punitive damages award was aggressively pursued in Mississippi that same year.
And juries, for the most part, are awarding such damages. In Weaver v. African Methodist Episcopal Church, Inc., a Missouri court and jury awarded a plaintiff five million dollars in punitive damages, despite finding that the actual injuries sustained only amounted to $25,000. And in the mid 1990s, in Lundman v. McKown, a sympathetic jury in Minnesota imposed nine million dollars in punitive damages against a religious institution in addition to the 1.5 million dollar compensatory damages award.
This onerous threat of liability--often resulting from individual, and not institutional, conduct--severely diminishes the institution's ability to operate and pursue its religious mission.
For instance, the Archdiocese of Portland in Oregon has recently filed for bankruptcy, and the Diocese of Tucson in Arizona is considering doing the same. The Archdiocese of Boston closed 65 of its 357 parishes just this year to satisfy excessive financial burdens, and many other institutions throughout the country have been forced to sell property or abandon charitable ministries altogether simply to stay afloat.
Punitive Damage Awards against Religious Institutions Substantially Burden the Free Exercise of Religion.
The U.S. Supreme Court warned in 1990 that excessive financial burdens imposed upon a religious institution--such as those resulting from punitive damage awards--can amount to an unconstitutional burden on religious exercise. In Jimmy Swaggart Ministries v. Bd. of Equalization, the Court cautioned that an "onerous" yet "generally applicable" financial burden "might effectively choke off an adherent's religious practices" in violation of the Free Exercise Clause of the Constitution.
Both the threatened and actual bankruptcy proceedings referenced above make plain the burdens faced by religious institutions. But even if a religious institution is somehow able to survive this onerous burden and continue to exist, such enormous liability will undoubtedly and severely diminish its ability to serve its members, worship as a congregation, and engage in those ministries the church deems important to its religious mission.
The resources and revenue generated--through generous donations from the very innocent individuals (congregants) a punitive damage award is traditionally imposed to protect--specifically to assist the poor, care for the sick, and nurture the elderly are often entirely consumed by these arbitrary financial demands. Religious schools, meal programs, and social services suffer from such awards--not the perpetrator himself.
The First Amendment Prohibits Courts from Imposing Punitive Damage Awards against Religious Institutions.
The legal standard to be applied to such cases is strict scrutiny. In the 1990 Employment Division v. Smith decision, the Supreme Court reiterated that the strictest level of scrutiny is to be applied to "substantial burdens" imposed pursuant to a system of "individualized assessments." The discretionary, arbitrary, and case-by-case manner in which punitive damage awards are imposed is clearly such a system, requiring a court to demonstrate that its interest is "compelling" and furthered by the means least restrictive on religious exercise.
The compelling interest? To deter subsequent child abuse. But the State has various means at its disposal--criminal sanctions, compensatory damages, child abuse reporting statutes--to achieve that goal in a more legitimate and effective manner than through windfall damage awards. Punitive damages--arguably the most restrictive means imaginable--punish the innocent and disadvantaged while ignoring that which is crucial to remedying the ongoing problem: penalizing and rehabilitating the disturbed abuser.
Punishing an institution and its beneficiaries for the conduct of another--as punitive damage awards certainly do--tosses the baby out with the bathwater. Deterring and preventing subsequent child abuse is a compelling interest of the State, but to trample on the free exercise of religion while furthering that interest is both unconscionable and unconstitutional.