Churches Not Protected From Sexual Abuse Lawsuits, High Court Says
By David Cázares, Miami Bureau
Originally published in the Sun-Sentinel, March 14, 2002
In two decisions that affect all churches in Florida, the state Supreme Court ruled Thursday that the Roman Catholic Archdiocese of Miami and the Episcopal Diocese of Southeast Florida cannot use the First Amendment to protect themselves against lawsuits alleging sexual abuse by priests.
The rulings could end the lengthy constitutional fights that arose out of allegations of abuse by priests at two South Florida churches. Some legal experts say that the decisions also could pave the way for the U.S. Supreme Court to settle an issue that the high courts of various states have decided differently.
The cases before Florida's justices had been brewing for years.
In the first, two women sued the Rev. Jan Malicki, once an associate pastor of St. David Catholic Church in Davie and the Catholic archdiocese, alleging that Malicki fondled, molested and abused them while he was at the church from 1994 to 1997. Malicki, who denied the accusations and was not prosecuted, is still a priest with the archdiocese, but he is not assigned to a church.
The second suit was filed by a woman against Holy Redeemer Episcopal in Lake Worth, the diocese and its bishop, claiming church officials knew of past sexual misconduct by the Rev. William Dunbar Evans, who was at the church from 1988 to 1993. She also alleged that church officials were negligent in hiring Evans and exposing her to risk. Evans, who moved to Alabama, is now retired.
In both cases, trial courts accepted the arguments of church lawyers that the First Amendment barred legal action against the church in cases of alleged sexual misconduct of clergy, rulings that were affirmed by appeals court. If such lawsuits were allowed to proceed, church lawyers said, secular courts could be granted control over church doctrine and procedure—authority they argued the Constitution does not allow.
But in their ruling Thursday, a majority of state Supreme Court justices said they found no First Amendment protections against lawsuits in such circumstances.
"With regard to a third-party [legal] claim against a religious institution, we conclude that the First Amendment does not provide a shield behind which a church may avoid liability for harm arising from an alleged sexual assault and battery by one of its clergy members," the justices said.
The ruling was immediately hailed by attorneys for the three women, who said it means the church cannot escape liability for alleged abuse by clergy.
"This decision comes at a time when the public is outraged at what's been going on in the Church," said William J. Snihur Jr., the attorney for the women who sued Malicki and the archdiocese. "It sends a message to the hierarchy that the time has come to stop hiding behind the First Amendment and practice what they preach: compassion, concern and caring."
The three women, all of whom are referred to as "Jane Does," are encouraged by the court's rulings and hope that their cases may be resolved soon, their lawyers said.
In Miami, Catholic Church officials and their lawyers had no immediate comment on the court's decision, said Mary Ross Agosta, an archdiocese spokeswoman.
Officials and lawyers for the Episcopal Diocese of Southeast Florida could not be reached.
Legal experts and observers who have followed the disputes said the ruling was not surprising as it followed several similar appellate decisions nationwide.
"The First Amendment protects freedom of speech and religious expression," said Matt Staver, president of Liberty Counsel, a First Amendment group in Orlando that works to protect both religious and free-speech rights. "It's hard to argue that that includes sexual molestation."
But the two rulings were not overwhelmingly supported by all the justices. Chief Justice Charles Wells said in a concurring but separate opinion that he was concerned that the justices applied such "overly broad and imprecise language" that they might expose churches to a variety of lawsuits. Wells said he would limit the liability of religious organizations by having courts consider only allegations of criminal assault and battery.
In a dissenting opinion, Justice Major Harding said allowing lawsuits for the negligent hiring or supervision of clergy would require courts to "impermissibly interpret the religious institution's law, policies, and practices" and thus cause courts to violate constitutional provisions requiring the separation of church and state.
The disagreement among the justices mirrors the conflicting opinions of courts across the nation, which some say could send the issue to the U.S. Supreme Court.
"There are other states that have gone the total opposite way and said you can't sue churches," said Philip Burlington, a West Palm Beach lawyer who represents the Academy of Florida Trial Lawyers. "This is an area of the law where there is no uniformity."
Burlington, who has filed legal briefs on the issue for six years, argues that state courts should become involved in such disputes because lawsuits over sexual abuse put the courts in neutral legal territory with respect to church doctrine. He also said the state has an overriding interest in protecting people, particularly children, from sexual abuse.
Others say that church lawyers arguing First Amendment claims may increasingly be on thin legal ground.
"The First Amendment will never protect the churches in these cases," said Bruce Rogow, a law professor at Nova Southeastern University. "I think it's futile for the churches to try to protect themselves with these kinds of lawsuits."
The legal disputes can drag on for years, as they have in the case of the three Jane Does.
"A minister engaged in counseling, whether it's marital counseling or some other type of psychological counseling, is not permitted to engage in sexual misconduct and claim some sort of religious immunity," said Randy Ellison, a lawyer in the Lake Worth case.
