STATING CLAIMS AGAINST
RELIGIOUS INSTITUTIONS
Mark E. Chopko *
Abstract: Although the U.S. Constitution protects the rights of religious institutions, it confers no general immunity from liability for their contracts and torts. This Article’s study of the case law indicates that claims may be stated against religious institutions if those institutions had the corporate power or ecclesiastical responsibility for the specific matter in dispute, or had themselves taken action in the matter. A general assertion of the potential to take action or potential to control is insufficient to result in a claim against the institution. Liability would reside, if at all, in the entity that has both the juridic power (under the religious polity) and the civil duty to answer for the actions of persons or other entities in the religious structure. Departure from these principles could result in an unconstitutional exercise by a court. This Article then applies these principles in a critique of tort liability asserted against religious institutions.
Introduction
In other eras, it would have been unimaginable for churches and other religious institutions to be sued. Like other charitable institutions in American society, religious institutions enjoyed a privileged status, protected not only by legal immunity for their benefits to the greater society but also held in a place of honor and respect by ordinary citizens. We still admire charities and still hold religion in a place of honor, but we expect religious institutions to be accountable when they make mistakes. It was the reality, and remains so today, that religious institutions make contracts that they break, create risks for which they must be responsible, and conduct many activities in the larger society that impact the general public, beyond their members. There is no longer any serious debate that religious organizations are held responsible for the consequences of their actions. The demise of [*PG1090] charitable immunity generally, and its limitation in virtually every jurisdiction, means that these entities must pay attention to their legal relationships and conduct.1