Justices rule in favor of church
1st Amendment protects clergy from being sued
By Jennifer Toomer-Cook
< http://deseretnews.com/dn/staff/card/1,1228,151,00.html>
Deseret News staff writer
The First Amendment protects an LDS Church bishop from being sued for
malpractice in counseling church members, the Utah Supreme Court ruled
Friday. The ruling is expected to shield Utah clergy, whose ranks include some 460 stake presidents and 3,600 ward bishops in The Church of Jesus Christ of Latter-day Saints alone.
But it's unclear whether the ruling would affect a separate Utah law that requires bishops, rabbis, priests and pastors to notify police of child abuse, so long as the information doesn't come from the perpetrator. "I don't see this decision as adding or subtracting to the law of mandatory reporting," said attorney Oscar W. McConkie, a First Amendment expert and former Utah senator who introduced the state's first mandatory reporting law. "(The court's ruling) is not new law. In a country where you have freedom of religion, the state and none of its agencies . . . can dictate to a church and tell the church what standards the state would impose for clerics."
But the attorney who took on the church in the lawsuit disagrees. "I think given that ruling, it's very likely that if the reporting statute would be tested, the court would almost be forced to find it unconstitutional," attorney Edward R. Montgomery. "I think the court has sent a very clear message that no governmental regulations can be placed on the church. I think it is extremely chilling. People who have suffered abuse, like my client has at the hands of the church, now have virtually no recourse."
The LDS Church declined to go into the ruling's ramifications. But a
spokesman did say the church was satisfied by the court's action.
"The decision preserves religious liberty and freedom for all and confirms that lawsuits like these have no merit," LDS Church spokesman Dale Bills said. "We regret that Lynette Earl Franco and her family are unhappy with the church and hope that they can find peace." Though it wasn't part of the case, Utah's mandatory reporting law has shone in the spotlight in the past year. Three LDS bishops have faced charges, because they didn't report their knowledge of child sex abuse cases. Charges were dropped or agreements were reached with prosecutors in all three cases. Those cases raised questions about the statute. Some clerics maintain it hinders their ability to keep sacred communications confidential; others believe it protects victims from their abusers. Friday's Supreme Court
ruling also could invite further scrutiny of the law.
The ruling pertained to an appeal filed by Lynette Earl Franco. Franco sued the LDS Church and her former bishop, Dennis Casaday, and stake president, David Christensen. When Franco was 7, she says she was abused by a 14-year-old boy and fellow member of her LDS Church ward. She says the abuse was so severe she repressed the memory until 1992, when she was 14 years old. At that time, she and her parents sought spiritual counseling from Casaday and Christensen, who advised her "to forgive, forget and seek Atonement," she said. She also asked to be referred to a licensed mental health professional. But she was referred to an unlicensed Bountiful counselor, who also urged her to forget the incidents instead of calling police, she said. Another counselor advised her otherwise, however. And once police were notified, Franco says her ward ostracized her. She since has
left the church.
Franco sued, alleging misdeeds including clerical malpractice, negligence, intentional infliction of emotional distress and fraud.
But the Supreme Court upheld a lower court ruling in favor of the LDS
Church, in part because Franco's lawyers didn't show intent or meet the stringent legal criteria for a successful case. The clerical malpractice claim also was rejected, in step with rulings across the country. "Claims against clerics that require the courts to review and interpret church law, policies, or practices . . . are barred by the First Amendment under the entanglement doctrine," associate Chief Justice Leonard H. Russon wrote. Such interpretations "would embroil the courts in establishing training, skill, a religious professions widely varying beliefs. This is as impossible as it is unconstitutional." Montgomery said his client is seriously considering an appeal. He believes the court boiled the case down
to bad advice when it really was about "protecting the perpetrator" instead of the victim.