Abstract
Faith in Justice: Fiduciaries, Malpractice & Sexual Abuse by Clergy addresses in depth the subject of sexual misconduct by religious clerics. Several courts have addressed the issue of "clergy malpractice," none explicitly recognizing it as a cause of action. Many courts have also addressed clergy sexual misconduct and have contemplated the appropriate cause of action for such situations. Among these courts, there is a split of authority regarding whether these actions are permissible under the First Amendment. The outcomes of the respective jurisdictions are dependent on whether the court determines that the appropriate cause of action is one for breach of fiduciary duty or is for malpractice. Thus, this article first turns to the doctrinal area of tort, focusing on a comparison of malpractice and breach of fiduciary duty and their respective capacities for compliance with First Amendment prohibitions. This article examines the interpretations and general applications of the religion clauses of the First Amendment with particular focus on prohibitions against sexual misconduct. It engages in a comparison of the judicial treatment of sexual harassment by clergy under Title VII as guidance for treatment of sexual misconduct by clergy. An analogy of religious organizations to families, with regard to a general theory of state intervention in the affairs of religious organizations, further illuminates the importance of this topic. The ultimate purposes of this article are both to find a means of redress for victims of sexual abuse and to assist religious institutions in avoiding becoming an inadvertent refuge for sexual predators.