Tort Liability, Religious Entities, and the Decline of Constitutional Protection

Posted: 13 Mar 2006 Last revised: 8 Oct 2009


This article examines the long-term viability of the First Amendment prohibition on the adjudication of legal actions requiring the resolution of religious questions, such as disputes over theological doctrine, scriptural interpretation, or ecclesiastical law. In particular, the article focuses on tort suits against religious institutions and clergy, often stemming from the latter's alleged misconduct towards congregants or children. Part I contends that the bar on certain tort actions is actually an application of a more general prohibition on the adjudication of religious questions and examines the contours of this prohibition and its specific application in the tort context. Part II then explores various reasons why the bar on adjudicating certain tort actions may increasingly be limited or eroded with time. These reasons include the general increase in tort litigation against religious entities; the public's growing sympathy for the victims of clergy exploitation, waning societal appreciation for institutional religion, and undervaluation of the First Amendment concerns at stake; the fact that such suits are generally brought in state court (rather than federal court), where public attitudes may be less constrained and judges less sensitive to broader constitutional limitations; and the nature of current constitutional doctrine. Part III examines the doctrinal means by which the principle's erosion may be effected, while Part IV examines various factors that may forestall this erosion.

Keywords: religion, church, tort liability, negligence, malpractice, first amendment

Suggested Citation

Idleman, Scott C., Tort Liability, Religious Entities, and the Decline of Constitutional Protection. Indiana Law Journal, Vol. 75, pp. 219-271, 2000. Available at SSRN:

Scott C. Idleman (Contact Author)

Marquette University ( email )

Eckstein Hall
P.O. Box 1881
Milwaukee, WI 53201
United States
414-288-5362 (Phone)

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