Last Sunday, it was my privilege to deliver a message on "Christian ethics," arising from Mark 12:41-44, at my local church in Barrington, R.I.
The service is posted on the church website. The message begins at about 31 minutes and runs about 24 minutes in duration.
I used two problems in conventional ethics as jumping off points: one, from legal ethics, a lawyer's unintentional acquisition of privileged records produced mistakenly in discovery; and two, from higher education, a student's unintended acquisition of an unfair academic advantage.
In crafting the church message, I am indebted especially to mentors Eric D'Agostino and Scotty Neasbitt, who helped me navigate the research; and to my church leadership, including Dan Harrington, who writes thought provokingly for the ProJo; and, always, to my wife, an unflinching editor.
I note that, as always, this blog is personal and not affiliated with nor controlled by my employer. Sometimes content on this blog serves both to inform the public and to educate my students about the law. This posting, however, concerns religious belief and is exclusively personal in nature. No public resources nor on-the-job time was used in the work of the above-described message, nor in the production of this blog post. At the same time, of course, readers of any and every religious tradition and belief system are welcome on this page and at The Savory Tort, just as all students are welcome and encouraged in my classroom.
Charitable immunity does not protect Catholic Church leaders in Springfield, Mass., from civil allegations of sexual assault, but it does shield them against liability for negligent supervision, the Massachusetts Supreme Judicial Court ruled yesterday.
Pseudonymous plaintiff John Doe alleged sexual abuse, including a "'brutal[] rape'" while being held down by fellow altar boys and priests in the 1960s. Doe alleged that he first recovered memory of the abuse in 2013; he first complained to the church in 2014.
After investigations, the church offered the plaintiff an apology in 2019, and in 2021, he sued over both the abuse in the 1960s and the handling of the complaint since 2014. The Superior Court denied the defendants common law charitable immunity and ecclesiastical abstention under the First Amendment, prompting interlocutory appeal. The Supreme Judicial Court declined any First Amendment question as premature in advance of final judgment.
By statute, Massachusetts curbed charitable immunity to a $20,000 quantitative limit ($100,000 in medmal) in 1971. But the statute is not retroactive to Doe's 1960s claims.
The purpose of common law charitable immunity, the court reasoned, is to protect charitable actors "from the burden of litigation and trial." But in the context of sexual assault allegations, the defendants cannot be said to have been performing a charitable function. In contrast, "negligent supervision ... is exactly the sort of allegation against which common-law charitable immunity was meant to protect," for it implicates managerial functions in the selection of subordinates.
The case arises in the home state of the Boston Globe Spotlight team, whose 2002-04 investigation surfacing church abuse became the subject of a 2015 feature film. The bishop named in the instant suit as a perpetrator, who died in 1982, was implicated in the Spotlight investigation.
The case is Doe v. Roman Catholic Bishop of Springfield, No. SJC-13219 (posted temporarily). Justice David A. Lowy wrote the unanimous opinion.
Principles of common law trust give families a say over the disposition of their loved ones' remains when a church closes and sells its burial ground, the Massachusetts Appeals Court held in May.
The chronic closure of churches and sale of their buildings has spun off a collateral issue of what happens to human remains and who gets to decide.
The 2015 closure of the Episcopal Church of the Holy Spirit of Wayland, Mass., generated such a problem. The diocese decided to close the church and agreed to sell the property to the Coptic Church.
The Coptic Church was not keen, though, to take over and maintain the churchyard burial grounds as they were. The Coptics were interested in developing the property, and they have a religious objection to cremation, which was the state of some of the deceased.
The Episcopal Church explored disinterment and relocation options with families of the deceased. The last burial there was in 2006. Not all families were willing to get on board; some wanted their loved ones to stay put. The Episcopal Church therefore endeavored to move the remains without consent, to see the sale to the Coptic Church go through, and litigation ensued.
The court reviewed the potentially applicable law of property and contract. Both parties made good arguments, and none persuaded the court dispositively. In essence, the church claimed conventional property ownership, and the families pointed to a contractual promise of "perpetual care."
The court instead decided to hang its hat on the amorphous but persuasive notion of common law trust. Some kind of right clearly persists in family over members over the disposition of loved ones' remains, the court reasoned, because we don't think twice in entertaining disputes between family members when there is a question about where a loved one should be laid to rest. Something more than mere property must be going on; the court quoted a New York court's "eloquent" reasoning in an 1844 case:
"When these graves shall have worn away; when they who now weep over them shall have found kindred resting places for themselves; when nothing shall remain to distinguish this spot from the common earth around, and it shall be wholly unknown as a grave-yard; it may be that some one who can establish a 'paper title,' will have a right to its possession; for it will then have lost its identity as a burial-ground, and with that, all right founded on the dedication must necessarily become extinct."
The instant case is hardly akin to that distant day, the court countered; rather, the complainants here are first-degree survivors. "For these reasons," the court concluded, "we now hold that in the absence of a governing statute, common law trust principles apply to the disinterment of human remains from a dedicated burial ground until the families of the deceased have abandoned the remains or the burial ground is no longer recognizable as such."
The court made short work of the Coptic Church's claim that its freedom of religious exercise would be violated by the presence of cremated remains. Essentially, the court reasoned, the bodies are already there. And the family's religious rights might as well be implicated were the court to countenance disinterment.
The court acknowledged that many questions would arise from this decision, for example, regarding the family's right to visit their loved ones' graves under new ownership. But those are questions for another day.
The unusual case is Church of the Holy Spirit of Wayland v. Heinrich, Nos. 21-P-7 & 21-P-8 (Mass. App. Ct. May 5, 2022). Justice James R. Milkey wrote the opinion of a unanimous panel.
For two reasons, it pains me to see churches on the news violating stay-at-home rules. First, like almost everyone, I'm horrified by the potential impact on people's health and lives, put at risk utterly unnecessarily. Through the Bible, God calls on people to worship together, as a body, e.g. Hebrews 10:24-25. At the same time, as author Jon Meacham told Stephen Colbert in a terrific recent interview, during Passover and in anticipation of Easter, "Being willfully stupid is not part of the Christian tradition."
This might be an especially authentic Easter, Meacham suggested, in the sense that early Christians met in homes, e.g., Acts 12:12, and the disciples, if together, sought refuge behind locked doors after the Crucifixion, John 20:19. Moreover, I've written previously about the biblical precedent for quarantine.
Second, these stories on the news are man-bites-dog coverage; what's being reported is aberrational, not normal. And the truth about churches and other places of worship in this crisis could not be more poorly represented. My church is the norm. To protect congregants, the elders suspended our live worship service and other on-campus meetings before the law required. We had Easter services on a live feed, and we're having classes, prayer, and meetings on Zoom. Most importantly, we encourage and support one another, Romans 14, notwithstanding social distance. In the absence of coordinated leadership and a functional social safety net from government, communities of faith are filling the gap, keeping people sound of mind and body. That's the real religion story of the crisis (see also, e.g., NYT Wehner op-ed, Apr. 10).
Seeing authorities in Kentucky and Louisiana effecting arrests and citing drivers at live religious ceremonies that defy government orders, I started to worry what damage these aberrational observances might do to our jurisprudence and tradition of free religious exercise. Would this be yet another instance of #RuiningItForEveryone? That is, if courts start making rulings that approve authoritarian government controls over even ludicrous assertions of religious freedom, the unintended consequence might be to water down religious freedom for all of us—however much I try to remain cognizant of the First Amendment's critical function in anti-majoritarianism.
A Methodist preacher on Deal Island, Md.,
probably the Rev. Joshua Thomas in the 1830s.
From Adam Wallace, The Parson of the Islands93 (4th ed. 1872).
George Scoville, Nashville attorney and adjunct professor in political science at Belmont University, has written an excellent analysis of the present landscape in religious freedom law amid the lockdown, including explication of a recent federal court ruling in the Western District of Kentucky, and the potential application of the U.S. Supreme Court jurisprudence on Native American peyote use. He writes:
As an initial matter, nobody contests that, under the structure of our
Constitution, states have always had plenary police power to regulate
the health, safety, welfare, and morals of their citizens–the simple
requirement being, at least after the 1860s, that people receive due
process of law before a state-sanctioned deprivation of life, liberty,
or property. On the religious liberty question, my gut reaction is
that, generally speaking, “safer-at-home” or “shelter-in-place” orders
that prohibit gatherings of people larger than some discrete number, or
which require that people maintain a proper social distance of some
discrete number of feet, are not per se constitutionally
problematic. Rather, these orders, like the criminal prohibition on
peyote use that applied to all Oregonians, apply to everyone.
However, As Scoville explains, there might be room for a challenge where the due process thread of the religious freedom argument intertwines with the equal protection thread. Thus the court in Kentucky entertained the argument that disallowing drive-through worship while allowing drive-through liquor sales was constitutionally problematic.
[UPDATE, April 26, 2020: Attorney Scoville has authored an op-ed for The Tennessean in which he additionally considers the potential impact of mini-RFRA litigation amid the pandemic.]
[UPDATE, May 15, 2020: The Sixth Circuit has issued an injunction allowing live church services despite the Kentucky Governor's orders.]
