A Curious Notion of Religious Freedom

In a decision against the Roman Catholic Diocese of Portsmouth, the Court of Appeal (Civil Division) has affirmed a lower court ruling which found that the relationship between a Diocese and a priest is sufficiently akin to employment to permit for vicarious liability for sexual abuse by that priest of a minor. The opinion is detailed, well-reasoned, and exhaustively researched decision among the Commonwealth nations' legal precedents and academic research, at one point remarking of the "scathing" opposition to the very notion of vicarious liability held by the great scholar Glanville Williams that the Court "is relieved that he is not marking this essay." (Para 56)

In the Catholic Herald, Fr. Alexander Lucie-Smith writes that:

Until now, as far as I understand it, priests volunteer to serve in various offices at the invitation of the bishop or religious superior. If the bishop and the priest are now to be considered in an employer/employee relationship, then this represents an innovation. Employees can sue their employers, and vice versa; the relationship between employees and employers is governed by a vast corpus of case and statute law. At present the relationship between bishop and priest is governed by canon law, the only force of which is in the will of those who adhere to it. A priest can, but rarely does, initiate a canonical process against his bishop, and vice versa; but if we are employees, then this opens up a whole new range of possibilities, and potentially, a considerable new territory for litigation.

Then there is another matter. The Church is a voluntary organisation that makes its own rules, just like the Scouts or any other bunch of do-gooders. This court ruling, if it is upheld, would effectively mean that from now on the Church’s own rules were no longer in force in governing the relationships between priests and bishops; and canon law would be replaced by the law of the land in this regard. In other words, it would mean the intrusion of the state into the Church and an usurpation of freedom of conscience.

I think that Fr. Lucie-Smith is in error here, and is missing a pretty clear-cut distinction between his paradigm of wrongful state intrusion within voluntary associations, and the parade of horribles he evokes (for example, the secular courts' usurping the role of the Beth Din). That difference is that the Court did not have before it the internecine struggle between priest and bishop, but rather whether the diocese which licenses, assigns, and directs the priest's functioning may be liable to those who have been injured by the priest in the abuse of the trust conferred upon him by the diocese. It is one thing to say that the church may structure its relationship between priest and bishop to have the prerogatives of employment (read the Code of Canon Law (1984), and tell me that it reads like a purely voluntary arrangement) without its burdens vis-a-vis the free adult who chooses that relationship, and quite another to say that the directing authority can thereby immunize itself against the claims of those injured by its selected, licensed and vouched-for representative among the worshipping public.

The decision noted, quite properly, that there may be, based on the facts of a given case, room for a finding that the abuse is so unrelated to the scope of the duties assigned that liability could be defeated. And one can argue that there are good tort law arguments against the extension of vicarious liability here--although I am highly skeptical. But it does not seem to me to be a violation of religious liberty to hold a church civilly liable for the abuse of the privileges and trust conferred on it by its chosen ministers. There is no religious liberty infringed by not permitting institutions to contract around the structures of secular liability.