First Amendment Does Not Protect Criminal Activities by Staff at Religious Organizations, Says Americans United

The First Amendment's religious liberty provisions do not shield
houses of worship from liability when their staff members or volunteers
commit crimes, Americans United for Separation of Church and State has
told the Nevada Supreme Court.

Americans United and several other organizations filed a friend-of-the-court brief Dec. 11 in Nevada's top court asserting that point.

The case in question, Ramani v. Segelstein, deals with a
woman who says she was sexually assaulted by a cantor at her synagogue
after a service. When she reported the assault to the head rabbi, he
allegedly ignored the complaint and proceeded to solicit her for sexual
favors.

"The principle of religious liberty must not be sullied by making it
a shield for criminal activity," said the Rev. Barry W. Lynn, executive
director of Americans United. "The First Amendment was never intended
to be interpreted that way."

In the brief, Americans United and the other organizations take
issue with claims made by the Roman Catholic Bishops of Las Vegas and
Reno and the Church of Jesus Christ of Latter-day Saints (LDS), which
argue in their brief that religious organizations should be immune
(except in very narrow circumstances) when their employees or
volunteers commit crimes like sexual assault.

The brief filed by AU and others states that the bishops and the LDS
church are essentially arguing "that religious entities can harm others
without accountability and that somehow the First Amendment operates to
create a special, religious enclave of those who must be permitted as a
constitutional matter to be unaccountable for the harm they inflict."

Many courts, the brief asserts, have rejected this argument.

"When an employer becomes aware (or should be aware) of behavior
that may be harmful and does nothing - or exacerbates the harm as in
[this case], the organization should be held liable for the injury that
it had the unique ability to avoid through control of the employee or
servant," observes the brief.

The brief also argues that the fact that a house of worship's
clergyperson may have acted as an unpaid volunteer does not
automatically shield the house of worship from liability.

"Exempting volunteers from normal agency law simply does not comport
with well-settled agency doctrine, or the protection of the
vulnerable," argues the brief.

In addition to Americans United, organizations signing the brief
include the Jewish Board of Advocates for Children, Inc.; Survivors For
Justice; the National Black Church Initiative; Survivors Network of
those Abused by Priests; the National Association to Prevent Sexual
Abuse of Children; Child Protection Project; the Foundation to Abolish
Child Sex Abuse; the Cardozo Advocates for Kids; Sexual Violence Legal
News; Children's Healthcare is a Legal Duty and Americans Against
Abuses of Polygamy.

The brief was written by Professor Marci A. Hamilton, who holds the
Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of
Law, Yeshiva University.