Re: Suing the church

November 21, 2003 | 14 comments
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Adam asked [UPDATE: in a comment that was, alas, lost when we changed software two years ago] if suing the church might place one in the category of “groups that oppose the church.” He raises a question which, I think, does not have a yes-or-no answer.

My intuition is that the answer involves repeated use of the word qua. (See also here, third joke down, for the use of qua). To wit:

The church may be sued qua employer (put that aside for now). It may be in many other capacities. It may be sued qua tenant. It may be sued qua neighbor, or landowner, or contractor, and the list goes on and on. Finally, it may be sued qua church. The qua makes a difference.

Suing the church qua employer, tenant, neighbor, landowner, or contractor seems much less likely to trigger any membership problems. For example, if a church member is walking outside a church building and a negligently-placed brick falls and hits the member on the head, I don’t see why the member could not bring suit against the church. Likewise if construction on a new church building ruptures a water main and floods a member’s basement. And likewise if the church agrees to buy 100 suits from a member retailer, and then breaches the contract. The church may be a divinely-led organization, but it has a secular infrastructure which is not unlike any other infrastructure.

Separate from the secular infrastructure are church actions qua church. I may not bring suit for infliction of emotional distress when the Bishop tells me to repent. I may not sue the church over church policies which are divinely ordained (such as exclusion of women from the priesthood). Any such action would put me in the category of groups that oppose the church.

Finally, there are the mixed questions. For example, when the church is acting as an employer, it has a secular role, but may also be filling a religious role (and courts have upheld the religious aspect of church employment, see Corporation of the Presiding Bishop v. Amos. Whether Amos was rightly decided is a very complicated issue and beyond the scope of this post).

Those are my categories. From among those categories, it seems like baptism is a mixed question. It certainly has a religious purpose. On the other hand, I don’t think it is unreasonable to require that the church make baptisms be, as a general matter, safe events. For example, if the church were conducting baptisms in water next to downed power lines, and someone were electrocuted, suing the church could be a proper recourse. Since baptism is a mixed category, and since the challenged aspect here is a secular portion of baptism (the safety of the font, rather than the validity of the prayer), a suit is not inappropriate.

UPDATE [OLD]: I should have mentioned when I originally wrote this, that Gordon’s post about suing for breach of privacy in tithepayer status seems to be an instances of suing the church qua church, which is problematic. The case he cites, with a missionary who becomes ill, also appears to be suing the church qua church. (If the church were routinely exposing missionaries to highly unreasonable unsafe conditions, it might be different).

UPDATE [NEW]: This post refered to some comments which were, unfortunately, lost when we moved from blogspot to moveable type.

14 Responses to Re: Suing the church

  1. Adam Greenwood on October 28, 2005 at 3:04 pm

    I maintain my original position. Whether or not suits against the church make you ‘a group that opposes the church,’ suing the church means you don’t get what church is all about. In other words, it means that you don’t realize that being part of the church is *not* an arms-length transaction. Its family, Christ’s family, writ large.

    So suing the church is liking suiing your family. To be avoided under most any circumstance.

  2. b bell on October 28, 2005 at 3:38 pm

    I feel that there would be extremely few situations in which I would sue the church. Off the top of my head I can think of none. (ask me again after I think about it) My view is that off the lawsuits against the church I have seen with my own eyes maybe 3-4 were from people attempting to receive a financial windfall from the lawsuit. In these cases it would appear to me that the people were not really opposing the church or joining an apostate group they were looking for some cash.

  3. Sarah on October 28, 2005 at 3:55 pm

    Well… why are you suing the Church? Are you doing it because you need the money because your house has been ruined, because you’ve finally been delivered the win-lottery-by-legal-action ticket you’ve been praying for, because you think the Church (writ large) needs to stop doing something (I’m thinking of cases like the Grace Foods suit dramatized in “A Civil Action”) or because you think a member of the Church’s administration did something very bad?

    It seems like the whole point of that question (associating with groups that oppose the church) is much more about the intent of the person than names of the people involved (like, it’s not a “are you associating with members of the Communist Party” question, even though it looks like one — it’s a “are you working towards creating an insurrection within our country” kind of question.) So it’d be the intent (a nice happy impossible-to-really-determine standard) that matters.

  4. GreenEggz on October 28, 2005 at 6:34 pm

    I rarely read about lawsuits against the Church here in the midwest.

    Maybe the volunteer nature of ecclesiastical callings helps insulate the church from lawsuits. But you only have to go two or three levels up from bishop before you get to the 1st or 2nd quorum of 70, who are compensated employees of the church.

    How much liability does the church bear for the actions of home-teachers? How much for bishops? How much for full-time missionaries?

    Are full-time missionaries considered de-facto employees of the church even though there is no remuneration? Does the fact that they are considered, and told quite often, that they are official representatives of the church imply liability on the church’s part?

    At the least, because their full-time efforts are directed by official representatives of the church, and because there is a contractual agreement between the church and the full-time missionary, some kind of liability is implied.

    I did not read all the fine print on the missionary contract that one signs when sending in your missionary application, and I don’t know if I read everything on the paper where you sign your acceptance of the calling. If I had, I probably wouldn’t have gone. I was concerned about health insurance, as I was over 21, and hadn’t been a dependent of my parents for seven years, and didn’t have the option of continuing health care coverage from my employer.

    What liability does the church have if a missionary suffers some loss (monetary or health) while on the mission? What if that loss is the result of mission policy or the action or inaction of the mission president or other mission leaders?

    What liability does the church have if missionary “A” causes loss or harm to missionary “B”? What if such loss or harm occurs in a foreign country? Physical and emotional abuse in the missionary system has occurred and has been addressed, but when it does happen, what are the legal implications?

    The Doctrine and Covenants says that members should resolve issues within the church framework and not take them before the world, which I assume means in civil court. But does that also apply in criminal matters? Should criminal matters of member against member or church-leader against member be handled within the church, or should the aggrieved party go to the local legal authorities?

  5. Seth Rogers on October 28, 2005 at 7:02 pm

    Adam, if we’re “all family” here, the church should be willing to pay up when it’s legally responsible for the injury. If it doesn’t, then the plaintiff isn’t the only one “not acting like family.” The church itself could be said to be acting unchurchlike.

    If there is injury and liability, there should be payment. If the church is liable and refuses to pay out-of-court, then they can pay in-court. I see nothing wrong with that.

  6. Matt Hemmert on October 28, 2005 at 7:07 pm

    The whole concept behind lawsuits, as most of us know, is to place the plaintiff in the position he/she would have been in but-for the alleged “wrong.” The bretheren have on many occasions declared disdain for the litigious society we live in; encompassed within that “society” is the membership of the Church. The doctrine of the Church teaches forgiveness, not retribution and retaliation. Clearly, restitution is in order in some cases (ie. the brick on the head), but that should be taken care of with Church insurance carriers, and not with the Church as Defendant.

    In my opinion, worth about two cans of Pepsi One, a suit against the Church by a member of the Church clearly, as previously suggested, is an action that can/could/should make that temple recommend question very difficult to answer.

  7. Seth Rogers on October 28, 2005 at 7:46 pm

    Funny, last I heard, the litigation rate today isn’t appreciably different than it was in the 1800s (when you compensate for population size).

    I wonder if the so-called “litigation explosion” is just a bunch of hype.

  8. Marc Bohn on October 28, 2005 at 8:20 pm

    I still think Kaimi’s distinction is key. A suit against an entity owned by the Church could be a very different matter than a suit against the Church itself. A breach of contract suit by an employee against BYU or by a contractor over a commercial project can surely be distinguished from a suit against the Church for negligence by a Ward Bishop. Sarah’s emphasis on intent is certainly an important consideration. I would have to agree with Adam, that suits against the Church are to be avoided under most any circumstance… but I wouldn’t go so far as to say that anyone who sues the Church falls into the category of “groups that oppose the Church.”

  9. sam b on October 29, 2005 at 6:17 am

    There was a church court system that was meant to adjudicate problems among members in order to avoid the secular courts, and I suspect (on analogy to Nauvoo) that there were occasional instances of someone sueing church leadership in those courts.

    The bigger problem is the use of the law to negotiate interpersonal relationships. These suits seem to me to be, in their common application now, antithetical to the development of relationships. They strip away so much of the human experience of community and place the opponents in antagonistic positions. So I vote with others that suits within a meaningful community ought to be quite rare, and to the extent they exist they likely indicate the fracturing of the community (though in fairness I will admit that occasionally they are the indication of an important problem rather than a cause).

    re: 7, various suits were incessant in the nineteenth-century frontier–i’ve read court docs for nauvoo and carthage from the period, and every little disagreement was quickly litigated, often without lawyers. i’m not sure whether in civilized society of the time they were that common. If they weren’t that would go along with my thesis.

  10. queuno on October 29, 2005 at 11:01 am

    So can I sue the elders quorum who dropped my piano?

  11. GreenEggz on October 30, 2005 at 10:43 pm

    Am I correct in assuming that the more formal training that the church would provide for Bishops, there would be a corresponding increase in the church’s legal liability in regards to a bishop’s actions?

  12. Kaimi on October 30, 2005 at 11:25 pm

    Good comments, all. The variety of responses indicate the difficulty this issue brings with it.

    Adam, agreed that it is generally preferable not to sue. The family analogy is a good one. That said, there’s a lot of intra-family litigation in the courts. (See also Seth’s point that any family relationship is a two way street).

    B Bell, there is certainly the danger of seeking a windfall. On the other hand, I’m concerned with the possibility of someone not receiving just compensation for legitimate legal harm.

    Sarah, agreed that intent matters. There are areas where I would never believe a lawsuit would be appropriate, such as to try to change theological policies. On the other end of the spectrum are run-of-the-mill business transactions. If someone is harmed by negligent crate handling at a bishops storehouse, for instance.

    And the comments regarding the church’s experience here are very much on topic. The church ran its own courts for some time.

    Green eggz — I don’t know if added training would result in added liability. At some point, lack of added training could lead to liability, if there was a perception that the church should have known it should be trainign better.

  13. a random John on October 30, 2005 at 11:46 pm

    queuno,

    The great thing about paying for movers is that it is much easier to get them to pay for what they break than it is to get the $$$ out of the EQP. This is a pretty clear case of you get what you pay for.

  14. Laura on October 31, 2005 at 12:36 am

    Where would the lawsuits over abuse by Catholic priests fall in this framework? Would they be considered suing a church qua church?