# F.G. v. MacDonell

> Supreme Court of New Jersey · July 22, 1997 · 150 N.J. 550

URL: https://www.frixlaw.com/law-library/cases/9644359

## Case

- **Full name:** F.G., Plaintiff-Respondent, v. Reverend Alex MacDonell, in His Capacity as Former Rector, and Reverend Fletcher Harper, in His Capacity as Rector of All Saints’ Episcopal Church, Bergenfield, New Jersey and St. Luke’s Episcopal Church, Haworth, New Jersey, Defendants-Appellants
- **Court:** Supreme Court of New Jersey
- **Decided:** July 22, 1997
- **Citations:** 150 N.J. 550; 696 A.2d 697; 1997 N.J. LEXIS 222
- **Precedential status:** Published
- **Opinion:** Dissent by O'Hern
- **Judges:** Garibaldi, Poritz, Handler, Pollock, Stein, Coleman-, O'Hern
- **Cited by:** 134 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9644359

## How later opinions describe it (automated extraction)

- holding that a sexual misconduct by pastor with adult parishioner is actionable as a breach of fiduciary relationship where vulnerable parishioner sought counseling from a trusted pastor who accepted the responsibility of providing counseling and noting in support that breach …
- holding that plaintiff-parishioner stated cause of action for breach of fiduciary duty against a church rector based on the inappropriate sexual relationship that developed between them while the rector was counseling the parishioner
- holding that breach of fiduciary duty claim arising out of sexual relationship between clergyman and parishioner who was seeking marital counseling, permissible under New Jersey law
- holding that First Amendment does not bar breach of fiduciary duty claim against priest who engaged in sexual relationship with adult parishioner during counseling
- holding that in order to be protected, the "conduct at issue must have been part of the beliefs and practices of the defendant's religion"

## Opinion text

O’HERN, J.,
dissenting.
The majority states that the “threshold issue is whether the First Amendment to the United States Constitution shields a member of the clergy from a claim for inappropriate sexual conduct with a parishioner who has consulted the clergy member for pastoral counseling.” Ante at 558, 696 A.2d at 701. Reasoning that the First Amendment to the United States Constitution may be asserted as a defense to a defendant’s conduct only when the conduct that caused the plaintiffs injury finds its basis in religious beliefs and practice, Wisconsin v. Yoder, 406 U.S. 205 , 92 S.Ct. 1526 , 32 L.Ed.2d 15 (1972), the majority concludes that because the pastor acknowledges that no tenet of his religion sanctions sexual contact with a congregant, the conduct is a tort. Such reasoning misses the constitutional point entirely. Reverend MaeDonell is not asserting that conduct otherwise tortious is protected because it is religious. Rather, F.G. asserts that the conduct is tortious because the defendant is a religious.
*568 It is simply impossible for a court to define the duties of a member of the clergy and impose civil liability therefor. To do so would establish an official religion of the state, something forbidden by the First Amendment.
I must emphasize at the outset that the First Amendment does not protect pedophiles or charlatans wearing religious garb. Members of religious bodies are as liable for worldly wrongs as are any other members of society. A minister, priest or rabbi has no license to steal and no license to commit a sexual offense condemned by law:
It is well settled that clergy may be sued for the torts they commit. For example, religious leaders have been held liable for obtaining gifts and donations of money by fraud, United States v. Ballard (1944), 322 U.S. 78 , 64 S.Ct. 882 , 88 L.Ed. 1148 ; for undue influence in the transfer of property, Nelson v. Dodge (1949), 76 R.I. 1 , 68 A.2d 51 ; for the kidnapping of a minor, for damages to the parents resulting therefrom, and for malicious prosecution of the mother in alleging she was an unfit parent, Magnuson v. O’Dea (1913), 75 Wash. 574 , 135 P. 640 ; for unlawful imprisonment, Whittaker v. Sandford (1912), 110 Me. 77 , 85 A. 399 ; for homosexual assault, Mutual Service Cas. Ins. Co. v. Puhl (Minn.App.1984), 354 N.W.2d 900
[Strock v. Pressnell, 38 Ohio St.3d 207 , 527 N.E.2d 1235, 1237 (1988).]
Each such act was tortious or wrong, not because the actors were clerics, but because the conduct would have been wrong for every member of society.
The problem for F.G. is that no law makes it a tort or crime for consenting adults to engage in sexual relationships. See State v. Saunders, 75 N.J. 200 , 381 A.2d 333 (1977) (discussing what sexual conduct between certain adults may be made criminal). The only basis for tort liability set forth in plaintiff’s complaint is the following: “During the course of their pastoral care and pastoral counselling relationship there was a breach of the special duty of care which MacDonell owed F.G. as her pastoral care provider and pastoral counsellor.” Had Alex MacDonell been a neighbor, coworker, or friend seeking to comfort F.G., no secular law would make his extramarital affair a tort or crime.
No court in the United States has created a tort of clergy malpractice for the simple reason that to do so would require a *569 court to establish a state religion. See Carl H. Esbeck, Tort Claims Against Churches and Ecclesiastical Officers: the First Amendment Considerations, 89 W. Va. L.Rev. 1 (1986) (explaining that such inquiry would require courts to establish a set of acceptable religions).
In Hester v. Barnett, 723 S.W.2d 544, 553 (Mo.Ct.App.1987), the court observed: “[A] theory of malpractice is defined in terms of the duly to act with that degree of skill and learning ordinarily used in the same or similar circumstances by members of that profession.” Recognizing clergy malpractice would force a court to judge “the competence, training, methods and content of the pastoral function” in deciding whether the cleric breached this duty. Ibid. Just a few months ago, the Wisconsin Supreme Court reaffirmed in the context of a cleric’s sexual relations with another, that a claim for negligent supervision of conduct that offended no civil law “was precluded by the First Amendment because it would require an inquiry into church laws, practices, and policies.” L.L.N. v. Clauder, 209 Wis.2d 674 , 563 N.W.2d 434, 441 (1997).
In almost identical circumstances, a husband complained that an adulterous sexual relationship between his wife and an Episcopal priest had an adverse effect on his wife’s mental status to the extent that it may have caused her suicide. Roppolo v. Moore, 644 So.2d 206 (La.Ct.App.1994), writ denied, 650 So.2d 253 (La. 1995). The court explained that it could not base tort liability on the religious affiliation of a sexual partner. “[T]hey were both adults. As there is no civil nor criminal prohibition against such conduct between adult laypersons the State cannot penalize such conduct because Dr. Moore was an Episcopal priest.” Id. at 208. To do so would require this Court to determine the standards of the Episcopal Church and “then put the weight of the State behind those standards or to require a different standard of behavior of the clergy.” Ibid. The State cannot penalize sexual conduct between adult laypersons because such conduct violates no law.
*570 F.G. relies on the depositions of the Episcopal bishop of the diocese and Rector MacDonell, each of whom acknowledged that sexual conduct with a parishioner was beyond the tenets of the Episcopal Church. Still, the Court cannot “put the weight of the State” behind those standards in order to impose civil liability. Ibid. To do so would establish the tenets of Episcopal religion as the basis for civil liability.
Much needless confusion has arisen in this area because some courts have mistakenly allowed religious to plead the Free Exercise Clause as a defense to conduct that was plainly tortious, such as a sexual contact with an unconsenting minor child or even a crime of sexual misconduct. Cases such as Schmidt v. Bishop, 779 F.Supp. 321 (S.D.N.Y.1991), are mistaken if they are read to suggest that the First Amendment immunizes pedophiliac conduct by members of religious bodies. Such cases rejected clergy malpractice claims on the basis of free exercise, not because sexual molestation is protected conduct, but because of fear of venturing down a “slippery slope” into questions of liability impossible and unconstitutional to determine. Schmidt, supra, 779 F.Supp. at 328 .
However, there is no slope on which to slip in such cases. Sexual molestation of a minor can never be justified under the Free Exercise Clause. What courts such as Schmidt were simply stating was that there was no need to create a new tort to provide a remedy for conduct that was already tortious. “For clergy malpractice to be recognized, the cleric’s behavior, even if it is related to [ ] ‘professional’ duties, must fall outside the scope of other recognized torts.” Strode, supra, 527 N.E. 2d at 1239 .
Even Nally v. Grace Community Church of the Valley, 240 Cal.Rptr. 215 (Ct.App.1987), once described as “[t]he most celebrated clergy malpractice case,” Arlin M. Adams & Charles J. Emmerich, A Heritage of Religious Liberty, 137 U. Pa. L.Rev. 1559, 1671 n. 361 (1989), was later reversed by the California Supreme Court. 47 Cal. 3d 278 , 253 Cal.Rptr. 97 , 763 P.2d 948 *571 (1988), cert. denied, 490 U.S. 1007 , 109 S.Ct. 1644 , 104 L.Ed.2d 159 (1989) .
Because of the differing theological views espoused by the myriad of religions in our state and practiced by church members, it would certainly be impractical, and quite possibly unconstitutional, to impose a duty of care on pastoral counselors. Such a duty would necessarily be intertwined with the religious philosophy of the particular denomination or ecclesiastical teachings of the religious entity.
[Id. at 299, 253 Cal.Rptr. at 109 , 763 P.2d at 960 .]
Of course, there are clerics who wear two hats. To assess the conduct of a cleric moonlighting as a TV repair person establishes no state religion. There are even clerics who are licensed as attorneys, physicians, or psychological therapists. Of course, should clerics hold themselves out as recognized members of other professions, they would be liable if they fail to meet the standards of that profession. In Dausch v. Rykse, 52 F.3d 1425 , 1428 n. 3 (7th Cir.1994), the defendant represented to the plaintiff that he was a capable, trained professional on whom she could rely to assist her with her personal problems and could provide “secular psychological, not religious, counseling” (emphasis added). He demanded compensation for his services in the form of sexual favors. Such a person having doffed the robe of cleric may be held to the standards assumed, although not on the basis of the creation of a tort of clergy malpractice. 1
There is absolutely no suggestion of such an assumption of secular duties in this case. Plaintiff’s complaint is explicit that Rector MacDonell failed to exercise that degree of skill, care, and diligence that is exercised by pastoral care providers. Pastoral care provider can only mean one thing. Some jurisdictions have attempted to characterize the tort of clergy malpractice as an action for breach of a fiduciary relationship. The allegation of a *572 breach of fiduciary duty, however, is “simply an elliptical way to state a clergy malpractice claim.” Dausch, supra, 52 F.3d at 1428 . Plaintiffs third count for breach of fiduciary duty is explicit that it is only in Reverend MacDonell’s capacity “as pastoral care provider and pastoral counselor to her” that he breached any fiduciary duty. The authorities cited by the Court, ante at 563-64, 696 A.2d at 703-04 concern the law of wills, trusts, and property. See Gray v. Ward, 929 S.W.2d 774 , 1996 WL 364794 at *8 (Mo.Ct.App.1996) (holding that to establish a fiduciary relationship under Restatement of Torts and Missouri law, it must be shown that “[the cleric] possessed or managed things of value”). Absent such interests,
analyzing and defining the scope of fiduciary duty owed persons by their clergy (assuming pastoral relationships were “fiduciary”) would require courts to define and express the standard of care followed by reasonable clergy of the particular faith involved, which in turn would require the Court and the jury to consider the fundamental perspective and approach to counseling inherent in the beliefs and practices of that denomination. This is as unconstitutional as it is impossible. It fosters excessive entanglement with religion.
[H.R.B. v. J.L.G., 913 S.W.2d 92, 98 (Mo.Ct.App.1995).]
If there is some general duty on the part of all fiduciaries to refrain from sexual conduct with a client, I assume that trust officers, investment advisors, and real estate agents will be covered by the Court’s strictures.
In previous times, secular leaders exercised temporal power by divine right. Secular leaders had to be reminded not to exceed their authority. John Witte, Jr., A New Concordance of Discordant Canons: Harold J. Berman on Law and Religion, 42 Emory L.J. 523 , 531 (1993) (referring to Pope Gelasius’ description of the two swords of authority, one spiritual and one temporal). In contrast, in this age and in this country secular leaders exercise temporal power by consent of the governed. The founders of our republic were profoundly influenced by the religious conflicts that occurred in the wake of the Reformation. Adams & Emmerich, supra, 137 U. Pa L. Rev. at 1561. They inherited the view that God had instituted two kingdoms, the heavenly one in which the church exercised its spiritual authority and an earthly one in *573 which the civil magistrates exercised temporal authority and were deeply reluctant to allow one to interfere with the other. “From Roger Williams ... the Founders learned that state control of religion corrupted faith.” Id. at 1562.
The long journey toward Roger Williams’ dream of two states in America, one secular and one spiritual, has foundered on the shores of behavior so incorrect as to cause the Court to lose its bearings. The Court is not alone in its search for standards for sexual conduct. In this nation we are currently debating the proper scope of inquiry into sexual conduct by public officials. Thomas L. Friedman, Domestic Affairs, New York Times, Op. Ed. June 12, 1997; see also Editorial, The Other Woman, 148 N.J.L.J. 1170 (June 16, 1997). For this Court now to impose a civil sanction based on violation of the precepts of the Episcopal religion would transgress the principles upon which our nation is founded. Today the Court creates a tort out of a breach of the tenets of one religion — tenets with which there is almost universal agreement. In a future time, breach of the tenets of another religion not so universally accepted might give rise to another lype of tort — a result not contemplated by the constitutional framers.
Plaintiff’s counsel stated at oral argument before the trial court that plaintiff wished only to pursue claims that were “universally condemned by society.” 2 In this state, if a person knowingly commits a sexual act with a person incapable of giving consent, that conduct constitutes a crime. N.J.S.A. 2C:14-2 a(5)(b). In her brief, plaintiff argues that by reason of her condition, she was legally unable to give consent to sexual relations. Plaintiff is free to pursue a remedy in the civil courts of New Jersey for such a transgression of law. She has, however, cast her complaint in a different light. 3 Absent an amendment to assert a claim of *574 criminal or illegal sexual conduct, there is no official state religion in New Jersey that makes Pastor MacDonell’s conduct a tort.
For substantially the same reasons, plaintiff’s complaint against Reverend Fletcher Harper for breach of a pastoral fiduciary duty should be dismissed. I surmise that the Court is temporizing by remanding the matter for further proceedings that can have but one result. See Hester, supra, 723 S.W.2d at 553 (holding that to adjudicate claim that divulging confidential communications to church members breached fiduciary duty would force court to judge “the competence, training, methods and content of the pastoral function”).
To sum up, the First Amendment offers no defense to sexual crimes or abuse. Conversely, no principle of general civil law makes it a tort for competent adults to engage in consensual sexual conduct. The Court makes the pastor’s conduct a tort because he is a cleric. Whatever we may think of the morality of the acts involved, a breach of the tenets of the Episcopal religion by one party to a relationship does not give rise to a tort action. To base a tort action on a breach of religious doctrine constitutes an establishment of religion in violation of the First Amendment.
Justice GARIBALDI joins in this opinion.
For affirmance in part; reversal in part; For remandment— Chief Justice PORITZ, and Justices HANDLER, POLLOCK, STEIN and COLEMAN-5.
For dissenting — Justices O’HERN and GARIBALDI — 2.
The Illinois and Delaware Legislatures have specifically exempted clergy from the provisions of its laws regulating the conduct of therapists. See Ill.Ann.Stat. ch. 740, para. 140/1(e) (Smith-Hurd 1997) (excluding from liability "counseling of a spiritual or religious nature” from Sexual Exploitation in Psychotherapy Act); Del.CodeAnn. Tit. 24, § 3004(3) (1996) (stating professional counselor regulations are inapplicable to "any person ... engaged in religious activity of any nature whatsoever”).
The transcript reads "unilaterally" condemned but "universally” was the undoubted meaning.
The caption of this case belies the Court’s assumption that the complaint is based on secular activities. The complaint is against "Reverend Alex MacDonell *574 in his capacity as former Rector." In light of its disposition, I must assume that the Court intends such references to be deleted in the later proceedings as well as any references to the deposition of the Episcopal Bishop or the tenets of the Episcopal Church.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9644359. Public record. Not legal advice.