On Friday, July 9, 2004, at 12:03 PM, Will Esser wrote:
I assume that virtually none of these fraud claims are based on an alleged "explicit" representation by the Diocese (i.e. "As the bishop, I certify that this priest has never been involved in pedophilic activity"). That leaves us with potential "implied" representations by the Diocese (i.e. when you send a priest to a parish, you impliedly represent that he has never been involved in pedophile activity). Would such an "implied" representation be supportable under the First Amendment (i.e. is it permissible for the law to imply representations by a religious organization about the qualities or qualifications of its religious ministers)?
While in the ordinary case I would agree that the court would not be able to entertain a claim about the general fitness of a priest or minister ordained by the pertinent religious organization, in this case it seems to stretch the privilege to its breaking point to say that putting a known, active pedophile in charge of children is something the church can avoid responsibility for to the child and the parents of the child. The ordination must mean something -- and even if it does not, any organization that would put the active pedophile together with kids (soccer clubs, schools, dance studios, etc.) would be liable. In this case why would the church get treated differently? Isn't this one instance where the equal treatment aspect of establishment would cut against the church? (I do not mean by this to endorse the stronger forms of equal treatment or neutrality sometimes urged by some on this list -- just that it is one factor that in particular cases may in fact determine the result.) Isn't this just the Smith case? No special exemption for the church?
I don't see dismissing the claim as a matter of law -- I think the implied theory works as it should here. Indeed, can one ever imagine a church advertising a negative like this -- "Join us! Our ministers are not pedophiles!" -- Not overly likely or certainly not likely to become common. This is exactly the sort of thing that the implied misrep theory is aimed at redressing.
Steve
--
Prof. Steven D. Jamar vox: 202-806-8017
Howard University School of Law fax: 202-806-8428
2900 Van Ness Street NW mailto:[EMAIL PROTECTED]
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"I am in Birmingham because injustice is here. . . . Injustice anywhere is a threat to justice everywhere."
Martin Luther King, Jr., (1963)
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