Key point 8-12.5. Sexual harassment is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. It consists of both “quid pro quo” harassment and “hostile environment” harassment. Religious organizations that are subject to Title VII are covered by this prohibition. An employer is automatically liable for supervisory employees’ acts of harassment, but a defense is available to claims of hostile environment harassment if they have adopted a written harassment policy and an alleged victim fails to pursue remedies available under the policy. In some cases, an employer may be liable for acts of sexual harassment committed by nonsupervisory employees, and even nonemployees.

The Minnesota Supreme Court ruled that a state law making it a felony for clergy to engage in sexual contact with counselees in the course of spiritual counseling did not violate the First Amendment’s nonestablishment of religion clause (“Establishment Clause”). A Catholic priest (the “defendant”) heard a woman’s confession and agreed to serve as her regular confessor. A friendship developed between them, and they often spent time together in various social contexts. They shared their personal concerns and struggles and often talked for hours about theological matters. The relationship eventually involved sexual contact, which occurred biweekly for a year until the woman disclosed the relationship to church officials and eventually to the police.

The defendant was charged with criminal sexual conduct under a state law that states, in part:

A person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if any of the following circumstances exists:

(l) the actor is or purports to be a member of the clergy, the complainant is not married to the actor, and:

(i) the sexual penetration occurred during the course of a meeting in which the complainant sought or received religious or spiritual advice, aid, or comfort from the actor in private; or

(ii) the sexual penetration occurred during a period of time in which the complainant was meeting on an ongoing basis with the actor to seek or receive religious or spiritual advice, aid, or comfort in private. Consent by the complainant is not a defense.

Following a trial, the jury convicted the defendant for sexual conduct occurring “during the course of a meeting” where religious advice or assistance was sought or received in private. A state appeals court ruled that the statute did not, at least on its face, violate the First Amendment since it incorporated “neutral standards” that would not necessarily result in “excessive entanglement of government and religion in all cases.” However, the court concluded that, as applied to the defendant, the statute was unconstitutional because religion was excessively entangled in his trial. The state supreme court agreed to determine whether the clergy-sexual-conduct statute violated the First Amendment’s Establishment Clause.

The court’s ruling
The Establishment Clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion.” The United States Supreme Court has ruled that the Establishment Clause forbids state action that: (1) lacks a secular purpose; (2) has the primary effect of advancing or inhibiting religion; or (3) fosters excessive entanglements with religion. Lemon v. Kurtzman, 403 U.S. 602 (1971) (the “Lemon test“). State action violates the Establishment Clause if any of the three prongs of the Lemon test is violated.

Secular Purpose
The first prong of the Lemon test requires that state action have a secular purpose. The defendant claimed that the clergy-sexual-conduct statute did not have a secular purpose because it regulated “only the conduct of clergy” and treated “clergy members separately from other counselors.” The court disagreed, and concluded that the statute had a legitimate secular purpose, namely “to protect Minnesota citizens from sexual exploitation.”

Primary Effect
The second prong of the Lemon test examines whether a statute has the primary effect of advancing or inhibiting religion. The defendant claimed that the clergy-sexual-conduct statute inhibits religion. The court agreed that the clergy-sexual-conduct statute has an incidental effect on clergy members “because it covers behavior committed by clergy within the scope of the clergy-parishioner relationship.” But a law is not unconstitutional merely because it incidentally or indirectly inhibits religion. The question instead is whether the statute has the primary effect of inhibiting religion:

The clergy-sexual-conduct statute’s primary effect is to protect individuals that the legislature deems vulnerable, and it covers only those clergy who choose to use their position as a clergy member, or who hold themselves out as a clergy member, to enter into sexual relationships with vulnerable individuals. The statute does not impose burdens on becoming or remaining a clergy member of any religion, and it does not prevent individuals from seeking religious or spiritual aid, advice, or comfort or otherwise interfere with efforts to seek such assistance. And, because the statute covers relationships in which a parishioner is seeking any type of “religious or spiritual advice, aid, or comfort,” regardless of the substance of that “advice, aid, or comfort,” the statute does not interfere with the practice of any particular religious doctrine or only certain religions.

The defendant insisted that the clergy-sexual-conduct statute violates the Establishment Clause because it directly targets clergy. The court disagreed. The court referred to a previous case in which the United States Supreme Court upheld a statute that funded a program to prevent teenage pregnancy, even though part of the program specifically identified religious organizations as institutions receiving funding. Bowen v. Kendrick, 487 U.S. 589 (1988). The Supreme Court held that the statute did not have the primary effect of advancing religion, in part, because similar standards applied to other organizations, which reflected the statute’s maintenance of neutrality between religion and nonreligion. Similarly, the Minnesota court concluded that the clergy-sexual-conduct statute

specifically addresses religion through its prohibition of certain conduct committed by members of the clergy. But the inclusion of religious actors does not violate the Establishment Clause because the limitation on members of the clergy is part of a larger statutory scheme that regulates the behavior of those involved in certain sexual relationships—relationships for which the legislature has determined there is a power imbalance between the parties … . The clergy-sexual-conduct statute not only criminalizes certain sexual relationships between clergy and parishioners, but it could also criminalize certain sexual relationships for physicians, psychologists, nurses, chemical dependency counselors, social workers, marriage and family therapists, mental health service providers, or others persons who provide psychotherapy; government and private correctional employees; and masseuses … . The legislature did not single out clergy members because of their affiliation with a religious group. Instead, the legislature identified the existence of a power imbalance between clergy members (or purported clergy members) and their parishioners in certain situations—similar to power imbalances created between other professionals and their clients.

Excessive Government Entanglement with Religion
The third prong of the Lemon test prohibits state action that excessively entangles the government with religion. Under this prong, “a state may not inquire into or review the internal decision making or governance of a religious institution.” However, “no entanglement problem exists when civil courts use neutral principles of law—rules or standards that have been developed and are applied without particular regard to religious institutions or doctrines—to resolve disputes even though those disputes involve religious institutions or actors.” The court concluded:

The clergy-sexual-conduct statute does not create an excessive entanglement with religion because it applies neutral principles of law and regulates only secular aspects of clergy-parishioner relationships … . Under the statute, the State must prove the complainant sought or received “advice, aid, or comfort” from a clergy member. But “advice, aid, [and] comfort” are secular concepts that a jury or court can assess without delving into religious doctrine.

The court rejected the defendant’s argument that the clergy-sexual-contact statute, even if constitutional on its face, was unconstitutional as applied to him.

What This Means For Churches:

Note the following key points:

1. The following 12 states have laws that specifically make sexual contact between a minister and a counselee a crime: Arkansas, Connecticut, Delaware, Iowa, Minnesota, Mississippi, New Mexico, North Dakota, South Dakota, Texas, Utah, and Wisconsin. The Minnesota Supreme Court’s ruling supports the constitutionality of these laws.
2. Several states have laws that make sexual contact between a “psychotherapist” and a counselee a crime, and do not specifically define “psychotherapist” to include a member of the clergy. However, the definition of “psychotherapist” under some of these laws may be broad enough to include a member of the clergy.
3. Every state has enacted laws making it a crime to engage in nonconsensual sexual contact with another person. These laws constitute another potential basis of criminal liability for ministers who engage in sexual contact with a counselee or member of their congregation. A typical statute makes it a felony for anyone to “engage in sexual contact with another person without consent of that person.”
4. Every state has enacted a law making assault and battery a crime. These laws constitute another potential basis of criminal liability for ministers who engage in nonconsensual sexual contact with a counselee or member of their congregation.
5. Church insurance policies exclude any claims based on intentional or criminal misconduct. As a result, ministers who are prosecuted for a sexual offense involving a counselee or member of their congregation ordinarily cannot expect the church insurance company to pay for a legal defense.
6. There are many other consequences of clergy sexual misconduct. To illustrate, clergy who engage in such behavior may have to register as a sex offender under state law; and, churches and denominations increasingly are revoking the ministerial credentials of ministers who engage in such behavior. Removal of ministerial credentials generally is motivated by several considerations, including the protection of others, the scriptural standards for ministry, accountability, and an avoidance of legal liability for a minister’s future misconduct.
7. Clergy who engage in inappropriate sexual behavior with other church employees may be liable for sexual harassment under state or federal law. State v. Wenthe, 839 N.W.2d 83 (Minn. 2013).