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WHEN THE WOLF TENDS THE FLOCK: CLERGY MISCONDUCT AND MARITAL COUNSELING

NCJ Number
148034
Journal
Illinois Bar Journal Volume: 82 Issue: 4 Dated: (April 1994) Pages: 194- 196,223
Author(s)
D V White
Date Published
1994
Annotation
This article examines constitutional considerations and potential causes of civil action in cases of clergy misconduct in the context of marital counseling.
Abstract
Regarding constitutional issues in alleged clergy misconduct, the courts have held that when the alleged wrongdoing of a cleric falls outside the beliefs and doctrine of the cleric's religion, there is no protection from the First Amendment. Cases arising out of clergy misconduct have also been subjected to an establishment clause analysis. The leading test for determining whether state action has violated the establishment clause was presented in Lemon v. Kurtzman. In this case, the three- pronged test requires that the state action have a secular purpose, its principal effect be neither to advance nor inhibit religion, and it does not foster excessive state entanglement with religion. Cases that have arisen out of clergy misconduct within the marital counseling relationship have been premised on a variety of theories. These include clergy malpractice, counseling malpractice, and breach of fiduciary duty. Although clergy malpractice and counseling malpractice suits have generally failed, traditional tort theories, which have long proved adaptable to new facts, hold greater promise. These theories present the least likelihood of state entanglement with religion and provide a familiar framework within which courts can work. 70 notes

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