In most states, in order to recover on a tort, a Plaintiff has to prove up a duty to the Plaintiff, breach of the duty by the Defendant, and damages.  The unstated other element of proof is that the breach of duty actually caused the damages.  There are many duties imposed in the law.  However, while some secular duties can be imposed on a church or denomination, such as picking up the trash and mowing the lawn, not all can be.  Herein we often report on federal employment laws that impose duties on secular employers but not on religious employers.

In Woodward v Miller, Slip Op., consolidated appeals, (Miss. En Banc, 2021) the Mississippi Supreme Court reversed the trial court and rendered Judgment in favor of the denomination and a minister that was also a psychotherapist with a certification in sex addiction.  Miller was the original Plaintiff and the wife of a minister.  The minister engaged in risky homosexual behaviors with multiple partners as well as engaging in sexual relations with his wife.  The minister contracted HIV.  The wife contracted HIV.  The couple initially contacted another minister, Woodward, who was also a psychotherapist that attempted to assist the couple with the trauma.  The wife sued the denomination claiming that the denomination should have detected her husband’s sexual adventures and warned her by properly enforcing its own policies and procedures.  The wife sued the minister – psychotherapist for advising the husband to purge from his computer pornography and email, through which he engaged in the sexual conduct, resulting in spoliation of evidence.  The appellate court held the denomination’s policies and procedures could not form the basis for a tort duty because the courts would be barred from considering them by the Ecclesiastical Abstention Doctrine.  The appellate court held the minister psychotherapist consulted after the wife knew of the HIV infection did not spoil evidence in a future hypothetical civil claim but rather was only alleged to be treating an addiction.

The duty to treat homosexual conduct no differently than any other type of sexual conduct is imposed on secular employers through federal anti-discrimination statutes.  Such a duty is not imposed on church employers because of religious entity exemptions in such statutes and the Ecclesiastical Abstention Doctrine of the First Amendment.  The closer question will probably always be whether the actions taken by the denomination spoiled evidence of wrongdoing.  For example, in the reported case the computer hard drive could have been taken into “protective custody” by the denomination as a means to “purge” the tools of addiction temptation rather than “purged.”  But, spoliation without motive is usually not actionable.  The minister psychotherapist was not alleged to have any motive.

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