150 N.J. 550 (1997) 696 A.2d 697

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.

The Supreme Court of New Jersey.

Argued March 3, 1997. Decided July 22, 1997.

*554 Gregory D. Winter argued the cause for appellant Reverend Alex MacDonell (Felzenberg, Winter & Winkler, attorneys).

David S. Rutherford, a member of the New York bar, argued the cause for appellant Reverend Fletcher Harper (Renzulli, Gainey & Rutherford, attorneys).

Alan L. Zegas and Herbert D. Friedman, a member of the Massachusetts bar, argued the cause for respondent (Mr. Zegas, attorney; Mr. Friedman and Sharon J. Bittner, on the brief).

Martin F. McKernan, Jr., submitted briefs on behalf of amicus curiae New Jersey Catholic Conference (McKernan, McKernan & *555 Godino, attorneys; Mr. McKernan and James J. Godino, Jr., on the briefs).

Douglas E. Arpert and Sanford D. Brown joined in the briefs submitted by The New Jersey Catholic Conference on behalf of amici curiae Bishop Alfred Johnson, Northern New Jersey Annual Conference of the United Methodist Church and Southern New Jersey Annual Conference of the United Methodist Church (Evans Hand and Cerrato, Dawes, Collins, Saker & Brown, attorneys).

The opinion of the court was delivered by POLLOCK, J.

This appeal presents two issues. The first issue is whether a parishioner's allegation of an inappropriate sexual relationship between a clergyman and the parishioner states a cause of action when the relationship occurs while the clergyman is providing pastoral counseling to the parishioner. Second, we must decide whether the parishioner may maintain a cause of action against another clergyman who allegedly publicized in a sermon and a letter the relationship with the first clergyman.

The Law Division dismissed all claims of the parishioner, F.G., against the first clergyman, the Reverend Alex MacDonell, as well as her claim against the second clergyman, the Reverend Fletcher Harper, for clergy malpractice and breach of fiduciary duty. The Appellate Division reversed and remanded the matter to the Law Division. 291 N.J. Super. 262, 677 A.2d 258 (1996). We granted leave to appeal to MacDonell and Harper. 146 N.J. 562, 683 A.2d 1159 (1996).

We conclude that F.G., may maintain a cause of action for breach of fiduciary duty against MacDonell, formerly the rector of All Saints Episcopal Church, Bergenfield, New Jersey (All Saints). MacDonell, who was married at the time of the events described in the complaint, is the clergyman who allegedly induced F.G. to engage in the inappropriate sexual relationship. F.G.'s cause of action against defendant Rev. Fletcher Harper is more problematic. *556 Harper wrote a letter and delivered a sermon to the congregation about MacDonell's relationship with F.G. Whether F.G. may maintain her action against Harper depends on whether a court may adjudicate her claims without becoming entangled in church doctrine. If on remand the Law Division concludes it can avoid any such entanglement, then F.G. may maintain her cause of action against Harper for breach of fiduciary duty.

I.

Because the appeal arises on defendants' motion for judgment on the pleadings under Rule 4:6-2(e), we assume the truth of the allegations of the complaint, giving plaintiff the benefit of all reasonable factual inferences that those allegations support. See Independent Dairy Workers Union v. Milk Drivers Local 680, 23 N.J. 85, 89, 127 A.2d 869 (1956). If a generous reading of the allegations merely suggests a cause of action, the complaint will withstand the motion. Printing Mart-Morristown v. Sharp Elec. Corp., 116 N.J. 739, 746, 563 A.2d 31 (1989). So read, the record supports the following factual statement.

In 1992, MacDonell was the rector at both All Saints and an affiliated church, St. Luke's Episcopal Church, in Haworth. Harper was the assistant rector at both churches in 1993. In January 1994, following MacDonell's retirement, Harper succeeded MacDonell as rector. F.G. was a parishioner at All Saints in 1992-93.

From April 1992 until the end of 1993, F.G. consulted MacDonell for counseling. Aware that F.G. was vulnerable, MacDonell nonetheless induced her to engage in a sexual relationship with him. Although the complaint does not describe details of the relationship, it apparently did not involve sexual intercourse.

In Count I, F.G. seeks recovery for clergy malpractice. She alleges that MacDonell owed her "a special duty of care not to engage in unethical and harmful behavior towards [her]." The complaint continues that he "engaged in sexual behavior with [her] inappropriate to and in violation of [the special relationship]" he *557 owed her, and that "he failed to exercise the degree of skill, care and diligence which is exercised by the average qualified pastoral counselor provider." In Count II, F.G. seeks recovery for negligent infliction of emotional distress. Finally, in Count III, F.G. alleges that as her pastor, MacDonell owed her "a strict fiduciary duty to act in good faith and in her best interests and to refrain from conduct" that carried the risk of harm. F.G. asserts that MacDonell "breached his fiduciary duty by wrongfully and unlawfully exploiting F.G.'s trust and confidence by engaging in inappropriate sexual behavior with [her] and creating an unreasonable risk of mental and emotional harm to [her]."

The remaining counts allege claims against Harper. F.G. alleges that on March 31, 1994, she met with Harper to discuss MacDonell's "inappropriate physical conduct" with her and "the possibility of notifying the parishes of All Saints and St. Lukes" about that contact. Harper knew that she had been receiving inpatient care at a psychiatric hospital and that she had tried to commit suicide five days before the meeting.

In Count IV, F.G. alleges that Harper owed her a duty of care "not to publish any identifying information, including her identity and the nature and extent of defendant MacDonell's inappropriate sexual behavior with her, to the members of the parishes of [All Saints and St. Lukes]." On April 14, 1994, in breach of that duty and without F.G.'s consent, Harper published an open letter to the parishioners of the two churches. In his April 17 sermon at St. Luke's, Harper identified F.G. and described some details of MacDonell's inappropriate sexual behavior. Count IV concludes by alleging that Harper's conduct constituted a breach of F.G.'s privacy.

Count V alleges a claim in negligent misrepresentation asserting that Harper negligently represented that public disclosure of F.G.'s name was for her benefit and part of his pastoral care for her. He never informed her "that he intended to publish details concerning defendant MacDonell's inappropriate physical contact with her and never requested nor received F.G.'s consent to do *558 same." Instead, the letter and sermon falsely suggested that she and MacDonell "were engaged in a voluntary romantic relationship between two consenting, mature adults rather than an abusive relationship between a pastoral care provider and pastoral counselor and a client." F.G. contends that Harper presented her relationship with MacDonell as a "romantic relationship" and erroneously suggested that she had tried to seduce MacDonell. In Counts VI, VII, and VIII the complaint respectively alleges claims for negligent infliction of emotional distress, defamation, and depiction in a false light. Finally, Count IX alleges that Harper breached a fiduciary duty owed to F.G.

The Law Division dismissed Counts I, II, III, and IX, which respectively allege negligent pastoral counseling, negligent infliction of emotional distress, and breach of fiduciary duty by MacDonell, as well as breach of fiduciary duty by Harper. The Appellate Division reversed and remanded the matter to the Law Division. The purpose of the remand was to permit F.G. to prove her claims against defendants for clergy malpractice and breach of their fiduciary duty.

We believe that a claim for breach of fiduciary duty provides the more appropriate form of relief than does clergy malpractice. An action for breach of a clergyman's fiduciary duty permits the parishioner to recover monetary damages without running the risk of entanglement with the free exercise of religion. Consequently, we modify the judgment of the Appellate Division by allowing F.G.'s claim for breach of fiduciary duty against MacDonell, and, subject to a hearing on entanglement with church doctrine, allowing a similar claim against Harper.

II.

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. Defendants maintain that F.G.'s claims, whether characterized as *559 for clergy malpractice or for breach of fiduciary duty, necessarily entangle the courts in the free exercise of religion. We disagree. The free exercise of religion does not permit members of the clergy to engage in inappropriate sexual conduct with parishioners who seek pastoral counseling.

The First Amendment prohibits any "law respecting the establishment of religion, or prohibiting the free exercise thereof." U.S. Const. amend. I. It, however, does not prohibit courts from any involvement in religious disputes. The amendment merely prohibits courts from determining underlying questions of religious doctrine and practice. Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 449, 89 S.Ct. 601, 606, 21 L.Ed.2d 658, 665 (1969).

A party challenging state action as violative of free-exercise rights must establish that the action produces a coercive effect on the practice of religion. Abington School Dist. v. Schempp, 374 U.S. 203, 223, 83 S.Ct. 1560, 1572, 10 L.Ed.2d 844, 858 (1963). The conduct at issue must have been part of the beliefs and practices of the defendant's religion. See Wisconsin v. Yoder, 406 U.S. 205, 215-16, 92 S.Ct. 1526, 1533-34, 32 L.Ed.2d 15, 25-26 (1972) (stating "to have the protection of the [r]eligious [c]lause the claims must be rooted in religious belief").

A court may not inquire into the validity of a religious belief or practice that prompts the challenged conduct. United States v. Ballard, 322 U.S. 78, 64 S.Ct. 882, 88 L.Ed. 1148 (1944). A court, however, may apply neutral principles of law to decide an issue that does not implicate religious doctrine. See Elmora Hebrew Ctr. Inc. v. Fishman, 125 N.J. 404, 413, 593 A.2d 725 (1991) (stating "religious parties or institutions are not ... less entitled to civil adjudication of secular legal questions"). Neutral principles "are wholly secular legal rules whose application to religious parties or disputes does not entail theological or doctrinal evaluations." Id. at 414-15, 593 A.2d 725. Only "when the underlying dispute turns on doctrine or polity" should a court *560 refuse to enforce secular rights. Welter v. Seton Hall Univ., 128 N.J. 279, 293, 608 A.2d 206 (1992).

Courts in other jurisdictions have found that when purely secular conduct is at issue, they may hold churches and clerics liable for the effect of their conduct on third parties. Thus, the Supreme Court of Colorado has permitted claims for breach of fiduciary duty, when the claims did not arise from ecclesiastical matters. Moses v. Diocese of Colorado, 863 P.2d 310, 323 (Colo. 1993), cert. denied, 511 U.S. 1137, 114 S.Ct. 2153, 128 L.Ed.2d 880 (1994). Similarly, an Oregon Court has concluded that claims for breach of fiduciary duty and intentional infliction of emotional distress did not violate the First Amendment. Erickson v. Christenson, 99 Or. App. 104, 781 P.2d 383, 386 (1989).

Likewise, courts have recognized claims for intentional torts against clergymen. Thus, clergymen have been held liable for obtaining gifts and donations of money by fraud, Ballard, supra, 322 U.S. 78, 64 S.Ct. 882, 88 L.Ed. 1148; sexual assault, Mutual Service Cas. Ins. Co. v. Puhl, 354 N.W.2d 900 (Minn. Ct. App. 1984); unlawful imprisonment, Whittaker v. Sandford, 110 Me. 77, 85 A. 399 (1912); alienation of affections, Hester v. Barnett, 723 S.W.2d 544, 555 (Mo. Ct. App. 1987); and for sexual harassment, intentional infliction of emotional distress, and defamation, Guinn v. Church of Christ, 775 P.2d 766, 785-86 (Okla. 1989).

F.G. alleges that MacDonell, while acting as F.G.'s pastoral counselor, improperly induced her to engage in a sexual relationship. She claims that his conduct caused her to sustain physical injury, extreme emotional and psychological injury, and economic loss. Further, she asserts his alleged wrongdoing falls outside Episcopal doctrine. Consequently, F.G. concludes that the First Amendment does not protect MacDonell.

In depositions, both MacDonell and Harper acknowledged that a sexual relationship between a married rector and an unmarried parishioner violates the rector's fiduciary duty to the parishioner. Furthermore, defendants acknowledged that they were unaware of any Episcopal teachings that sanction a sexual relationship *561 between a married rector and an unmarried parishioner. MacDonell specifically testified that Episcopal teaching condemns such conduct.

Two other church officials, Bishop John Spong of the Episcopal Archdiocese of Newark and Reverend Franklin Vilas, the chairman of the Standard Commission on Clergy Ethics of the Diocese of Newark, testified that Episcopal Church doctrine does not sanction improper sexual conduct by rectors. Bishop Spong also testified that by engaging in sexually exploitative conduct with F.G., MacDonell violated his fiduciary duty to her. In sum, the record supports the inference that MacDonell's alleged misconduct was not an expression of a sincerely held religious belief, but was an egregious violation of the trust and confidence that F.G. reposed in him.

The First Amendment does not insulate a member of the clergy from actions for breach of fiduciary duty arising out of sexual misconduct that occurs during a time when the clergy member is providing counseling to a parishioner. Thus, without impinging on the First Amendment, courts can resolve a claim that a member of the clergy has committed sexually inappropriate conduct in the course of pastoral counseling.

III.

The next question concerns the nature of the duty that defendants owed to F.G. The Appellate Division held that defendants owed F.G. a duty of care, that they breached that duty, and that she could maintain a cause of action for "clergy malpractice." In so concluding, the Appellate Division acknowledged that F.G.'s claim presented an issue of first impression in New Jersey, and that no other court in the United States had yet recognized a clergy-malpractice claim. 291 N.J. Super. at 267-71, 677 A.2d 258; see Dausch v. Rykse, 52 F.3d 1425, 1432 n. 4 (7th Cir.1994) (collecting cases from state supreme courts holding no cause of action for clergy malpractice). Deterring other courts has been the concern that a clergy-malpractice claim will entangle courts *562 with the First Amendment's protection of the free exercise of religion. See, e.g., Nally v. Grace Community Church, 47 Cal.3d 278, 253 Cal. Rptr. 97, 109-10, 763 P.2d 948, 960 (1988) (stating "it would certainly be impractical, and quite possibly unconstitutional, to impose a duty of care on pastoral counselors"), cert. denied 490 U.S. 1007, 109 S.Ct. 1644, 104 L.Ed.2d 159 (1989); Schmidt v. Bishop, 779 F. Supp. 321, 327-28 (S.D.N.Y. 1991) (finding excessive entanglement if court were to define or express standard of care to be followed by other reasonable clerics in community).

Several problems inhere in a claim for clergy malpractice. First, such a claim requires definition of the relevant standard of care. Defining that standard could embroil courts in establishing the training, skill, and standards applicable for members of the clergy in a diversity of religions with widely varying beliefs. Strock v. Pressnell, 38 Ohio St.3d 207, 527 N.E.2d 1235, 1239 (1988). Furthermore, defining such a standard would require courts to identify the beliefs and practices of the relevant religion and then to determine whether the clergyman had acted in accordance with them. Schmidt, supra, 779 F. Supp. at 328; see also Dausch, supra, 52 F.3d at 1432 (emphasizing evaluation of clergy malpractice complaint would require courts extensively to evaluate and investigate religious tenets and doctrine); Nally, supra, 253 Cal. Rptr. at 109-10, 763 P.2d at 960 (noting "the secular state was not equipped to ascertain the competency of counseling when performed by those affiliated with religious organizations"); Destefano v. Grabrian, 763 P.2d 275, 290 (Colo. 1988) (Quinn, C.J., specially concurring) (finding judicial recognition of clergy malpractice action creates a "formidable obstacle to bona fide religious ... counseling [that] would fly directly in the face of the Free Exercise Clause"); Hester, supra, 723 S.W.2d at 553 (observing clergy malpractice would force courts to judge "competence, training, methods, and content of the pastoral function" in deciding whether cleric breached his or her duty of care); Bladen v. First Presbyterian Church, 857 P.2d 789, 797 (Okla. 1993) (stating "[o]nce a court enters the realm of trying to define the nature *563 of advice a minister should give a parishioner[,] serious First Amendment issues are implicated"). The entanglement could restrain the free exercise of religion.

Concerns about religious entanglement have led some courts also to deny claims for breach of fiduciary duty. Id. at 326 (stating "in analyzing and defining the scope of a fiduciary duty owed persons by their clergy, the Court would be confronted by the same constitutional difficulties encountered in articulating the generalized standard of care for a clergyman required by the law of negligence"); see also Schieffer v. Catholic Archdiocese of Omaha, 244 Neb. 715, 508 N.W.2d 907, 912 (1993) (agreeing with reasoning of Schmidt and rejecting fiduciary duty claims against clergy members); Strock, supra, 527 N.E.2d at 1243 (stating claim for breach of fiduciary duty is essentially claim for negligence); Bladen, supra, 857 P.2d at 796 (same). We conclude, however, that courts can adjudicate F.G.'s claim for breach of fiduciary duty without becoming entangled in the defendants' free exercise of their religion.

The essence of a fiduciary relationship is that one party places trust and confidence in another who is in a dominant or superior position. A fiduciary relationship arises between two persons when one person is under a duty to act for or give advice for the benefit of another on matters within the scope of their relationship. Restatement (Second) of Torts § 874 cmt. a (1979); see In re Stroming's Will, 12 N.J. Super. 217, 224, 79 A.2d 492 (App.Div.), certif. denied, 8 N.J. 319, 85 A.2d 272 (1951) (stating essentials of confidential relationship "are a reposed confidence and the dominant and controlling position of the beneficiary of the transaction"); Blake v. Brennan, 1 N.J. Super. 446, 453, 61 A.2d 916 (Ch.Div. 1948) (describing "the test [as] whether the relationship between the parties were of such a character of trust and confidence as to render it reasonably certain that the one party occupied a dominant position over the other"); Bogert, Trusts and Trustees 2d § 481 (1978) (stating "[t]he exact limits of the term `fiduciary relation' are impossible of statement. Depending upon *564 the circumstances of the particular case or transaction, certain business, public or social relationships may or may not create or involve a fiduciary character."). The fiduciary's obligations to the dependent party include a duty of loyalty and a duty to exercise reasonable skill and care. Restatement (Second) of Trusts §§ 170, 174 (1959). Accordingly, the fiduciary is liable for harm resulting from a breach of the duties imposed by the existence of such a relationship. Restatement (Second) of Torts § 874 (1979).

Trust and confidence are vital to the counseling relationship between parishioner and pastor. By accepting a parishioner for counseling, a pastor also accepts the responsibility of a fiduciary. Often, parishioners who seek pastoral counseling are troubled and vulnerable. Sometimes, they turn to their pastor in the belief that their religion is the most likely source to sustain them in their time of trouble. The pastor knows, or should know of the parishioner's trust and the pastor's dominant position.

Several jurisdictions have recognized that a clergyman's sexual misconduct with a parishioner constitutes a breach of a fiduciary relationship. See, e.g., Sanders v. Casa View Baptist Church, 898 F. Supp. 1169, 1176 (N.D.Tex. 1995) (denying motion to dismiss breach-of-fiduciary-duty claims against minister); Moses, supra, 863 P.2d at 323 (holding record supported jury finding that fiduciary relationship existed between Bishop, diocese, and plaintiff, and that such duty was breached); Destefano, supra, 763 P.2d at 284 (recognizing viability of breach of fiduciary duty claims against members of clergy); Erickson, supra, 781 P.2d at 386 (same); Adams v. Moore, 96 N.C. App. 359, 385 S.E.2d 799, 801 (1989) (finding preacher violated fiduciary duty by using position and influence to obtain deed to parishioner's home). We find the rationale of those cases to be persuasive. In Destefano, supra, the Colorado Supreme Court held that the defendant, a Catholic priest, owed a fiduciary duty to a parishioner who sought counseling from him concerning her marital problems. 763 P.2d at 284. By engaging in sexual intercourse with the parishioner, the priest breached a fiduciary duty that he owed her. Ibid. Subsequently, *565 in Moses, supra, the same court considered the case of a parishioner who entered into a sexual relationship with an associate priest during a counseling relationship. 863 P.2d at 314. The Court found sufficient evidence for the jury to conclude that the defendants, an Episcopalian bishop and the diocese, owed a fiduciary duty to the plaintiff and that they had breached that duty by failing to provide the parish with personnel files indicating that the priest had psychological problems. Id. at 315.

Unlike an action for clergy malpractice, an action for breach of fiduciary duty does not require establishing a standard of care and its breach. Moses, supra, 863 P.2d at 321, n. 13. Establishing a fiduciary duty essentially requires proof that a parishioner trusted and sought counseling from the pastor. A violation of that trust constitutes a breach of the duty.

The dissent recoils from the prospect that inappropriate sexual misconduct by a member of the clergy could result in liability to an adult parishioner who has consulted the clergy member for counseling. Yet, the dissent acknowledges that a member of the clergy could be liable if the parishioner "was legally unable to give consent to sexual relations," post at 573, 696 A.2d at 709, or if the parishioner was a child, post at 568, 570, 696 A.2d at 706, 707. The dissent, nonetheless, would permit a clergyman to victimize a parishioner whose vulnerability has led the parishioner to seek refuge in pastoral counseling. In the final analysis, the dissent simply refuses to accept that pastoral counselors, like psychotherapists, see N.J.A.C. 13:42-10.9, may be liable for breach of a fiduciary relationship with a parishioner.

Ordinarily, consenting adults must bear the consequences of their conduct, including sexual conduct. In the sanctuary of the church, however, troubled parishioners should be able to seek pastoral counseling free from the fear that the counselors will sexually abuse them. Our decision does no more than extend to the defenseless the same protection that the dissent would extend to infants and incompetents.

*566 F.G.'s complaint essentially alleges that MacDonell's sexual misconduct was not so much a failure to adhere to the standards of care applicable to pastoral counseling as it was a violation of F.G.'s trust. But for MacDonell's status as a clergyman, his conduct was unrelated to religious doctrine. Although MacDonell's ultimate goal in counseling F.G. may have been to help her receive assistance from God, his sexual misconduct violated her legal rights. So viewed, F.G.'s claim does not restrict MacDonell's free exercise of religion.

The Appellate Division also reinstated F.G.'s claim for negligent infliction of emotional distress. 291 N.J. Super. at 276, 677 A.2d 258. We likewise conclude that F.G. may maintain her claim for emotional distress arising from MacDonell's breach of his fiduciary duty to her. Our recognition of F.G.'s claim is consistent with the general rule that a claimant who suffers emotional trauma may recover from the tortfeasor who has caused the claimant distress. Gendek v. Poblete, 139 N.J. 291, 296, 654 A.2d 970 (1995).

F.G.'s claim against Harper presents additional considerations. Basically, F.G. alleges that she consulted Harper for counseling because of MacDonell's inappropriate physical conduct with her and "the possibility of notifying the parishes of All Saints and St. Lukes" about that conduct. F.G. alleges further that Harper induced F.G. "to give consent to the public disclosure, by letter, of [her] name," by his negligent misrepresentation "that this disclosure was for [her] benefit and part of his pastoral care [of her]." According to F.G., Harper breached his fiduciary duty by "exploiting [her] trust and confidence" through his mischaracterization of MacDonell's conduct and the nature of the relationship between him and F.G.

Our review of those allegations begins with the realization that Harper's alleged breaches occurred in sermons and letters to the congregations. Evaluating those sermons and letters might entangle a court in religious doctrine. The question remains whether, without becoming entangled in religious doctrine, a court can *567 adjudicate Harper's alleged breach of his fiduciary duty to F.G. If the trial court can make such a determination by reference to neutral principles, F.G. may maintain her action against Harper. We conclude that the trial court should conduct a hearing to determine whether it can decide F.G.'s allegations by reference to such principles. Elmora, supra, 125 N.J. at 414, 593 A.2d 725. If so, F.G. may proceed with her action against Harper.

IV.

In sum, we conclude that F.G. may proceed with her claims for breach of fiduciary duty and negligent infliction of emotional distress against MacDonell.

Whether F.G. may proceed against Harper for his alleged breach of fiduciary duty depends on the outcome of the Elmora hearing.

The judgment of the Appellate Division is affirmed in part and reversed in part, and the matter is remanded to the Law Division.

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 plaintiff's 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 MacDonell 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