A religious organization enters a contract with a builder to construct a new facility and breaches the contract; a student at a private, religiously-affiliated school slips on a patch of ice and is seriously injured because of the school maintenance crew's negligence. The builder and the student are aggrieved by the actions of the respective religious institutions. Consequently, they seek to re- solve their disputes through the judicial system, as would any other individual with a potential legal claim. Although the adjudicative process would involve church and state, the First Amendment Religion Clauses would not likely be implicated, because the applica- tion of contract and tort law to these secular activities does not inhibit religious exercise or involve government in religious activities.
In contrast to the above contract and tort examples, consider the relationship between church and state that would ensue from adjudicating a tort claim filed by a parishioner whose priest's marriage counseling progressed to sexual misconduct, or an employment discrimination claim by a female nun who was allegedly denied tenure as a professor of canonical law because of her gender. These legal disputes do not involve mere application of a secular standard to secular conduct. Rather, adjudicating claims that implicate matters of church doctrine or governance necessitates a certain degree of intrusion into constitutionally significant religious matters.
Laura L. Coon,
Employment Discrimination by Religious Institutions: Limiting the Sanctuary of the Constitutional Ministerial Exception to Religion-Based Employment Decisions,
54 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol54/iss2/7