WV Supreme Court Rules Religious Institutions Get a Pass on Deceptive Practices November 21, 2020

WV Supreme Court Rules Religious Institutions Get a Pass on Deceptive Practices

If a Roman Catholic diocese employs sexual abusers, then represent themselves as a safe environment without disclosing the risk of abuse, are they guilty of violating consumer protection laws against deceptive practices?

West Virginia’s Supreme Court just ruled that they’re not, because those rules don’t apply to religious institutions like church camps and parochial schools.

The state’s attorney general, Patrick Morrisey, filed suit against the Diocese of Wheeling-Charleston (which has a well-documented history of corruption and abuse under Bishop Michael Bransfield) in 2019, alleging that the organization had violated the West Virginia Consumer Credit and Protection Act (CCPA) by hiring “admitted and credibly-accused sexual abusers” to work in schools and camps without warning prospective consumers.

What’s more, added Morrisey, the Diocese led the public to believe that would-be employees were subject to background checks to ensure a clean record when in fact no such checks took place.

The Diocese, in turn, argued that the provisions of the CCPA weren’t meant to cover services offered by religious organizations, and any attempt to enforce the Act would infringe the Diocese’s constitutional rights.

In an opinion penned by Justice Elizabeth Walker, the court sided with the Diocese, claiming that the “deceptive practices” law conflicts with another law governing what requirements may be imposed on religious schools. Where those two laws conflict, Walker suggests, they have no choice but to support the more narrowly-defined of the laws: the one that applies to parochial schools in particular rather than across all types of business in general. And that more specific law holds that enforcing CCPA on religious institutions would interfere with West Virginians’ ability to “select their religious instructor, and to make for his or her support such private contract as they shall please.”

If you’re not free to unknowingly send your children to schools and camps run by known sexual predators, are you really free at all?

Walker claimed to have sympathy for the plight of potentially abused children, but hey, law is law:

Children trust adults not to hurt them. The faithful trust their leaders to embody the tenets of the faith. If the Diocese acted, or failed to act, as the Attorney General alleges, then the Diocese has violated that trust and harmed those tendered to its care. While we recognize that violations of this trust may subject the Diocese to liability under other legal theories, our sympathy cannot rewrite the law and we cannot ignore the existence and import of [the parochial schools legislation].

Fortunately, Justice Margaret Workman remained unconvinced, and she penned a particularly lucid dissenting opinion that says what we’re probably all thinking right about now:

The majority opinion slams the door shut on enforcement of even the most blatant unfair or deceptive commercial conduct on the grounds that false or misleading advertising was perpetrated by a religious institution. The majority grafted onto the CCPA a blanket exemption for religious entities that are operating and competing in the commercial marketplace.

Workman took her colleagues to task for producing a biased document, letting the real issue — whether it’s okay for organizations to lie about for-fee services they’re providing — become obscured by hot-button questions of religious freedom.

The fundamental question involves matters of unfair or deceptive acts or practices in advertising or selling and in advertising based on false promises. That is all. Nothing else is at issue. This case has absolutely nothing to do with the free exercise or expression of religious thought and nothing to do with regulating religious institutions in the sense of excessive State entanglement. As brought and pled by the State, what is at issue is alleged false promises and deceptive advertising promoting a safe environment aimed at getting students and campers to attend for-fee-based schools and camps, when alleged facts indicated the contrary to be true.

In fact, she opens her dissent with shots fired: She calls the majority opinion “transparently result-oriented” and accuses it of “logical incoherence” and “sins of omission.”

But they’ve achieved the result they seem to have wanted. Case law now exists to support the argument that holding faith-based organizations to the same organizational standards as secular companies is tantamount to religious discrimination.

Diocesan spokesperson Tim Bishop released a statement that said, in part:

We affirm our full commitment to transparency about our schools and to the protection of those young people entrusted to our care across the State of West Virginia.

It’s true that the original deception took place in 2007 and 2008, more than a decade ago.

But it’s also true that the Diocese’s actions in this case don’t support that statement. A full commitment to transparency in the service of youth protection is hardly compatible with a fight for exemption from truth in advertising.

(Image via Shutterstock)

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