One of your Alabama Supreme Court justices says no. You may remember the Bailey v Faulkner case, in which the Alabama Supreme Court wrestled with the reprehensible conduct of a Montgomery pastor. Now Justice Tom Parker, the Roy Moore clone, has issued a late concurring opinion.
His opinion doesn’t have the weight of law and is only his reasoning. In it, Parker argues that Alabama should not recognize the tort of clergy malpractice. He argues that a pastor’s status derives from the church rather than the state and that the advice he or she provides is theological rather than practical.
Bailey’s actions lie outside the authority of this Court to remedy or avenge. If Mr. Faulkner would seek further redress, he should do so in the ecclesiastical court of his church or denomination (see, e.g., Matthew 18:15-18 and I Corinthians 5:12, 6:1-5), which may order Bailey to provide restitution that this Court may not order to ameliorate the financial hardship of the divorce. If Bailey were to refuse a church order requiring him to provide restitution, the church court could excommunicate him or apply other Biblical discipline as a sanction for that refusal.
I agree with Parker. The problem is not that Alabama should invent the unprecedented new tort of clergy malpractice but that it should restore the old tort of alienation of affections that was abolished by the Legislature. If that tort had remained, Faulkner could still have held Bailey accountable under the common law. So could other betrayed spouses, even if the interloper was not a pastor. There’s no need to create a new, very limited remedy when the old remedy works just as well and without limitation to certain professions.
I think Parker would favor the return of the tort of alienation of affections. Because that is not an option for this case, however, Parker suggests the next best option, which is getting the church to take some responsibility for its own jurisdiction. Some may not prefer that approach, but at least it’s something. None of the other justices took to the trouble to suggest any helpful alternative, however limited.