According to Mardell suing the church is about broken legs and not church doctrine. I am not sure that I completely agree. Mardell’s response appeals to one aspect of our current tort system, namely its function as an insurance mechanism. Under this theory, the church should be made an insurer for its own negligence just like any other actor. This, I think, is correct.
However, tort law is about more than insurance. It is also about the assertion of rights to corrective justice. I think this is the aspect of the case that is interesting. On one hand, I don’t think that we want to say something like “we have not rights against the church,” or “the church is not required to act justly.” On the other hand, the assertion of rights and the appeal to justice (particularly the simple corrective justice of tort law) seems somehow out of place in a church context. Rights and justice seem like the virtues that we assert against strangers and wrong doers, not the body of Christ.
Thus, I agree with Mardell that it is probably all right to sue the Church for at least some kinds of negligence. However, I am less convinced that it is an easy case. Probably just the burden of legal training…