For the second time in six years, a state law barring clergy members from having sex with people they counsel has been found constitutional by the Minnesota Supreme Court.

In a 4-1 ruling, the high court upheld the law in the case of a St. Paul priest convicted of sex with an adult parishioner. The law makes it a felony for clergy to “engage in sexual conduct” with those seeking “religious or spiritual advice, aid or comfort in private.”

The ruling also reverses a Minnesota Court of Appeals decision last year that granted the Rev. Christopher Wenthe a new trial. That ruling found that the religious evidence used against Wenthe violated his rights under the First Amendment, which holds in part that “Congress shall make no law respecting an establishment of religion.” Wenthe was convicted in 2011 of third-degree criminal sexual conduct for a sexual relationship with a woman nearly 10 years ago.

Writing for the majority, Chief Justice Lorie Gildea countered that the law is not excessively entangled with religion because it applies “neutral principles of law and regulates only secular aspects of clergy-parishioner relationships.” Whether an alleged victim received “advice, aid or comfort” from a clergy member can be determined “without delving into religious doctrine,” she added.

Ramsey County Attorney John Choi, whose office prosecuted Wenthe, praised the decision for the confidence it will give to prosecutors in similar cases.

“That’s what the Legislature was talking about with this law — when you have someone going through immense personal issues and seeking advice from a member of the clergy, a sexual relationship in that context is prohibited.”

The law also makes clear, Choi added, that consent is not a defense.

Although Wenthe’s conviction will stand, his case will return to the Minnesota Court of Appeals for additional issues that weren’t addressed when he was granted a new trial, including whether Wenthe knew he was breaking the law.

“This odyssey will be continuing,” said Wenthe’s attorney, Paul Engh, who added that he may ask the U.S. Supreme Court to hear the case.

“The part of the law that’s troubling is that if both parties consent to something, one party’s consent is nullified by the law,” he said. “So you can’t ever consent.”

In the meantime, the ruling could also affect whether charges are filed in similar cases.

Hennepin County Attorney Mike Freeman said Wednesday he will review the ruling before deciding whether a Maplewood priest under scrutiny will be charged for allegedly having an affair this year with a married parishioner.

Freeman’s office is handling the case due to a conflict of interest in Ramsey County.

Power, not religion

Wenthe was convicted of criminal sexual conduct “during the course of a meeting” with a 21-year-old woman in the rectory of Nativity of Our Lord Catholic Church in St. Paul in 2003.

Wenthe did not dispute that the two had an 18-month relationship but denied that it occurred while he was providing spiritual aid and comfort. Wenthe served eight months of a 57-month sentence in the Ramsey County workhouse and was released before he was granted a new trial.

Prosecutors appealed, and the high court heard arguments this summer.

The opinion rejected Wenthe’s argument that the state law targets clergy, reasoning that other professions such as psychotherapists and correctional officers are included in the statute.

“The Legislature did not single out clergy members because of their affiliation with a religious group,” Gildea wrote. “Instead, the Legislature identified the existence of a power imbalance between clergy members (or purported clergy members) and their parishioners in certain situations — similar to power imbalances created between other professionals and their clients.”

Contrasts from 2007

It was the second time in six years that the Minnesota Supreme Court upheld the constitutionality of the clergy sexual conduct law.

In 2007, the court decided 5-1 to grant a new trial for ex-priest John Bussmann, who was convicted of sexually abusing two women, on the grounds that the evidence against him relied too heavily on church doctrine.

But they evenly split on whether the statute itself was constitutional, meaning it was upheld.

Gildea wrote that the issues in the Bussmann case were different from Wenthe’s. For instance, aspects of Bussmann’s case focused on “the religious power of a priest.”

Secondly, Gildea wrote, the evidence used to convict Wenthe involving Catholic doctrine was relevant to determining whether he was acting as a spiritual adviser or “friend and lover,” as he contended.

Justice Alan Page dissented, reasoning that the state law is unconstitutional. Justices Christopher Dietzen and Wilhelmina Wright did not take part in the ruling.

Engh, who also represents the Maplewood priest under scrutiny and a corrections officer accused under the same statute, declined to say whether consent between adults should negate the law for nonclergy professions as well as clergy.

He maintained that the law, however, is a clear violation of the separation of church and state.

“I respectfully disagree with the court, and I believe this statute is centered, by definition, on religion,” he said.