dissenting.
I.
In my view, none of the claims asserted by the Destafanos are barred by the heart balm statute or by the anachronistic rulings concerning the actions abolished in that statute. The scandalous nature of the alleged conduct of the priest should not divert our attention from the true nature of the cause of action alleged by both the Destafanos.
As I read the allegations in both the complaint and the cross-claim, the central contention of wrongdoing asserted against the priest is a breach of fiduciary duty. The Destafanos came to the priest for help with their marriage. He undertook such help and thereby entered a fiduciary relationship with both of them. However, in disregard of that fiduciary relationship, he *1022not only did not attempt to help but, indeed, began a course of conduct which he knew or should have known would lead to the destruction of their family. That the specific manner in which the breach occurred was to engage in sexual relations with Edna is not of critical importance. The priest could have perpetrated the breach of duty in other ways, e.g., by inducing Robert to convey the family’s assets to him.. See Adams v. Paine, Webber, Jackson & Curtis, Inc., 686 P.2d 797 (Colo.App.1983). Hence, the gist of the tort alleged is not alienation of affections or criminal conversation as the majority asserts; rather it is breach of fiduciary duty. And, as to such tort, the allegations of the complaint are sufficient to survive a motion for dismissal under C.R.C.P. 12(b).
A priest acting as a marriage counselor should no more be shielded from liability by the heart balm statute than were psychiatrist-counselors protected by such statutes in Roy v. Hartogs, 85 Misc.2d 891, 381 N.Y.S.2d 587 (1976) and Cotton v. Kambly, 101 Mich.App. 537, 300 N.W.2d 627 (1980).
II.
As to the claims against the diocese, the doctrine of respondeat superior is applicable to impose vicarious liability on the diocese for the breach of fiduciary duty by the priest. See generally Saint Mary's Academy v. Solomon, 77 Colo. 463, 238 P. 22 (1925) (charitable institutions may be liable in tort and liability not limited only to selecting incompetent servants).
Furthermore, even if the heart balm statute is interpreted so broadly as to bar the claims against the priest, under Restatement (Second) of Agency § 213 (1958), the diocese may be held liable for its own conduct if, as alleged, it knew or should have known of the priest’s proclivity to misuse his position as a marriage counselor to achieve his own purposes but nevertheless continued to permit him to engage in such a sensitive role.
III.
Contrary to the defendants’ argument, the First Amendment may not be used to shield the priest and the diocese from liability for their tortious conduct. As stated in Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940):
“The First Amendment religion provisions contain two concepts, ‘freedom to believe and freedom to act. The first is absolute, but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.’ ”
See also Madsen v. Erwin, 395 Mass. 715, 481 N.E.2d 1160 (1985).
Religious belief is totally beyond the reach of the state, but conduct, even if pursued in the name of religion, must conform to the standards of the community. The obligation to perform one’s fiduciary obligations in good faith is such a standard, and the allegation that there was a breach of that obligation may properly be addressed. The issues in this case therefore, do not involve inquiry into doctrinal, spiritual, ecclesiastical, or religious matters.
Accordingly, I respectfully dissent; I would reverse the judgment and remand the cause for trial on all claims.