Defending the Holy See, by Joan Frawley Desmond, National Catholic Register, June 29, 2010

Defending the Holy See

By Joan Frawley Desmond
National Catholic Register
June 29, 2010

http://www.ncregister.com/register_exclusives/defending_the_holy_see/

Visitors walk down the front steps of the U.S. Supreme Court building in Washington June 28. On the final day of its 2009-10 term, the Supreme Court left standing a lower court ruling that will allow an Oregon man to try to hold the Vatican financially responsible for his sexual abuse by a priest, if he can persuade the court that the priest was an employee of the Vatican. The court declined to take the case Holy See v. John Doe.

Vatican Lawyer Jeffrey Lena Discusses the Supreme Court’s Decline of Appeal in Abuse Case

Jeffrey Lena lives and works in Berkeley, Calif. He holds an advanced degree in history and taught that subject prior to attending law school in California and at the University of Milan. After law school, he taught law in Italy. He has represented the Institute for Religious Works (Vatican Bank) in 2000, and began representation of the Holy See in 2002. Since that time, he has represented the Holy See in a variety of matters, ranging from commercial litigation to abuse cases.

Lena spoke about the June 28 decision by the Supreme Court to not take Holy See v. John Doe, regarding an Oregon man who wants to hold the Vatican financially responsible for his sexual abuse by a priest in the 1960s.

The Supreme Court’s decision not to consider your petition is widely characterized as a blow to your legal effort to establish the Vatican’s “sovereign immunity” from prosecution in clergy sexual-abuse cases.

It would have been helpful had the Supreme Court accepted the case, but the issue before the court was narrow, relating only to the meaning of the term “scope of employment.” The decision of the court not to take the case is not a reflection of a lack of merit. In fact, as is well known, the United States agrees with the Holy See on the underlying legal issue.

The attorney for the plaintiff noted that the Supreme Court — composed of six Catholics — ruled against the Vatican’s interests.

This was not a decision in favor of the plaintiff or against the Holy See. It was simply a determination that the time was not right to have the case heard by the Supreme Court. It is really not appropriate and indeed misleading, in my opinion, to view the actions of justices as “pro-Catholic” or “anti-Catholic” based on such decisions.

I have every confidence that the justices are simply making decisions based upon what cases are appropriate for them to take at this point in time. Much too much is made of the religious composition of the court. It seems to me unseemly for Catholics to celebrate or depend upon the Catholic composition of the court, just as it would be unseemly for Protestants to do so.

Then how should the public interpret the Supreme Court’s decision?

The Supreme Court decided not to grant the Holy See’s petition for certiorari, which is simply a request that the court consider the issue. The court’s decision as to whether to take the case or not is based upon the Supreme Court’s general docket as well as what cases it wishes to hear each term. As noted, the decision not to hear the case is not a comment on the case’s merits.

The effect of this decision is to cause the case to return to the district court in Oregon, where the additional remaining defenses will be heard. Currently, the plaintiff has one jurisdictional theory left: The priest who committed the abuse was an “employee” of the Holy See. We will point out to the district court that the priest in question was not an employee of the Holy See, and that, therefore, the district court does not have jurisdiction over the case.

As a foreign sovereign, the Holy See enjoys “sovereign immunity” from lawsuits. It has enjoyed diplomatic relations with the United States since 1984. Has anyone successfully sued the Holy See in this country?

No. Although various attempts to sue the Holy See have been made over the years, jurisdiction has not been established in any of them. Currently, there is a case in Kentucky where the jurisdictional question pending is whether the bishop of Louisville is the employee of the Holy See. There is also a case in Wisconsin, known as the Murphy case, which is currently not active. The decision of the Supreme Court does not affect in any way either of those two cases.

Yet media reports characterized the Supreme Court decision as a blow to the Holy See’s efforts to establish sovereign immunity from prosecution. Is this the case?

As I mentioned, it would have been preferable, from my point of view, if the Supreme Court had taken the case, because I believe that it would have corrected the law related to “scope of employment” under the federal statute. But by the same token, the denial by the Supreme Court does not signify a loss of immunity. The immunity has not been stripped because there has been no factual determination that the priest who committed the abuse is an employee of the Holy See. Without a showing of the priest’s employment by the Holy See, there is no jurisdiction. In fact, Father [Andrew] Ronan was a priest of a religious order, the Friar Servants of Mary.

In our view, the indicators of employment simply are not present. The Holy See did not pay the salary of the priest or provide his benefits or exercise day-to-day control over him or have any other connection with him indicating the presence of an employment relationship. This priest was a member of the Friar Servants of Mary. His very existence was unknown to the Holy See until after all the events in question. I do not believe that the plaintiff has any information to contradict that view.

Yet experts suggest there could be an exception to the Foreign Sovereign Immunities Act.

The Foreign Sovereign Immunities Act is built upon the existence of certain precise exceptions. Here, the required exception is that the priest be an “employee” of the Holy See. This is simply factually inaccurate. Prior to this time, the case has been about whether the plaintiff’s complaint was “adequate.” Now the question is whether there are any facts to support the plaintiff’s complaint.

Among several allegations, the lawsuit accused the Vatican of “conspiring with U.S. Church officials to transfer a priest from city to city despite repeated accusations that the clergyman sexually abused young people.”

Originally, the plaintiff outlined such a theory — and others. As mentioned, all claims based on conspiracy, fraud and negligence are already eliminated. In addition, the entire portion of the case relating to the Holy See using or working through the Friar Servants of Mary or the Archdiocese of Chicago or the Diocese of Portland has been barred under the 9th Circuit’s ruling.

If the Holy See loses this lawsuit, many Catholics fear, the great cultural patrimony of the Catholic Church — the Michelangelos and Raphaels — could be liquidated to pay a flood of claims by abuse victims.

Let me offer a “note of reassurance”: This simply will not happen. The cultural treasures held by the Holy See are all safe.

How do you defend the Catholic Church — a monolith that spans the whole globe and includes many institutional practices that are poorly understood by Americans, even practicing Catholics?

The question is to some extent based upon a misconception. I don’t defend “the Catholic Church.” The defendant here is the Holy See. I defend the Holy See. One of the most important parts of that defense is to help people understand that the Church is not a monolith. It is composed of different entities that operate with relative autonomy and make their own decisions about the hiring and firing of personnel. Thus, just because a priest is a member of a religious order, it does not make him an employee of the Holy See.

What’s your next step?

To return to the district court — and to address the question of whether or not this priest, Andrew Ronan, was an employee of the Holy See or not. The plaintiffs have yet to come up with any evidence that Father Ronan worked for the Vatican. They have all the documents from the order and the diocese. None of these bear the fingerprints of the Holy See.