Defending the Holy See [Vatican Lawyer Discusses the Supreme Court’s Decline of Abuse Appeal]

National Catholic Register ^ | 6/29/2010 | JOAN FRAWLEY DESMOND

[Alex Murphy]

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.

[Alex Murphy]

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....

....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....

....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.

[betty boop]

Currently, the plaintiff has one jurisdictional theory left: The priest who committed the abuse was an "employee" of the Holy See.

Good grief!!! What person in his right mind could say that a consecrated priest — irrespective of his fidelity to the vow of poverty, chastity, and obedience that he swore to become a priest — is an "employee" of anything?

Certainly current OSHA laws and regulations can shed no light on what is an ancient, sacred, voluntary, and divinely consecrated spiritual relationship of a man with his God.

The Holy See has nothing to do with this case as a civil or criminal defendant as far as I can see.

The priest failed, not the Church.

[AnAmericanMother]

If this priest was a religious (i.e. belonged to an autonomous religious order and not a diocesan priest), the chances of his being found an employee of the Holy See are even slimmer than they were before.

[trisham]

It doesn’t matter. There is a secularist agenda at work here. There is also the opportunity to make some serious money.

[livius]

Good attorney. He’s keeping the issue focused exactly as it should be. The plaintiff had failed in every other claim and this was obviously a last ditch effort.

I’m sure some PI attorney out there is fantasizing about installing the Sistine Chapel paintings over his swimming pool, but it ain’t gonna happen.

[ADSUM]

For your information:

SC declined on narrow issue, but the main issue of immunity will probsably prevail.

[betty boop]

It doesn’t matter. There is a secularist agenda at work here.

Well if there is, trisham, then we inherit the duty to defeat it.

[sayuncledave]

Well said, both of you! That is a sharp attorney. Although the interviewer kept attempting to lead him down the primrose path, he stayed on target. I look forward to reading about the defeat of this effort at some point in the future.

[Quix]

The priest failed, not the Church.

You may well be right, in this case. I don't know. Don't really WANT to know.

I DO KNOW that every organization--including every Christian organization--the better ones and the poorest ones--I've ever been close to . . . the leadership

IN ALL OF THEM

HAS FAILED SIGNIFICANTLY, SERIOUSLY IN AT LEAST ONE WAY OR ANOTHER--usually for an extended period.

And, I think it is ABUNDANTLY EVIDENT that the Vatican system and major parts of its hierarchy have failed a lot of children and parents and parishioners over the last decades in this mess. That general, basic statement seems to be inescapable, to me, in all this horror.

The contention that "The priest failed, not the Church." . . . may be accurate in specific cases. It is NOT accurate over all over the decades involved.

Very very few RC's hereon seem willing to admit that. Proddys hereon are quite familiar with that level of denial on the part of a huge percentage of the RC's hereon. It seems to be an inherent, chronic, compulsive aspect of the whole system and most of those immersed in it.

Some of us Proddys are convinced that

THAT LEVEL OF CHRONIC DENIAL ABOUT THE FLAWS OF THE VATICAN SYSTEM

Are a major factor in all manner of junk within that system.

To us--given that chronic level of serious denial--evidently at all levels of the organization--the horrors of the sexual abuse mess would be somewhat inevitable.

Personally, I think it is extremely difficult to keep ANY large organization kosher on any list of values and criteria. However, there are LEADERSHIP styles, issues and structures that make it easier and others that make it more difficult to keep a large organization ship-shape--particularly in terms of morals, doctrine and the like.

We Proddys OBSERVE hereon, EXTREMELY STRIDENT and often rather haughty EXCLUCIVIST blather about how pristine, saintly, protected, ordered-of-God etc. the Vatican system is.

Given the REALITIES that Proddys have to contend with--being 'outside the Vatican fold'--and the perspective that affords--such contentions are ABSURDLY FARCICAL ON THEIR FACE. Yet, curiously, extremely few RC's hereon ever come close to admitting such realities--even part of such realities, much less understanding even why we would have such an unshakable conviction and set of observations of the Vatican system.

Given such evident DISASSOCIATION from "objective" "REALITY," that makes it extremely difficult to have the least bit of confidence in even their most emphatic assertions.

Now, in this mess, on thread after thread, we have the usual Vatican apologists--understandably--it is honorable to stand up for one's reference groups, after all--the usual contenders rant on and on about how Proddys are not dealing in reality. Proddys are accused of denying their own denominational sins--supposedly to worse degrees, about worse crimes or percentages than the Vatican system. etc. etc. etc.

Actually, even on that score, they are wrong. A number of Proddys hereon have admitted facts many times over.

I am close to despairing of any increase in mutual respect and understanding occurring at all, between the two camps hereon.

To me, this mess vividly illustrates two FACTS about the Vatican system and MOST RC's hereon. No, not opinions, nor even per se interpretable observations, FACTS.

1. The Vatican system will virtually always--first, most, and usually for a long time--DENY VIRTUALLY ANY FAULT, ANY FLAW, ANY ERROR, ANY CRIME, ANY SIN--often without much of any rational support for the denial, at all.

2. Most of the RC masses will similarly seemingly lack much of any significant level of insight into themselves as well as lack much of any significant level of insight into their organization. Yet, they will insist that THEY have perfect theology, 100% ordained directly from God, administered and applied almost 100% perfectly by their leaders and maybe somewhat slightly less perfectly by most faithful folks in the pews.

At that point, Proddys are shaking their heads and looking for the barf bag at the absurdities of such charades. Who are they fooling?

CERTAINLY NOT GOD!
CERTAINLY NOT THOUGHTFUL, PERCEPTIVE PRODDYS [probably a minority of Proddys manage thoughtful and perceptive hugely well, but that's another story--also a very human story].
AND NOT THE WATCHING WORLD.

Most Proddys hereon are not so delusional as to fantasize that any of our blather is likely to change the mind and understanding of any of the RC's hereon whatsoever.

However, some days, given such as the responses of soooo many RC's hereon to some of the reasonably confirmed basics of this abuse mess--many Proddys are again asking themselves if there's the LEAST CHANCE AT ALL of having ANY meaningful, mutual understanding dialogue AT ALL. The huge stacks of evidence seem to indicate--only when there's a snowball fight in hell.

That's dreadfully sad, to me. Even a lot of the rabid clique sorts of RC's hereon are reasonably easy to love. Certainly the rest are. And some of you are easy to love, A LOT.

AND, we CERTAINLY have plenty of satanic stuff to contend with as fellow believers supporting one another in such efforts.

Therefore what, I don't know. I just felt a need to review with you why so many of us Proddys hereon are so incredulous about such chronic double standard stuff, outright falsehoods, willfully blind denial etc.

I do greatly appreciate that you seem to be largely free of some of the more outrageously hideous craziness, duplicities etc. Praise God and thank you for that.

[Dr. Eckleburg]

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 a joke. Then why does each individual Roman Catholic church send money to its archdiocese who in turn sends money to Rome?

Henry VIII had to break away from Rome and organize the Anglican church in order to get out from underneath that "monolith" and its demands for money.

And we're supposed to believe the carny doesn't work for the concession stand?

[count-your-change]

I’d say the person that can fire me is my employer.

[Alamo-Girl]

Thank you for sharing your insights, dearest sister in Christ!

The priest failed, not the Church.

Truly said. If the priest had taken God seriously, he would not have done it in the first place.

Even so, Christians should never sue other Christians for damages.

Do ye not know that the saints shall judge the world? and if the world shall be judged by you, are ye unworthy to judge the smallest matters?

Know ye not that we shall judge angels? how much more things that pertain to this life? If then ye have judgments of things pertaining to this life, set them to judge who are least esteemed in the church.

I speak to your shame. Is it so, that there is not a wise man among you? no, not one that shall be able to judge between his brethren? But brother goeth to law with brother, and that before the unbelievers.

Now therefore there is utterly a fault among you, because ye go to law one with another. Why do ye not rather take wrong? why do ye not rather [suffer yourselves to] be defrauded? Nay, ye do wrong, and defraud, and that [your] brethren. - I Corinthians 6:1-8

To God be the glory, not man, never man.

[Quix]

I think you are correct.

However, I think it is also correct that the monolith is not as homogeneously monolithic as some Proddys might assume.

It is interesting that when Proddys say this or that about theology . . . the wails, screams and dust throwing insists that the Vatican is homogeneously monolithic and UNCHANGEABLY SO, to the max all the way back to Jesus talking to Peter about stones—WHAT A FARCE such assertions are!

And, they also typically speak in such rants about how all the hierarchy submits wholesale & more or less lock-step [except when they don’t] to the

1. !!!!TRADITIONS!!!!
2. THE MAGICSTERICAL
3. and if there’s any submitting left over, maybe to their rubber ‘Bible.’

NOW, they want to insist the opposite—that everything is fractured into autonomous local fiefdoms with hardly even any sham oversight.

Maybe in Heaven, the REAL sociological, historical RC commentator will STAND UP!

[Quix]

I totally agree with you.

Though some might take your assertions to mean that the Vatican & sub-units involved could get off Scott-free.

Not so.

We are obligated to restitution to the extent fitting and possible.

We are certainly obligated to admit, confess, repent for the offense.

[Dr. Eckleburg]

I’d say the person that can fire me is my employer.

Not everyone, apparently, can understand all those technical terms and esoteric evidence you've just provided.

God willing, they'll study those 11 words and the overwhelming logic of them will sink it.

[count-your-change]

The old legal strategy is: If the law is against you, pound on the facts. If the facts are against you, pound on the law. If both law and facts are against you, pound on the table.
Sounds like table pounding to me.

[Alamo-Girl]

Thank you so much for sharing your insights, dear brother in Christ!

We are obligated to restitution to the extent fitting and possible. We are certainly obligated to admit, confess, repent for the offense.

Indeed. A Christian "perp" should confess, apologize and offer to make his victim whole again. And a Christian "victim" should turn the other cheek, forgive and not seek damages.

Truly, if Christians took God seriously it would clear a lot of the docket in civil courts.

Ye have heard that it hath been said, An eye for an eye, and a tooth for a tooth: But I say unto you, That ye resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also. And if any man will sue thee at the law, and take away thy coat, let him have [thy] cloke also. And whosoever shall compel thee to go a mile, go with him twain. - Matt 5:38-41

Criminal offense however in the U.S. is against the State or Nation and those cases would have to go through the criminal justice system.

To God be the glory, not man, never man.

[wmfights]

BB: The priest failed, not the Church.

As an employer if I don't use good judgment in hiring, training and supervising employees I can be held responsible in part for what they do at work. I am not responsible for the criminal behavior (unless I'm involved), but will be liable for the civil damages.

For example, if I don't do background checks on my janitors, give them keys to apts and don't check on them at work and one goes into an apt and rapes a child I won't be prosecuted for the crime, but I will be a defendant in the civil case. If I turn around after the fact, knowing what the janitor did,and transfer him to a different apt complex then I become a part of the criminal case.

[wmfights]

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.

I'm not a lawyer, but as a businessman I do use a lot of independent contractors. If one of these contractors has access to my buildings and is not supervised if they commit a crime I won't be prosecuted for it. However, I will be included in the civil suit because I gave them access to the buildings and didn't supervise them.

[TSgt]

It doesn’t matter. There is a secularist agenda at work here. There is also the opportunity to make some serious money.

Yeah, the lawyers forced the priests to rape children and then forced the media to report it. That's it!