Please freepmail me if you want on/off this list
Posted on 06/29/2010 3:14:12 PM PDT by 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.
Or to put it another way, non-Catholics are often accused of having their own private interpretation of Scripture - YOPIOS or something like that.
But in the final analysis, each person - Catholic or not - is an individual not a robot.
We are not made with a cookie cutter. Some understand more. Some believe more. Some understand but rebel. Some love God. Some resent Him. And so on.
Only God knows what is in all our hearts.
Love God. Believe Him. Trust Him.
As for the fear of losing the fine art treasures housed in the Vatican , said treasures are owned by the citizens of Italy under the 1929 concordat with the Vatican.
How's that for the "Bush's Fault" excuse of the Catholic Church? lol!
Well put
AND A VERY APT EXAMPLE, imho.
Thx.
Or to put it another way, non-Catholics are often accused of having their own private interpretation of Scripture - YOPIOS or something like that.
But in the final analysis, each person - Catholic or not - is an individual not a robot.
We are not made with a cookie cutter. Some understand more. Some believe more. Some understand but rebel. Some love God. Some resent Him. And so on.
Only God knows what is in all our hearts.
The heart [is] deceitful above all [things], and desperately wicked: who can know it? – Jer 17:9
And so I would say that no assembly of Christians is a monolith. Tenets may be carved in stone, but members are fallible individuals.
Love God. Believe Him. Trust Him.
ABSOLUTELY INDEED.
THX THX.
Excellent post
LOLOL. The similarities between the papacy and the democrat party just keep piling up.
I’d ask my local priest if his employer was the Holy See, but I don’t want him to think I’m that stupid.
LOLOL!
*independent contractor according to the Pope*
Hmmm.... Is this everything in the Vatican Museum or are specific items singled out? Where can we read a translation of this agreement?
Thank you for the analysis. Even from the point of view of a complete layman, I couldn’t imagine how they were going to establish the Vatican as the employer. Still, stranger things have happened, and I am glad to know that US law wouldn’t favor this.
As for the Vatican art works, thank you again for the information on the concordat.
This is a good explanation of the issues in the lawsuit!
This is sometimes referred to as 'vicarious' liability for the acts of your agents, consultants and other contractors. It is your responsibility to make sure the agent you hire conducts business in accordance with the law!
I agree that this is baloney. When it comes to dogma and earthly authority, etc. all we hear is the monolithic "always and everywhere believed". But when the lawsuits come then suddenly "always and everywhere believed" is tossed out the window in favor of "different entities that operate with relative autonomy". We've heard the argument a thousand times that only Catholicism is true Christianity BECAUSE of its never-changing monolithic beliefs and central authority. Consequently, they criticize Protestantism BECAUSE of its actual relative autonomy. Regardless of their success or failure on this legal matter, the hypocrisy is staggering.
It was interesting to note that the lawyer in the article appeared very confident in his position and treated the case as a mere nuisance suit. It appears that he is resting his laurels on the legal status of the Holy See as a sovereign governmental entity. Indeed, according to the U.S. State Department:
It appears their position is that the only employees (or almost only) of the Holy See work in Vatican City, and that all others are the equivalent of independent contractors. Morally of course this position is completely disingenuous because their claims of superiority stem in part from their rejection of local independence.
Legally, though, their technical argument may carry the day. I would not be so confident as their attorney, however, since the governmental status of the Holy See is so unique. For example, their revenue sources, sales and voluntary contributions, are unlike those of any other government in the world. So with their technical status notwithstanding, they sure function and act much more like corporation than a government, especially with regard to their exercise of authority. These are uncharted waters and given the right circumstances anything could happen.
The SCOTUS has given some guidance on the employee-IC distinction. In United States v. Silk, 331 U.S. 704 (1947), these (relevant here) factors were mentioned as important: (1) the degree of control exercised by the supposed employer; (2) the degree to which the supposed employee's opportunity for profit and loss is determined by the supposed employer; (3) the skill and initiative required in performing the job; and (4)the permanency of the relationship. ----- The Court noted that its list was not exhaustive or conclusive, however, by these factors there certainly appears to be a legitimate case for establishing an employee relationship.
Be that as it may, if nothing else this case further exposes the outrageous and hypocritical moral claims of superiority by the Catholic Church. From CCC 2032:
Think about the legal tactics and loopholes being used by Vatican lawyers in this and other cases and then think about the Catholic Church's "right always and everywhere to announce moral principles, ... and to make judgments on any human affairs". Then try to eat something. :)
I don't know of any reason that wouldn't apply to a church.
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