U.S. Case Against Holy See May Go Forward, Court Rules

BY JEFF GARDNER

REGISTER CORRESPONDENT

December 21, 2008-January 3, 2009 Issue | Posted 12/12/08 at 7:03 AM

LOUISVILLE, Ky. — Could Pope Benedict XVI be deposed?

That’s a legal term, of course, for having to answer questions posed by lawyers as part of a “discovery” process in a lawsuit.

One lawyer in the United States feels confident that he will be able to ask the Pope certain questions during a deposition, now that a federal appellate court has ruled that a Kentucky district court may consider jurisdiction over the Holy See.

The case involves three men who claim to have been sexually abused in Kentucky. Attorney William McMurry brought a class action lawsuit on their behalf in June 2004, naming the Holy See as the defendant. The suit alleged “deliberate failure … to take effective action to prevent childhood sexual abuse by its priests, bishops, archbishops, cardinals, agents and employees.” McMurry alleged that “the Holy See has mandated that all allegations of childhood sexual abuse be kept under a cloak of complete secrecy.”

The latest ruling in the case involves the question of when a sovereign state can be sued by a U.S. interest. In 2007, Judge John Heyburn II of the U.S. District Court for the Western District of Kentucky ruled that the three men could pursue a claim that the Holy See should have issued warnings that members of the clergy had been accused of sexual abuse.

Jeffrey Lena, representing the Holy See, appealed that ruling to the 6th U.S. Circuit Court of Appeals, but on Nov. 24, that court, in part, upheld the ruling.

Lena stressed that the ruling was made under a procedural rule that requires the court to treat the allegations against the Holy See as if they are true. He said the ruling does not settle whether a U.S. court has jurisdiction over the Holy See.

McMurry, though, considered the ruling “historic.”

“These victims are free to come into federal court where they can be compensated by the Vatican if they can prove that the bishops were acting in their official capacity when they moved priests around and put the victims in peril,” he said.

But both Lena and McMurry acknowledge that the Holy See is recognized by the United States as a foreign sovereign and is thus presumptively exempt from the jurisdiction of U.S. courts by the Foreign Sovereign Immunities Act of 1976. This statute limits how a sovereign state or its agents may be sued in U.S. courts. 

In many cases, the act prevents U.S. courts from even hearing a claim against a sovereign state. However, a sovereign state can lose its immunity if it engages in certain patterns of commerce in the U.S. (the so-called Commercial Activity Exception) or if one of its employees or officials has caused harm to someone in the U.S. (the so-called Tort Exception).

McMurry argued before the 6th Circuit that both the Commercial Activity and Tort Exceptions apply to the Holy See and it should be stripped of its immunity from prosecution in U.S. courts. The 6th Circuit ruled that the Commercial Activity Exception did not apply to the Holy See but that the Tort Exception can be looked into by a U.S. federal court. 

In his original 2004 complaint before the federal district court in Louisville, McMurry alleged that the Holy See has “absolute and unqualified power and control over the Roman Catholic Church, including … its bishops.” The 6th Circuit also noted that a plaintiff could bring suit against the Holy See if “any official or employee” of the Holy See harms someone in the U.S. This raises the question of whether or not U.S. bishops are employees of the Holy See.

“Absolutely not,” said canon law expert Edward Peters.

Peters said that “the Catholic Church does not understand bishops as employees of the Holy See.  In fact, that was one of the most important clarifications of theology that came out of the First and Second Vatican Councils — specifically, that diocesan bishops are not delegates of the pope, but that they govern their own dioceses in their own right.”

Peters, who holds the Edmund Cardinal Szoka Chair in Faculty Development at Sacred Heart Major Seminary in the Archdiocese of Detroit, noted that prior to the clarification of the Vatican Councils there were theories that “the pope was somehow in charge of absolutely everything in governing the Church, and bishops were just assigned to help him by administering various territories in his name. Today, the understanding is much clearer that bishops govern their own dioceses as apostolic successors. Even the 1917 Code of Canon Law did not regard bishops as mere papal delegates or employees of the pope.”

Said Peters, “You can trace a line of steady development out of the Middle Ages which shows that the Church always knew — but at times struggled to find the right language to describe — that the bishops are in charge of dioceses in their own name and that their obligation is to maintain communion — active, spiritual communion, what we call ‘hierarchical communion’ — with the pope. They were not just there to administer their dioceses in the absence of the pope.

“Catholic bishops love the pope,” said Peters, “but they would rightly take affront at the characterization that they are employees or officials of the Holy See.” 

Cardinal Ratzinger

For his part, McMurry would like to have the Holy See stripped of its immunity because he believes that the bishops are employees or officials of the Holy See and that the Holy See knew about abusive priests and failed to act.

“The Congregation for the Doctrine of the Faith,” McMurry asserts, “was required to receive the details on every priest suspected of abusing a child. As head of that office, prior to becoming Pope [Benedict XVI], Cardinal Ratzinger would have received these reports.” 

McMurry made it plain that he wants to take the Holy Father’s deposition. “I want to know what he knew and when he knew it.”

The deposition, McMurry said, should be taken “to preserve an old man’s testimony for a very important case which affects tens of thousands of people in this country.”

In his 2004 complaint before the Louisville court, McMurry named the Holy See as the defendant which is, he asserts, “the composite of the authority, jurisdiction and sovereignty vested in the Pope and his delegated advisors …” If McMurry is successful in having the Holy See stripped of its immunity, will this mean that Benedict might be subjected to the jurisdiction of U.S. courts?

“Within the context of this case,” said Joseph Isanga, assistant professor of law at Ave Maria School of Law, “it might be extremely difficult to subject the Pope, as the head of a sovereign entity [the Holy See], to the jurisdiction of the courts of the United States or the Commonwealth of Kentucky.”

Isanga, who teaches international law, said that “there have been attempts to name the Holy Father as a defendant in civil suits, but they have failed.

“For example, in 2005 Judge Lee Rosenthal of the U.S. Distric Court for the Southern District of Texas dismissed Pope Benedict XVI from a civil suit [Doe v. Roman Catholic Diocese of Galveston-Houston] filed against him and the Diocese of Galveston-Houston. The judge ruled that the Pope enjoys what is called the Head of State Immunity from the suit.”

Isanga noted that “to determine whether a sitting sovereign enjoys Head of State Immunity, the U.S. courts largely look to international comity principles — reciprocal courtesy or restraint from exercising jurisdiction in order to maintain international friendly relations — or they defer in each case to the United States Department of State regarding whether or not to exercise jurisdiction.”

What’s next? Both sides have the option of appealing the ruling of the 6th Circuit Court to the U.S. Supreme Court or letting the case return to the federal court in Louisville. Neither Lena nor McMurry would comment definitively on what they intend to do next. However, McMurry did tell the Register that “if the Vatican does not appeal this decision, we are in the position then of taking discovery and having jurisdiction established.”

Lena concluded by saying, “We look forward to resolving these important questions of whether a U.S court has the power to take jurisdiction over the Holy See.”

Jeff Gardner is based in

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