Vatican and US bishops diverge on sex abuse lawsuits

Analysis

Differing Roman and American sensibilities have long been part of the drama of the Catholic sexual abuse crisis, and perhaps nowhere is that divergence more glaring than in the diametrically opposed strategies the two parties have embraced when slapped with civil lawsuits in American courts.

If litigation is a kind of war, the guiding philosophy of the U.S. bishops over the last decade has amounted to “Peace now!” -- meaning, in practice, settling claims as quickly as possible. The Vatican’s approach over the same span has been more akin to “No retreat, no surrender.”

Vatican lawyers were at it again this week, petitioning the U.S. Supreme Court June 1 to overturn a lower court ruling allowing a lawsuit to proceed in Oregon. The request builds on a recent brief by the Obama administration endorsing the view that sovereign immunity ought to shield the Vatican in the Oregon case, titled Doe v. Holy See. The brief, signed by officials of the Office of the Solicitor General, the attorney general and the State Department, argued that even if a priest could be construed as a Vatican “employee,” federal law on suing foreign countries would require that the abuse be part of his official job description -- which it obviously isn’t.

-----------------------------------------------------------------------------------
Read more about this issue in Allen's weekly Web column: In Vatican lawsuits, who’s really the little guy?
-----------------------------------------------------------------------------------

Lawyers for the victim in the Oregon case filed their own brief with the Supreme Court on June 1, insisting that even if sexual abuse of a child is outside the official scope of a priest’s employment, an institution can nevertheless “operate in a way that makes the abuse virtually inevitable.” Overlooking that reality, the brief asserts, would mean that organizations “can ignore the needs of children and escape accountability.”

Both briefs were provided to NCR. Procedurally, Vatican lawyers want the Supreme Court to take up the Doe v. Holy See case, while the victim’s attorneys want the Supreme Court to stay out of it.

The Supreme Court is expected to make a decision by the end of June. In preparation for the possibility of oral arguments, the Vatican has added a heavy hitter to its legal team: Paul Clement, former solicitor general of the United States during the Bush administration and currently a law professor at Georgetown University in Washington.

It’s one measure of Vatican tenacity that the Oregon case has been around since 2002, and eight years later lawyers are still fighting over whether an American court even has jurisdiction to hear it. Should the Supreme Court let the lower court ruling stand, it could still be years before anybody actually considers the merits of the case.

The contrast with how the U.S. bishops have handled similar litigation could scarcely be sharper.

Early on, the bishops adopted an informal policy of settling claims rather than litigating them, on the theory that fighting all the way to a verdict could result in even more mammoth payouts than the estimated $2.5 billion it has cost the bishops so far to settle. In addition, many bishops felt it was pastorally important to avoid prolonged adversarial proceedings with victims and the bad PR such cases inevitably generate.

The Vatican has gone precisely the opposite route -- contesting everything, beginning with lengthy challenges over whether a suit was even served properly in the first place. (In accord with its prerogatives under diplomatic agreements, the Vatican refuses to accept legal service via regular mail. A suit has to be filed by a court with the U.S. State Department, transmitted to the U.S. Embassy to the Holy See, and then formally delivered by an embassy official to the Vatican’s Secretary for Relations with States.)

Since 2000, the Vatican or its officials, including Pope Benedict XVI himself twice, have been named as defendants in at least 10 American lawsuits, in cases ranging from commercial disputes, to Holocaust-era asset claims involving the Vatican Bank, to the sex abuse crisis. It’s a point of pride for the Vatican’s legal team that their client has not paid a single dime settling any of those suits. Six have ended in the Vatican’s favor, with four still open.

Berkeley, Calif.-based attorney Jeffrey Lena, the architect of the Vatican’s legal strategy in the United States, told NCR June 1 that his approach is “to leave no stone unturned” in defending his client. In practice, that means not only refusing to settle claims, but also fighting requests for “discovery,” meaning requests from lawyers for access to Vatican documents or taking formal depositions of Vatican officials.

Indeed, one reason cited in Lena’s brief as to why the Supreme Court ought to toss out the appeals court ruling on the Oregon case is that it could lead to discovery requirements that would be “complex, expensive and burdensome” for the Vatican to fulfill.

Why the contrast between Rome and the U.S. bishops?

First and foremost, experts say, is the obvious point that the Vatican has a huge trump card not available to diocesan bishops -- immunity as a foreign state. While the 1976 Foreign Sovereign Immunities Act provides some limited exceptions allowing American citizens to sue foreign governments, immunity is still a huge obstacle to most claims. By way of contrast, American bishops were forced to stake their defense mostly on First Amendment grounds, and courts have generally ruled that “free exercise of religion” doesn’t shield a bishop from liability for failing to report abuse.

In terms of the merits of the respective cases, it’s also much easier for victims’ lawyers to connect the dots between a priest’s misconduct and his bishop’s allegedly negligent oversight, than to extend that liability all the way to Rome. In many instances, there’s little evidence the Vatican even knew these priests existed prior to their names hitting the papers decades after the alleged abuse happened.

Beyond that, observers say, several cultural factors come into play:

• American bishops are understandably more sensitive to public opinion in the United States, including the PR consequences of contesting claims by sex abuse victims.
• The Vatican has fought tooth and nail over the centuries to preserve its sovereign independence, and tends to frame these cases as threats to sovereignty rather than being primarily about the sex abuse crisis.
• In a similar vein, the Vatican sees these cases not merely in terms of defending itself, but protecting any small state when threatened by the legal system of a superpower.
• There’s resentment in Rome about being dragged into American courts in the first place, to date the only country on earth where the Vatican has been sued over the sex abuse crisis. (Observers say that’s in part because American courts are more “plaintiff-friendly,” and in part because the success of lawyers in suing American dioceses has generated a war chest to fund more protracted and uncertain litigation against the Vatican.)
• At a root level, even different cultural senses of time may play a role -- American impatience to get things done, versus the Vatican’s legendary capacity to wait things out.

However one explains it, the point seems clear: The Vatican has no intention of rolling over and playing dead in American courts, no matter how long it takes to see a case through to the end.

What the long-term fallout from that strategy might be is anyone’s guess, but in the meantime the contrast between Rome and the U.S. bishops could end up helping the Vatican in another sex abuse case, O’Bryan v. Holy See in Kentucky. The core issue there is whether bishops, as opposed to priests, are Vatican “employees,” a claim Vatican lawyers have vigorously contested -- insisting that the relationship between bishops and the pope is far more complicated, and that on most non-doctrinal matters bishops call their own shots.

Ironically, the simple fact that the Vatican is making that argument in an American court of law, rather than cutting a check to make the case go away, arguably underscores the point -- surprisingly often, Rome and local bishops don’t take their cues from one another.

[John L. Allen Jr. is NCR senior correspondent. His e-mail address is jallen@ncronline.org.]