Ordaining Women and Sex Abuse

          The new revisions to the Catholic Church's canon law have appeared. The guidelines identify new procedures for handling sex abuse cases by clergy. For example, they extend the statute of limitations from 10 to 20 years and make it easier to remove priests from the priesthood. 

          The new law also creates two new grave crimes. One is the acquisition, possession or distribution of child pornography by clergy. The second is the attempted ordination of women. 

          The penalty for both the person who tries to ordain a woman and the woman is automatic excommunication from the church. Both persons are excommunicated without any church hearing or proceeding because the excommunication happens automatically at the moment of the attempted ordination. In contrast,  a cleric who commits sexual abuse or uses child pornography is to be punished according to the gravity of his crime after a church trial conducted according to new procedures outlined in the document. 

         Church officials in Rome may still believe that the priesthood is more threatened by women than by abusive priests. That is the mindset that kept the church from prosecuting abusive priests over the last 50 years. The new rules give us no reason to believe that anything has changed. The church is still protecting the priesthood rather than the people. 

    

Church Autonomy: A Bad Idea

         In describing Pope Benedict's reaction to a Belgian police raid on a cathedral in search of documents about sex abuse, The New York Times wrote that the pope stressed the church’s “autonomy” to conduct its own investigations and criticized the “deplorable methods” of the Belgian police. As in other countries throughout the world, Belgian church officials had long resisted any state investigation of sexual abuse by Catholic clergy. The pope's complaint appears as it becomes more apparent every day that when he was charged with investigating sex abuse, he ignored the problem.

          The Belgian church and state had worked out a tacit compromise that allowed the church to investigate the wrongdoing through an internal truth commission. When the commission failed to complete its mission, Belgian authorities raided church property in search of evidence about the abuse.

           The government should be the agency that investigates violations of the law. Instead, the churches and their defenders have identified a constitutional theory that places church autonomy at the core of the First Amendment. According to the leading proponent of this theory, Professor Douglas Laycock, churches have a constitutionally protected interest in managing their own institutions free of government interference.  Laycock strikes an odd balance between religious individuals and institutions, claiming that alleged state interests in regulating internal church affairs--e.g., protection of church members and church workers from exploitation--are usually illegitimate and should not count at all. This theory that religious institutions should be free to control their members is  growing in popularity. 

          The sex abuse crisis demonstrates the dangers of that theory. Churches should not enjoy autonomy from the law. Like corporations and governments, they should be subject to the rule of law and penalized when they break it. It is implausible that the Framers of the U.S. Constitution, who questioned tyranny wherever they found it, drafted a Constitution that protected institutional churches from government oversight, leaving the churches free to violate the rights of individuals. 

          Founding and succeeding generations of Americans have come to these shores in order to avoid the tyranny of religious institutions. It is essential that they not be above the law as the pope suggests. 

Holy See v. Doe

          This week the Supreme Court denied cert. in Holy See v. Doe, a case in which the Vatican appealed the Ninth Circuit's decision to allow a torts lawsuit against the Holy See to proceed. John Doe sued the Holy See, which is both a foreign state and the central government of the Roman Catholic Church, arguing that the Holy See was liable for the sexual abuse of Doe by Catholic priest Father Andrew Ronan. Although the Ninth Circuit dismissed Doe's claims against the Holy See for negligent retention and supervision of  Ronan and failure to warn Doe, it allowed Doe's lawsuit to proceed under a legal theory called respondeat superior, which holds employers strictly liable for the negligence of their employees. 

          Respondeat superior usually allows employers to be held liable only when the employee's conduct is within the scope of his employment. For that reason, most respondeat superior lawsuits against the church for sexual abuse have been dismissed because sexual abuse is not supposed to be part of the job. Oregon law, however, where Doe's suit was brought, holds that when the priestly and pastoral duties are the necessary precursor to the abuse, the lawsuit can proceed. In other words, because Doe met Ronan in church and other ecclesial settings where Ronan was acting as a priest, the scope of employment requirement was met.

          Now we await the trial. The Vatican's lawyer will defend the suit by arguing that Ronan was not an employee and that the Vatican was not even aware of Ronan's "very existence" until after the suit was filed. It would be great if that defense allowed the plaintiff the opportunity to demonstrate that the Holy See was too busy pursuing other problems--namely denying requests by divorced Catholics to remarry, publicly disciplining priests in Brazil and Peru for preaching that the church should work to empower the poor and oppressed, rein[ing] in a Dutch theologian who thought lay people should be able to perform priestly functions, and an American who taught that Catholics could dissent from church teachings about abortion, birth control, divorce and homosexuality--to pay attention to its abusive priest-employees.
          Most interesting is a recent report that Pope Benedict (then Cardinal Ratzinger) did not take action against abusive priests because he thought that the huge drop in the number of priests looked bad for the church and needed to be stopped.  “Look at it from the perspective of priestly commitment,” said the Rev. Joseph Fessio, a former student of Cardinal Ratzinger’s and founder of the conservative publishing house Ignatius Press. “You want to get married? You’re still a priest. You’re a sex offender? Well, you’re still a priest. Rome is looking at it from the objective reality of the priesthood.”  The objective reality was that the church wanted to keep as many Father Ronans in the priesthood as it could. For that it deserves tort liability. 

Hearings for Supreme Court Justices

          Some interesting findings from Professors Lori A. Ringhand and Paul M. Collins Jr. about Senate Judiciary Committee Hearings of Supreme Court Nominees, 1939-2009:

Senators have engaged minority and female nominees in more substantive questioning than white male nominees.

Senators pressed minority and female nominees much more heavily with regard to their judicial philosophies. As such, it is evident that senators are particularly interested in grilling female and minority nominees regarding their approaches to constitutional interpretation.

Minority nominees were interrogated with respect to criminal justice issues substantially more often than white nominees. 

While minority nominees received fewer questions involving court administration and access to courts than did white nominees, female nominees were at the receiving end of more court administration and standing questions than male nominees. 

Texas Republicans Oppose Sodomy, U.S. Constitution

          The Texas Republican Party Platform has called for sodomy to become illegal:  We oppose the legalization of sodomy. We demand that Congress exercise its authority granted by the U.S. Constitution to withhold jurisdiction from the federal courts from cases involving sodomy. 

          I guess the Texas Republicans haven't read Lawrence v. Texas, the Supreme Court's 2003 decision invalidating a Texas sodomy law. According to the Texas statute struck down in Lawrence,  “A person commits an offense if he engages in deviate sexual intercourse with another individual of    the same sex.” The statute defines “[d]eviate sexual intercourse” as follows: “(A) any contact between any part of the genitals of one person and the mouth or anus of another person; of “(B) the penetration of the genitals or the anus of another person with an object.”

          Justice Anthony Kennedy's important opinion in Lawrence explained that adults enjoy a Fourteenth Amendment Due Process right to engage in intimate sexual relations that was violated by the statute and Lawrence's arrest. Many lawyers had argued that the statute should be invalidated on Equal Protection grounds because it prohibited same-sex, but not different-sex, sodomy. Kennedy, however, warned that were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants. Then Justice Kennedy explained that the Constitution protects same-sex and different-sex sexual intimacy from government intrusion:

The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.

The Texas Republicans should be more sympathetic to Lawrence, because any anti-sodomy agenda violates one of the Party's core principles -- Limiting the expanse of Government Power--and suggests that the commitment to limited governmental power is not authentic.

          In a concurring opinion in Lawrence, Justice Sandra Day O'Connor invalidated the statute on Equal Protection grounds, arguing that Kennedy's broad Due Process holding was unnecessary. Whether a sodomy law that is neutral both in effect and application, she wrote, would violate the substantive component of the Due Process Clause is an issue that need not be decided today. I am confident, however, that so long as the Equal Protection Clause requires a sodomy law to apply equally to the private consensual conduct of homosexuals and heterosexuals alike, such a law would not long stand in our democratic society. I am confident that the people of Texas will be more protective of individual privacy from government intrusion than the Republican Party of Texas.