Holy See can only be sued as nation

by Peter Smith
the Courier-Journal

The U.S. government has taken the Vatican’s side — at least in part — in a Louisville priest-abuse lawsuit seeking class-action damages from the Roman Catholic headquarters.

Lawyers for the U.S. State and Justice departments argued in a friend-of-the-court brief that the Vatican can only be sued as a foreign state — a status that grants it broad protections from lawsuits — and not as a private religious organization.

The U.S. government brief defends the constitutionality of the law that sets limits on when foreign governments can be sued, and the right of the president alone, and not the court system, to decide which countries to recognize.

But the U.S. lawyers didn’t dispute a U.S. District Court’s judge’s ruling that allowed the plaintiffs to sue the Vatican within the limits of the law governing lawsuits against foreign states.

The government lawyers also aren’t taking sides on the substance of the lawsuit — the allegation that the Vatican orchestrated a cover-up of sexual abuse by priests in the United States.

At issue is a lawsuit that Louisville attorney William McMurry filed in 2004 in the U.S. District Court for the Western District of Kentucky.

The plaintiffs — James O’Bryan, Michael Turner and Donald Poppe — say that they were sexually abused by priests in the Louisville area between the 1920s and 1970s.

The lawsuit seeks class-action status on behalf of all those abused by priests in the United States, claiming that Catholic bishops engaged in a systematic cover-up of abuse under explicit, secret orders from the Vatican.

More than three years after its filing, lawyers are still debating whether and how the lawsuit can proceed.

U.S. District Court Judge John G. Heyburn ruled in January that the plaintiffs could only sue the Vatican within the law governing suits against sovereign states. He allowed some of the lawsuit to proceed because the U.S. Foreign Sovereign Immunities Act includes an exception allowing lawsuits over any harmful acts by “officials” or “employees” of the foreign state within the United States.

While that law was crafted mainly to enable lawsuits over traffic accidents involving foreign government employees, McMurry says American bishops were church officials acting on Vatican orders to cover up abuse.

But under the law protecting foreign states from lawsuits, Heyburn refused to allow the plaintiffs to seek damages for anything done by church officials in the Vatican or elsewhere outside of U.S. soil.

Both sides are now appealing the parts of Heyburn’s decision on which they lost to the U.S. Court of Appeals for the Sixth Circuit.

The Vatican argues that it shouldn’t be sued at all, while McMurry argues that it should be sued as a private organization.

The U.S. lawyers are taking a middle position — that the Vatican “may be civilly sued in a U.S. court under the terms specified by the (Foreign Sovereign Immunities Act), or not at all.”

“It raises a lot of very important issues that may be right on the cutting edge,” said University of Richmond law professor Carl Tobias, who monitors Sixth Circuit cases.

“The U.S. sounds like it’s mostly concerned about the delicate nature of the international relations part of it, and justifiably so,” he said, “but I can understand how the plaintiff’s lawyer would be looking to hold the Vatican liable in this case, if it has some responsibility.”

McMurry is arguing that the sovereign immunities act violates the First Amendment of the U.S. Constitution because it gives “a blatant ‘special favor’ that benefits one, and only one, religion: the Roman Catholic Church.”

The Vatican disputes that claim.

It is also appealing Heyburn’s decision to allow the case to proceed, contending that none of the exceptions allowing lawsuits against a foreign state fit this case.

It argues that bishops are neither employees nor officials of the Vatican.

In its brief, filed last month, the U.S. government lawyers argue that the courts have no say in whether the Vatican is a sovereign state, because the Constitution gives the president the sole right to decide whether to recognize a foreign government.

President Ronald Reagan recognized the Vatican, consisting of a square half-kilometer on the Italian peninsula, in 1984.

The government lawyers also argue that there’s nothing unconstitutional about the Foreign Sovereign Immunities Act because there’s no evidence Congress was trying to advance Catholicism when it approved the law in 1976 — years before the Vatican was recognized.

The law “merely affords the Holy See the same immunity granted to every other foreign sovereign recognized by the executive branch, even ones tied intimately to a particular religion.”

The brief contends there are similar political-religious ties between Israel and Judaism, Saudi Arabia and Islam and Great Britain and the Church of England.

The U.S. lawyers cited a recent Sixth Circuit opinion allowing a display that included the Ten Commandments in the Mercer County, Ky., courthouse. That decision said the display was legitimate because county officials showed no explicit religious goal in authorizing it.