Man Without Qualities

Tuesday, July 29, 2003

The Bostonian Captivity Of The Church

In a prior post, the Man Without Qualities strongly disapproved of the holdings of Massachusetts state judge Sweeney, who sought to impose a clearly unconstitutional "reasonableness" standard on the operation of the Catholic Church there:

"Reasonableness" standards are objective standards determined by weighing costs against benefits. Judge Sweeney seems to think that such a balancing can be effected on secular factors alone. That is grossly wrong. A religious administrator must weigh both the religious and secular costs and benefits of any decision. Secular risks must sometimes be taken to save souls, which (within the precepts of the religion) are invaluable, and secure other benefits seen (by the religion) as not of this earth. But a civil court cannot take spiritual benefits into account. Judge Sweeney's approach therefore requires a civil court to second guess the administrator or religious organization by conducting the court's own cost/benefit analysis while assigning a zero value to any religious benefit the decision may have. In other words, under Judge Sweeney's approach religion and spiritual benefits are officially and expressly determined to be worthless as a matter of policy by civil authorities. It is hard to imagine a ruling more inconsistent with the First Amendment.

Whatever "reasonableness" means in this case, there are certainly people who are incapable of reliably providing "reasonable" supervision. Judge Sweeney makes religious groups run by mystics who spend all their time in religious contemplation - to the exclusion of reasonable matters - now mere fodder for the tort bar. ... No more wise old rabbis or parsons or eccentric dottering Anglican ministers, nearly blind and plagued by creeping senility but nonetheless holding on and dispensing periodic jewells of wisdom and experience. Judge Sweeney says they don't have what it takes to fend off the tort lawyers. .... The church is not a corporation. A church is not created by the state and need not take the form of a corporation, a limited liability company, a partnership, nor any other government-recognized entity - and the state is not entitled to impose what it believes to be good policies of corporate governance on a church. .... The religion clauses of the First Amendment take all American governments out of the business of regulating or structuring the religious or secular government of religious bodies. It is often said that the First Amendment imposes a "wall of separation" between church and state.

There must be something in the Bay State water that makes state officials think they are Pope, because not only does Judge Sweeney want to run and restructure the Catholic Church there, but so does the State Attorney General, as a Wall Street Journal item notes:

Massachusetts Attorney General Thomas Reilly ... has been widely seen as exercising admirable restraint in sparing the archdiocese from indictment, in fact the report discloses a disturbing pattern of probably unconstitutional intrusions into the religious liberties of the Catholic Church. ... Consider his assumption that the state "must" play a central role in dictating internal governance reforms that the church "must" adopt. ...

Mr. Reilly's overreaching becomes obvious when he recounts the role played by his office during the burgeoning scandal and criminal investigation. The report insists that the bodies adopted by the church to monitor, prevent and remedy clergy sexual abuse be "independent" rather than give the archbishop the "complete control over the selection of Review Board members who must be 'in full communion' with the church." Such a board, complains Mr. Reilly, is not sufficiently independent to "make decisions, judgments or recommendations adverse to the Archdiocese as an institution, but still in the public interest."

Of course, if internal church governance fails to stem abuse, prosecutors have the power to pursue abusive clerics. There is little danger in the current climate that victims will fail to report abuse to officials; indeed, if there is any danger, it would be of false reports resulting from the public sexual panic generated by the highly publicized scandal, with some victims seeking financial compensation for minor indiscretions or for acts that never even occurred. ....

Mr. Reilly notes that one clerical administrator, who took abuse seriously and attempted to deal with abusive priests "firmly," nonetheless did so "within a culture and system that treated these people as colleagues rather than criminals." Mr. Reilly, although himself a Catholic, appears to have no understanding of the implications of a church that believes in the redemption of sinners, where pastors see themselves as shepherds rather than adjuncts to prosecutors. A bishop comes in for criticism "because he viewed his role primarily as pastoral." The archdiocese is criticized because officials "believed that Canon Law--the church's internal policies and procedures--prohibited it from reporting abuse to civil authorities in most instances."

This is not to say that prosecutors should feel the slightest need to cut any slack for a priest charged, on the basis of credible evidence, of sexual abuse. Yet if the First Amendment, which assures "the free exercise of religion," means anything, surely it allows a high clerical official to insist on taking a religious rather than a prosecutorial approach to internal governance. Mr. Reilly's attempted micromanagement extends even to when priests may wear clerical garb: The archdiocese is criticized because "abusive priests," who were assigned to "restricted" ministries precisely to reduce their exposure to children, nonetheless "still were permitted to wear clergy attire in these placements and in public, which certainly could be expected to assist pedophile or ephebophile priests in gaining access to and the trust of young children."

In a concluding section, with edict-like recommendations, Mr. Reilly insists that the church give up its "misguided devotion to secrecy" and its "code of silence." The archdiocese "must adopt a new spirit of openness" and "must train all priests . . . to recognize and respond to and report signs of abuse" and "assure that applicants to the priesthood undergo psychological testing and background checks." Finally, "the Archdiocese must undergo regular independent audits to assure institutional compliance with each and every provision" of new and revised policies and procedures. ....

Mr. Reilly's report makes a disturbing revelation in a concluding footnote. Commencing April 2002, his office "initiated regular meetings with top officials in the Archdiocese to discuss immediate and long term changes to the archdiocese's policies and procedures" and "obtained an agreement from the Archdiocese to review any revised policies or procedures before their adoption and publication."

The attorney general had little choice in exonerating the archdiocese of criminal liability. Mr. Reilly admits that Massachusetts' statutes at the time were inadequate to support prosecution. However, he fails to note that a 1982 precedent case decided by the Supreme Court likely would have deemed it unconstitutional to prosecute the archdiocese even if state law had criminalized such administrative failings. In that case, the court exonerated the NAACP from liability for damage from violence that attended an NAACP-sponsored boycott of white merchants in Claiborne County, Miss., because it was an association engaged in First Amendment-protected activity--which, in the NAACP's case, was political and social change: "A court must be wary of a claim that the true color of a forest is better revealed by reptiles hidden in the weeds than by the foliage of countless freestanding trees." The same protection almost certainly would apply to an organization engaged in religious activity.

Gee, won't all these Popes get in each other's way? Didn't the Church go through all that in the 14th Century?

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