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Redemption key to church defense

By Wendy Davis, Globe Correspondent, 3/24/2003

hen Cardinal Bernard Law recently invoked the belief in ''the resurrection of new life'' to justify transferring a sexually abusive priest to a new parish, explicitly tying decisions made by church leaders to religious principles, his statements were viewed with skepticism.

Made in a January deposition, more than a year after the start of the crisis in the Catholic Church, the remarks were seen as an after-the-fact justification for indefensible actions.

But the issue of redemption now plays a key role in the Archdiocese of Boston's argument that the First Amendment's guarantee of religious freedom protects it from liability in the 500 civil lawsuits it faces for allegedly moving predatory priests from parish to parish. Last Thursday, the archdiocese appealed a decision by a Superior Court judge who refused to dismiss the suits on that basis.

The religious freedom argument has been raised throughout the country, with varying results. The US Supreme Court has not yet decided whether churches have valid First Amendment defenses when sued for negligent supervision of priests, and state courts have gone in different directions.

State supreme courts in Wisconsin and Maine have accepted the church's reasoning and dismissed lawsuits brought by adults who said they were victimized by clergy members; a federal trial court in Colorado also dismissed a lawsuit brought by a minor who asserted sexual abuse by clergy.

But many other courts, including the Supreme Court of Florida recently, have held that churches cannot use the First Amendment as a shield against tort liability.

''These are cases that have so many hot-button issues in them -- religion and sex -- that even jurists are in disarray,'' said attorney Philip Burlington, who filed a brief in the Florida case, arguing that the First Amendment does not protect the church from lawsuits by abuse victims.

In making the religious liberty argument, lawyers for the Archdiocese of Boston argue that a plaintiff victory would require the court to ''modify the church's understanding of forgiveness and grace.'' During a court hearing in the case, attorney L. Martin Nussbaum, the First Amendment specialist hired by the archdiocese, said the church sincerely believes that people can change. ''Some of the greatest leaders in church history are, as the church would say, redeemed sinners, but as our civil justice might say, former criminals,'' Nussbaum argued.

The archdiocese also argues that church leaders' decisions regarding allegedly abusive priests were guided by religious dictates and, therefore, cannot be judged by civil courts. ''I'm a little surprised that the public's reaction to the church's defense has been as skeptical as it has been,'' said Boston College Law School dean John Garvey, adding that forgiveness has long been fundamental to the faith. ''Confession is a sacrament and forgiveness is part of the sacramental system,'' he said.

But lawyers for alleged victims counter that principles of religious freedom cannot justify decisions that violate tort laws by unreasonably placing parishioners, especially children, in danger. ''The law of the United States trumps Cardinal Law,'' said Sylvia Demarest, a Texas lawyer who successfully represented plaintiffs suing the church in that state.

The Boston Archdiocese and its leaders have been accused of negligence for transferring allegedly abusive priests to other parishes without warning to parishioners. The church has argued that the cases should be dismissed, on grounds that any other result would violate principles of religious freedom by allowing courts and juries to dictate who can and cannot be a parish priest.

Superior Court Judge Constance M. Sweeney rejected the argument last month, ruling that accepting the church's argument would be akin to granting the church blanket immunity from civil lawsuits.

Sweeney did, however, dismiss assertions that the church was negligent for allowing alleged pedophiles to become priests and for failing to defrock allegedly abusive priests, ruling that those were doctrinal decisions squarely within the domain of the church, not the courts.

Lawyers on both sides argue that they have Massachusetts legal precedent in their favor.

The church, in its legal papers, points to a 2002 Supreme Judicial Court decision dismissing an Episcopal priest's defamation lawsuit against his church. The court ruled that the First Amendment bars courts from examining the relationship between a church and its ministers.

But lawyers for alleged victims say their cases are different because they involve children allegedly hurt by decisions of the church leadership, rather than internal squabbles between priests and their bosses.

''When it comes to the protection of kids, our courts have spoken,'' said Roderick MacLeish Jr., a lawyer representing about half of the plaintiffs. What's more, he said, no tenets of forgiveness can take priority over keeping youngsters safe, adding, ''The need to protect children supercedes fervently and deeply rooted religious beliefs.''

Lawyers for alleged victims also argue that religious beliefs, no matter how sincere, can't justify breaking the law. They point to cases in which people have unsuccessfully claimed that laws against polygamy or peyote smoking were unconstitutional on religious grounds.

But legal specialists more sympathetic to the archdiocese's argument say the church leadership's behavior isn't as clear-cut a violation as when an individual breaks a criminal law.

''Ingesting peyote is a criminal offense,'' said Garvey. ''There really isn't any preexisting standard that says to the church, `You really can't forgive this guy.' ''

Mark Chopko, general counsel to the United States Conference of Catholic Bishops, adds that there is no way to judge the church leaders' actions without also considering their beliefs.

''How do you measure the reasonableness of a policy set in religious doctrines of forgiveness, of redemption and so forth?'' he said.

Still, lawyers for alleged victims of clergy sexual abuse say church leaders could have ''forgiven'' priests without reassigning them. ''They're allowed to believe what they want,'' said Burlington.

''[But,] they can't tell the state that minors who are injured by this dangerous predator have to accept the fact that they have forgiven him.''

This story ran on page B1 of the Boston Globe on 3/24/2003.
© Copyright 2003 Globe Newspaper Company.