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Here are some important stories involving law and religion from the past few days:

European Court Decides Church Autonomy Case; Russian Judge Calls Clerical Celibacy a Human Rights Violation

I’m a little late getting to this, but I wanted to say a few words about Fernández Martínez v. Spain, the church autonomy case the European Court of Human Rights decided last month. By a vote of 9-8, the court held that Spain did not violate the European Convention on Human Rights when it declined to renew the contract of a public school teacher who had been offering classes in Catholicism.

Because of the close vote, some commentators have expressed worries about the case’s implication for church autonomy in Europe. I think those worries are overstated. The closeness of the vote turns on the peculiarities of the Spanish public school system, in which state employees offer religious instruction. The dissent of the Russian judge does cause concern, however. Judge Dedov’s opinion suggests a bias against Catholicism unlike anything I can remember in a judicial opinion.

In Spain, public schools offer religious instruction at state expense. The teachers are state employees. But the Spanish government has entered into agreements with four religious communities–Catholic, Evangelical, Jewish, and Muslim–which provide that schools will select instructors in those religions from candidates the communities certify as suitable. With respect to classes in Catholicism, the local Catholic bishop must approve instructors. Fernández Martínez lost his job when the local bishop refused to approve him. The bishop withdrew his approval when Fernández Martínez, a Catholic priest who had decided to marry and raise a family, appeared at a public protest in favor of optional clerical celibacy.

Fernández Martínez argued that the refusal to renew his contract violated his right under Article 8 of the Convention “to respect for his private and family life.” The court disagreed. The interference with the claimant’s right was justified in this case, it held. Spain had acted to protect the important principle of church autonomy, specifically, the right of the Catholic Church to designate which people could offer Catholic instruction in the public schools. Although the instructors were state employees, they were also representatives of the Church. It was not unreasonable for the Church to assert that Fernández Martínez’s conduct affected his credibility as a Catholic representative.

All this seems straightforward. So why was the vote so close? The eight dissenting judges expressed some unfortunate skepticism about what they called “absolute” church autonomy. To my mind, though, the key factor seems to have been that Fernández Martínez was a state employee, paid from public funds. As a result, the dissenters believed, the state had an obligation to him independent of the Church’s decision. It “is not the Bishop’s decision that should be scrutinized,” the dissenters wrote, “but the [state’s] reaction to that decision.” For example, the state might have tried to find Fernández Martínez another position that would not involve teaching Catholicism. Instead, the state had simply let him go.

Judge Dmitry Dedov

In short, the closeness of the vote reflects the peculiarities of the Spanish system, in which teachers of Catholicism are state employees, rather than the principle of church autonomy itself. (I recognize that the Spanish system may not be so peculiar in the European context, but that’s a subject for another post.) On the other hand, one of the dissents does raise serious concerns. In a personal dissent, which no other member of the court joined, the Russian judge, Dmitry Dedov, argued that mandatory priestly celibacy was itself a human rights violation the court should not tolerate.

Mandatory celibacy has been a “well-known and serious problem” in Catholicism for centuries, Dedov wrote, citing Victor Hugo’s The Hunchback of Notre Dame and Colleen McCullough’s The Thorn Birds. It had caused a great deal of grief and led priests to abuse children “in many countries.” One could not justify holding people  to a vow of celibacy, even a voluntary one:

The Convention protects freedom of religion…. But it does not entitle religious organizations, even in the name of autonomy, to persecute their members for exercising fundamental human rights. If the Convention system is intended to combat totalitarianism, then there is no reason to tolerate the sort of totalitarianism that can be seen in the present case.

“I believe,” he concluded, “that optional celibacy is the best way out of this problem and that it could also–I hope–serve as a preventive measure against clerical sex abuses of children in the future.”

I suppose Judge Dedov, who attended a Soviet university in the 1980s, is in a position to know something about totalitarianism. But, really, his dissent is an embarrassment. No one asked Judge Dedov for his views on clerical celibacy. The merit of religious doctrine is not a matter for secular human rights judges to address, and certainly not in a simplistic and gratuitously insulting way. (The Thorn Birds? Really?) And to assert, without offering evidence, that Catholicism’s rules on clerical celibacy have themselves caused the sex abuse crisis–a crisis that has, no doubt, many causes–is not what one expects from a judge.

In a human rights court, litigants from religious communities have a right to think the judges will treat them fairly and, to the extent possible, decide cases without bias. Judges are not there to offer musings on comparative religion. Judge Dedov’s dissent suggests he has a personal problem with the Catholic Church. He should take that problem somewhere else.

Catholic Bishop Convicted in Child Sex Abuse Case

A Missouri court this week convicted Bishop Robert Finn of failing to report suspicion of child abuse by a priest in his diocese, a misdemeanor offense. Bishop Finn is now the highest ranking Catholic cleric to be convicted in the sex abuse scandal. Religion Clause has the details here.

The Wider Implications of the Clergy Sex-Abuse Crisis

Baylor University historian Philip Jenkins has written a provocative essay on the wider implications of the clergy sex abuse crisis for American Catholicism. It’s not just that victims have suffered, that clergy have gone to jail, that the Church has paid billions of dollars in lawsuits, that charitable work has been curtailed, and that several dioceses have declared bankruptcy. The scandal has also diminished the Church’s voice on debates about law and religion. Where once people would have paid respect to the Church’s views, even if they disagreed with them, the crisis has so weakened the Church’s moral authority that people dismiss the institution and its arguments entirely. For example, in Jenkins’s view, the ineffectiveness of the Church’s voice has greatly influenced the debate on same-sex marriage:

One great “might have been” involves same-sex marriage. In light of present realities, it is hard to recall just how fringe and even bizarre an issue this seemed just a decade ago, and a large section of the American public is Continue reading

Catholic Priest Receives 3-6 Years For Child Endangerment

A Pennsylvania judge today sentenced Monsignor William Lynn, a former official of the Catholic Archdiocese of Philadelphia, to a term of three to six years for the crime of felony child endangerment. A jury convicted Lynn last month in connection with his oversight of now-defrocked priest Edward Avery, who is serving a prison term for the sexual assault of an altar boy in 1999. Rather than reveal what he knew about allegations against the priest, the sentencing judge said, Lynn had chosen to obey his bishop and remain silent. Lynn is the first American priest to be convicted in connection with the covering up of sex abuse in the Catholic Church. His lawyers plan an appeal. The AP has the story here.

Careers in Canon Law?

A thousand years ago, Catholic canon-law courts had an active docket and an extensive jurisdiction that covered contracts, property, torts, and much else. Over centuries, in a process Harold Berman famously described in Law and Revolution, the docket dwindled and the jurisdiction contracted. As a result of secularization, church courts lost most of their jurisdiction and importance  in Catholic life. Nowadays, canon-law courts  are reserved principally for marriage annulments.

According to an AP story this week, though, things may be starting to change, at least in the United States. The AP reports on  a significant recent rise in litigation before church courts. Some litigation involves  priests accused of sex abuse, but much concerns everyday matters like parish closings, use of church property, even complaints about non-liturgical music. More and more, it seems, Catholics see church courts as the proper place to air their grievances and seek redress. In fact,  something of a new practice area seems to be developing. The AP story describes the practice of attorney Michael Ritty from upstate New York, who employs three lawyers in his canon law firm.  A small practice, to be sure, but indications are the field is growing. “‘Most of us, when we were training, were preparing for marriage tribunals, marriage annulments,’ said Monsignor Patrick Lagges of Chicago, a canon lawyer for three decades….  ‘Now there’s such a broad range of things. It’s a much broader field.'”

English High Court Rules Catholic Priest Is Diocesan Employee, Raises Possibility of Vicarious Liability for Clergy Sex Abuse

A judge on the High Court of England and Wales ruled this week that a Catholic priest qualified as an employee of his diocese, thus exposing the diocese to vicarious liability for clergy sex abuse. The decision came in a case brought by a woman who claims that a priest abused her when she was a child. Although the priest did not have an employment contract with the diocese, the judge ruled, the diocese trained him, appointed him to his position, and held him out to the public as its representative. It provided “the premises, the pulpit, and the clerical robes” and sent the priest out into the community.

This is apparently the first time a court in the UK has held a priest to be an employee of his diocese. Dioceses usually lack day-to-day supervisory authority over priests; for this reason, courts often hold that priests are not employees, but independent contractors. The plaintiff’s victory may be less valuable than it appears, however. Vicarious liability exists where the employee commits torts while acting within the scope of his employment, and assaulting parishioners obviously falls outside a priest’s job description. The judge gave the diocese extended leave to appeal the decision. – MLM


Readers are no doubt aware of the horrifying charges arising out of the Penn State University incident, in which it is alleged that an assistant coach of the football team molested several boys and that several members in the front office of the football organization did not report the crimes.  If the charges are true, they are loathsome indeed.

Loathsome in a different way is this line in today’s New York Times column by Maureen Dowd: “Like the Roman Catholic Church, Penn State is an arrogant institution hiding behind its mystique.”  Whatever may be the viability of the charges against Penn State officials under Pennsylvania’s failure to report statute, or against specific clerics in the Roman Catholic Church in positions of power in entirely distinct cases (and they may well be legally viable), the blanket smear of this comment — its suggestion that all cases look alike, or that it is appropriate to indict an entire Church, whatever the facts may look like, for what Dowd perceives as “arrogan[ce]” — is, in my opinion, despicable. — MOD

Hauling the Pope before the International Criminal Court

Yesterday, the Center for Constitutional Rights requested that the International Criminal Court, a tribunal headquartered in The Hague, prosecute the Vatican, Pope Benedict XVI, and three cardinals for “crimes against humanity” in connection with the clergy sex-abuse scandal.  The complaint alleges that the Vatican tolerated the systematic and widespread rape and torture of children and vulnerable adults throughout the world and that Pope Benedict XVI and three cardinals bear personal responsibility for these crimes as a matter of direct authority and respondeat superior.

There are serious legal problems with CCR’s complaint.  First, sexual abuse by clergy does not fit easily within the definition of a “crime against humanity” contained in the ICC’s founding treaty, the Rome Statute of 2002.  The Rome Statute defines a “crime against humanity” as “a widespread or systematic attack directed against a civilian population,” a definition that suggests something like a wartime atrocity.  Second, the Vatican is not a state-party to the Rome Treaty.  That’s not necessarily a show-stopper, as the ICC has jurisdiction over crimes Continue reading

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