Thursday, Apr. 10, 2003
While the country's attention is fixated on the war in Iraq, ActThree of the Catholic Church scandal is now in progress. It is far morecomplicated than the scandal's prior phases, but for the victims it isthe most important.
Sadly, it is marked by the Church'sresistance to the reforms initiated in Act Two. The resistance iscloaked in various theories of the First Amendment.
The Church Scandal: Act One
Before analyzing Act Three, it's important to put it in the context of what has occurred so far.
Act One of the Catholic Church's clergy abuse scandal was dominated by the theme of shock. Enterprising Boston Globereporters revealed an institution steeped in sin. Their articles - forwhich they recently won the Pulitzer Prize - revealed that priests hadsexually abused children for decades.
Meanwhile,higher-ups, after learning of the abuse, merely shuffled those knownpedophiles around to be put in contact with other children. Theircover-up made the Watergate players look like rank amateurs. And whenthe scandal was first revealed, it seemed there was not a remorsefulbishop or Pope to be found.
The Church Scandal: Act Two
Thenthere was Act Two - in which public shock turned to frantic, highlyvisible action. Newspapers that would not previously have dreamed ofreporting anything negative about the Catholic Church, now suddenlyfollowed the Globe's lead, and started to offer negative reports on a daily basis. One revelation after another cast the Church in a bad light.
Survivorsbanded together, held prayer vigils in front of cathedrals, andestablished a national presence. The Voice of the Faithful, the firstsign of possible schism within the Church itself, appeared. T here wasa shared sense among both the faithful and the general public that thismust never happen again.
Column continues below ↓Meanwhile, the Church itself was mired in internal disagreement. First,the bishops met in Dallas and declared their intent to fully cooperatewith the authorities in investigating clergy abuse charges. But thenRome told them they should only do so when state law required it. As aresult, the Bishops met once again in Washington, DC. to establish thenew rule of "tell only when told by law to tell."
Soonthe Church was not only in disarray, but also in court. Abuse victimssued the Boston archdiocese, and under the stern gaze of Judge Sweeney,the archdiocese was forced to disclose reams of records. Prosecutorswho previously would not have investigated sexual abuse claims againstthe Church, suddenly began investigations, called grand juries, andeven subpoenaed bishops.
Legislative proposals to preventa similar scandal in the future were floated. Mandatory clergyreporting of child abuse was one. Extensions on the statutes oflimitations - so that abuse victims could sue despite the fact thatyears had passed - were contemplated. Some states like California andConnecticut quickly amended their laws to make it easier for victims tosue.
Against this backdrop, Act Three began.
Invoking the So-called Church Autonomy Doctrine to Resist Discovery
LosAngeles Cardinal Roger Mahoney previously had pledged full cooperationwith the courts on clergy abuse matters. But now he has turned insteadto the so-called church autonomy doctrine, in an effort to avoiddiscovery in clergy abuse litigation.
I say "so-called"because the Supreme Court has never identified such a doctrine. Rather,some attorneys representing religious organizations have tried tocreate such a doctrine by stringing together dicta - that is, languagethat does not determine the outcome of a case, and thus has no legalforce - from various cases. Based on this language - and not on actualoutcomes in the Court's cases - proponents of the doctrine claim thatit keeps the government, including the courts and the legislatures,from interfering with a church's inviolable sphere of activity. Mahoneyis claiming that his oversight of priests falls within those parameters.
Therewas a conscious push to get the courts to accept such a doctrine a fewyears before the clergy abuse scandal. Then for a year or so, theeffort seemed to abate. Arguing for church autonomy when autonomy hadharmed so many children so seriously seemed not a very politic move.Now the effort has revived, and the Church itself has joined thebandwagon.
The alleged church autonomy doctrine is aninteresting turn on the near-dead notion of the separation of churchand state. True constitutional separation of church and state aims todo just that - separate the church from an intermeddling government(and the government from church control). But the Church and otherproponents of the church autonomy doctrine are invoking a verydifferent version of the separation of church and state - one thatwould separate the church from the rule of law, saying that it need notcomply with the same laws everyone else in society obeys--regardless ofthe sound public policy behind the law.
In other words,the word "autonomy" is not used by proponents of the doctrine to mean"individual free will" - the right of the church and of religiouspersons to exercise their religion without government interference.Instead, it is used in the sense of individual shareholders' immunityfrom liability - the right to participate in bad acts, and not beliable. That makes sense for shareholders, and is a key component ofthe idea of the corporate form. It does not make sense for a churchthat is supposed to be a beacon of morality and ethics.
Mahoneyis trying to use the so-called church autonomy doctrine in court tokeep certain documents otherwise relevant to the scandal from beingrevealed. He also seeks to use the same doctrine to maintain Churchcontrol over the handling of priests - despite the fact that theChurch's prior exercise of such control has been disastrous, with theChurch knowingly permitting its pedophile priests to victimizesuccessive children.
In sum, the so-called churchautonomy doctrine is not really a legal doctrine at all, at least asfar as the U.S. Constitution and Supreme Court are concerned. Rather,it is an insidious theory that invites religious licentiousness ratherthan civic responsibility.
Resisting Statutory Reform from the Confessional
Movingeast, Bishop Theodore McCarrick of Maryland has been busy resistinglegislative reforms introduced by children's advocates. As I discussedin detail in a previous column, he managed to kill a bill requiring clergy to report child abuse or neglect.
Otherswho take care of children - such as daycare providers and health careproviders - routinely must report such abuse, for obvious reasons - theabuser won't report himself or herself, and other caretakers may beamong the only other adults young children see. The Church, however,does not want to be treated the same way.
How did BishopMcCarrick defeat this commonsense bill? His strategy was to mobilizechurch members by distributing circulars at mass. The leaflets chargedthe legislature with destroying the confessional and fundamentalreligious liberty. It was an exaggeration, but it was very effective.
Meanwhile,Bishop McCarrick also managed to water down an extension of Maryland'sparsimonious statute of limitations that now allows at least some pastvictims of abuse to sue despite the passage of years.
The Church's Success in Lobbying to Block Reform to Aid Abuse Victims
Thelegislative process is where the Church can be most effective. There,it can operate in the dark - behind closed doors. And there, itcontinues to hold extraordinary political power. Plainly, it is willingto wield that power to stop the reform process.
Religiousorganizations requesting favors from the legislature often can do sowith no public scrutiny at all. As a rule, the press does a terriblejob of covering pending legislation (unless the topic is taxes) and, tocompound matters here, an equally bad job of covering political actionby religious elites.
That's a shame, because thelegislative process is only likely to work in the interest of thecommon good when the people are informed about pending bills and canthen communicate their views before those bills become law. The pressfollows such bills, to be sure, but it hardly ever imparts itsknowledge to the public. The end result is that little sunshine fallsupon the process that occurs before a bill becomes law. Elites knowwhat is happening, but those most affected by the law do notnecessarily know. And the public can be left outraged by the passage ofa bill they would have strenuously opposed, but is now a fait accompli.
The legislative process is best exploited by those with aunified message, an entrenched relationship with legislators, and abase that is capable of being mobilized on command. With thesequalities, a minority of citizens can do very well in the legislativeprocess, and the Catholic Church is no exception, as Bishop McCarrickhas shown in Maryland.
In sharp contrast, anotherminority - those persons who were victimized by abuse by priests - hasnot yet been able to unite under a shared message, create the networkof contacts necessary to change the course of legislation, or find themost effective means of mobilizing members to put pressure on thelegislature at crucial moments. The result of the disparity ispredictable: In legislatures, now that we have entered Act III, theChurch tends to win, and victims tend to lose.
Forvictims, organization is the key. Even emotional and outspokenmajorities - here, the millions who have been disgusted with theChurch's actions and the hideous harm to so many children - are toodisorganized to be a match for a presence as well-organized as that ofthe Church. The legislature is a battlefield and victims will have toadjust accordingly - turning their ragtag army into an effectivefighting force.
The Church Has Brought in Legal Experts to Aid Its Resistance to Reform
Finally,after a brief silence, some legal experts have started to mobilize andto argue that the Church needs to be protected from reform. Accordingto the New York Times, several such experts met at a BostonCollege Conference on the scandal last week. They included Dean JohnGarvey, Professor Douglas Laycock of the University of Texas, and theChurch's legal counsel, Marc Chopko. Their discussion apparentlycentered on how the Church was being damaged by the scandal and theresulting reform movement.
According to the Times,some attendees criticized extending the statute of limitations, on theground that since a victim is fully aware of the abuse while it ishappening, the victim ought to be able to sue in a timely fashion. Thisargument, of course, ignores the lingering trauma of abuse, andpersistent church efforts to silence victims and their families, whichpriests' position as religious leaders made all the more effective. Italso ignores that these victims are children, who deserve specialprotection from harm.
Some attendees also criticizedemerging legal reforms as being akin to what a tyrannical governmentwould have imposed had the Church not acted. Again, however, most ofthe proposed laws are mere common sense - imposing on the Church thesame laws others obey, or taking account of the effect of itsdecades-long cover-up in deterring victims from suing. Finally, at theconference, there were even intimations that some attendees believedthat many alleged victims were not actually victims at all.
Allof these points, of course, were wrapped in First Amendment verbiage,but they came down to hostility to much-needed reforms.
Forthose who had expected or hoped the Church would support the reformsthat would make child sexual abuse by clergy members less likely in thefuture, many indications are to the contrary. There will be pitchedbattles in the legislature and in the courts, before any furtherreforms take hold.
The Church's actions suggest it willonly be dragged kicking and screaming to reform it should havevoluntarily embraced. Not only is its reluctance unethical, it's alsounwise. As it struggles to resist reforms the public knows are crucial,it only alienates current and potential churchgoers.
In my first column on the scandal,I urged the Church to focus on the children, to do whatever it could toprotect them in the future, including backing legislative reform. It istragic that the focus now is even further from the abused children--andwhat society and the Church permitted to happen to them--than it hasbeen since the scandal began.