Church's 1st Amendment Appeal Denied in Sex Abuse Suits
Bid to Dismiss Cited Separation of Church, State

By Wendy Davis
Boston Globe
April 2, 2003

The state Appeals Court yesterday refused to consider the church's argument that negligence lawsuits stemming from the clergy abuse scandal should be dismissed before trial on religious freedom grounds.

Appeals Court Justice Scott L. Kafker ruled that hearing arguments on the religious freedom issue would be premature until more details about individual cases come to light at trial.

"On a matter of such importance, raising concerns as fundamental as the protection of children from sexual abuse and the separation of church and state," wrote Kafker, "any appellate review . . . would surely be enhanced, and the legal issues refined, by the full development of the facts in particular cases."

The Rev. Christopher J. Coyne, a spokesman for the church, said the archdiocese had not yet decided whether to appeal the decision to the Supreme Judicial Court. "There is a need for consultation between attorneys and the administration of the archdiocese to determine which direction to go," said Coyne.

He anticipated the church would decide about an appeal this week, although a decision might be postponed until the end of a 90-day "time-out" in the litigation, to which the church and many plaintiffs agreed in February.

The Boston archdiocese and its leaders are facing lawsuits from some 500 people, many of whom claim they were sexually abused as children by clergy members. Alleged victims say the church was negligent in transferring abusive priests to new parishes without warning the parishioners; the church has argued it has a First Amendment right to make decisions about priests without being second-guessed by civil courts.

In February, Superior Court Judge Constance M. Sweeney rejected the church's argument that the First Amendment principle of separation of church and state requires dismissal of the lawsuits.

Lawyers for those suing the church said Kafker's ruling heartened their clients. "It encourages the plaintiffs in the sense that they feel the defendants cannot hide behind the misapplication of the First Amendment freedom of religion argument," said Mitchell Garabedian, who represents more than 100 people suing the church.

Roderick MacLeish Jr., who represents more than 200 alleged victims, said Kafker's ruling went a long way toward removing roadblocks to trial.

But Ian Crawford, one of the lawyers representing Cardinal Bernard Law, insisted yesterday that the religious freedom argument should not be put off until after trial. "We thought that this was indeed an issue that could and should be decided before using up all the court's resources," said Crawford.

Legal specialists say that if the archdiocese still wishes to pursue that argument now, the church might ask a single judge of the SJC to grant an appeal.

Suffolk University Law School professor Michael Avery said such appeals are rarely granted but

"this is a big case and it involves a lot of people," which might spur the SJC to take the case.

This story ran on page B3 of the Boston Globe on 4/2/2003.

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