Scandal Called Threat to Free Worship

By Adam Liptak
The New York Times [Boston MA]
April 6, 2003

BOSTON, April 4 - The sexual abuse scandals that have engulfed the Archdiocese of Boston and the Roman Catholic Church have become a powerful threat to religious liberty, said several legal scholars who spoke today at a conference at a Catholic law school.

"These cases will profoundly alter the nature of organized religion," said one professor, Patrick J. Schiltz, of the University of St. Thomas School of Law in Minneapolis. "This litigation has the potential to do to churches what many a tyrannical government could not."

The conference, at the Boston College Law School, in Newton, Mass., included many of the leading legal scholars of church-state relations, canon lawyers and the general counsel of the United States Conference of Catholic Bishops. They acknowledged that the scandals arose from widespread and terrible abuses.

But they also expressed surprise at how quickly and vigorously the law governing the activities of churches had reacted to the scandal. Several suggested that the legal system had overreacted and perhaps acted capriciously.

"Criminal liability for a diocese is now on the table, something that would have been unimaginable not long ago," said Angela Carmella, a professor at Seton Hall Law School.

John Baker, a professor at Louisiana State University Law Center, said an agreement in December between the Diocese of New Hampshire and the state's attorney general was "outrageous interference" by the government in religious matters. That diocese agreed to state oversight in exchange for a promise that it would not be indicted.

Professor Laycock said several states had "utterly absurd amendments of statutes of limitations" that let people who said they had been sexually abused sue long after the alleged abuse. He said the amendments were unnecessary and unwise.

"The victim knew it happened when it happened to him," he said. "He was there." He added that looser legal standards could encourage frivolous suits.

Mark E. Chopko, the general counsel of the bishops' conference, said that the economics of litigation after a $120 million jury award in Dallas in 1997 compelled dioceses to take aggressive legal positions.

"I've not seen a claim since then that has come in under seven or eight figures," Mr. Chopko said.

Professor Schiltz, who has represented churches of many denominations against hundreds of sexual abuse claims, also said churches were so wary of crippling financial liability that they had become too conservative in choosing pastors.

"Even the least risk-averse bishops will now take a lot more priests out of the ministry than the John Geoghans and Paul Shanleys," he said, referring to two former priests who are accused of abusing scores of people here.

Douglas Laycock, a law professor at the University of Texas, agreed that lawsuits against churches could alter the composition of the ministry.

"The pursuit of zero incidents is a mistake and an illusion," Professor Laycock said. "You won't have a priesthood left if you do that. You should not let these cases not only blacken the name of the church and scandalize the faithful but also fundamentally change how churches operate."

Several of the speakers sought to compare churches to news and political organizations, which receive heightened protection from libel and similar suits under the speech and press clauses of the First Amendment. These speakers questioned why religious organizations were not entitled to increased protection under the religious liberty clauses of the same amendment.

"Freedom of religion is every bit as important as freedom of speech," the dean of Boston College Law School, John H. Garvey, said.

On Tuesday, a Massachusetts judge here declined to allow the Archdiocese of Boston an immediate appeal of a trial judge's order rejecting its First Amendment defense in hundreds of sexual abuse cases.

The sexual abuse cases, Professor Schiltz said, "are transferring hundreds of millions of dollars from churches to plaintiffs, plaintiff's attorneys, defense attorneys, expert witnesses and others." Most payments, he said, are not covered by insurance and are made at the expense of churches' charities.

Many of the claims, he continued, involved seemingly consensual relationships between adults, though perhaps ones distorted by the disparity of power between a pastor and a congregant. Some of those claims, he said, were based on little more than a kiss, a lingering hug or a gift of flowers.

But these cases, he said, allow unpredictable juries to engage in antireligious animus.

"It is giving hundreds of juries around the country free shots at churches," Professor Schiltz said. "Juries have unbounded authority to act out of religious spite."

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