Suffer the Little Children under 'Canon Law'

By Steve Duin
The Oregonian [Oregon]
November 20, 2005

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Desperate times require desperate measures, and if you think bankruptcy was the full measure of the Portland Archdiocese's desperation, I have a brief addendum.

Lawyers for the Archdiocese . . .

Wait. I best be more specific, as the Archdiocese has five different law firms involved in bankruptcy negotiations, five firms that generated $5.38 million in legal fees through October.

Archdiocese lawyers at Sussman Shank filed a brief last week, begging U.S. Bankruptcy Court Judge Elizabeth Perris to rule quickly on church assets.

At issue is whether $600 million or more in church property belongs not to the Archdiocese but to the individual parishes, thus placing it beyond the reach of the "creditors," the men and women who say they were repeatedly abused as children by Catholic priests.

Although that property is deeded in the name of the Portland Archbishop, a "corporation sole," lawyers contend the real estate is being held in trust for the parishes, a cozy arrangement under "canon law" that is guaranteed by the First Amendment and protected from the bankruptcy court.

In bankruptcy proceedings involving the Catholic Church in Spokane, Judge Patricia Williams dismissed that argument. Williams ruled that parishioners may gain blessings in heaven for their tithes and donations, but they did not receive, nor expect, an ownership interest in the church. Ownership remains with the Archdiocese.

The lawyers for Sussman Shank argue in their brief to Perris that the Spokane decision "is neither controlling nor helpful in deciding the issues before this court."

Helpful? I should say not. Williams ruled the court has the authority to override church autonomy.

To protect the lion's share of its assets, the Archdiocese, through its lawyers (none of whom wanted to be quoted in this column), is arguing the church didn't forfeit constitutional protections against government intrusion when it sought bankruptcy protection.

That argument might be more persuasive if the Archdiocese had been dragged into bankruptcy court against its will. That didn't happen. The church hand-selected this battlefield and sanctuary. After demanding the protection of the court, the church is now trying to avoid its discipline.

"If you're Nordstrom," said Al Kennedy, who represents the claimants, "you can set up shop any way you want," with internal governance at each independent store. "That's fine as long as you're paying all your creditors. As soon as you don't pay your creditors, however, your internal structure is irrelevant to the outside world. Clearly, churches are authorized to run their intra-church affairs, but as soon as it becomes a dispute with the outside world, then civil law applies."

That brings us to the most cynical part of the Archdiocese's brief. Even if the First Amendment allowed exceptions to the church autonomy doctrine, the brief insists, that doesn't apply to the abused. Why? Because every claimant asserts that "at the time of their alleged sexual misconduct, they were members of or associated with the Roman Catholic Church, primarily through attendance at a Catholic school and/or parish church."

Their alleged sexual misconduct? And are we to believe that because these children went to a Catholic school or church, they are forever condemned to abide by, and suffer under, the callousness of canon law?

I realize there is a posturing and maneuvering in these legal briefs, but that is an ugly cut indeed. Kelly Clark, who has represented 35 claimants against the church, reminds us, "Most of my clients chose to opt out of the Catholic Church and canon law some time ago, shortly after they were abused by a priest they loved from a church they trusted."

To the bitter end, the Archdiocese insists it be allowed to manage its affairs. Forgive me. I thought that's what got us into this unholy mess.

Steve Duin: 503-221-8597; Steveduin@aol.com; 1320 S.W. Broadway, Portland, OR 97201