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| | | Starting Point: O'Bryan v. The Holy See | |
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< | Soon, the Holy See will be haled back into the U.S. District Court in Louisville, Kentucky to address allegations of negligence with respect to the sexual abuse scandal that has rocked the Roman Catholic Church. The 6th Circuit, which remanded the case in question, held that litigation against the Holy See could go forward so long as it was predicated on an exception to sovereign immunity outlined in the Foreign Sovereign Immunities Act. (A similar decision in the 9th Circuit has been appealed to the Supreme Court, however the Court is awaiting input from the Solicitor General before it decides whether to grant certiorari.) While American courts have, so far, accepted the Holy See’s claim to sovereign immunity, its ecclesial character and position within the hierarchy of the Church should prevent it from enjoying such legal protection. | >
> | Soon, the Holy See will be haled back into the U.S. District Court in Louisville, Kentucky to address allegations of negligence with respect to the sex abuse scandal that has rocked the Roman Catholic Church. The 6th Circuit, which remanded the case in question, held that litigation against the Holy See could go forward so long as it was predicated on an exception to sovereign immunity outlined in the Foreign Sovereign Immunities Act. (A similar decision in the 9th Circuit has been appealed to the Supreme Court, however the Court is awaiting input from the Solicitor General before it decides whether to grant certiorari.) While American courts have, so far, accepted the Holy See’s claim to sovereign immunity, its ecclesial character and position within the hierarchy of the Church should prevent it from enjoying such legal protection. | | | Why Sovereign Immunity Makes A Difference | | | What Would Be The Effect of Eliminating the Holy See’s Sovereign Immunity? | |
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< | Without sovereign immunity, the Holy See would be regarded as the head of an international religious organization and its role in the sex abuse scandal would be assessed accordingly. Although this would not appear to be a radical proposition, counsel for the Church argues that, since the Holy See is a recognized foreign sovereign, further exposing it to litigation sets an unwelcome precedent in international law. Specifically, they contend that opening the Church’s administration to discovery could empower foreign courts to similarly allow discovery to proceed against senior U.S. officials, even the president. Following this reasoning, if the Holy See’s sovereign immunity was altogether eliminated, the result could be catastrophic as there would be an even greater erosion of the legal protections afforded to foreign sovereigns, or worse yet, the complete breakdown of sovereign immunity itself. Such concerns, however, are overstated. The Holy See is recognized as a sui generis entity; therefore, eliminating their sovereign immunity is unlikely to have any precedential effect on the legal immunity enjoyed by actual states. Instead, the only significant effect of eliminating the Holy See’s sovereign immunity will be that Church leaders have to face their accusers without being able to hide behind international law. | >
> | Without sovereign immunity, the Holy See would be regarded as the head of an international religious organization and its liability for the sex abuse scandal would be assessed accordingly. Although this would not appear to be a radical proposition, counsel for the Church argues that, since the Holy See is a recognized foreign sovereign, exposing it to litigation for the negligence of American bishops sets an unwelcome precedent in international law. Specifically, they contend that opening the Church’s administration to discovery could empower foreign courts to similarly allow discovery to proceed against senior U.S. officials, even the president. Following this reasoning, the elimination of the Holy See’s sovereign immunity would be untenable as it could set the stage for an even greater erosion of the legal protections afforded to foreign sovereigns, or worse yet, the complete breakdown of sovereign immunity itself. Such concerns, however, are overstated. The Holy See is recognized as a sui generis entity; therefore, eliminating their sovereign immunity is unlikely to have any precedential effect on the legal immunity enjoyed by actual states. Instead, the only significant effect of eliminating the Holy See’s sovereign immunity will be that Church leaders have to face their accusers without being able to hide behind international law. | | | Concluding Statements | |
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< | Given the disconnect behind the jurisprudence underlying sovereign immunity and the Holy See’s ecclesial functions it should be plain to see that its status as a foreign sovereign is nothing more than, in the words of Thurman Arnold, a myth. But while questions about the Holy See’s status as a foreign sovereign have so far dominated discussion, the real concern should be seeking justice for those who were harmed by the Church’s silence. | >
> | Given the disconnect between the jurisprudence underlying sovereign immunity and the Holy See’s ecclesial functions it should be plain to see that its status as a foreign sovereign is nothing more than, in the words of Thurman Arnold, a myth. But while questions about the Holy See’s status as a foreign sovereign have so far dominated discussion, the real concern should be seeking justice for those who were harmed by the Church’s silence. | | | |
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