Starting Point: O'Bryan v. The Holy See

Soon, the Holy See will be haled back into the U.S. District Court in Louisville, Kentucky to address allegations of negligence concerning the sex abuse scandal that has rocked the Roman Catholic Church. The 6th Circuit, which remanded the case in November of 2008, held that litigation against the Holy See could proceed so long as it was predicated on an exception to sovereign immunity outlined in the Foreign Sovereign Immunities Act (FSIA). (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 thus far accepted the Holy See's claim to sovereign immunity, its ecclesial character and position within the hierarchy of the Church should preclude it from enjoying such legal protection.

What is the Holy See?

Although the two are often conflated, the Vatican and Holy See are actually different entities. The former is a city-state in Rome, while the latter is the preeminent episcopal see within the Catholic Church. Therefore, when the United States established diplomatic relations with the Holy See in 1984, it recognized a religious organization rather than a state. Despite lacking the prerequisite characteristics of statehood however, the international community has treated the Holy See as a sui generis entity, and the United States in particular has continually recognized the organization's status as a foreign sovereign and its right to invoke legal immunity under the FSIA.

Why Sovereign Immunity Makes a Difference

The Holy See's access to sovereign immunity may be a moot point given that it can be held liable under the FSIA for the tortious conduct its agents commit on U.S. soil. However, even with this exception, the Holy See's status as a foreign sovereign allows it to proffer defenses that are likely to exonerate the top of the Church's hierarchy from liability for the sexual abuse perpetrated by Catholic priests. Specifically, counsel for the Church will argue that the pope has immunity as head of state and that the negligent American bishops who oversaw abusive priests were not employees of the Holy See. Considering the near inviolability of head-of-state immunity, as well as the ability of the administration in Rome to distance itself from the rest of the magisterium (since they can point to the autonomy of bishops in managing their respective dioceses), the Holy See will probably escape litigation unscathed, despite growing evidence of its complicity in the sex-abuse scandal. Only by removing the Holy See's sovereign immunity can victims of sexual abuse hope to hold Church leaders responsible for turning a blind eye to conduct that they could have stopped.

If the U.S. Recognizes the Holy See, Why Debate Its Right to Sovereign Immunity?

Based on principles of sovereign autonomy and equality, sovereign immunity developed as a way to protect states from the legal intervention of another nation's courts. In the past this immunity was absolute, however developments over the past century have led international law towards a more restrictive concept of sovereign immunity that maintains legal protection for a state's official public functions but not for its private acts. This distinction between public and private acts, which is reflected in the exceptions to sovereign immunity contained the FSIA, indicates that sovereign immunity is designed to protect the type of governmental functions that the Holy See does not exercise.

Outside of conducting diplomatic relations, the Holy See's official public activity is limited to ecclesial matters. Although Vatican City serves as the sovereign territory of the Holy See and the pope serves as its head-of-state, governance of Vatican City is handled by the Pontifical Commission for the Vatican City State and its President, Cardinal Giovanni Lajolo. The Roman Curia and the pope, rather than exercise any temporal power or perform any duties traditionally carried out by foreign sovereigns, instead focus solely on managing the Catholic Church and ruling over spiritual matters.

While the Holy See concedes that it is a purely religious body, it nonetheless maintains that its extensive diplomatic relations and history as a member of the international community vindicate its status as a foreign sovereign. However, given the current understanding of sovereign immunity in international law, the Holy See's contention that its direction of the Catholic Church should be afforded legal protection is a tenuous proposition.

What Would Be the Effect of Eliminating the Holy See's Sovereign Immunity?

Without sovereign immunity, the Holy See would simply be regarded as 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 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 proceedings against senior U.S. officials, including 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, 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 would be that Church leaders would have to face their accusers without being able to hide behind international law.

Concluding Statements

Given the disconnect between the jurisprudence underlying sovereign immunity and the Holy See's ecclesial functions, it should be evident that the Holy See's 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 sovereign immunity have so far dominated discussion, the real concern should be seeking justice for those who were harmed by the Church's silence