Rethinking the Holy See's Sovereign Immunity

-- By TaylorMcGowan - 26 Feb 2010

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 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

The Holy See’s access to sovereign immunity may appear to be a moot point given that, under the FSIA, it can be held liable 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 will likely exonerate the top of the Church’s hierarchy from liability for the negligence of bishops overseeing abusive priests. Specifically, counsel for the Church will argue that the pope has immunity as head of state and that the negligent American bishops were not employees of the Holy See. Considering the near inviolability of head-of-state immunity and 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 the leaders of the Church responsible for turning a blind eye to practices that they could have stopped.

What is The Holy See? A State or An International Religious Organization?

Although the two are often conflated, the Vatican and Holy See are actually different entities. The former is the 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 for 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 Holy See’s status as a foreign sovereign and its right to invoke legal immunity under the FSIA.

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, emphasizes 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 acts are 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. 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 purely a religious body, it nonetheless claims 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 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

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.

-- TaylorMcGowan - 17 Apr 2010