By Susan Brinkmann, OCDS
Staff Journalist
A top deputy for U.S. Solicitor General and Supreme Court nominee Elena Kagan has filed a brief in support of the Vatican in an Oregon lawsuit that names the Holy See as responsible for the behavior of bishops and priests in the sexual abuse crisis.
According to a report by the National Catholic Reporter, the brief, filed on Friday, asserts that the standards for an exception to the immunity enjoyed by foreign governments under American law has not been met.
While it stops short of recommending that the Supreme Court take up the case of Doe v. Holy See, the brief suggests that the Supreme Court set aside the 2009 ruling of an appeals court that permited the case to go forward.
“Experts say this is the first time the United States government has officially expressed an opinion about efforts to sue the Vatican in American courts, as opposed to the pope personally,” writes reporter John Allen. “In 2005, the U.S. State Department recommended dismissing Pope Benedict XVI from a Texas lawsuit over the sexual abuse crisis, on the basis of a separate personal guarantee of immunity enjoyed by heads of state. The judge in that case complied.”
The government’s brief sserts that the Court of Appeals for the Ninth Circuit made a mistake in ruling that a district court in Oregon has jurisdiction over the claim that the Vatican is liable for sexual abuse committed by Catholic priests.
“In the Doe v. Holy See case, a district court found that sexual abuse of a minor is clearly outside the scope of employment of a Catholic priest, meaning the things a priest is supposed to do on behalf of the church,” Allen reports.
“Nevertheless, Oregon law also recognizes liability if the acts that led up to a harm being caused do fall within the scope of employment. Under that principle, church officials could be held liable if a priest’s normal pastoral activity created the conditions in which he was able to commit an act of sexual abuse. On that basis, both the district court and the appeals court ruled that the lawsuit against the Vatican could proceed.”
The Solicitor General’s brief asserts that the courts are mistaken. It says that the broader liability standard under Oregon law only applies if the court has jurisdiction in the first place – and, according to the brief, the tort exception to the Foreign Sovereign Immunities Act requires that the wrongdoing fall within the scope of employment.
“A court may not use a state liability rule to expand the grounds on which the Foreign Sovereign Immunities Act permits the court to exercise jurisdiction over a foreign sovereign,” the brief says.
In general, the government is arguing that exceptions to sovereign immunity ought to be narrowly construed, not expanded beyond the limits intended by Congress, Allen writes, and points out that the improper subjecting of a foregn state to suit can raise foreign relations and reciprocity concerns.
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