The Roman Catholic Diocese of San Diego recently declared bankruptcy, becoming the fifth and largest American diocese to initiate a bankruptcy proceeding in the face of massive tort lawsuits arising out of priest sex abuse allegations.
No person of good will denies that true victims of priest sex abuse deserve compensation for any physical or mental injuries they may have suffered. Likewise, no person of good will denies that priests proven to have abused their position deserve to be punished to the fullest extent of the law, as do bishops who may have protected such priests from criminal or civil action.
Yet, the victims and their lawyers aren't going after just the priestly abusers and their enablers in the hierarchy. Instead, they're going after the deep pockets by suing the dioceses in which the priests served. Typically, the diocese is sued directly for negligent hiring or supervision of priests; more rarely, the plaintiff may seek to hold the diocese vicariously liable for a priest's sexual misconduct.
Courts have consistently held that the First Amendment guarantee of free exercise of religion is not implicated in such suits. Yet, priest sex abuse litigation unquestionably implicates the ability of ordinary Catholics to exercise their religion.
In a diocese such as San Diego, there are hundreds of parishes, schools, orphanages, homeless shelters, hospitals, nursing homes, and so on, each ministering to numerous worshippers and even non-Church members. When the diocese faces mass tort liability, the assets and property of many parishes and other ministries that had no connection with any incident priest sex abuse are thus made available to satisfy the claims of sex abuse plaintiffs. Inevitably, execution of a judgment against such assets would impede, if not destroy, the ability of these ministries to serve the needs of their congregants. Indeed, the mere threat of liability might do so. As Edward Gaffney and Philip Sorensen have observed, "Both church and society will suffer if the continuation of ministries prompted by compassion—ministries often involving risks—is stopped short by the nervous calculation of legal liabilities."
In turn, the impact of such liability—or even the risk of such liability—on parishioners inevitably redounds against the Church. If parishioners come to believe that donations to their local parish, which they expect to be used in the main for the benefit of the local church and its ministries, are being siphoned off to pay diocesan claims and legal bills, their attitude towards giving to the support of the parish will inevitably sour. In turn, this is likely to impact the morale and effectiveness of the parish priest and other local church workers, whose morale may already be in doubt due to the threat to their retirement and health benefits. As Mark Chopko explains, "Religious entities, to a greater extent than their secular entities, rely on the unbridled goodwill of volunteers to make their operations run."
Put simply, the parties with an interest in priest sex abuse litigation are not just the victims and their abusers. All American Catholics are stakeholders in this litigation. The risk that abuse litigation poses to the financial viability of the Church and, as such, the implications of such litigation for the values that inform the First Amendment's guarantee of freedom of religion must be taken into account when secular courts assess the claims of the competing interests.
