Those scrutinizing the nomination of Elena Kagan to the Supreme Court might want to pay some attention to the recent decision of her office—the office of the solicitor general of the United States —to take the side of the Vatican in the continuing scandal of child rape and the associated scandal of a coordinated obstruction of justice. Faced with a number of court cases in the United States that have named the pope himself as a defendant in the enabling and covering up of many rapes, the Vatican has evolved the strategy of claiming that the Holy See is in effect a sovereign state and thus possessed of immunity from prosecution. It has now been announced that the Obama administration will be advising the Supreme Court to adopt this view of the matter.
There are a number of fascinating ramifications of this opinion. It is not usually considered polite to mention that the majority of Supreme Court justices are practicing Roman Catholics. (Writing about this delicate matter during the argument over the nomination of John Roberts, I did warn that there might come a day when it could pose a double conflict of interest, both in respect of church teachings and in respect of the Vatican's decision to shelter Cardinal Bernard Law of Boston after he skipped town to avoid a subpoena. This was before it came to light that the current pope had been so deeply and personally involved in the church's strategy of delay and obfuscation.) We will soon have a Supreme Court that contains no Protestants and no secularists and which is being asked to rule on a matter central to the religious beliefs of a majority of its members, who are bound to regard the man formerly known as Joseph Ratzinger as the vicar of Christ on earth. If they now take refuge in the lesser claim that he is the bureaucratic head of a foreign government, will that serve to assuage their consciences?
Even if they do decide the matter in this way, they will not succeed in banishing the terrible question of Vatican responsibility for the destruction of so many childhoods and the protection of so many hardened criminals. To give just one example that has not so far had the attention it deserves, the State Department is required by Congress to make an annual report on the human rights record of every government with which we have relations. Yet there is no annual human rights report on the Vatican—or Vatican City or the Holy See, if you prefer. When questioned on this rather glaring lacuna, officials at Foggy Bottom say that for human rights purposes, the Vatican isnot a state. It enjoys, for example, only the status of an observer at the United Nations. Very well then, if the Supreme Court rules that it isa sovereign government, then it necessarily follows that it must be subjected to official scrutiny on its rights practices, which in international law include the treatment of children. It will be interesting to see how the Obama administration gets itself off the horns of that dilemma. (It is also perhaps a pity that this question was not resolved earlier, so that we could have had an official U.S. government report on, say, the open complicity of the Catholic Church and the papacy in sheltering the men who organized the genocide in Rwanda.)
This all arises because the 9th U.S. Circuit Court of Appeals made a ruling that effectively lifted the Vatican's immunity under a 1976 law (the Foreign Sovereign Immunities Act, which governs the extent to which foreign entities can be pursued on American soil). The case involves an Oregon victim who was molested by a priest who had been moved, after previous offenses, from parishes in Ireland and Chicago. Other plaintiffs in other states such as Kentucky and Wisconsin have asked the courts to view offending priests and complicit bishops as employees of the Vatican, thereby illustrating the general responsibility of the papacy. The church's response to this has been especially absurd, claiming that the pope exercises only spiritual authority and not managerial control. The first thing to say about this is notice how it abolishes the church's other claim to be a political and accountable state! Then ask yourself what would happen to a priest or bishop who expressed doubts about the Vatican's teaching on abortion or divorce. He would soon find that Rome was very interested in disciplining him. It was Joseph Ratzinger himself who invited Holocaust-denying Bishop Richard Williamson all the way from Argentina and back into the fold in an attempt to conciliate Catholicism's more reactionary wing. It was Rome that gave shelter and succor to Cardinal Law after the long disgrace of his tenure in Boston. Suddenly we are asked to believe that the church is not really responsible for the actions of those who have a sworn duty of obedience to its headquarters? This will not wash. State or no state, the church is a highly disciplined multinational corporation that allows little or no autonomy to its branches and can no more be the judge in its own cause than British Petroleum.
It will be a disgrace if the Supreme Court overrules the sane and legal finding of the 9th Circuit. It is already a disgrace that so many innocent victims and their families have had to seek redress on their own and fight for decades against a ruthless and cynical clerical hierarchy that on its own admission was more concerned to protect the predators than to do justice. Where were the nation's law officers and policemen while all this was going on? Did they not feel it their bounden duty to represent the interests of the most vulnerable? Now at last the majesty of American law is being deployed in this matter—but on the side of an institution that has irreparably stained itself with crime. Kagan and her colleagues should be made to feel the shame of this, as should the president, who talks so glibly about human rights and equality before the law.