Clergy Sexual Abuse, the Holy See, and the FSIA

by Roger Alford

The Sixth Circuit last week rendered an important amended opinion in O’Bryan v. Holy See addressing the question of whether the Holy See could be sued for its role in the clergy sexual abuse scandal. The decision is fascinating and should be quite controversial.

As an initial matter it is worth pondering the essential conclusion of the Court: every religion in the world except the Catholic Church can be sued for illegal supervision of religious leaders who engage in sexual abuse of children. The head of the Catholic Church–the Holy See–stands alone, immune from suit because it is a sovereign entity protected by the FSIA. The Holy See can only be liable if one of the FSIA exceptions applies.

As for the particulars of the case, the claim was brought as a class action by plaintiffs on behalf of persons who allegedly have been sexually abused by employees of the Catholic Church. The Holy See was included as a defendant because of their alleged policy of covering up sexual abuse by Catholic priests.

The Sixth Circuit first ruled that the Holy See is a foreign sovereign. In determining whether a particular entity constitutes a “foreign state” courts have either relied on the standards set forth the Restatement on Foreign Relations, section 201, or on the recognition accorded to the state by the United States government. Under either standard, the Court ruled, “all roads lead to Rome.” The United States has recognized the Vatican and all of the indicia of statehood set forth in the Restatement are satisfied.

The Plaintiffs argued that the “Holy See” is different from the Vatican, but the Court rejected that interpretation. The former, they argued, is an unincorporated head of an international religious organization while the latter is a foreign state. The Court disagreed but provided no rationale for its conclusion, other than the fact that the plaintiffs cited no authority to support its position and two federal district courts in Mississippi and another in Oregon had expressed a contrary opinion.

Applying the FSIA, the Court ruled that the commercial activity exception did not apply nor did the tort exception because the “entire tort” must have occurred in the United States. The alleged negligent supervision by the Catholic Church did not occur wholly within the United States.

The only part of the claim that survived the motion to dismiss pertained to misconduct by employees of the Holy See–bishops, archbishops and other Holy See personnel–who were located in the United States. The Court ruled that those claims survived the tort exception: their conduct occurred in the United States, the conduct was within the scope of employment, and these individuals were Holy See employees. Nor did their alleged actions fall with the exceptions to the tort exception: there was no discretion granted to Holy See employees to take an approach other than that promulgated by the Holy See and their conduct did not fall under the “misrepresentation” or “deceit” provisions of Section 1605(a)(5)(B).

So in essence, the Court dismissed virtually all of the claims against the Holy See. Only three categories of alleged misconduct by supervisory employees of the Holy See located within the United States fell within the tort exception to the FSIA.

3 Responses

  1. Can someone point me to an answer to the question how it is that bishops and religious superiors are considered to be ‘supervisory employees’?  The notion that Mons N., Bishop of A., is an employee of the Holy See strikes me, who am not a lawyer or jurist of any sort whatever, as very odd, although evidently it is not.

    The only reason this concerns me at all is that it gives more ammunition to those who want to eliminate the historic role of the Holy See in international affairs.

  2. Lack of citation for an opposing proposition and the conclusions of other federal courts isn’t exactly “no rationale.” It’s just a rationale you apparently find inadequate. 

  3. I have always tried to find out what the rationale exactly is for the dual international subjectivity of the Holy See and the Vatican City state; but I never found a convincing or clear explanation, not even in Italian sources (which are quite abundant on the matter).

    As far as I understand the matter (and I’d be very happy for someone to correct me), the Holy See as an entity separate from the Vatican has been a subject of international law on a par with states since time immemorial – it is one of the very few exception to the classic position that only states were subjects of international law. Such international subjectivity is separate and independent from the territory of the Vatican, because the Holy See has been recognized as a subject of international law on a par with states even during the period in which there was no territory at all, from the Porta Pia Capture of Rome of 1870 to the 1929 Lateran Treaty. The Holy See kept signing treaties, and being recognized as a sovereign, even during this time.

    On the other hand, since the establishment in 1929 of the Vatican City state with the Lateran Treaty between Italy and the Holy See, there is now a territory which is formally and separately recognized as a state (despite not exactly satisfying all the Montevideo Convention criteria).
    Nonetheless, embassies are usually still embassies to the Holy See, not to Vatican City, and they are in Rome, not in the Vatican [at times in the very same premises of embassies to Italy; and the Italian embassy to the Holy See is also in Rome, perhaps the only embassy to a foreign sovereign to be in the capital of the sending sovereign].

    And if the Holy See keeps signing treaties as the Holy See, not as the state of Vatican City, but it then also confusingly at times signs treaties as the Vatican City State. And doesn’t the placard at the UN say ‘Holy See’ rather than ‘Vatican city state’ for the observer mission therein?

    So the US Court’s rejection of the plaintiff’s arguments might be both wrong (Holy See and Vatican are two subjects of international law, indeed) and right (the two subjects act as if they were one, and are interchangeably referred to in state practice). – What is quite sure is that the Catholic Church is indeed the only religion enjoying sovereign immunity.

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