Yesterday's Louisville Courrier-Journal reports that the U.S. State Department and Department of Justice have filed an amicus brief in the pending 6th Circuit appeal in O'Bryan v. Holy See, a class action priest abuse lawsuit. In January, a federal district court in Kentucky held that while the Vatican is a foreign government covered by the Foreign Sovereign Immunities Act ("FSIA"), the "tort exception" to the Act permits a claim to be filed against the Holy See based on clergy acting in the scope of their employment. [District Court opinion.] Plaintiffs claimed that clergy failed to warn parishioners that their children would be under the care of known or suspected pedophiles, and failed to report known or suspected abusers to state and local authorities. (See prior posting.)
The government's amicus brief defends the constitutionality of of FSIA against plaintiffs' claim that the immunity granted to the Vatican by the Act is inconsistent with the Establishment Clause because it grants special favors that benefits only the Catholic Church. The government responds that there is no evidence Congress intended to benefit Catholicism in enacting FSIA. At the time of its enactment, the United States had not yet recognized the Vatican. The government's brief also argues that under the Constitution, the President has the sole right to decide whether to recognize the Holy See as a foreign government.
