Suit By Fired Parish Office Manager Dismissed On Ecclesiastical Abstention Grounds

In Napolitano v. St. Joseph Catholic Church, (FL App., Dec. 18, 2020), a Florida state appellate court dismissed on ecclesiastical abstention grounds a suit by a church parish's office manager. At issue was whether a new parish priest could fire the office manager after the prior priest, just before his ouster, had on behalf of the parish entered a 4-year contract with the office manager. In affirming the trial court's dismissal of the case, the court said in part:

At the heart of the dispute between Napolitano and the Church Defendants is whether Father Brown had the authority under Canon Law to obligate successor administrations of St. Joseph to retain his chosen employees. Simply put, Napolitano has requested that a secular court examine a hierarchical religious organization and determine who has the authority to speak and act on its behalf. Whether based on actual or apparent authority, Napolitano’s request would require a court to impermissibly wade into ecclesiastical polity, in violation of the First Amendment....

Whether Father Brown had the actual or apparent authority to form the employment agreement and bind St. Joseph and the Diocese, even after his removal, is a quintessentially religious controversy—one that would require judicial inquiry into internal church matters—and constitutes a subject matter of which secular courts lack jurisdiction.

New York AG Sues Buffalo Diocese and Former Bishops For Handling Of Sex Abuse Complaints

New York's Attorney General, in a 218-page complaint, yesterday filed suit against the Catholic Diocese of Buffalo, two of its former bishops and its Apostolic Administrator over the handling of complaints of sexual abuse of minors and vulnerable adults. The complaint (full text) in People of the State of New York v. Diocese of Buffalo, (NY County Sup. Ct., filed 11/23/2020), alleges in part:

The Attorney General brings this lawsuit to obtain remedial and injunctive relief for the persistent violation of New York nonprofit law by the Diocese of Buffalo .... For nearly two decades, the Diocesan Corporation ignored standards established by the U.S. Conference of Catholic Bishops ... to address and prevent the sexual abuse of minors by U.S. clergy. In direct defiance of the USCCB’s public commitment to reform, the Diocesan Corporation, through the conduct of its senior leadership, evaded key provisions of these standards, ignoring requirements for the investigation and review of alleged clergy sexual abuse....

[T]hrough their actions and inactions in response to the sexual abuse crisis, the Diocesan Corporation and its two most senior leaders ... violated multiple provisions of the Not-for-Profit Corporation Law ... and Estates, Powers and Trusts Law....

The Attorney General seeks injunctive relief to accomplish three objectives: provide mechanisms for independent review of the Diocesan Corporation’s response to alleged sexual abuse; require reporting to the Attorney General for a period of five years; and mandate external oversight of an appropriate remedial and compliance plan. This action also seeks to hold Bishop Malone and Auxiliary Bishop Grosz individually responsible for violating their secular duties as fiduciaries of the Diocesan Corporation by enjoining them from future service in a secular role as a director or officer of any charitable organization subject to New York law and by obtaining damages against and restitution from them for the waste of charitable assets caused by their misconduct.

The New York attorney general also issued a press release announcing the filing of the lawsuit. New York Times also reports on the lawsuit.

Brooklyn Diocese Asks Supreme Court To Enjoin COVID-19 Church Capacity Limits

Yesterday, an Emergency Application for Writ of Injunction (full text) was filed by the Catholic Diocese of Brooklyn in its challenge to New York Governor Andrew Cuomo's limitations on the number of persons who can attend a worship service during the COVID-19 pandemic. (See prior posting.) The U.S. Second Circuit Court of Appeals, in a 2-1 decision, refused to grant an injunction pending appeal to the Diocese and to a group of Jewish synagogues in the challenge to special restrictions on spots in which clusters of COVD-19 cases have broken out. SCOTUSblog reports on yesterday's filing.

UPDATE: On Nov. 16, the synagogues filed a similar Emergency Application. (Full text). SCOTUSblog has more on the filing.

British Report Issued On Child Sex Abuse Response By Catholic Church

In Britain on Tuesday the government-authorized Independent Inquiry Into Child Sexual Abuse published its 154-page Investigation Report on the Roman Catholic Church (full text) (press release announcing the report). The Report says in part: 

As we have said previously, faith organisations are marked out from most other institutions by their explicit moral purpose. The Roman Catholic Church is no different. In the context of the sexual abuse of children, that moral purpose was betrayed over decades by those in the Church who perpetrated this abuse and those who turned a blind eye to it. The Church’s neglect of the physical, emotional and spiritual well-being of children and young people in favour of protecting its reputation was in conflict with its mission of love and care for the innocent and vulnerable.

The Bishops' Conference of England and Wales issued a statement welcoming the report. Law & Religion UK has more on the Report.

Another Chapter In Challenge To Navy Chaplain Selection Procedures

In In re Navy Chaplaincy, (DC Cir., Nov. 6, 2020), the D.C. Circuit Court of Appeals issued the latest decision in a controversy that has been in litigation for over twenty years.  In the case, non-liturgical Protestant chaplains allege discrimination against them by selection boards that control promotions and early retirements of Navy chaplains. The court said:

the district court made no mistake in granting summary judgment for the Navy on the Plaintiffs’ various First Amendment challenges to its selection board policies. See Chaplaincy, 323 F. Supp. 3d at 35-36, 55-56. With regard to the claims that certain selection board policies violated the Establishment Clause, the Plaintiffs had to show each policy had an unconstitutional effect; that is, the Plaintiffs had to show “the selection policies appear[ed] to endorse religion in the eyes of a reasonable observer.”... To prove an endorsement with statistics, the Plaintiffs had to show a stark disparity in outcomes during the relevant period ..., but the statistics they offered came nowhere close to doing so.

However the court remanded for further proceedings a claim by a chaplain endorsing agency, Associated Gospel Churches, of injury because of the Navy's policy. The trial court had dismissed the claim for lack of standing. The Court of Appeals said in part:

On appeal, AGC argues it has standing in its own right to challenge the Navy’s faith-neutral accession goals. We agree. AGC alleged the Navy’s accession goals resulted in AGC’s chaplain candidates entering the Navy at a significantly lower rate than they otherwise would have. AGC further alleged, because it relies upon its chaplains for financial support, it loses money when its ability to find placements for its candidates is hindered. AGC also alleged its low rate of success placing candidates in the Navy tarnished its reputation. These allegations satisfy all three elements of standing. We express no opinion on the sufficiency of the allegations in any other respect.

The court also reversed and remanded claims that had been dismissed as untimely, ordering the trial court to consider whether equitable tolling applies. Finally, the court held:

Allowing chaplains to sit on chaplain selection boards does not create a de jure denominational preference and does not create excessive entanglement.

University Student Government Court Orders Reinstatement of Student Senate President Ousted For Religious Views

 In a 19-page decision, the Florida State University Student Supreme Court held that a Catholic student who had been removed as Student Senate president because of religious views he expressed criticizing Black Lives Matter, the ACLU and Reclaim the Block as taking views opposed to Catholic teachings. The decision in Denton v. Daraldik, (FL Student Sup. Ct., Oct. 26, 2020), ordering plaintiff's reinstatement as Student Senate president, said in part:

Plaintiff was acting in his capacity as a private citizen when he made the statements for which he was removed. Plaintiff sent messages in the CSU group chat. The Catholic Student Union, while funded by SGA, operates to promote the teachings of the Catholic Church.... 

The Senates treatment of Plaintiff’s case violated its obligation under the First Amendment not to take action that is hostile to a religion or religious viewpoint. The Senators’ during debate reveal that they were neither tolerant nor respectful of Plaintiff’s religious beliefs when they held their vote of no-confidence. Here, as in Masterpiece, Plaintiff was entitled to a neutral decisionmaker who would give full and fair consideration to his sincerely held religious beliefs. The Senate did not act as a neutral decisionmaker in this case.

ADF issued a press release announcing the decision. (See prior related posting.)

Pope Francis Endorses LGBT Civil Union Laws

Catholic News Agency reported yesterday that in a newly released documentary titled Francesco, Pope Francis called for the passage of civil union laws covering same-sex couples. This is inconsistent with the positions of prior Popes and with the views of the Vatican's Congregation for the Doctrine of the Faith. In a portion of the documentary devoted to pastoral care for LGBT individuals, the Pope said:

Homosexuals have a right to be a part of the family. They’re children of God and have a right to a family. Nobody should be thrown out, or be made miserable because of it....

What we have to create is a civil union law. That way they are legally covered. I stood up for that.

Pennsylvania Supreme Court Hears Arguments In Important Clergy Abuse Case

Pittsburgh Post-Gazette reports on oral arguments before the Pennsylvania Supreme Court yesterday in an important case on Catholic Church liability for priest sexual abuse occurring many years ago:

At issue is the claim by plaintiff Renee Rice of Altoona that the Diocese of Altoona-Johnstown conspired to cover up abuse by priests including that of her own alleged assailant — the Rev. Charles Bodziak — in the 1970s and 1980s. She sued the diocese for alleged fraud and concealment, saying that it was not until a 2016 statewide grand jury report that she learned of “a massive, systemic conspiracy of coverup to allow … children to be abused repeatedly,” attorney Alan Perer said.

But in repeated questioning, some of the justices echoed the argument of the diocese’s own attorney — that a plaintiff has an obligation within the statute of limitations to investigate the source of her injury and those who may have been responsible for it.

Plaintiff argues that it should be up to a jury to decide if she should have investigated sooner.

Student Senate President Who Was Removed For His Religious Views Gets Limited Relief

In Denton v. Thrasher, (ND FL, Oct. 8, 2020), a Florida federal district court held that Florida State University's Student Senate acted unconstitutionally when it removed Jack Denton as Student Senate president. (He remained a member of the Senate.)  Student Senate took the action after Denton's private chat room comments were publicly circulated.  The offending remarks were:

BlackLivesMatter.com fosters “a queer-affirming network” and defends transgenderism. The ACLU defends laws protecting abortion facilities and sued states that restrict access to abortion. Reclaim the Block claims less police will make our communities safer and advocates for cutting PDs’ budgets. This is a little less explicit, but I think it’s contrary to the Church’s teaching on the common good....

I don’t mean to anger anyone – I know this is a very emotional topic. However, it is important to know what you’re supporting when you’re Catholic. If I stay silent while my brothers and sisters may be supporting an organization that promotes grave evils, I have sinned through my silence. I love you all, and I want us all to be aware of the truth. As far as it’s a religious issue or not, there isn’t an aspect of our lives that isn’t religious, because God wants our whole lives and everything we do to be oriented around him!

The court said in part:

Denton is not here to complain about insults or hurt feelings. His claim is that he lost his job—his student government position—because he chose to exercise his First Amendment rights.

The court however limited its relief to an order that Denton be paid for the six hours per week for the rest of the term that he would have served as Student Senate president. It refused to order that Denton be reinstated to his position since that could produce "tumult and chaos."  Inside Higher Ed reports on the decision.

Abuse Victims Win First Round In Santa Fe Archdiocese Reorganization Proceedings

 In In re Roman Catholic Church of the Archdiocese of Santa Fe, (NM Bankr., Oct. 9, 2020), a New Mexico federal bankruptcy court granted an unsecured creditors committee-- apparently representing primarily clergy sex abuse victims-- derivative standing to pursue claims that some $150 million in assets actually belong to the Archdiocese, not to individual parishes. The Archdiocese serves as creditor in possession during its Chapter 11 reorganization, and it has refused to pursue the assets. Responding to the Archdiocese's First Amendment defenses, the court said in part:

The Bankruptcy Code’s fraudulent transfer sections are neutral and of general applicability, so it may be difficult to challenge them as violating the Free Exercise Clause of the First Amendment....

It rejected a RFRA defense, holding that RFRA applies only when the government is a party to the litigation. Rejecting a religious autonomy defense, the court said in part:

A claim to recover an alleged fraudulent transfer does not appear to be the kind of intrachurch dispute that the religious autonomy doctrine typically protects from court interference.

The court concluded its opinion with a plea for settlement negotiations:

If one or more of Debtor’s and/or the parishes defenses has merit, the UCC’s claims will fail. If none has merit, the UCC will recover many millions of dollars for the estate. Either way, the proposed litigation will be very expensive and time-consuming. Unless settled, the proceedings may have to be completed by successors to the party representatives, the judge, and counsel, after years of motion practice, discovery, discovery disputes, trials, appeals, remands, and retrials. Millions of dollars would have been spent on attorney fees and costs that could have paid valid abuse claims.

More clarity about the rights of the parties and what is estate property could help the ongoing efforts to reach a global settlement in this case. For that reason, some litigation of the UCC’s proposed claims may be needed. There will be a point, however, that the cost of continued litigation likely will outweigh the benefit. If the proceedings are not settled before then, Debtor, the parishes, and the abuse victims will be the poorer for it.

Catholic and Jewish Organizations Sue New York Governor Over New COVID-19 Restrictions

On Tuesday of this week, New York's Governor Andrew Cuomo announced new restrictions in spots in which clusters of COVD-19 cases have broken out. Areas include parts of Brooklyn and Queens and parts of Broome, Orange and Rockland Counties. The restrictions target mass gatherings and houses of worship, as well as businesses and schools.  In response, two important religious entities-- one Catholic and one Jewish-- have filed separate suits challenging the new Order.

The complaint (full text) in Roman Catholic Diocese of Brooklyn, New York v. Cuomo, (ED NY, filed 10/8/2020) reads in part:

The governor now proposes to limit in-person attendance at all "Houses of Worship" to the lesser of 10 people or 25% of church capacity in certain designated geographical areas, and to the lesser of 25 people or 33% of church capacity in others. As applied to the Diocese, whose impacted churches overwhelmingly seat upwards of 500 to 1000 parishioners, the percentage caps ... are rendered wholly illusory, and thus the churches will be placed in the untenable position of limiting attendance at Sunday mass and other fundamental Catholic services such as baptisms, weddings and funerals, to just 10 worshippers in designated "red" zones or just 25 worshippers in designated "orange" zones. Meanwhile, all other essential businesses can remain open without any capacity limitations whatsoever....

ABC7 News reports on the lawsuit. 

The complaint (full text) in Agudath Israel of America v. Cuomo, (ED NY, filed 10/8/2020) alleges in part:

5. Defendant’s Executive Order and the restrictions it contains will disrupt the religious observance of tens of thousands of Orthodox Jews in New York State, depriving them of their religious worship and holiday observance. The Executive Order requires enforcement of its restrictions to begin on Friday, October 9, which is Hoshanah Rabbah, the first of these three holidays.

6. Defendant has imposed these onerous and discriminatory new restrictions despite the fact that even he concedes he has not enforced the existing restrictions on houses of worship that already impose capacity limits and health requirements. Plaintiffs have completely complied with these rules, and Defendant does not contend otherwise.

Courthouse News Service reports on the suit.

UPDATE: Temporary restraining orders were denied in both cases on Oct. 9. See Roman Catholic Diocese of Brooklyn v. Cuomo, 2020 U.S. Dist. LEXIS 188459.

Two Catholic Dioceses File For Chapter 11 Bankruptcy Reorganzation

In the face of sex abuse lawsuits filed after states enacted legislation reviving previously time-barred claims, on Oct. 1 two more Catholic dioceses filed for bankruptcy reorganization under Chapter 11. 

The Diocese of Rockville Centre, New York (covering Long Island) issued a press release and a letter from Bishop John Barres. The letter said in part:

[I]n the year since the passage of the Child Victims Act, more than 200 lawsuits alleging sexual abuse have been filed against the Diocese of Rockville Centre. What became clear is that the Diocese could not continue to carry out its spiritual, charitable and educational missions while also having to shoulder the increasingly heavy burden of litigation expenses associated with these cases.

Filing for Chapter 11, we believe, is the only way for the Diocese to ensure a fair and equitable outcome for everyone involved.... 

During this period of restructuring, most Diocesan operations and ministries will continue without interruption.... 

Since the parishes and schools of the Diocese of Rockville Centre are separate legal entities, they are not included in this Chapter 11 filing. But it is also the case that after Chapter 11, the Diocese will have fewer financial resources to help struggling schools and parishes.

CNN reports on the filing, noting that this is the largest U.S. diocese to file for bankruptcy.

The Diocese of Camden, New Jersey issued a letter from Bishop Dennis Sullivan as well as an FAQ document and a summary of developments. The Bishop's letter reads in part:

The effects of the pandemic, which have curtailed our revenue and deeply impacted our parishioners and neighbors, were further compounded by the over $8 million we have paid out this year through the New Jersey Independent Victims Compensation Program to victims of clergy abuse, money which we have had to borrow. Additionally, the recent repeal of the statute of limitations has resulted in over fifty lawsuits being filed against the diocese involving long-ago claims of abuse. If it were just the pandemic, or just the costs of the Victims Compensation Program, we could likely weather the financial impact; however, the combination of these factors has made that impracticable. Because of this, today I announce that the Diocese of Camden is filing for reorganization under Chapter 11 of the United States Bankruptcy Code.

Bloomberg News reports on the filing.

Trump and Barr Speak At National Catholic Prayer Breakfast

Yesterday both President Trump (in a pre-recorded address-- full text) and Attorney General William Barr spoke at the National Catholic Prayer Breakfast, held online this year (video of entire breakfast). In his remarks, President Trump said in part:

Today I am announcing that I will be signing the Born Alive Executive Order to ensure that all precious babies born alive, no matter their circumstances, receive the medical care that they deserve. This is our sacrosanct moral duty. We are also increasing federal funding for the neonatal research to ensure that every child has the very best chance to thrive and to grow.

Attorney General Barr was presented the Christifideles Laici Award. In his acceptance speech (full text), he said in part:

That crucial link between religion and liberty, so well understood at the Founding, is all too often forgotten today.  In American public discourse, perhaps no concept is more misunderstood than the notion of “separation of church and state.”  Militant secularists have long seized on that slogan as a facile justification for attempting to drive religion from the public square and to exclude religious people from bringing a religious perspective to bear on conversations about the common good.

Yet as events like this one remind us, separation of church and state does not mean, and never did mean, separation of religion and civics... 

Unfortunately, in the last half century, that foundation of our free society has increasingly been under siege.  Traditional morality has eroded, and secularists have often succeeded not only in eliminating religion from schools and the public square, but in replacing it with new orthodoxies that are actively hostile to religion.  The consequences of this hollowing out of religion have been predictably dire....

Wherever we are in life, it is never too late to work in the Lord’s vineyard.  Our spiritual renewal, and the renewal of our national character, depend on it.

Order To Stay Away From Basilica Did Not Violate RFRA

 In De Bèarn v. United States, (DC Ct. App., Sept. 10, 2020), the District of Columbia's highest local appellate court held that a stay-away order barring appellant from the Basilica of the National Shrine of the Immaculate Conception did not violate his rights under the Religious Freedom Restoration Act. Gaston DeBéarn was arrested on charges of destruction property after he entered the Basilica yelling about the need to restore the traditional mass and ran to the altar knocking over candle sticks. A court issued the stay-away order as a condition of releasing DeBéarn before trial.  DeBéarn twice violated the order and was also charged with two counts of contempt. In rejecting DeBéarn's RFRA defense, the court said in part:

“Not just any imposition on religious exercise creates a substantial burden; a burden must have some degree of severity to be considered substantial.”...

At trial, appellant noted that the Shrine was his “favorite” place to attend mass and that he did not “go to other churches” because they are “just not as beautiful as that one.” He acknowledged, however, that he could go to other churches. “With so many alternative places to practice [his religion],” we are satisfied that the stay-away order imposed on appellant as to a single Catholic church “d[id] not force [appellant] to choose between abandoning [his] faith and facing criminal prosecution.”...

Catholic Student Sues After He Is Removed As University Student Senate President Because of His Views

Suit was filed this week in Florida federal district court claiming that plaintiff's free speech and free exercise rights were infringed when he was removed as president of Florida State University's Student Senate.  The complaint (full text) in Denton v. Thrasher, (ND FL, filed 8/31/2020), alleges in part:

Mr. Denton is a devout Catholic, and he expressed basic Catholic teachings to other Catholic students in a private group chat. But, because Catholic teachings have implications for some social issues that some consider offensive, those messages were shared, student outrage was fomented, and the Student Senate implemented an ad hoc religious test for office: no one with Mr. Denton’s beliefs can hold a leadership position in our Student Senate (even if they only talk about those beliefs in private)....

The complaint describes the contents of plaintiff's group chat with members of the Catholic Student Union:

One student shared a link to a video on YouTube that raised advertising and donation revenue for several organizations.... Mr. Denton observed that, “The various funds on that list are fine causes as far as I know, but everyone should be aware that BlackLivesMatter.com, Reclaim the Block, and the ACLU all advocate for things that are explicitly anti-Catholic.” ... “BlackLivesMatter.com fosters ‘a queer-affirming network’ and defends transgenderism. The ACLU defends laws protecting abortion facilities and sued states that restrict access to abortion. Reclaim the Block claims less police will make our communities safer and advocates for cutting PDs’ budgets. This is a little less explicit, but I think it’s contrary to the Church’s teaching on the common good.”

ADF issued a press release announcing the filing of the lawsuit.

7th Circuit: Ministerial Exception Does Not Cover Hostile Work Environment Claims, Absent Tangible Employment Action

In Demkovich v. St. Andrew the Apostle Parish, (7th Cir., Aug. 31, 2020), the U.S. 7th Circuit Court of Appeals, responding to a question certified to it by an Illinois federal district court held by a 2-1 vote that the ministerial exception doctrine does not bar hostile work environment claims brought by a ministerial employee where no tangible employment action was taken.  In the case, the music director of a Catholic church alleged that his supervisor harassed an humiliated him about his sexual orientation, as well as his weight and his medical issues.  The majority held in part:

The ministerial exception gives religious organizations the power to use the full range of tangible employment actions to select and control their ministerial employees without judicial review or government interference under these federal statutes. These employers are thus able to control their employees in every way that would be necessary to exercise their religious freedoms. It is hard to see how the Church could not have adequately controlled plaintiff as a ministerial employee by deciding whether to hire him and whether to fire him, or by deciding his job duties, his place of work, his work schedule, his compensation, the resources he needed to work, and so forth.

Subjecting plaintiff to the abuse alleged here is neither a statutorily permissible nor constitutionally protected means of “control” within the meaning of Hosanna–Tabor.

Judge Flaum dissented, saying in part:

Beyond infringing on the Church’s free exercise rights in this case, allowing ministers to bring hostile work environment claims will “gravely infringe” on the rights of religious employers more generally “to select, manage, and discipline their clergy free from government control and scrutiny” by encouraging them to employ ministers that lessen their exposure to liability rather than those that best “further [their] religious objective[s].”

Catholic Group Threatens Litigation Over BLM Attempts To Remove References To Famous California Priest

One of the historical figures now seen as problematic by the Black Lives Matter Movement is the 18th century Catholic priest Father Junipero Serra, who was canonized in 2015 by Pope Francis during his trip to the United States. As explained by an RNS article earlier this year:

While Serra is credited with spreading the Catholic faith across what is now California, critics say Serra was part of an imperial conquest that beat and enslaved Native Americans.

Serra, who was born in Spain, came to the Americas in 1749, and in 1769 he founded the first of what would become 21 missions along the California coast.

Native Americans brought into the mission to be evangelized were not allowed to leave the grounds. Many labored for no pay. There is evidence of beatings, imprisonment and other abuse at the hands of the missionaries.

In light of this, the city of San Buenaventura last month voted to remove a statue of Serra that stands in front of City Hall. Recently efforts have been made to remove Serra from the city's police badges and the Ventura County seal. The Thomas More Society contends that these moves are anti-Catholic, and this week it sent a demand letter (full text) to the city and county, saying in part:

should Ventura remove Fr. Serra from its Seal, its Police Badges, or any other similar prominent municipal location, we will bring a claim seeking to enjoin such conduct under the Establishment Clause of the U.S. Constitution, and seek our attorneys’ fees. Our firm was lead counsel in defending the Mt. Soledad Cross in San Diego—which proudly still stands today—and we have extensive experience in ensuring that our attorneys’ fees are paid when we prevail. Thank you for considering the below as you take subsequent action during these times of national and local anti-Catholic sentiment....

For California Catholics generally, Fr. Serra is “the Apostle of California,” “the first saint to be canonized on U.S. soil and by the first pope from the Americas.” ... For them, the attacks on Fr. Serra “call[] to mind very similar activities at earlier stages of American history. In the mid to late nineteenth century, anti-Catholicism was rampant in the United States, due in part to prejudices inherited from Protestantism but also due to the arrival of large groups of immigrants from Catholic countries,  who were considered inferior.”... For them, “how can [they] not see the ugly specter of anti-Catholicism raising its head” again?

For all Catholics, the only reasonable way to view the attacks on Fr. Serra are as attacks on a psychological mascot, or a “convenient scapegoat and whipping boy,” for those who hate Catholics and who hate that they evangelized native peoples.

Life Site News reports on these developments.

Canadian Court Says Catholic Archdiocese Is Vicariously Liable For Sexual Abuse At Orphanage

In John Doe v. Roman Catholic Episcopal Corporation of St. John's, (Newfoundland & Labrador Ct. App., July 28, 2020), the Court of Appeal in the Canadian province of Newfoundland, in a 136-page opinion, held that the Catholic Archdiocese is vicariously liable for sexual abuse suffered by the four plaintiffs.  Five members of the Christian Brothers abused plaintiffs in the 1950's when they were living at the Mount Cashel Orphanage. The court said in part:

In our view, the total relationship between the Brothers at Mount Cashel and the Archdiocese shows that the Brothers were working on the account of the Archdiocese’s social and religious mandate. Their relationship was sufficiently close, and the connection between the Brothers’ assigned tasks and their wrongdoing was sufficiently close, to justify the imposition of vicarious liability on the Archdiocese. Doing so in the circumstances of this case upholds the policy objectives of the doctrine. 

The court held however that the Archdiocese is not liable for a chaplain's failure to act after he learned of the abuse, saying in part:

As Monsignor Ryan was not negligent and did not breach a fiduciary duty, there is no basis upon which the Archdiocese could be liable for his conduct.

Canadian Press reports on the decision.

New Suit Charges Former Cardinal McCarrick With Sexual Abuse and Dioceses With Negligence

Suit was filed in a New Jersey state court this week against two New Jersey Catholic Dioceses, other Catholic entities, and former Catholic Cardinal Theodore McCarrick .  The complaint (full text) in JA/GG Doe 14 v. Diocese of Metuchen, (NJ Super, filed 7/21/2020), charges McCarrick with sexual battery and the Dioceses and schools with negligent training, supervision and retention. A news conference by the lawyers who filed the lawsuit described the suit as:

... [A] new lawsuit filed under the New Jersey Child Sexual Abuse Act (part of the New Jersey Victims’ Rights Bill), by a survivor who was sexually abused by infamous serial sexual predator and former Cardinal Theodore E. McCarrick as part of McCarrick’s sordid beach house child sex ring;

... Plaintiff, then a teenager, was groomed, manipulated and coerced by McCarrick into participating in McCarrick’s sex ring along with other kids;

... McCarrick orchestrated and directed the sexual abuse of the Plaintiff by three other priests named in the complaint.

Washington Post reports on the lawsuit.

Transgender Man Sues Catholic Hospital For Refusing Hysterectomy

A suit filed in a Maryland federal district court last week raises the question of whether a corporation created by the Maryland legislature to operate the University of Maryland Medical Center is a state actor for purposes of the 1st and 14th Amendments.  The corporation acquired St. Joseph Hospital in 2012 and continued to operate it under Catholic Directives for healthcare.  This resulted in the hospital refusing to allow a scheduled hysterectomy on a transgender man undergoing treatment for gender dysphoria.  The complaint (full text) in Hammons v. University of Maryland Medical System Corporation, (D MD, filed 7/16/2020). alleges in part:

Defendants are instrumentalities of the State of Maryland and subject to the First Amendment’s Establishment Clause and the Fourteenth Amendment’s Equal Protection Clause. But, in violation of those constitutional obligations, Defendants operate University of Maryland St. Joseph Medical Center as a Catholic institution, guided by “Catholic health care values” and bound by the “Ethical and Religious Directives for Catholic Health Care Services” established by the U.S. Conference of Catholic Bishops (the “Catholic Directives”)....

By purchasing the St. Joseph hospital and signing an agreement to operate the hospital as a Catholic institution and in accordance with the Catholic Directives, UMMS has violated the Establishment Clause by, among other things, (a) creating an impermissible fusion of governmental and religious functions; (b) impermissibly delegating government authority to be exercised in accordance with religious criteria; (c) impermissibly endorsing religion; (d) taking government action that has the primary purpose and effect of advancing religion; (e) creating unconstitutional governmental entanglement with religion; (e) favoring one set of religious beliefs over others; and (f) impermissibly coercing individuals to act in accordance with particular religious beliefs.

ACLU issued a press release announcing the filing of the lawsuit. Washington Post reports on the lawsuit. [Thanks to Scott Mange for the lead.]