EU Ban On State Economic Subsidies Invalidates Some Applications of Tax Exemption Treaty with Vatican

Article 107(1) of the Treaty on the Functioning of the European Union prohibits EU states from granting aid that "distorts or threatens to distort competition [between Member States] by favouring certain undertakings or the production of certain goods..."  In Congregación de Escuelas Pías Provincia Betania v. Ayuntamiento de Getafe, (CJEU, June 27, 2017), the Court of Justice of the European Union held that this provision may invalidate some applications of a treaty between Spain and the Vatican exempting from taxes the property in Spain of Catholic dioceses, parishes and religious orders.  At issue is a municipal tax that would apply to the renovation and extension of a building at a school operated by a Catholic order. According to the Court, the ban on favoring certain "undertakings" applies only to "economic activity."  To the extent that the building is used for educational activities subsidized by the Spanish government, the religious order is not engaged "economic activity" and the EU Treaty does not bar a tax exemption.  However

it would seem ... the Congregación’s educational activities that are not financed by the Spanish State, corresponding to early-years teaching, extracurricular activities and post-compulsory education, meet all the criteria ... of the present judgment for classification as ‘economic activities’....

Law & Religion UK has more on the decision.

Diocese and Parishes May Be Single Employer For Purposes of Title VII

In Clement v. Roman Catholic Diocese of Erie, (WD PA, June 16, 2017), a Pennsylvania federal magistrate judge refused to dismiss a Title VII sexual hostile work environment claim against two Catholic parishes and the Catholic Diocese of Erie.  Plaintiff served as Facilitator of Religious Education Programs in three parishes. In the case, the Diocese contended that plaintiff was employed only by the parishes, and the parishes claimed that individually each does not employ at least 15 individuals, the minimum number required before Title VII applies.  The court concluded that at this early stage of the litigation, evidence of the dual chain of command over defendant's position and the intermingling of parish and Diocese business affairs raises a reasonable expectation that discovery could reveal sufficient evidence to treat the Diocese and parishes as a single employer.  GoErie reports on the decision.

Pence Speaks To National Catholic Prayer Breakfast

Yesterday Vice President Mike Pence delivered a lengthy address (full text) to the National Catholic Prayer Breakfast in Washington, D.C.  Here are a few excerpts from his remarks:

To all the great American Catholics gathered here, let me assure you this morning, bright and early at this prayer breakfast, American Catholics have an ally in President Donald Trump.  (Applause.) 

President Trump stands for the religious liberty of every American and the right of our people of faith to live out your convictions in the public square.

President Trump stands with those who are persecuted for their faith around the world -- no matter the country they call home or the creed they profess.

And President Donald Trump stands with the most vulnerable -- the aged, the infirm, and the unborn.  (Applause.) ....

Protecting and promoting religious freedom is a foreign-policy priority of this administration.  And we will continue to work with this Congress to stand without apology for persecuted people of faith across the globe.  We will continue to stand with our allies and take the fight to the terrorists on our terms, on their soil until we drive the cancer of terrorism from the face of the Earth.  (Applause.)....

Since day one of this administration, President Donald Trump has been keeping his promise to stand for life, and life is winning in America again.

Catholic Order Files For Bankruptcy In Settlement of Sex Abuse Claims

The Minneapolis Star Tribune and Premier report that yesterday the Crosier Fathers and Brothers, a Roman Catholic order, filed for bankruptcy in a Minnesota federal Bankruptcy Court. Along with the filing, the Order agreed to a $25.5 million settlement with 43 plaintiffs who have filed sex abuse lawsuits against the Order.  The sex abuse by 19 members of the Order occurred from the 1960's to the mid-1980's. The settlement is one of the largest per victim payments among the 14 Catholic Church bankruptcies around the country so far.

Priest Sex Abuse Suit Filed Against Guam Archdiocese

On Monday, a 49-year old man filed suit in a Guam federal district court against the Catholic Archdiocese of Agana seeking $5 million in damages for sexual abuse he suffered in a Guam church in 1982 when he was an altar boy.  The offending priest, Fr. John Niland, died in 2009.  The complaint (full text) in Charfauros v. Roman Catholic Archbishop of Agana, (D GU, filed 5/22/2017), alleges in part:

12. ... [D]isguising the scheme to have sexual access to young boys was the ritual of requiring altar boys to spend the night at the church rectory, ostensibly to facilitate preparation for the following morning church services.... These seemingly routine practices ... served the predatory priests with a steady supply of victims under the auspices and pretense of formal church protocol, which allowed the Church to continually operate a veritable harem of young boys who were readily available to pedophiles who utilized the stature of the church into deceiving the community to regard them as high-level officials.

13. The systematic and ongoing pattern of sexual abuse of young children was characteristic of an internal society within ... [the] Archdiocese ... whose norms were based on pedophilic conduct disguised by the rituals and pageantry of liturgical services ... which caused Catholic parishioners.to place the highest level of confidence and trust in the church and its clergy. This internal society of sexual corruption sustained itself through a conspiratorial arrangement between priests and higher officials in the Agana Archdiocese whereby they all understood and agreed to remain quiet about each others sexual abuse misconduct....

Pacific News Center reports on the lawsuit. As reported by Crux, last year Pope Francis in effect replaced Agana Archbishop Anthony Apuron after allegations that the Archbishop sexually abused altar boys in the 1960's and 1970's.

Suit Claims Bishop Tried To Coerce Withdrawal of Clergy Abuse Charge

A suit was filed this week in a Minnesota state trial court against the Catholic Diocese of Crookston and its Bishop Michael Hoeppner.  The complaint (full text) in Vasek v. Diocese of Crookston, (MN Dist. Ct., filed 5/8/2017) alleges that plaintiff, who was studying to be a deacon, was told by Bishop Hoeppner that he must withdraw his previous charges of decades-old sexual abuse that he had previously made against an Ohio priest.  Hoeppner allegedly told plaintiff that if he did not, "the Bishop would have difficulty ordaining Plaintiff as a deacon for the Diocese of Crookston and that Plaintiff s son's priesthood in the Diocese of Crookston would be negatively impacted." Minneapolis Star Tribune reports on the lawsuit.

Catholic Hospital Sued Over Refusal Of Gender Reassignment Surgery

A transgender male filed suit this week in a California state trial court against Dignity Heath.  Following Ethical and Religious Directives for Catholic Health Care Services that prohibit direct sterilization, Dignity Health's Mercy San Juan Medical Center refused to perform a hysterectomy as part of plaintiff's treatment for gender dysphoria. The complaint (full text) in Minton v. Dignity Health, (CA Super. Ct., filed 4/19/2017), contend that the refusal constitutes discrimination on the basis of sex in violation of the Unruh Civil Rights Act.  ACLU issued a press release announcing the filing of the lawsuit. Sacramento Bee reports on the suit.

Montana Diocese Files for Bankruptcy

As reported by the Great Falls Tribune, the Diocese of Great Falls-Billings (Montana) yesterday filed for Chapter 11 bankruptcy.  The filing grows out of settlement negotiations in a suit that was filed in 2012 by 72 survivors who suffered sexual abuse as minors from priests over the course of several decades. A press release from the Diocese says in part:

On March 31, 2017, the Diocese is filing a chapter 11 reorganization case before the United States Bankruptcy Court for the District of Montana to fulfill a pre-bankruptcy mediated negotiated agreement with known abuse survivors and the Diocese’s liability insurance carrier.

Bishop Michael W. Warfel and the Diocese have chosen a pastoral approach which provided the basis for its having entered this confidential mediation process. The recent mediation resulted in the beginning stages of general parameters of proposed settlements with the victims and the insurance carrier. The details of that comprehensive agreement are still being worked on by the parties. Under the supervision and ultimate approval of the Bankruptcy Court, the diocese and its insurance carrier would both contribute to that comprehensive settlement, which would compensate the currently identified victims. There will be additional settlement funds for additional and unknown victims. The process of obtaining Bankruptcy Court approval included the opportunity for victims and creditors to vote on the proposed settlement. The Diocese expects that its reorganization will be expedited by the pre-bankruptcy negotiations with all the affected parties.

Ecclesiastical Abstention Leads To Dismissal of Suit By Expelled Student For Priesthood

In Doe v. Pontifical College Josephinum, (OH App., March 30, 2017), an Ohio appellate court applied the ecclesiastical abstention doctrine to dismiss a suit by a former student who was dismissed from an academic program designed to prepare him to become a priest.  The student was dismissed after the school's Vice Rector determined that there was a "credible accusation of homosexual activity."  The student sued for breach of contract, intentional infliction of emotional distress, unauthorized disclosure of confidential educational records, and unjust enrichment. In an internal canon law appeal of his dismissal, the student was unable to prepare a defense because he could not obtain relevant records from the school.  The court affirmed the trial court's dismissal of the lawsuit, saying in part:

Although appellant argues that the trial court could resolve his claims without addressing ecclesiastic issues, it is clear that the alleged unjust dismissal lies at the core of each claim. Therefore, evaluating those claims would require the common pleas court to consider issues related to the Josephinum's disciplinary process and the dismissal. 

Pennsylvania Diocese Reaches Agreement With Prosecutors On New Child Protection Measures

As previously reported, a year ago a Pennsylvania Grand Jury filed a lengthy Report on sexual abuse of children by Pennsylvania Catholic clergy. On Monday, the U.S. Attorney's Office for the Western District of Pennsylvania and the Diocese of Altoona-Johnstown announced a memorandum of understanding on reforms by the Diocese, summarizing the core reforms as follows:

• The creation of an independent, multidisciplinary oversight board;
• The retention of an outside expert to develop a new, comprehensive child abuse prevention program;
• A reporting protocol that requires the Diocese to report allegations of child sexual abuse to law enforcement within twelve hours after receipt; and
• Counseling and support services for victims by qualified and independent mental health professionals chosen by the victims.

Reporting on the new agreement, AP says that it also requires the Diocese to immediately take priests accused of abuse out of positions where they have contact with minors, and place them on leave within 24 hours.

Survivor Resigns In Protest From Pontifical Commission On Protecting Minors

In a written statement yesterday, Marie Collins announced that she has resigned in protest from Pope Francis' Pontifical Commission for the Protection of Minors.  As reported by National Catholic Reporter, Collins was one of two clergy sex abuse survivors appointed to the Commission in 2014.  The other abuse victim member was placed on leave last year because of friction with other Commission members. The only other abuse survivor on the Commission, Englishman Peter Saunders, took a leave of absence last year after friction over his criticisms of the Pope.  In her statement yesterday explaining her resignation, Marie Collins said in part:

The reluctance of some in the Vatican Curia to implement recommendations or cooperate with the work of a commission when the purpose is to improve the safety of children and vulnerable adults around the world is unacceptable....

The last straw for me, on top of the refusal to cooperate on the Safeguarding Guidelines, has been the refusal, by the same dicastery, to implement one of the simplest recommendations the Commission has put forward to date.

Last year at our request, the pope instructed all departments in the Vatican to ensure all correspondence from victims/survivors receives a response. I learned in a letter from this particular dicastery last month that they are refusing to do so.

Suit Over Priest's Breach of Confessional Secrecy Is Dismissed

In Sonnier v. Roman Catholic Diocese of Lafayette, 2017 U.S. Dist. LEXIS 26498 (WD LA, Feb. 23, 2017), a Louisiana federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 27235, Jan. 18. 2017) and dismissed an action alleging invasion of privacy and defamation brought by a member of a Catholic church who claimed that a priest violated his 1st Amendment rights by disclosing plaintiff's use of the confessional to communicate with individuals involved in a civil litigation matter. The court concluded that the 1st Amendment does not apply because no state actor was involved in the conduct.  The court went on to hold that in addition:

Plaintiff's claims fall within the scope of internal religious affairs as they are predicated on: (1) the breach of the sacramental seal of confession, as defined by the Roman Catholic Church; and (2) Bishop Jarrell's failure to remedy the breach in accordance with church doctrine. In order to discern whether Plaintiff has asserted meritorious claims against Defendants, the Court would have to interpret church doctrine relating to the sacrament of confession and otherwise encroach upon the internal affairs of the Roman Catholic Church. Application of long-standing First Amendment jurisprudence, therefore, mandates that this Court refrain from considering Plaintiff's claims.

Catholic Fringe Group Pushes Right-Wing Agenda

Yesterday's Detroit Free Press carries a lengthy feature article on the Ferndale, Michigan-based organization "Church Militant" which the report describes as:

a growing, Catholic fringe group hoping the forces that elected President Donald Trump will tear down the wall between church and state.

The report continues:

Church Militant broadcasts pro-life, anti-gay, anti-feminist, Islam-fearing, human-caused-climate-change-denying orthodox Catholic news on its website churchmiltant.com and through social media using high-tech, professional production studios that rival those at local TV news stations. It has 35 full-time employees (and is hiring more) who publish about 10 stories and three videos every weekday.

Its leader, Michael Voris, has compared Trump with Constantine, the Roman emperor whom he says was "not a moral man" but a "power-hungry egomaniac," but who saw it desirable to end the persecution of Christians. He was a human vessel who elevated Catholicism to the state religion, Voris said.

Priest Sues Diocese Claiming Retaliation For Cooperating With Law Enforcement

AP reported yesterday that a Catholic priest in Palm Beach County, Florida has sued his former diocese alleging that he was driven out of his position in retaliation for his contacting law enforcement authorities to report another priest who had shown sexually explicit photos of young boys to a 14-year old boy. Plaintiff Rev. John Gallagher, who had become head priest of Holy Name of Jesus parish, says that after he wrote Church officials accusing Palm Beach Diocese officials of trying to cover up the case, Bishop Gerald Barbarito drove him out by turning the Spanish-speaking portion of the parish against him. Barbarito also had diocese priests read a statement at all Masses saying that Gallagher was spreading falsehoods.

Claim For Interference With Inheritance Lies Against Legion of Christ

In Americans United For Life v. Legion of Christ of North America, Inc., (RI Super., Jan. 4, 2017), a Rhode Island trial court held that a claim of tortious interference with expectation of inheritance is cognizable under Rhode Island law.  At issue is a claim by an anti-abortion organization that Legion of Christ through fraud and undue influence induced Gabrielle Mee, a devout Catholic, to change her will to divert to Legion of Christ the 10% of her estate (equaling as much as $6 million) originally left to the pro-life group.  Her will already left 90% to Legion of Christ, and plaintiffs claim that had Ms. Mee learned of the charges of sexual abuse that surfaced as to Father Marcial Maciel Delgollado, the founder and former leader of Legion of Christ, she might well have completely cut them out of her will.  While allowing the tortious interference claim to move ahead, the court dismissed separate claims based on fraud and undue influence. AP reports on the decision. (See prior related posting.)

Catholic Hospital Sued Over Refusal Of Sex Reassignment Surgery

Lambda Legal announced yesterday that it has filed a lawsuit in New Jersey federal district court against a Catholic hospital that refused, on religious grounds, to allow a surgeon to perform a hysterectomy on a transgender man as part of his gender reassignment.  The complaint (full text) in Conforti v. St. Joseph's Healthcare System, (D NJ, file 1/5/2017), contends that the refusal discriminates on the basis of sex and gender identity in violation of the New Jersey Law Against Discrimination, and that it constitutes discrimination on the basis of sex in violation of Sec. 1557 of the Affordable Care Act.  According to AP, the hospital says it makes decisions in conformance with ethical and religious guidelines of the U.S. Conference of Catholic Bishops.

Another Challenge Filed To HHS Rule on Transgender and Pregnancy Termination Discrimination

Another lawsuit has been filed challenging the Department of Health and Human Services rules that bar discrimination on the basis of gender identity or termination of pregnancy in the delivery of medical services by, among others, health facilities receiving federal financial assistance. Plaintiffs in this suit are Catholic organizations, including the entity that administers self-funded health plans for Catholic employers. The complaint (full text) in Catholic Benefits Association v. Burwell, (D ND, filed 12/28/2016) alleges that the rule requires plaintiffs to act in contravention of Catholic teachings:

HHS has taken a little-remarked-upon section of the ACA that prohibits discrimination “on the basis of sex” and turned it into a mandate that coerces Catholic hospitals and other healthcare providers into performing, supporting, and even covering gender transition procedures, and coerces other Catholic employers, even Catholic dioceses, into covering them. The 1557 Rule also prevents Catholic entities from discriminating on the basis of “termination of pregnancy,” a phrase that likely creates an abortion mandate.

Catholic Review reports on the lawsuit.

Last month, a similar challenge was filed in the same North Dakota federal district court by different plaintiffs. (See prior posting). Last week a Texas federal district court issued a nation-wide preliminary injunction against enforcement of the rules being challenged. (See prior posting).

Catholic Health Educator Files EEOC Complaint

A First Liberty Institute press release announced the filing on Dec. 21 of an EEOC complaint (full text) on behalf of Alexia Palma, a health educator at Legacy Community Health, a Texas clinic for low income patients.  The complaint charges refusal by new management to continue to accommodate Palma's Catholic religious beliefs. New management refused to allow her, in the family planning class she sometimes taught, to show a video giving information on contraceptive methods instead of personally teaching the material.  She was told she must put aside her religious beliefs. Washington Post reports on the case.

Pope Francis Extends Priests' Authority To Forgive Abortion

As reported by Vatican Radio, Pope Francis yesterday issued an apostolic letter, Misericordia et Misera  (“Mercy and Misery”), which extends a number of initiatives begun in the just-ended Jubilee Year of Mercy.  One portion of the Pope's letter may color legal and political debate in the United States:

... [L]est any obstacle arise between the request for reconciliation and God’s forgiveness, I henceforth grant to all priests, in virtue of their ministry, the faculty to absolve those who have committed the sin of procured abortion. The provision I had made in this regard, limited to the duration of the Extraordinary Holy Year, is hereby extended, notwithstanding anything to the contrary. I wish to restate as firmly as I can that abortion is a grave sin, since it puts an end to an innocent life. In the same way, however, I can and must state that there is no sin that God’s mercy cannot reach and wipe away when it finds a repentant heart seeking to be reconciled with the Father. May every priest, therefore, be a guide, support and comfort to penitents on this journey of special reconciliation.

The Washington Post reports that in a press conference a Holy See official, Monsignor Rino Fisichella, said that the pronouncement covers doctors, nurses and others involved in an abortion, as well as the woman obtaining the procedure.

In a separate matter, the Pope's apostolic letter also validated continued hearing of confessions by priests of the controversial right-wing Society of St Pius X. (See prior related posting.)

Spanish Judge Clears Artist Who Used Stolen Consecrated Hosts

In Madrid, Spain, a trial court judge this week dismissed a suit which charges artist Abel Azcona with offending religious sentiments in violation of Spanish Penal Code Sec. 525.  The section prohibits publicly disparaging the dogmas, beliefs, rites or ceremonies of members of a religious confession. As reported by CNA:

Azcona stole more than 240 consecrated hosts from Masses celebrated in the cities of Madrid and Pamplona. He later took nude photos of himself arranging them on a floor to spell the word ‘pederasty.’ In November 2015, he displayed the photos as part of an art display in a city-owned exhibition hall available for public use. When that exposition was over, the would-be artist sold the consecrated hosts for more than $268,000....

The judge claimed Azcona made use of the hosts "discreetly, without his conduct being able to be characterized as disrespectful, offensive or irreverent." The exhibition of the artwork "does not constitute derision of the beliefs, rites or ceremonies of the Catholic Church nor is it an affront to those who profess or practice said beliefs," according to the judge.

 The Spanish Association of Christian Lawyers which filed the suit (see prior posting) says it will file an appeal.