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Can the Pope be compelled to testify? What the Supreme Court did—and did not—say

By Phil Lawler (bio - articles - email) | Jun 29, 2010

Despite the impression created by dozens of headline stories, the US Supreme Court did not issue a decision against the Vatican yesterday, nor have sex-abuse victims won the right to take testimony from the Pope.

In fact, the Supreme Court did not issue any decision at all. The justices decided not to decide.

Every year thousands of legal decisions are appealed to the Supreme Court. The nation’s top court can handle only a fraction of those cases. The justices choose the issues that seem most pressing from a constitutional point of view, and leave the lower courts to sort out the remaining cases.

On Monday, the court announced that it would not hear the Vatican’s appeal of an Oregon court’s ruling that allowed the Holy See to be listed as a defendant in a sex-abuse lawsuit. The suit, originally filed in 2002, now goes back to the Oregon court for arguments.

By declining to hear the case, the Supreme Court did deal a minor legal setback to the Vatican, which had sought to have the case summarily dismissed. But the Oregon court’s ruling—which the Supreme Court let stand—only gives plaintiff the opportunity to argue that the Pope and the Vatican can be included as defendants. That argument is far from resolved.

In their effort to include the Pope as a defendant, the plaintiff faces an uphill struggle. The Foreign Sovereign Immunity Act protects the Holy See from liability unless the plaintiff can demonstrate that the priest who abused him was acting as an employee of the Vatican. By any of the normal legal standards—who signed his paycheck, who was his direct supervisor, who gave his assignments—the priest was working for the diocese, not the Vatican. Any effort to draw a connection between diocesan policies and Vatican directives would run into a further obstacle: the historical (and very prudent) reluctance of the American courts to become involved in the internal affairs of a religious body.

Even if an American court did give plaintiffs the right to take testimony from the Pope, the Pope would not be bound by that ruling. The Pope is not subject to American law-- nor to any other system of civil law. He is sovereign; in Vatican City he is the law.

Bottom line: If an American plaintiff takes testimony from the Pope, it will be because the Pope chose to give testimony—not because a court compelled it.

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