Boston Archdiocese Asks for Dismissal of All Suits

By ADAM LIPTAK - December 24, 2002

The Roman Catholic Archdiocese of Boston asked a judge yesterday to dismiss all the sexual abuse lawsuits against it on religious freedom grounds.

The First Amendment, the archdiocese said, does not permit courts to tell churches how to conduct their internal affairs, including the questions of where to assign priests and how to discipline them.

Bishop Richard G. Lennon, the archdiocese's interim leader, said the motion to dismiss the suits, which number more than 400, did not indicate a change in his commitment to trying to settle them. Rather, he said, the move was driven by the archdiocese's insurers and by a motion-filing deadline set by Judge Constance M. Sweeney of Suffolk Superior Court, who is hearing the cases.

Bishop Lennon also renewed his request that lawyers for the plaintiffs agree to a moratorium on further court proceedings and on the exchange of information between the parties. That, he said in proposing such a moratorium last week, would enable the two sides to concentrate on reaching a settlement.

Legal experts said that the First Amendment approach had little chance of success but that the archdiocese might well have jeopardized its insurance coverage had it failed to pursue any available arguments.

Jeffrey A. Newman, a lawyer for plaintiffs who say they were victims of the Rev. Paul R. Shanley, expressed appreciation for the explanation of the filing, and largely accepted the archdiocese's reasoning.

"The concern existed on the part of the archdiocese," Mr. Newman said, "that filing the motion would inflame an almost dangerously incendiary atmosphere by suggesting it was not serious in trying to resolve these claims."

But Mr. Newman was unimpressed by the argument that the First Amendment bars suits based on accusations of sexual abuse and cover-ups. "They don't make sense," he said of the First Amendment defenses, "to the extent you're talking about actions as opposed to beliefs."

Mitchell Garabedian, who represents other plaintiffs, concurred. "Child molestation qualifies as conduct that disturbs the public order and thus is not entitled to constitutional protection," he said.

Nor was either lawyer inclined to agree to a litigation moratorium, though Mr. Newman said that if the archdiocese's insurers were to make a significant offer, the pace of the litigation might slow.

Legal experts said First Amendment defenses like those in the new motion had met with some success in earlier cases. But the defenses have little hope, they said, in the current charged atmosphere.

"All of these claims do have a First Amendment implication about how churches select, train and supervise clergy," said Douglas J. Laycock, a law professor at the University of Texas who is an expert in the law of religious liberty. "The churches have won a few, but they have lost a lot more. It's not that they are clearly wrong arguments, but they have had declining success over the years. And the courts may not be immune to the incredible publicity of the last year, either."

Arguments about religious freedom, he said, are more likely to be accepted when the asserted abuses were isolated and supervisors acted on limited information.

A number of courts around the country have held the church immune from suit for the negligent hiring and supervision of priests who engage in sexual abuse. In 1997, for instance, the Wisconsin Supreme Court rejected a claim that the church had negligently supervised a hospital chaplain who was accused of sexually assaulting a woman. The court said it could not decide the case without interpreting ecclesiastical law, particularly the vow of celibacy. That, it held, would "excessively entangle the court in religious affairs, contrary to the First Amendment."

The majority of courts, though, have taken the opposite view. In March, the Florida Supreme Court held that "the First Amendment does not provide a shield behind which a church" may hide when accusations of sexual abuse are made.

In Massachusetts, the courts have tried to distinguish between matters of doctrine and harmful conduct. "The First Amendment prohibits civil courts from intervening in disputes concerning religious doctrine, discipline, faith or internal organization," the state's highest court held in 1985. In various cases since, courts have sidestepped disputes about hiring and firing clergymen and how churches govern themselves.

But they have not hesitated to decide suits concerning discrimination by churches acting as landlords and about the use of drugs in religious ceremonies. And they have shown special solicitude for claims concerning the health and safety of children.

In 1999, in a decision in a case against John J. Geoghan, the former priest whose case ignited the sexual abuse crisis, Judge James F. McHugh rejected most of the First Amendment arguments made anew yesterday. "The delicate balance between the freedom to exercise religion and the demands placed on all persons, clergy and others, to refrain from conduct with harmful potential to others," Judge McHugh wrote, "requires the courts to avoid sweeping, categorical decisions."

But he denied the motion, and legal experts say there is little reason to think other judges will do otherwise.