Supreme Court about priests as Vatican employees – sky not yet falling

My email inbox suggests to me that there is a lot of anxiety out there about recent news that the U.S. Supreme Court (SCOTUS) turned down an appeal by the Holy See against a lower court ruling that U.S. Catholic priests and religious are effectively employees of the Holy See. Twitter

The sky is not falling.

The Court’s action is related to a state of Oregon case which names the Holy See as a defendant in a case involving sexual abuse of minors dating back to the 60’s by a now-deceased priest of the Servite Order.

On the day after SCOTUS’s action was announced, Italian national newspapers reacted with blithering panic. Headlines screamed that the Supreme Court had ruled that priests were employees of the Vatican and that the Pope was therefore legally liable in sexual abuse cases.

SCOTUS did no such thing.

What actually happened is very complicated from a legal point of view, but I will try to break it down to a few essential points according to my understanding. 

I am not a lawyer and this is complicated stuff. 

I am happy to be corrected by any lawyers who get this.


  • SCOTUS simply refused to hear an appeal by the Holy See from a decision by the 9th Federal Appellate Circuit Court, which upheld a Federal District Court ruling in Oregon that, under provisions of the 1976 Foreign Sovereign Immunities Act (FSIA), employees of a foreign, sovereign state can be prosecuted for certain crimes (torts) that they commit in the U.S.
  • SCOTUS did not hand down any ruling on this question.  SCOTUS simply let stand the Appellate Court ruling. This is an important point. It means that (what the MMS in Italy and in the US are saying notwithstanding) SCOTUS did not rule that priests and Religious are Vatican employees.
  • The effect of the Federal Court rulings is to allow the case to go to trial in the Oregon state courts. Those state courts must still decide whether priests and Religious who work in the U.S. can be considered Holy See employees under the definition of employee in Oregon law. If the Oregon courts make this ruling, then lawyers for the plaintiffs will try to get the Oregon courts to hold the Holy See, the Pope, General Zod, the most Holy Trinity, liable for financial judgment in this case. That could open the door for similar legal actions against the Pope in other states.
  • But wait!  There’s more! If the Oregon court reaches this judgment, then lawyers for the Holy See can once again appeal the judgment all the way to the Oregon Supreme Court. They can also appeal the judgment back to the federal court system, this time arguing on the basis of testimony provided during the trial that the court’s judgment violates the provision of sovereign immunity under the 1976 FSIA. Subsequently, should the case reach SCOTUS, SCOTUS could decide to hear arguments from both sides and to render a decision. Only in then would we have a SCOTUS ruling on this question.



About Fr. John Zuhlsdorf

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  1. As clear as such things can be. Well done, Fr. Z. I’m not as panicked having read this.

    It strikes me that SCOTUS essentially said that it is too early in the lower court process to engage in the matter of who is and is not an employee of the Vatican. Once the lower courts decide one way or the other,(even if it is in the Vatican’s favor) then SCOTUS may at that time deem it appropriate to consider whether or not these lower courts accurately interpreted laws regarding sovereign immunity.

  2. JohnMa says:

    A few clarifications:

    The suit was filed in federal court, not state court. The district court’s option is reported at 434 F.Supp.2d 925 (D. Or. 2006). However, the outcome depends on state law not federal law. The district court will have to apply OR law, not federal, with respect to the question of employment.

    The 9th Circuit barred some claims but allowed others to proceed. It said claims against the Holy See for negligent retention and supervision of priest were barred but Holy See could be sued on respondeat superior theory for sexual abuse of parishioner committed by a priest.

    The US Government urged the Supreme Court to reverse the decision of the 9th Circuit without hearing the case but said that if the Court did not do that the Court should not hear the case. So, in sum the US Government did not want the case heard at the Supreme Court. This (probably) means that the US agrees with the Holy See but doesn’t think that the factual record below is good enough to allow for a decision at an interlocutor level.

  3. mdsmelser says:

    Ray Arroyo had an attorney on the World Over Live last night who basically made is sound like, “It’s all over, lawyers will be crawling all over the Vatican digging up dirt and deposing the Pope every other day.” It was a bit over the top in my opinion, concerning the way these things drag out. The case was started in 2002, I believe, and just now made it to SCOTUS. He was advocating that the Vatican needs to do change public opinion on this in the media, rather than staying so quiet, and letting the NYT and other Lib. Media frame the discussion. Public opinion will affect those state and federal judges future opinions, according to that lawyer (note: he was Bill Clinton’s lawyer in the mid 90’s).

  4. JohnMa says:

    That lawyer obviously doesn’t practice in employment law or in Oregon. Oregon has some very weird employment laws and is the reason this case is still going forward. You are correct, the first complaint was filed in 2002, with an amended complaint filed in 2004 and the Holy See being served in 2005. The trial court order came in June 2006. Just to be clear, the case will proceed in federal court using state law.

  5. MikeJ9919 says:

    One clarifying point, which JohnMa already suggested, but I think should be further explained. While the US has a federal system and state and federal law are separate, under certain conditions cases will be heard in federal court, but that court will apply state law. If that happens, the federal court is bound to interpret state law as they believe the state supreme court would interpret it. However, if there are federal questions (like interpretation of the Foreign Sovereign Immunities Act), the federal court is not bound by state interpretations of those questions.

    The federal appellate system (including the US Supreme Court) can reexamine the entire case. Since the case will not pass through the Oregon Supreme Court, which would provide a definitive answer on the state issue, it can even reexamine interpretation of state law (though it very rarely does so, leaving that to the expertise of local courts that are better informed on state law.) The federal appellate system will definitely reexamine the federal law issues.

    It is also important to realize that the US Supreme Court takes very, very few cases. Even where the justices may believe a case is wrongly decided, they usually wait until different circuit courts have come out different ways on the question so that they have a clear split in the law and arguments / court opinions on both sides of the issue to examine.

  6. Some of these comments are very helpful! Thanks!

  7. AnAmericanMother says:

    John, Mike,

    You’re absolutely on target in my opinion (I used to work for a federal district court).

    I don’t know what came over Bill Bennett. This case is still in the early stages, I’m sure discovery has been stayed while they hammer out the immunity and employee issues, other than limited discovery with respect to those issues only. I suppose a Rule 30 (b) (6) deposition (designated corporate representative for those of you who don’t speak lawyer) might be taken from whomever the direct employer of the offending priest was – the superior of his order? – but I can’t see any basis in fact for Bennett’s fantasy about hordes of lawyers roaming at will through the Vatican looking behind the curtains, turning out file drawers, and questioning officials under oath.

    Either he’s fishing for ratings or he just enjoys spreading panic.

  8. Henry Edwards says:

    I don’t know what came over [Bob] Bennett.

    Did you see him on EWTN? What does a lawyer trolling for a big-time client and high-profile case look like?

  9. tiro_j says:

    Father, your last point is an interesting one. If the Oregon court were to judge that priests and religious in the USA are Vatican employees, and if the Vatican were to successfully make a case for sovereign immunity, then that would imply that all priests and religious in the USA are agents of a foreign power. Cool.

  10. Jack Hughes says:

    If what Tiro_J said is true then IF I’m professed with and ordained for the Fathers of Mercy (as seems likely in the next couple of years) then I probebly wouldn’t be able to honestly take American Citizernship as it requires renouncing all alligences to foriegn powers (not that the British government cares I’d still be a Brit in their eyes).

    Perhaps we should start issuing Vatican Passports to all Catholics?

  11. JohnMa says:

    Jack, no worries. That is not the case. This would only apply to people in Oregon. But, I doubt it gets even that far.

  12. SimonDodd says:

    The court has said repeatedly that a denial of cert expresses no views on the merits. So in formal terms, this is not a decision but a decision not to decide. Nevertheless, granting cert and reversing the Sixth Circuit would have put an end to this case and similar cases, and so one could argue that in practical effect, the court’s failure to correct the Ninth Circuit may encourage future litigation, at very least in the sense of failing to take the opportunity to preclude them. This is so anywhere but the Sixth Circuit (which, IIRC, took a contrary view), but is particularly acute in the Ninth Circuit where the panel decision is the de facto law of that land until displaced.

  13. SimonDodd says:

    Erratum: my first reference above to the 6th cir should have read “Ninth Circuit.”

  14. Supertradmum says:

    Jack, Both the United Kingdom and the United States now recognize dual citizenship, even for those born abroad of mixed citizen parents. This is a relatively new development, but you could have dual citizenship, as some of our family members do and will regardless of birthplace. Usually residency is established first, then one moves toward citizenship.

    As to the case before, it has been clear to me that SCOTUS did not make a decision and that the Vatican has more time to prove that all clergy and religious are not employees of the Vatican. This has been established already in some courts of law, such as in the Diocese of Davenport, where part of the multi-million dollar abuse settlement involved defining the status of employment of those priests and brothers involved. The finding in that court was that those men were employees of the Diocese only.

  15. AnAmericanMother says:


    I’ll let you (and everybody else) in on a little secret.

    There’s a kind of lawyer who goes on the TV on purpose (as opposed to having reporters chasing him for comment on a big case he’s involved in). The general public may think he’s a big wheel and a famous lawyer, but he is almost always despised by the real lawyers, the ones who are respected and do the real work. Bill Bennett may have been a good lawyer back in the day (I don’t know), but once he went political and hit the TV circuit he went through a door and closed it behind him. He will probably never have a big case again.

    I might make a modified exception for some big name criminal defense lawyers, because they often hit the news as part of their defense strategy. But even then, the ones who overdo it and don’t represent their clients [ cough, cough . . . F. Lee Bailey . . . cough, cough ] are not well thought of.

    As I’ve said before, I’m an old rat in the barn, a courthouse lawyer for 30 years. I know who all the good lawyers here are — the really good ones, the ones you go to when something important is on the line and the stakes are high. You will NEVER see them on television (or if you do, it’s only when their kids are on the winning little league team or they make a big donation to a local school), and if I were to name them you wouldn’t recognize their names.

    I also know who the bad ones are, the publicity seekers. All decent lawyers cross the street to avoid them.

  16. AnAmericanMother says:

    Sorry, don’t know why I keep calling him Bill. Probably because of his brother (who seems to be a decent sort).

  17. Supertradmum says:

    Jack, I meant to state, those not born of mixed citizen parents, like yourself.

    More on the different states having different approaches may be found in this article

  18. Ismael says:

    @ AnAmericanMother

    A few key lawers where one of the main factor of the media attackes towards the Church.
    Those lawyers are trying to get pubblicity to fill their pockets.

    Sure pedophile priests and bishops who did not denounce them did something horrible (and deserve punishment) but these lawyers are equally horrible, trying to get rich (or richer) on the skin of the victims.

    I guess that for some lawyers the ‘lawyer jokes’ are a sad truth.

  19. Ismael says:

    @ Fr. Z

    As an Italian (although I am not living in Italy right now) I must let you know (if you do not know already) that a good portion of the Italian media is strongly anti-Catholic (the ‘La Repubblica’ is one of the worst, 2nd hand toilet paper…)

    I have no doubt that some Italian journalists after hearing the news blew it up to make it look like the Church was doom.

  20. AnAmericanMother says:


    Yep, those are the “ambulance chasers”. They set up a cottage industry of targeting a particular defendant or group of defendants (whether it’s automobile insurers or a church). At this point in time these guys are running out of credible plaintiffs, since the bulk of the abuse, horrible as it was, happened a long time ago. We’re going to be into ‘recovered memory’ and psychics in a very short time, if we aren’t there already, so they’re striking while the iron is hot.

    Unfortunately the publicity hounds give the rest of us a really, really bad name. The U.S. Supreme Court some 30 years ago held that bar rules aimed at reining in this sort of unprofessional behavior were unconstitutional – violative of free speech. Before that they were subject to discipline if they advertised, which included giving self-serving interviews to reporters.

    Some folks mistake license for liberty. And it embarrasses the heck out of the rest of us.

  21. Supertradmum says:


    One can use that newspaper when visiting the Catecombs’ toilets. I agree with you that some of the European papers and television are anti-Catholic, including the BBC, but the real problem are the mass media groups, of which there are five, which own most the rest of the West’s media: “in 2004, Bagdikian’s revised and expanded book, The New Media Monopoly, shows that only 5 huge corporations — Time Warner, Disney, Murdoch’s News Corporation, Bertelsmann of Germany, and Viacom (formerly CBS) — now control most of the media industry in the U.S. General Electric’s NBC is a close sixth.”

    These companies and their thousands of subsidiary stations and newspapers spread all the same prejudices against the Church and the Pope. I you trust Wikipedia, the article there addresses the “big four”. Freedom of the Press is long gone except for smaller, independent stations, like EWTN.

  22. Supertradmum says:

    “If you trust”-sorry, my son gave me a new computer yesterday and I am struggling with the over-active, too fancy touch-pad…

  23. boko fittleworth says:


  24. robtbrown says:

    There’s a kind of lawyer who goes on the TV on purpose (as opposed to having reporters chasing him for comment on a big case he’s involved in). The general public may think he’s a big wheel and a famous lawyer, but he is almost always despised by the real lawyers, the ones who are respected and do the real work. Bill Bennett may have been a good lawyer back in the day (I don’t know), but once he went political and hit the TV circuit he went through a door and closed it behind him. He will probably never have a big case again.
    Comment by AnAmericanMother

    Robert Bennett is in a high-powered DC law firm that has offices all over the world.

  25. Isn’t the person of Bob Bennett rather less interesting than the real topic here?

  26. moon1234 says:

    And if the Priests are considered employees of the Vatican then what? Do we really believe that the Vatican is going to PAY anyone anything? I sure wouldn’t. I would reply, “Your logic has failed you. No sums of money will be coming from the Vatican.”

    Sheesh. I would like to see them try this with Muslims. A few blew up several buildings in this country. How about Oregon sue Mecca claiming all Islamic leaders are empolyees. Ohh wait, those trying that would most likely wind up dead.

    This whole case seems insane. Why the courts would entertain it is beyond me. Whats next? Sure a country for the actions of citizens or elected leaders? This is essentially what is going on here.

  27. S. Murphy says:

    Moon1234, your analogy would be more like suing the Church over the IRA bombers. Turning every dispute with the NYT or the village atheist with a blog or whoever into a pissing contest with Muslims is uncharitable as well as pointless.

    I like your last point though – maybe the Vatican should sue N. Pelosi’s district for facilitating misrepresentations of the Church’s teaching?
    It IS insane. So is the ‘universal jurisdiction’ crap that some European courts have been claiming – issuing warrants for Donald Rumsfeld and so forth. (So is the idea that you incur liability by being a grown-up and shoveling snow off your sidewalk, but that’s a digression…)

    I’m glad to hear more of SCOTUS rationale for declining to hear the case, and more about what could happen next. I thought Bennett DID sound like the sky is falling – like he was wallowing in the worst-case scenario. What I was afraid of (being basically ignorant of legal affairs) is that our Catholic justices had basically recused themselves without admitting it. It will be interesting if the present court ever does have to rule on a case related to the Vatican.

  28. Andrew says:

    I am not a lawyer but I think I can attempt to think as one.
    Juridical entities such as corporations can be sued for some transgressions of their members, but corporate executives are never sued personally for corporate actions taken under their management, not even if the transgression was committed by one of their employees, and not even if the transgression was facilitated by poor management.
    So the idea that the Pope might be arrested, in this instance, is so farfetched that it hardly merits a serious consideration. Somebody (with juridical authority) would have to accuse the Pope of a specific crime committed by the Pope and no one else, in order to arrest him (quod Deus avertat).

    And I am not suggesting that the Church is a corporation, but I think people might think of it that way. The Church is a perfect society, perfectly suited for its end, which is leading its member to eternal life. But that’s a different question (perhaps not unrelated) altogether.

  29. Marg says:

    When there is a complaint about a priest, the usual course of action is to approach the Bishop of his diocese. So why are the lawyers abandoning their attack on the Bishops (where,IMO it belongs) and charging the Vatican/Pope? Are the Dioceses’ funds dried up and a bigger “fish” to be had?

  30. TrueLiturgy says:

    What does the Oregon Employment law actually say? I haven’t been able to find it. What clasifys as being an employee under it?

  31. S. Murphy says:

    Marq, yep, somebody wants the Pieta for his client’s back patio.

  32. I just checked the archive over at EWTN for the interview Raymond Arroyo had with Robert Bennett and the prior week’s show is still there. The holiday probably has it delayed.

    However, check back again tomorrow on this page for the interview which is first up following his short news segment (start about 12 minutes in for the segment). It will only be up until next Monday if they go by the usual schedule. Unfortunately, I do not see the World Over Live archived for past shows.

  33. ssoldie says:

    Why are we using the word ‘pedophile’ it’s ‘homosexual’.

  34. robtbrown says:


    Heads of corporations can be prosecuted for criminal activity. Easy examples are ENRON and WORLDCOM.

    In the Church in America the head of the corporation is the diocesan bishop, not the pope.

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