WHY CARDINAL BERNARD LAW'S RESIGNATION IS A BRIEF, BUT SHINING MOMENT FOR THE LAW, AND HOW IT MAY FIT INTO THE LARGER CHURCH SCANDAL

By MARCI HAMILTON


hamilton02@aol.com
----
Thursday, Dec. 19, 2002

Is it not poetic justice that fallen Cardinal Bernard Law bears the surname of that which took him down? In the end, it was the wedge of the law that finally separated Bernard Law from his entrenched throne among the power elite.

Don't get me wrong. Cardinal Law was doomed by his own evil decisions to comfort pedophiles while ignoring suffering children and recklessly endangering others. But in the end, it was the web of the law that caught him. This latest chapter in the ongoing scandal shows that, thankfully, when the law is enforced, it is more powerful than the powerful themselves.

How the Law Rightly Forced Cardinal Law Out

In this case, the law that worked was the civil law, which permits victims to sue members of the clergy for abuse. While the criminal law may yet be effectively invoked, it was the civil law that led the way.

The civil law--handled by a particularly brave and principled judge--was the tool that forced the hideous record in Boston into the public square. The first revelations in the record showed that not only did Law fail to comfort or assist the victims, but rather he comforted and complimented the perpetrators. The more recent revelations show Law and the Church anticipating future victims, when they themselves held all the keys to stopping the abuse. It was, in turn, that shameful record that forced Bernard Law out.

It is also the civil law that has forced the Church to publicly consider whether it values its buildings and holdings more than compensating its victims. And civil law disclosures may lead to criminal law consequences: It was the civil litigations that embarrassed the prosecutors into investigating - forcing into the public square the once unthinkable question whether the Church and its leaders are criminals.

Once unleashed, the law's logic was inescapable, and it inevitably led to Cardinal Law's downfall. It is a shining moment for the law. Victims had suffered under the weighty authority of a longstanding Church. Prosecutors had not helped them, nor had leading politicians - for they were sycophants to the Church. Only the law could help these victims in the end - and it has.

Cardinal Law's Long-Overdue Resignation Is Hardly The End of the Story

But it is a brief moment in the sun for the law. Some of the news accounts of Bernard Law's resignation have made it sound as though this were the end of the story for the Church, a catharsis. That's not really the case.

This is not even the end of the story for Law himself. He must now face, quite rightly, the potential of criminal charges in Massachusetts - assuming he is not spirited away to the Vatican to avoid them. And both the Boston Church's and other churches' scandals continue.

Yet despite the fact that this saga is very far from over, there is a danger that church members eager to put the scandal to rest may treat this as closure. Moreover, there is also a more potent danger that since this juiciest of stories in Boston is now apparently winding down, the press will treat the many litigations continuing across the country as backburner affairs.

One commentator ends a New York Times story on Law's resignation with a remark that "[t]he Snidely Whiplash of the drama has just exited stage right." The press needs to remember that, here, there appears to be more than one Snidely.

Cardinal Law Is Hardly the Sole Culprit Here

Law is likely to be the first among a number of clerics who are deposed due to this scandal, for he is hardly a solitary scapegoat. After all, Law himself did not work alone. Nor did others in power throughout the country; indeed clerics typically shuffled pedophiles back and forth among themselves, suggesting that in many cases, more than one supervising priest turned a blind eye to abuse. And of course, there are the abusing priests themselves to be brought to justice.

Unfortunately, there is no guarantee that the legal pressure that forced Law out will do the same for many others just as deserving. But Law's resignation, at least, sets a strong precedent for those who seek to oust others who have done wrong.

Moreover, it will take tremendous courage for the prosecutors with the evidence to pursue criminal charges against the church leaders and even the Church itself. That's a terrible shame, for the prosecutors would avidly pursue harsh charges against any ordinary citizen on the same facts.

After all, the facts that have come out in the scandal so far suggest that priests abused and raped children, and that supervisors aided and abetted that abuse, recklessly endangered children, and even conspired to allow harm to children to occur. Short of outright murder, it is hard to imagine more terrible and serious crimes. And even though many of the survivors are adults, they were children when the abuse occurred.

In any other situation, the state would have gone after the abusers- and those who covered-up the abuse as well - long ago. Now, even when the cover-up has been discovered, prosecutorial authorities still seem to hesitate, perhaps waiting for civil suits to do their work for them, as they continue to factor in the political power of the Church into their own political futures.

The Church Scandal Is Only Part of a Larger Church/State Relations Issue

This shining moment for the law is brief not only because there are many Church scandal cases and challenges still to come, but because the play of power marches on.

The irresistible attraction between religious organizations and the government is the very reason that the separation of church and state requires a constitutional edict. Yet today, church and state remain improperly close, with churches lobbying for special treatment in numerous areas, usually behind closed legislative doors.

So while the law may have triumphed in forcing Cardinal Law to step down, that is not enough: It must also tackle the harder problem of shaking church/state relations out of the still-cozy proximity that fosters corruption and creates victims.

To me, it was nauseating to watch the Catholic Conference lobby for the Pennsylvania Religious Freedom Protection Act, signed by Governor Mark Schweiker last week. The lobby had already sought, and lost on, a special Church exemption from child day care licensing oversight. And a punitive damages clergy abuse case was pending on review in Altoona, Pennsylvania.

The Church was in trouble; it knew it; and so rather than facing up to its fate before the law, it simply lobbied for special treatment instead. And even in this era when it is patently clear the Church will pursue any advantage for itself, members of the Pennsylvania legislature found it impossible to say "no" to the Catholic Conference, or even to ask the Conference to own up in public, through hearings, to its agenda.

A pragmatist must question how long prosecutors and their political bosses will be willing to take on the Church. Accordingly, any attempts at long-term reform must address the reality that the church/state connection is currently too close for comfort.

Could Cardinal Law's Resignation Create an Advantage for the Church?

Even if Cardinal Law's resignation is only a brief shining moment, the law deserves to be celebrated - for its vindication of what is right, and for its ability to identify that which is bad. For one moment, that distinction, which is so often hard to locate in this complex thing called life, has been black and white: What Cardinal Law did was wrong; the civil law says so; and the criminal law may be soon to follow.

Sadly, it will not take long for those on the side of the church to turn the black and white back to gray. For instance, law Professor Patrick Schiltz, who has represented many churches in clergy abuse cases, sees an advantage for the Church in Law's resignation.

Schiltz was quoted in the New York Times as saying, "It's going to get harder and harder for plaintiffs to say this is not only about the money. . . . Cardinal Law is gone now. The abusive priests themselves are either dead or out of the ministry now. The secrets are all out now. If the plaintiffs persist, it becomes clearer and clearer that this is only about money."

That's unfair to the plaintiffs - many of whom want to expose not only Cardinal Law, but other priests, through civil discovery; and many of whom are seeking compensation not as some kind of windfall, but for terrible psychological trauma and lost job time suffered. There are many seeking that indefinable goal of the law: justice.

Schiltz's comment is also a call for those fighting for the victims to return to the trenches - suggesting this one brief, shining moment, when Bernard Law's resignation was the highest vindication of the law, may already have passed.


Marci Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns, including those on the Catholic Church clergy abuse scandal, can be found on this site. Her email is hamilton02@aol.com.

FindLaw Career Center


      Post a Job  |  View More Jobs

    View More