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Thursday, Feb. 14, 2002

In a recent speech, President Bush declared that his "dream for the country is that we usher in a culture that says 'Each of us are responsible for the decisions we make in life.'" Hear, hear.

This was the frequent refrain, as well, of religious leaders at the time of the framing of the Constitution. Many of these leaders urged their followers to be accountable for their actions and to follow the civil law for the "good of the whole." The time has come now for religious organizations to shoulder responsibility when their actions affect the public good.

Over the past year, the Boston Catholic diocese has struggled with a clergy child abuse scandal of huge proportions. One priest alone is on consecutive trials and subject to civil litigation for abusing over 100 children. When the diocese was pressed on whether there were others, it resisted disclosure until the hot light of public scrutiny finally forced it to report dozens of priests to local authorities for suspicion of child abuse. It turns out that the top leadership simply shifted abusing priests from post to post rather than reporting them to the authorities, or helping the children abused, or defrocking the errant priests. Would that Boston were the only diocese and that the Catholic Church were the only religious body to attempt to cover up child abuse by clergy. That is not so.

As the Boston diocese's child abuse scandal makes abundantly clear, the time has come to hold religious organizations accountable for their influence in the political sphere, and their actions contrary to the public's interest. These are some of the most powerful organizations in this country and, as such, they should be held to a high standard of conduct in the interest of the good of the whole.

Three tacks need to be taken to increase the accountability of churches to the public good that was envisioned by our religious leaders at the founding. First, churches should be held financially liable - under both the criminal and civil laws - whenever a member of their clergy commits child abuse, or abuse of a disabled adult, and the church learns about it and does nothing.

Second, just as they have been educated to deal with rape claims, law enforcement officials should be educated to deal with claims of child abuse perpetrated by clergy members, and they should be free to investigate them as they would any other claim of abuse.

Third, we should repeal the law that muzzles churches' choices in political contests, and therefore keeps the public in the dark on the alliances between religious organizations and political figures.

Holding Churches Liable For Abuse

Fearing for their coffers in cases of abuse by the clergy, churches in Colorado (in a movement spearheaded by the Catholic and Presbyterian) joined together to lobby for legislation that would immunize churches from suits of this nature that have been brought against them in recent years, as I discussed in an earlier column. This legislation was a blatant attempt by the churches to shirk fundamental responsibilities not just to their flock but also to the public at large.

Colorado had the good sense not to pass the legislation. One can only hope that the Boston debacle will lead states to stiffen - not relax or diminish - the churches' liability in such cases.

The sad truth is that the Boston diocese does not stand alone in its covering up of clergy abuse. Moreover, had the diocese's finances been at risk, a different result may well have occurred; rather than a coverup, an exposure of the abuse might have followed, so that the church would have no responsibility, and thus no liability.

Liability should be imposed in any situation in which the church learns of abuse by clergy, and does not immediately both remove the clergy member from his position and report the abuse to the authorities. There should also be a lengthy statute of limitations - or one that is subject to liberal tolling - so that those traumatized as children are not penalized because the church successfully prevails on them to remain silent.

One might object that churches need their funds to continue doing their good works. But when the church has knowingly let children suffer, it has lost its claim to the moral high ground until it has recompensed those whom it had a hand in harming. Society has a right, in that circumstance, to place those harmed in the forefront of the church's mission sights.

Law Enforcement Officials Should Be Free to Investigate Clergy Abuse Claims

Meanwhile, not only do churches sometimes pressure victims to keep silent, they also sometimes pressure law enforcement to keep reports of abuse quiet, too. In a double whammy, churches both stonewall law enforcement, refusing to cooperate and provide important information, and exert political pressure to exact silence.

This double whammy must end. Law enforcement officials should be free to investigate clergy child abuse claims as they would any other child abuse claims. Similarly, a claim of clergy child abuse should be no less publicized than one of, for example, day care child abuse. Moreover, law enforcement officials should be educated, as they are with rape claims, to carefully interview children and their parents who claim abuse, to do so in a sensitive manner, and to thoroughly and evenhandedly investigate such claims.

Getting Rid of the IRS's "Muzzle" Rule So Church Positions Can Be Tracked

There is an IRS rule that prohibits religious organizations from endorsing particular political candidates, if they want to retain their nonprofit tax-exempt status. The benefit tax-exempt status bestows on churches is enormous, so the IRS likely sees the rule as a fair trade-off.

According to newspaper reports, however, conservative Christians are fighting the rule. They are right to oppose it, for it fails to serve its purpose of ending church advocacy, and instead has the damaging consequence of driving such advocacy underground.

The upshot of the current regime is that churches and religious organizations must hide from the public (and the IRS) their actual support for particular political candidates. In order to influence the political culture, they are limited to issuing "voter's guides." These "guides" list issues relevant to the church and explain how candidates line up on each issue, without explicitly backing any one candidate. Of course, the system is a joke, and the "guide" makes clear which candidate the church favors; it would be hard to find the voter who cannot connect the dots to figure it out. Moreover, the rule has never been enforced with any vigor, especially in minority churches, for whatever reason.

So let's end the farce. Congress should repeal the IRS rule that requires religious entities to be mum on their favorite candidates, and let them advocate as other organizations do. The result can only be good for society.

With religious organization's speech unfettered, the public at large (including those who do not attend the relevant churches and do not receive their "guides") will be able to identify with greater clarity which religious organizations are supporting which candidates. And conversely, the public will learn which candidates are inclined to provide special favors for which religious organizations. Both religious institutions and politicians will be more easily held accountable - a net win for the public.

Consider the wrongheaded law recently passed in California to address religious medical neglect cases. It abandons the traditional family law standard of the "best interests of the child" in such cases, and instead puts the courts in the untenable position of having to figure out when faith-healing works and when it does not. Churches are doubtless in some way behind this law, yet as long as the IRS rule is on the books, the public will be not be able to easily identify which members of their legislature likely greased the way for the law, and at the behest of which church.

The IRS rule needs to change, and the federal government needs to stop silencing churches. That is the only way churches' behind-the-scenes lobbying will be made public, so that both the legislators and lobbying churches can be held accountable.

These, then, are the three proposals that can together work to hold churches accountable: holding churches liable for clergy abuse; providing education and investigative power for law enforcement officers who deal with claims of such abuse; and repealing the IRS rule that keeps churches silent, and church lobbying secret.

These are ambitious reforms, to be sure, but they are also long overdue. Accountability is part of the social compact, and churches need to be reminded of their role in that compact.

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law, Benjamin N. Cardozo School of Law.

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