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Why the Massachusetts Supreme Judicial Court Was Right to Reject A First Amendment Defense To a Subpoena in a Clergy Abuse Case

Thursday, May. 20, 2004

On May 13, the Massachusetts Supreme Judicial Court (SJC) issued an important ruling in a clergy abuse case. It held that the First Amendment did not permit the Society of Jesus of New England ("the Society") to quash -- that is, resist the enforcement of -- a subpoena duces tecum. (A subpoena "duces tecum" directs the witness to appear and to bring documents along.)

Surprisingly, the Court split 4-3. The majority read the law correctly. In contrast, the dissents were perversely intent on protecting the Society for a kind of "religious liberty" neither the federal nor state constitution ever contemplated.

The framing generation believed in the liberty of conscience, and the right to worship -- they sought, that is, to protect known religious worship practices from an overbearing government. But there is precious little evidence they believed in protecting religious conduct of any kind. And they certainly did not intend to protect clergy members in criminal activity. Yet criminal activity is exactly what is alleged in cases like the one the SJC heard.

The Facts Of, and Issues In, the Case

The facts of this case are typical of those of the thousands of clergy abuse cases working their way through the courts. Recently, James F. Talbot, who taught at Boston College High School, was indicted for alleged sexual assaults of two former students, occurring in the 1970s. The case was slightly different in that the clergy member was not being indicted for childhood sexual abuse--because the two youths were no longer children under the law--but rather for sexual assault.

The Commonwealth issued a subpoena to the Society for all records related to Talbot. As is also typical in these cases, the religious order responded by providing a few documents and then a "privilege log." In the log, it listed relevant documents -- by date and sender and/or recipient - that it was withholding. And for each, it either claimed a defense under the First Amendment, or asserted a privilege -- for example, the priest-penitent privilege.

The SJC dealt with only 15 documents, and only with the First Amendment defenses. And it ruled just as it should have: the First Amendment provides no defense to a subpoena in a criminal investigation of a clergy member who allegedly sexually assaulted two boys.

The SJC Was Right to Hold the So-Called "Church Autonomy" Doctrine Inapplicable

The Society first claimed a right to "church autonomy" -- a right that, it claimed, protected all of its internal communications from subpoena. But the SJC quite rightly pointed out that the notion of church autonomy has only been applied in cases where the courts have been asked to arbitrate an internal church dispute -- for instance, who will be a clergy member, or what the church's doctrines mean.

In my view, moreover, such cases are not even properly called "church autonomy" cases. Rather, they reflect the Supreme Court's recognition of the absolute right to believe. Courts may not intervene in intrachurch disputes over matters of ecclesiology, because there is an absolute right to believe whatever one chooses. This right has been solidly established, literally beginning with the Court's first free exercise case, Reynolds v. United States, in 1879. The churches are not being accorded autonomy, but rather are being governed by the relevant legal standard. There is a big difference, in as much as the former characterization implies that churches are above the law, and the latter indicates they are members of a shared society.

It is true that, in a second category of cases, courts have also declined to decide internal church disputes between the church and its employees, and especially its clergy. Indeed, the Massachusetts Supreme Judicial Court applied such reasoning in a decision on May 19, holding that the court would not exercise subject matter jurisdiction over the purely ecclesiastical question whether a pastor was properly relieved of his ministry through the church's disciplinary process. (The court, however, declined to dismiss the pastor's defamation charges against a member of the church, because they were made outside the disciplinary process.) This is a doctrine on somewhat shakier ground -- one which the Supreme Court has not yet ruled. And in any event, it is not relevant in this case. This is a case about alleged abuse to parties outside the church's employ -- not a case about an alleged wrongful termination of a church employee.

Thus, as the court rightly found, the so-called "church autonomy doctrine" did not apply to these facts.

Like the "Church Autonomy" Claim, the Society's Other Arguments Were Weak

The Society's other First Amendment arguments were equally unconvincing. The Society suggested that enforcement of the subpoena would violate the state and federal constitutions' Free Exercise and Establishment Clauses. But that is simply incorrect

First, let's consider the U.S. Constitution's Free Exercise Clause, and the doctrine surrounding it. It is well established -- under, for example, the Supreme Court's decision in Employment Div. v. Smith -- that the application to religious entities of a neutral, generally applicable law, with no hint of discrimination, animus, or hostility does not violate the Clause. The laws authorizing subpoenas are neutral and generally applicable. So are the laws deeming child abuse a crime and a tort.

Second, let's look at the Massachusetts Free Exercise Clause. It required the SJC to analyze whether the state's interest was compelling. Unsurprisingly, the court held that the state has a compelling interest in the enforcement of laws addressing the sexual assault of children.

The Establishment Clause argument was easily dispensed with as well. The effect of the subpoena did not result in an unconstitutional inhibition of religion. The Society claimed the subpoena would chill the conversations between superiors and their priests, but even if the chill existed, the court noted, that did not "influence anyone's religious beliefs" -- and thus, there was no Establishment Clause violation.

Nor did the court find excessive entanglement between church and state here. To the contrary, it pointed out, the trial court could easily decide issues of "relevance, burdensomeness, and the applicability of asserted privileges without having to decide matters of religion or embroil itself in internal workings of the [S]ociety." This was decidedly not a case where the so-called "church autonomy" theory could apply.

In Such a Clear Case, Why Was the Decision So Closely Split?

The reasoning of the majority is so strong, that many have asked me, "How could this decision have been 4-3?"

The answer lies in the mischief of the Supreme Court's Free Exercise Clause jurisprudence between 1963 and 1990. A handful of decisions handed down during those years led an entire generation of law students (some of whom later became judges) to fundamentally misunderstand what religious liberty means. In those decisions, the Supreme Court introduced the indefensible, radically libertarian notion that generally applicable, neutral laws are presumptively unconstitutional when applied to religious entities.

The Court did not embrace this approach until 1963, and only did so, as I have noted, in a handful of decisions. Nevertheless, this viewpoint became the darling of the law schools (and, of course, the religious institutions).

In the vast majority of cases, the Court -- contrary to these decisions -- did apply the rule of law to religious entities' conduct, and left accommodation of religion to the legislative process. That was the right result -- and it is the approach most consistent with the ordered liberty contemplated by the Framers, and to be frank, common sense. It is also the approach the Court returned to when it decided the Employment Div. v. Smith case in 1988, and the approach to which it hews now.

The very existence of the few cases applying strict scrutiny between 1963-90, however, so persuaded academics and religious institutions and individuals that they had a right to avoid generally applicable, neutral laws, that when the Court decided Smith, it generated enormous criticism. That misplaced and misinformed criticism led the Massachusetts courts to embrace the presumptive unconstitutionality approach to free exercise cases under its own Constitution following Smith, and it was that criticism that led the dissent to embrace with such relish a rule that permits religious entities to be laws unto themselves.

A Foolish Belief That "Good Police Work" Obviates the Need for Document Discovery

The dissenters searched for the "least restrictive means" of regulating the Society, and therefore bought into the Society's argument that with "good police work," subpoena discovery from the Society itself would be unnecessary. But that's bunk.

Most likely, the relevant evidence existed only at the Society, and the vast majority of it was not protected by any other privilege, such as the priest-penitent privilege. Subpoenas for records in clergy abuse cases are extremely important, because typically the crime occurred with no witnesses, the victim was so deeply wounded that it took years to come forward, and the churches, as recent events have proven, have been slow to contact the authorities themselves, permitting evidence to become stale or unavailable. Other than a victim's testimony, there is little other than church documents that may be used to put a pedophile--who used his position in the church to prey on a child--in jail. The subpoena to the Society was therefore no frill and no tactic by a lazy police force; it was a necessity. The truth is that the dissent did not expect "good police work," but rather Herculean police work.

One of the dissenters, Justice Cordy, wrote that "[t]oday's environment has been poisoned by a sexual abuse scandal," as though yesterday was a pure era, but he started from the wrong premise. The poison is the abuse, not the scandal, and yesterday was no Shangri-la. It was yesterday when the abuse was occurring.

He went on, "Efforts underway both from within and without the church have begun to assess and remedy what went wrong," as though a solution was near. But that's a great overstatement -- in fact, the Church has been remarkably resistant to change, as I have noted in my series of columns for this site on the clergy abuse era. It would be nice to think that we could cease being vigilant with respect to children and clergy at some point, but that would perpetuate the irresponsibility that let them be abused for decades with no help from prosecutors, the media, or the courts.

That makes it all the more necessary for courts to permit prosecutors to use their subpoena power to bring clergy that have sexually abused and attacked young people to justice. Ironically, these subpoenas are among the few examples of a true "effort assess and remedy what went wrong." But the dissenters wanted to defeat even that effort.

From the false premise of effective Church self-policing, Justice Cordy also drew a false conclusion: "As a court, we must not allow the terrible circumstances of today [to] undermine the important principle of religious freedom for tomorrow."

Religious freedom simply isn't at issue here. The issue is whether society can perform a minimally competent investigation of an allegation of sexual assault at an institution that, though religious, must be subject to society's laws just as fully as any day care center or kindergarten classroom is. The issue is children.

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 on the Catholic Church's clergy abuse crisis can be found at this website. Her email address is

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