Supreme Court confronts abuse by priests: Law shift on clergy abuse?
High court to hear oral arguments
By Pat Schneider
April 11, 2005It is the consummate irony, says Peter Isely, Changed landscape: The District 1 Court of Appeals in July upheld a trial court's dismissal of Doe's lawsuit, both citing and raising questions about the Supreme Court decisions that had shaped the law for clergy abuse claims in Wisconsin courts.
In a 1995 Milwaukee case and a 1997 Dane County case, the high court found that negligent supervision claims against a religious body were barred in Wisconsin by First Amendment prohibitions on state interference with religious groups.
In a 1997 Milwaukee County Case, the Supreme Court determined that the statute of limitations runs from the moment a plaintiff suffers an intentional assault, even if the victim was a child at the time. The only exception is in cases of incest.
Appellate Court Judge Ralph Adam Fine wrote of those rulings: "Although we may disagree with these sentiments and question whether they are consistent with First Amendment jurisprudence, they are binding on us."
Late last year, state Supreme Court justices agreed to hear the case.
The landscape around clergy sex abuse has changed drastically since the court's earlier decisions. For example, between January and April of 2002, the year Doe filed his lawsuit, 176 priests were removed from their positions in the United States and bishops resigned in the U.S., Poland and Ireland, as Doe points out in his brief.
That May, former Milwaukee Archbishop Rembert Weakland hastened his retirement amid allegations of hush money paid to a former student accusing him of sexual misconduct. Despite the Catholic Church's adoption of a zero-tolerance policy on sexual abuse, ramifications of the scandal continue.
A church survey released in February reported that more than 1,000 new allegations nationally of past priest sexual abuse of children were lodged in 2004.
"Doubt," a play about priest sex abuse, won the Pulitzer Prize last week.
Victim activists are charging that a muted response to the abuse scandal has tarnished the legacy of the late Pope John Paul II.
Wisconsin courts' shielding of religious groups is "like the last county in Mississippi trying to hang on" to Jim Crow laws discriminating against blacks, Isely said.
Supreme Court justices don't ordinarily acknowledge being swayed by societal developments outside the law.
But Marci A. Hamilton, a professor at Benjamin Cardozo School of Law, says the explosion of revelations about priest sex abuse shows that churches can't be relied upon to police themselves.
"We learned the hard way," said Hamilton, who will argue Doe's case to the court Tuesday.
Hamilton said the earlier cases "are so far out of line with U.S. Supreme Court jurisprudence that they need to be rethought."
U.S. Supreme Court justices refused to hear an appeal of the 1995 Wisconsin case exempting church personnel practices from court review, but last year that court, without comment, allowed the California lawsuit involving Widera to proceed against the Archdiocese of Milwaukee.
Donald Downs, a professor of political science and law at UW-Madison, said courts need to find a balance between religious freedom and a civil tort system to protect people who have been violated.
Some functions of a church may legitimately be held beyond the reach of the court. "There may be some aspect of evidence gathering that is not allowed in a lawsuit against a church," he said.
"You could argue that favoring religious over non-religious groups poses a constitutional issue," Downs said.
First Amendment?: John Rothstein of Quarles and Brady in Milwaukee, one of the attorneys representing the archdiocese, said the case should be decided on the statute of limitation issues on which the trial court ruled.
The Supreme Court "does not address First Amendment issues if a case can be decided on other grounds," Rothstein said.
The Court of Appeals, however, took on the constitutional issues of the case, even though the appellants themselves did not raise them.
And state Supreme Court justices have been arguing for a decade among themselves on whether constitutional issues are involved in the clergy sexual misconduct cases.
Shirley Abrahamson, now chief justice, joined a dissent in the 1995 case establishing immunity for churches, saying the majority erred in interjecting the First Amendment issues into the case.
Abrahamson joined Justice Ann Walsh Bradley in a dissent to a 1997 case that again criticized the majority for reaching the First Amendment issue.
Bradley in that decision asked: "Why should a diocesan decision to let a known pedophile work unsupervised with children enjoy ecclesiastical protection?... No secular entity enjoys such a broad immunity from tort liability."
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