Separation of Church and State Jeopardized
Michael P.
Orsi, Research Fellow in Law at Religion
Ave Maria
School of Law
The
gross negligence of some Catholic bishops in failing to protect the
young from predator clergy has jeopardized the long-held tradition of
separation of church and state in the United States. A recent
settlement with the Diocese of Manchester, New Hampshire is a case in
point. The state agreed to drop criminal charges against the Church, in
return for which the diocese must submit to an annual audit for 5 years
of its personnel records by the attorney general’s office to make sure
it is complying with the guidelines established to protect children from
abusive priests.
New
Hampshire intended to bring criminal negligence charges against the
diocese under misdemeanor provisions of its child endangerment law. In
accepting the agreement, the diocese acknowledged the collective guilt
of the institution in its “duty of care” and de facto admitted
its criminal negligence. This arrangement has effectively made the
state an overseer of the church, and the once jealously guarded
principle of self-governance accorded to hierarchically structured
churches has been compromised.
Although statutes differ from state to state, an ambitious district
attorney will now be encouraged to pursue any legal avenue to establish
even tangentially evidence of intent to cover up crimes (Note: the “duty
of care” statute in New Hampshire had never before been applied to an
institution). Because of public pressure, impaneled grand juries may
very well find cause for prosecution. Also, politicians anxious for the
votes of their angry constituents – and perhaps even one who is an enemy
of religion – may move for legislation similar to New Hampshire’s,
thereby forcing similar arrangements in their own jurisdictions. This
leaves the door open for prosecution under the Racketeer Influenced and
Corrupt Organizations Act (RICO), which on occasion has been used to
prosecute wayward corporations. Finally, with the exchange of clergy
who were either alleged or known pedophiles across state lines, a
federal case can be made for conspiracy on the part of the American
bishops who knowingly endangered the welfare of minors.
Government surveillance of Church files comes precariously close to
excessive entanglement and a breach of the Establishment Clause.
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