On June 29, the Supreme Court refused to examine the Holy See’s request to dismiss charges against the highest Vatican authorities as part of a lawsuit in Oregon (Holy See v. John Doe) over sexual abuse committed by a religious.

Writing on the Italian Catholic news site Chiesa, editor Sandro Magister notes:

As a result, the Supreme Court has left the judgment to a lower court, in this case the federal appeals court of Oregon. Theoretically, therefore, this court could approve the naming as defendants of Pope Benedict XVI, of his secretary of state Cardinal Tarcisio Bertone, of the prefect for the congregation of the faith Cardinal William Levada, and of the apostolic nuncio in the United States, Archbishop Pietro Sambi. This would become possible if the Oregon court were to establish that the religious who committed the abuse, who died in 1992, was an “employee of the Holy See.”

Chiesa then provides this commentary by Professor Pietro De Marco, who teaches at the University of Florence and at the Theological Faculty of Central Italy:

“Not only a priest, but even a bishop is not properly an “agent” of the Holy See, not to mention of the State of Vatican City (in parentheses, the confusion of these terms should be enough to invalidate both formal actions and journalistic considerations). The clergy does not represent it, nor does it ordinarily act on its impulse. The authority and guiding force of the Holy See, and of the pontiff in the last instance, over the local Churches, clergy, and faithful, is not that of a chain of command, of a military or business hierarchy. The see of Peter is a reality that inspires, guides, and sanctions, in well-circumscribed cases, with regard to the ultimate ends of the Church itself. It is important to remember that the original notion of “hierarchy,” which lasted until the nineteenth century in some languages like German, designates a sacred order or a religious body; while “hierarchy” as the command structure of any sort of apparatus is a linguistic innovation of the late eighteenth century. The Catholic hierarchy remains a body and a sacrament, not a corporate organizational chart; the position of every member of the Church is consistent with this order of sacred law.

“All of this is an expression of a universal historical reality that the legal scholarship of the twentieth century saw well: the Church is an original and unusual arrangement. The high legal doctrine that recognized and sanctioned this millennia-old reality on an international level is at the basis, for example, of the Lateran Pacts of 1929, which were later included in the Italian constitution. No external reality can, in fact, define what the Church is – who its members are, what relationship they have with the hierarchy – while ignoring the organization that the Church presents of itself. An external reality can only “recognize” this self-definition. So the American court has not ruled, and has not even considered, I believe, that “a priest can be held to be an employee of the Vatican,” as another authoritative newspaper has announced to us. And there is no one with the authority to decide that he is. It’s not that way in the organization of the Church, and that’s enough. To force the issue is unjustifiable presumption, or – among the lawyers and a few judges – a game of chance.

“So the “immunity” under international law of the government figures of the State of Vatican City is combined, under the substantial, legal-religious aspect, with the unique form of the Christian community, of the Church, in its installation and organization land by land, people by people, “unum et plura,” a single reality and at the same time many. The government and people of the Church are identifiable; its territory is the ecumene; everywhere it tends to overlap the territories and peoples governed by the political sovereign. It is not a state of the modern kind; on the contrary, institutionally it precedes and transcends it. It will continue to exist even when the modern state has been replaced by another political form.

“Nor is the Church a “corporation,” or an international organization. Commentators and jurists would do well to review the classical distinction between institution and organization. There are organizations in the Church, just as there are in the state. But it is not an organization, just as the state is not. Just as the family is an institution, and not an organization.

“This must be remembered, because the current legal attack on the Church of Rome has a sociological premise according to which the Church is an entity that is only empirically substantial (faithful, political influence, economic weight: all dimensions seen as vulnerable) but does not have a constitution different from any sort of voluntary association.”

Professor De Marco hopes, in conclusion, that the legal profession will examine itself and realise that it does not have the competence to judge institutions, such as the Church and the family. Judges deal with individuals, not institutions — which often they do not understand — and should not use their power to redesign society, he says.

Carolyn Moynihan

Carolyn Moynihan is the former deputy editor of MercatorNet