CHURCH & STATE : Sexual abuses & the First Amendment.

Headlines across the nation reveal a fascinating irony: courts, citing the First Amendment, are stripping the Catholic Church of secrecy surrounding its internal workings. Allegations of sexual abuse by priests are not new phenomena. What is new is that our courts, notwithstanding a weight of precedent deferring to church authority and its preference for secrecy, have opened church files to the public. American courts now serve as a source for media discoveries, fueling skepticism of the church hierarchy and doctrine. Why courts used to close the door to scrutiny, but now swing it wide open, warrants explanation.

Historically, the First Amendment has limited the role that courts play in resolving disputes involving religious doctrine, discipline, faith, or internal organization. Ruling on such matters would foster excessive government "entanglement" with religion. Hierarchical churches, including the Catholic Church, are given a large measure of freedom, especially where a hierarchy has established procedures and a mechanism for dealing with internal discipline. Churches with no self-imposed structure of hierarchical authority, such as the United Church of Christ ("congregational" churches), are subject to civil courts in settling disputes. Courts are free to examine congregational church documents for guidance, as long as the courts steer strictly away from inquiries into religious doctrine.

The Constitution does permit courts to inquire into matters involving churches and religious issues, even for hierarchical churches, when disputes can be resolved using "neutral principles of law." Courts become involved when a crime has been committed or when a recognized civil cause of action, such as a wrongful injury, occurs. For example, in the use of an illegal drug in so-called religious ceremonies, courts are not barred from deciding cases, nor are parents protected by their religion from culpability when they fail to provide medical care for their children.

Traditionally, when claimants allege that clergy have improperly performed their clerical duty (in situations aside from recognized torts or crimes) courts could get mired in considerations of religious belief and practice. As a result, claims of "clergy malpractice," in which, for example, a pastor engages in sexual intercourse with an adult he counsels, have been barred by the First Amendment "entanglement" doctrine. Still, despite a willingness to step in when crimes or torts have occurred, courts have often been reluctant to air the Catholic Church's internal documents in public, even though the law typically favors public access to documents in civil suits.

This is now changing dramatically. Recent civil cases against officials of the Archdiocese of Boston and Father John Geoghan have proved the catalyst for a switch in First Amendment emphasis. The archdiocese argued blanket immunity under the First Amendment and claimed that a ruling would involve the court interpreting the church's own canon law. Yet, as James Coriden, a canon law professor at Washington Theological Union has observed, "canon law cannot protect or shelter anyone from this kind of government scrutiny."

In deciding the Geoghan matter, the courts not only refused to dismiss the civil suits but also allowed the public, represented by the Boston Globe, to gain access to court-ordered discovery. Because Geoghan committed sexual crimes against young children, and because of the scope of potential negligence by church supervisors in allowing a pedophile access to children, the public was ruled to have a significant interest in the proceedings. The First Amendment, which also protects the rights of a free press and an individual's free speech, was cited in the Geoghan cases. "This is the first time, to my knowledge, that a court has made internal church documents public," said Mitchell Garabedian, a lawyer for eighty-six civil plaintiffs against Geoghan and the archdiocese. "Because of the Geoghan case, the public has been made aware of what the church has been doing over the decades."

The Geoghan civil suits have unleashed other adverse rulings against the Archdiocese of Boston on First Amendment "free press" and "free speech" grounds. In a suit concerning the activities of another alleged pedophile, Father Paul Shanley, the First Amendment was cited as the basis for refusing to seal church records or gag participants in the case. More recently, Cardinal Bernard Law of Boston lost his bid to avoid being deposed, or questioned under oath, about his role in the supervision of Shanley.

Deposing a cardinal, in a country where a president was also deposed, may not be a shocking or unforeseen event. But a recent suggestion by the Massachusetts attorney general that his office play a role in the selection and screening of candidates for the priesthood would represent a serious intrusion of the state in religious matters. Sadly, the failures of the church hierarchy to protect children have raised the possibility of government regulation. Why should government officials, or courts for that matter, defer to a church hierarchy that so spectacularly endangered the public, not only in Boston but elsewhere in the nation? Such failures beg for government intervention and oversight.

Court-sanctioned public scrutiny of church internal procedures is likely to continue. The church has not cited any credible arguments blocking such scrutiny, and church leaders like Cardinal Law who have been sued are "public figures." As such, they lack the protections of private individuals.

The First Amendment protects the right of the individual to worship freely, and courts used to see the Catholic Church as a valued trustee of that right. Today courts reflect the national mood: as American Catholics increasingly grow restive with the status quo, the courts themselves work as a goad, driving laity and leadership alike. Courts now champion the right of the individual to a free press and free speech. As the firestorm of civil lawsuits and criminal cases wends its way through the American judicial system, courts will have many opportunities to wreak further havoc. How did the Catholic Church ever get on the wrong side of this equation? Its leaders arrived there by abandoning children and by keeping that abandonment hidden for far too long. As a result, the First Amendment now works to unveil church secrets, instead of helping to hide them.

Kathleen Reagan is a freelance writer and a law professor at Concord University School of Law. She is also a former prosecutor of the Plymouth County District Attorney's Office in Plymouth County, Massachusetts.