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Not the cardinal's rules

April 20, 2006

HIS LAST-DITCH APPEAL to the U.S. Supreme Court rejected, Cardinal Roger M. Mahony may soon find himself at the mercy of a far less exalted body: the civil jury. Given the American Catholic Church's lamentable record in dealing with abusers in the ranks of the clergy, that is a just result.

The Supreme Court wisely declined this week to prolong an unseemly legal dispute over Mahony's refusal to turn over to authorities the personnel files of two priests accused of molesting minors. The L.A. archdiocese has no choice but to accept that personnel and counseling files of clergy members must be made available to a grand jury investigating the possible commission of crimes. Church authorities should go further, however, and also make such records available in civil lawsuits.

Lawyers for the archdiocese had argued that the personnel files, which contain information about the psychological evaluation and treatment of members of the clergy, are protected by a variation of the confidentiality of communications between priest and penitent and by the 1st Amendment's protection of freedom of religion. Public disclosure of personnel files of troubled priests, the church argued, would "destroy the confidentiality and trust between the bishop and his priests, which is essential to the sanctification process." A California appellate court was unimpressed, declaring that churches must abide by "the rules of civil society, particularly when the state's compelling interest in protecting children is in question."

Actually, things aren't quite that neat. The rules of civil society do contain some safe harbors for religious practices that could let the guilty go free. Few would argue, for example, that if Mahony heard the confession of a priest or deacon who molested a child, the cardinal should be forced to reveal the content of that sacramental conversation.

Secular law recognizes the confidential relationship between priest and penitent just as it does that of doctor and patient, and for the very reasons cited by defenders of Mahony's position in this case: that individuals with psychological problems -- such as priests with pedophilic tendencies -- will not seek counseling if their confidential conversations can be quoted against them in a courtroom.

Yet the files at issue here are at least one step removed from the face-to-face conversation in a confessional. And although ingenious lawyers can try to expand the basic priest-penitent privilege into broader protection for the clergy, courts will be skeptical of such creativity in the context of a national, decades-long failure by church authorities to deal forthrightly with abusive priests -- a failure the U.S. church has acknowledged and tried to rectify with its "zero-tolerance" policy.

The late Supreme Court Justice Oliver Wendell Holmes declared that "the life of the law has not been logic; it has been experience." It isn't surprising that his successors would look askance at a legal argument, however logical, that ignored the experience of the young victims of wolves in shepherds' robes.

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