Should not justices who are practicing Catholics, and who reside in a diocese that is party to a lawsuit, disqualify or recuse themselves from participation in a case where their diocese is a defendant?
That is the question being asked by Anne Nicol Gaylor, president of the Freedom From Religion Foundation.
The Wisconsin Supreme Court ruled 5-2 on May 23 that churches cannot be held liable for sexual misconduct of their clergy employees, in acting on the case of a woman suing the Roman Catholic Diocese of Madison and one of its priests.
Four of the five justices in the majority opinion are Catholics. “We believe a scrupulous judge would recuse himself or herself,” Gaylor said. “These are Catholic justices living in the Diocese. It would seem a very reasonable inference to question the presence of bias.
“Can we really expect individuals steeped in a particular religion not to demonstrate personal bias or prejudice when ruling on Diocesan involvement? As one of our members pointed out, if the Elks were involved in a legal dispute and a judge were an Elks member, he would certainly be expected to disqualify himself.”
The majority opinion, written by stalwart Catholic Justice Patrick Crooks, ruled: “A bishop may determine that a wayward priest can be sufficiently reprimanded through counseling and prayer.”
Priest J. Gibbs Clauder was assigned by his diocese to be chaplain at Madison General Hospital, now known as Meriter. Clauder was instructed by St. Bernard parish pastor Father John Hebl in November, 1988, to counsel the plaintiff, known as “L.L.N.,” a young employee and member of St. Bernard who was being hospitalized for complications with her pregnancy.
When she was rehospitalized a month later with a miscarriage, she asked Clauder to visit her, and they continued to see each other outside the hospital as Clauder gave her advice on her depression. In June 1990, Clauder invited her to his family’s cabin and a sexual relationship began which continued until May 1991.
The following month, the woman notified Bishop Cletus O’Donnell by letter of Clauder’s inappropriate sexual behavior:
“[Clauder] met me in the hospital at a very low point in my life and befriended me. He became a significant part of my personal life and used me to meet his own needs.”
At this point, her pastor, Hebl, admitted to the Archbishop that several years before L.L.N. met Clauder, Hebl had witnessed Clauder, in his private rectory room, restraining a woman, known as “T.E.,” by straddling her body and holding down her hands. Clauder was bleeding from a bite on his wrist and the woman’s shirt was ripped. Hebl knew that she had frequented the rectory and that Clauder had traveled to visit her overseas, but Hebl never reported or investigated the matter.
L.L.N., the plaintiff, brought a civil suit against the diocese, contending that this episode should have made Hebl and the diocese aware that Clauder’s placement as hospital chaplain might jeopardize patients.
Crooks wrote that the First Amendment prohibits an inquiry into whether the Archdiocese was negligent in hiring, retaining, training and supervising the priest. He called the priest “a single man, engaged in a consensual sexual relationship with an adult, single, female non-patient.” Much of Crooks’ decision insisted that in order to decide on L.L.N.’s claim, “a court would be required to examine the vow of celibacy,” an assertion strongly refuted in the dissenting opinion by Justice Ann Walsh Bradley, joined by Chief Justice Shirley Abrahamson.
The plaintiff’s attorney, David McFarlane, told Wisconsin State Journal reporter Cary Segall that the Wisconsin Supreme Court decision has far-reaching ramifications:
“It will really insulate churches from liability even if pastors or high church officials have specific knowledge of an abusive or exploitive priest.”
Diocesan lawyer Don Heaney said the May decision should stop seven cases pending before the Wisconsin Supreme Court and lower Wisconsin courts in which priests are accused of molesting children.
Heaney exaltingly told The Wisconsin State Journal:
“The reason is that the constitutional fathers did not want the state meddling in religious affairs because it was an instrument of oppression.”
See excerpt of the dissenting opinion.
