It’s a ‘Get the Bishops’ Law

Today, the homily at Mass in Catholic churches across California will contain the following admonition: Thou shalt not revive old child abuse cases in a way that violates timeless principles of due process and basic fairness.

An extraordinary California law, contrary to most U.S. constitutional and common law, will take effect Jan. 1. The law literally creates new civil damage liability where none previously existed. Yet it is elementary civics that government should not be able to retroactively penalize on Tuesday that which was unpunishable on Monday.

California’s attempt to impose retroactive criminal liability in an unrelated case is being skeptically reviewed by the U.S. Supreme Court. Insofar as the Constitution’s ex post facto clause has been understood since 1787 as not permitting such things, the odds that California will prevail on appeal are slim. As Judge Learned Hand once said, “To revive a prosecution already dead ... [is contrary] to our instinctive feelings of justice and fair play.” The bishops think the same principle should apply to retroactive civil liability.

Under current law, abuse victims must sue by their 26th birthday or within three years of discovering emotional problems linked to the abuse. With the law approved this year, those rules are simply tossed out the window. For one year, lawsuits can be filed for failure to prevent alleged abuse, no matter how long ago it occurred and how long ago existing laws had closed the books on the matter.

Though the legislation doesn’t mention the Catholic Church by name, it might as well have been labeled the Let’s Get Those Bishops Bill. The anti-Catholic sentiment is evident in the legislative history and by the fact that under the law, the abuser is not subject to suit. Only the church is made newly liable.

As a Catholic, I have been sickened by the revelations of sexual misconduct by priests. True, only a small fraction of priests have been accused; in fact, fewer than 1%. Many of the allegations are decades old, and some have been patently false.

Yet child abuse, whenever it occurred, is morally inexcusable. Not only that, but it is a threat to what always has been a mainstay of the church: unequivocal support for the family as the first vital cell of civilization.

Given that the repulsive nature of the behavior was initially met by some church authorities with arrogance, it might seem easy to acquiesce in the California Legislature’s desire to “get” the church. Yet the Catholic Church is embodied by no single bishop or priest. It is the body of Christ that consists of the abundant love poured out by millions of religious and lay people in schools, hospitals and shelters.

No amount of good can excuse grave evil. But no trial lawyer can say with a straight face that insurance will cover the losses of newly created liability without harming much-needed church activity. The policy limits of decades ago reflect the knowledge of that time, not the present. Most important, however, is the duty incumbent on all of us to play by one set of rules, which are generally applied and announced in advance.

The Catholic Church must scrupulously observe the responsible internal procedures it has created to deal with current allegations of abuse. It also must fairly compensate those who have suffered injury and brought their cases under accepted principles of law. Nevertheless, the church, as citizen, still retains the right to ask that the Constitution be observed.

The American Civil Liberties Union makes this point all the time for criminal defendants. Surely those following the example of St. Francis or Mother Teresa deserve as much.

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Douglas W. Kmiec is dean of the Catholic University of America School of Law.