Mahony Resisting Disclosure

Citing 1st Amendment protections, Cardinal Roger M. Mahony is resisting the disclosure of scores of his communications sought by prosecutors and attorneys working on sexual abuse cases.

The strategy is a switch for Mahony, who has cultivated the reputation of the Roman Catholic Archdiocese of Los Angeles as openly confronting the church’s sexual abuse scandal.

Last May, threatened with a grand jury investigation, Mahony vowed to give law enforcement officials documents tied to molestations by his priests. “We want every single thing out, open and dealt with, period,” he said.

Last week, however, Mahony’s lawyers began asserting the prelate’s privilege in Los Angeles civil court, as they had the week before in criminal proceedings in Ventura and Los Angeles counties. They are arguing that priest-bishop confidentiality is a foundation of the Catholic religion, and that interfering in that violates the free exercise of religion.

“It’s about the right of a bishop to speak openly and candidly with his priests about the most intimate and personal of subjects without fear of being exposed to civil authorities,” said J. Michael Hennigan, an attorney for the archdiocese.

Mahony’s stand echoes positions taken by several Catholic bishops nationwide. Their claims so far have generally fared poorly in court, but church officials say they are defending an important principle.

“The archbishop and the priests do not have a typical employer-employee relationship,” said Tod Tamberg, the spokesman for the archdiocese. “Their relationship is much closer to that of father and adult son. There is a need for confidential, intimate communication.”

The stance won’t hinder any criminal or civil investigations, Tamberg added.

“The church is in the process of providing all of the objective information regarding sexual abuse claims. The request for privacy does not deal with the particular facts of abuse or the responses of the church to abuse claims.”

John Manly, a Costa Mesa attorney who represents 40 alleged victims of sexual abuse by priests, said the archdiocese is “turning the 1st Amendment on its head.”

“The hierarchy is asking us to take their words at face value without any objective confirmation,” Manly said. “Unfortunately, they’ve proven themselves over time to have zero credibility on this issue.”

Faced with a flurry of criminal investigations and civil lawsuits from the 14-month-old scandal, dioceses nationwide have been weighing promises of openness and accountability against church tradition that has treated the relationship between bishops and priests as a sacred and private one.

Church leaders and attorneys said this is a central bond in the life of the church.

“That’s a very theologically laden relationship,” said Martin Nussbaum, a Colorado-based attorney who filed a recent brief for the Archdiocese of Boston seeking the dismissal of hundreds of sexual abuse lawsuits based on the argument that civil authorities don’t have the constitutional right to intervene in church affairs. “You can cooperate with law enforcement, but still respect constitutional principles.”

The Boston judge ruled against the church, saying that the doctrine of autonomy that the church was asserting would give leaders “unqualified immunity from secular legal redress, regardless of how negligent, reckless or intentional” their behavior.

Based on the freedom of religion clause of the 1st Amendment, courts have traditionally given faith institutions broad latitude to govern themselves, rejecting lawsuits that ranged from wrongful termination of pastors to church splits. Last year, in a sexual misconduct case that didn’t involve the Catholic Church, Maine’s high court upheld a law that protects religious institutions from lawsuits.

But Catholic bishops have recently lost legal battles in several states -- including Florida, New Hampshire and Massachusetts -- involving sexual abuse by priests that touched on similar constitutional issues.

“What’s happening is that the bishops, who say they want transparency, are exposing themselves as liars,” said Richard Sipe, a former Benedictine monk and expert on sexual abuse within the church. “It’s certainly not a 1st Amendment right to cover up child abuse. The church’s argument doesn’t have any theological or psychological merit at all.”

The court-ordered release of documents from Cardinal Bernard Law and others in Boston ignited the scandal in January 2002. And the subsequent release of additional documents in Boston led to Law’s resignation in December.

“The disclosures of those documents were the turning point in exposing and measuring the depth of this scandal,” said Roderick MacLeish Jr., a Boston attorney who fought to disclose information that now tallies 30,000 pages. His firm, Greenberg Traurig, represents about 250 clients who say they have been abused by priests, including some in Los Angeles. “There’s nothing like sunshine to bring reform and clarity,” he said.

Mahony’s attempt to use 1st Amendment protections comes as the archdiocese is faced with 17 subpoenas related to former, retired or current priests.

The archdiocese also is in mediation talks, hoping to settle potentially hundreds of civil suits involving sexual abuse by priests. The flurry of litigation was spurred by a state law, effective Jan. 1, that removed for one year the statute of limitations in sexual abuse cases where an institution knowingly employed a molester.

In criminal and civil cases, lawyers for the archdiocese cited other privileges that would keep the documents confidential, including those involving attorney-client, doctor-patient and penitential relationships.

Don Steier, attorney for several accused priests, said he is supportive of the archdiocese’s move to cite the 1st Amendment. He said many of the documents sought violate his clients’ right of privacy.

Manuel Vega, part of a sexual abuse class-action lawsuit against the archdiocese, said he was disappointed: “I believe Mahony has failed on his moral obligation to come forward and provide these documents,” he said.

“For them to say, ‘Trust us,’ that’s the wrong thing to say.”