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Friday, December 23, 2005
Suing the Pope
Some time ago, Christine Hurt pointed out a lawsuit against Cardinal Ratzinger/Pope Benedict in Texas, accusing him of complicity in covering up some of the sex abuse scandals. District Court Judge Lee Rosenthal has now ruled that Pope Benedict enjoys immunity as a foreign head of state from lawsuits, even if they are against him in his personal capacity for activities committed before he was a head of state.
I confess that I find this result a little bit puzzling. If our own head of state can be hauled into court for personal lawsuits, why should foreign princes and potentates enjoy greater protection? I have not yet been able to find a copy of the opinion online, so am I missing something obvious?
Posted by Will Baude on December 23, 2005 at 04:55 PM in Religion | Permalink
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Crimes against humanity can now be prosecuted even when committed by a head of state. I believe it is now time for torts against humanity to get the same status. Would the Pope be more inclined to tighten up the rules of his domain i... [Read More]
Tracked on Dec 26, 2005 5:21:31 AM
Comments
I love visiting this site and I hope that you will not bar me. But, as a lawyer, I have to wonder. Are you guys really lawyers? President Clinton was sued for a tort unrelated to the Presidency or anything having to do with any function of the Presidency. He, allegedly, exposed himself and invited a sex act in a hotel room. The Pope is being sued under a perverse theory of respondeat superior for not having done the "right thing" against priests accused of sexual abuse. What's the connection?
Posted by: nk | Dec 23, 2005 10:53:24 PM
Actually, Will isn't a lawyer yet--so we can give him a pass. Of course, neither am I, so maybe I have no authority to give passes.
I would imagine though, that all the nasty things about Courts avoiding interposing themselves in foreign affairs would perhaps give heightened scrutiny to efforts to drag them into Court, versus our own (where there are no such concerns).
But again, I'm not a lawyer.
Posted by: David Schraub | Dec 23, 2005 11:22:37 PM
Indeed, I'm a measly 2-L.
But my understanding of the case is that the pope is actually being sured for activities he conducted in 2001, i.e., when he was not the pope. (See this Houston Chronicle story).
So that's part of what I find so baffling. Even supposing that the Pope, as a foreign head of state, enjoys official immunity for what he does while pope, under what theory could that immunity apply to things he did when he wasn't pope? He wasn't a head of state at the time, and Clinton v. Jones tells us that head of state only have immunity for things they do while wearing their head of state hat, right?
I have some hunch that the anomaly actually exists in a codification of the Crimes ACt of 1790, 22 U.S.C. 252-254, but I haven't actually read the statutes and still can't find a copy of Rosenthal's opinion.
But anyway, just as Clinton was sued for a tort "unrelated to the presidency", Ratzinger is being sued for a tort "unrelated to the papacy" (and related only to his earlier job as cardinal.)
Posted by: Will Baude | Dec 23, 2005 11:58:32 PM
Will:
I could not find the opinion either, but after some quick research I believe the answer is the so-called "Suggestion of Immunity Doctrine." There is a line cases in which the Supreme Court has bound itself to the executive's determination that foreign heads of state have immunity. See, e.g. Ex Parte Peru, 318 U.S. 578, 589 (1943) (suggestion of immunity of vessel owned by foreign government “must be accepted by the courts as a conclusive determination by the political arm of the Government”); United States v. Lee, 106 U.S. 196, 209 (1882) (“the judicial department of this government follows the action of the political branch, and will not embarrass the latter by assuming an antagonistic jurisdiction”).
The doctrine is prudential. I haven't read through these cases carefully (there are more than those cited), but the Court was most likely concerned with the judicial branch interfering with the executive's conduct of foreign relations. Here, the DOJ determined that the Pope was immune and filed a "Suggestion of Immunity," to which Judge Rosenthal found himself bound by.
I am also a measly 2L, who knows nearly nothing about foreign law. But absent this prudential doctrine, I wonder if Ratzinger would otherwise be immune under federal law or treaties the United States is party to?
Posted by: Garrick Sevilla | Dec 24, 2005 12:47:21 AM
So Ex Parte Peru is printed in my copy of Hart and Wechsler, and I was intrigued by that. But I confess I still don't quite understand how a prudential "suggestion of immunity" doctrine makes sense in a country where the president can't use "suggestion of immunity" on himself. I would have thought that the case for sovereign immunity would be the strongest when coming from the head of the sovereign nation whose courts the trial takes place in.
Posted by: Will Baude | Dec 24, 2005 12:54:23 AM
Will:
If you want to probe this issue further then here's a cite to a good student note that summarizes the relevant doctrine:
Jerrold L. Mallory, Note, Resolving the Confusion Over Head of State Immunity: The Defined Right of Kings, 86 Colum. L. Rev. 169 (1986).
There may be an issue of whether Ratzinger was a "head of state" at the time of his involvement in the cover-up. But my sense after skimming this Note is that federal courts don't like to delve into such issues. Rather, the "suggestion of immunity" doctrine has been in crutch in hard cases.
Posted by: Garrick Sevilla | Dec 24, 2005 1:06:45 AM
The other consideration might be some form of executive immunity for discretionary acts. While he was not pope, he was a member of the Church (at the Vatican I believe) which may make him part of their executive branch. It's very confusing because of the dual role the Church plays in Vatican City. But perhaps the Court is saying he was a member of a foreign government at the time and was acting persuant to discretion. Thus, he's entitled to some governmental immunity....
Posted by: Alan | Dec 24, 2005 12:21:19 PM
Okay, I have often complained about judges splitting hairs too find. But this case is still not about the alleged perpetrator being sued. It is about a much higher superior of the perpetrator who chooses to side with the perpetrator AFTER THE FACT and not the victim. Again, what's the connection? A better analogy to this case is a lawsuit against Hillary Rodham Clinton for claiming that the lawsuit against her husband was the product of a vast right wing conspiracy.
Posted by: nk | Dec 25, 2005 2:54:38 AM
We really can get our nit-picking legal minds tied into knots when we start out by calling the Pope a Head of State. And, even if he is a Head of State, the conduct in question is presumably not related to his "State" which is a rather puny piece of land in Rome. It is related to his day job as the CEO of a religion. If this immunity works for the Pope I anticipate that Bill Gates will become king of some island in the Pacific.
Posted by: Greedy Trial Lawyer | Dec 26, 2005 4:54:39 AM
If, as I understand it, the head-of-state immunity doctrine is meant to protect the Executive's ability to conduct the nation's foreign affairs without embarrassment from the judiciary, then it seems to make sense not to apply that doctrine to the President, since lawsuits against the President don't implicate the President's foreign-affairs role.
Posted by: Christopher M | Jan 2, 2006 1:59:35 PM
Hey my professor said he would give an "A" to any student who could name the one profession that will never need the services of an attorney. anyone that can be sued is obviously out so thats why im leaning towards either the president or the pope. can anyone think of anything that will help me score that easy A? p.s. im a lowly 2l
Posted by: betsy | Mar 4, 2007 10:03:53 PM
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