Priest faces removal because of compliance with a subpoena

[David E. Guinn]

I'm not sure the comparison with advocating murder is useful.  I think there
is a significant difference between advocating an act harmful to another and
advocating non-participation in a legal process.

I think the obvious question is would this case be less or more troubling if
a church dismissed or excommunicated a priest for violating the
"confessional" by responding to a subpeona or a law mandating reporting
abuse?  The confessional is more than cannon law, it is a sacred rite.
Again, in a jurisdiction that does not recognize the confessional
previledge, the church in enforcing its religious belief, necessary
advocates violating the secular law.

David

----- Original Message -----
From: "Andrew Koppelman" <akoppelman at LAW.NORTHWESTERN.EDU>
To: <RELIGIONLAW at listserv.ucla.edu>
Sent: Tuesday, November 19, 2002 1:17 PM
Subject: Re: Priest faces removal because of compliance with a subpoena


> I'm troubled by the breadth of the proposed principle that "a church's
> ability to dismiss clergy (or for that matter to excommunicate a
> parishioner) strikes me as being at the heart of the Free Exercise Clause
> and possibly the Establishment Clause, subject to pretty much a per se
rule
> of protection (consider, for instance, the clergy race/sex discrimination
> cases)."  It would seem to follow that a church could not be held
> accountable for any use of this power, even if it were exerted to induce
> illegal conduct.  Couldn't a church invoke a principle if it told a
> parishioner that he would be excommunicated unless he committed a murder?
>
> The clergy discrimination cases seem rather to manifest the internal
> autonomy of religious groups, protection of which is a well established
> doctrine which has been held to survive Smith.  See Combs v. Central Texas
> Annual Conference of the United Methodist Church, 173 F.3d 343 (5th Cir.
> 1999); E.E.O.C. v. Catholic University of America, 83 F.3d 455 (D.C. Cir.
> 1996).  But when a church uses its internal autonomy as a lever to induce
> its followers to commit legal wrongs against outsiders, the principle
ought
> not to be applicable.
>
>
>
>
>
> At 04:42 PM 11/18/2002 -0800, you wrote:
>
> >         Any thoughts on this incident?  On the one hand, definitely
> > sounds rather troublesome; I assume that at least in many states, firing
> > an employee based on his compliance with subpoena (or threatening to
fire
> > the employee) would be a tort (dismissal in violation of public policy),
> > and threatening to fire an employee if he testified would be obstruction
> > of justice or something like that.  On the other hand, a church's
ability
> > to dismiss clergy (or for that matter to excommunicate a parishioner)
> > strikes me as being at the heart of the Free Exercise Clause and
possibly
> > the Establishment Clause, subject to pretty much a per se rule of
> > protection (consider, for instance, the clergy race/sex discrimination
cases).
> >
> >         (I enclose the full article below; I don't believe there are any
> > copyright problems with that, because the Washington Times allows one to
> > e-mail the entire article, which I interpret as granting a license to
> > forward such e-mails to a distribution list.)
> >
> >         Eugene
> >
> > > -----Original Message-----
> > > From: volokh at mail.law.ucla.edu
> > [<mailto:volokh at mail.law.ucla.edu>mailto:volokh at mail.law.ucla.edu]
> > > Sent: Monday, November 18, 2002 4:38 PM
> > > To: volokh at mail.law.ucla.edu
> > > Subject: [www.washtimes.com] Case
> > >
> > >
> > > volokh at mail.law.ucla.edu has sent you an article from The
> > > Washington Times.
> > >
> > >
> > >
> > > -----------------------------------------------------------
> > >
> > > PRIEST FACES REMOVAL FROM ARLINGTON DIOCESE
> > >
> > > George Archibald
> > > THE WASHINGTON TIMES
> > >
> > > -----------------------------------------------------------
> > >
> > > The Roman Catholic bishop of Arlington has told a local
> > > priest that he will be permanently suspended from the
> > > diocese for obeying a subpoena to testify in a civil lawsuit
> > > about another priest's adultery with a parishioner's wife.
> > >
> > > Bishop Paul S. Loverde informed the Rev. James R. Haley in
> > > an Oct. 28 formal notice that he is being removed for
> > > violating a gag order a year ago, which barred him from
> > > disclosing wrongdoing by priests in order "to avoid scandal,
> > > to maintain ecclesiastical discipline and to protect the
> > > reputation and privacy of both the faithful and priests of
> > > this diocese."
> > >
> > > The action prompted a national Catholic watchdog group to
> > > call for a local investigation of the bishop for
> > > intimidation of a witness in a civil proceeding.
> > >
> > > At the opening session Monday of the U.S. Conference of
> > > Catholic Bishops' meeting in the District, Bishop Loverde
> > > voted in favor of a requirement that bishops and priests
> > > police each other on issues involving improper sexual activity.
> > >
> > > Nonetheless, the bishop said Father Haley must come to the
> > > chancery on Dec. 2 "to inspect the acts of the case" against
> > > him for providing evidence in the adultery case of the Rev.
> > > James A. Verrecchia and Nancy Lambert. Her ex-husband, Jim A.
> > > Lambert, sued the diocese for its failure to stop the affair
> > > that resulted in the breakup of his marriage. The lawsuit was
> > > dismissed as untimely during the summer.
> > >
> > > The bishop decreed in an Oct. 28 notice that Father Haley
> > > was to be permanently suspended. The notice said that Father
> > > Haley's testimony violated a church canon "regarding
> > > illegitimate harm to the reputation of another and the right
> > > of privacy of all believers, as well as [a canon] regarding
> > > the right of defense in an appropriate ecclesiastical forum."
> > >
> > > "[The] public availability of extremely scandalous and
> > > defamatory material in his deposition warrants immediate action."
> > >
> > > The bishop said he had consulted with experts in canon law
> > > and "the field of psychology, and have also sought fraternal
> > > advice from other diocesan bishops" before taking the step to
> > > remove Father Haley permanently without any judicial
> > > proceeding within the church.
> > >
> > > Bishop Loverde yesterday declined to comment on the matter.
> > >
> > > Diocese spokeswoman Linda Shovlain said the bishop "strongly
> > > holds the principle that canonical and confidential matters
> > > involving him and/or any priest of the Diocese of Arlington
> > > are not discussed in the media."
> > >
> > > She added: "Bishop Loverde has not and will not punish
> > > anyone for bringing him a concern or complaint about a
> > > diocesan priest, employee or volunteer.  Father Haley's
> > > ecclesiastical status will be determined according to
> > > canonical processes."
> > >
> > > Roman Catholic Faithful (RCF), a national watchdog group,
> > > obtained a copy of Father Haley's 225-page July deposition in
> > > the Lambert case from the public court record, said President
> > > Stephen Brady of Petersburg, Ill. The group had posted the
> > > deposition on its Web site.
> > >
> > > "We were trying to help Jim Lambert. Father Haley had no
> > > part in our posting the deposition on the Internet," Mr.
> > > Brady said yesterday in an interview. "RCF was greatly
> > > offended by what was going on in Arlington, and we wanted to
> > > get the facts out to the Catholic public. I couldn't
> > > understand how a bishop could tolerate even the appearance of
> > > impropriety in the breakup of [the Lambert] family."
> > >
> > > James Bendell, RCF's attorney, who is based in Port
> > > Townsend, Wash., said Arlington authorities should
> > > investigate the bishop's action against the priest. "Because
> > > Father Haley was under subpoena to appear and testify in [the
> > > Lambert] case, RCF believes that the relevant prosecuting
> > > authorities in Virginia should closely examine Loverde's
> > > conduct to see if his actions may constitute intimidation of
> > > a witness in a civil proceeding," he said.
> > >
> > > Father Haley, former assistant pastor at three churches in
> > > the diocese, referred inquiries to his attorney, Gregory L.
> > > Murphy of Alexandria.
> > >
> > > Mr. Murphy called the bishop's concerns about invaded
> > > privacy rights "nothing more than a red herring. Father
> > > Verrecchia revealed his love affair with Mrs. Lambert when he
> > > inadvertently downloaded his 300 e-mails to her from his
> > > laptop into the rectory's computer system."
> > >
> > > Father Verrecchia was pastor at All Saints Catholic Church
> > > in Manassas. Father Haley was assigned to the church in June
> > > 1997. In the deposition, Father Haley said that he became
> > > aware of the affair in 1998. The deposition states that he
> > > provided details of the affair to Bishop Loverde in June
> > > 1999. The bishop then transferred Father Haley to St.
> > > Lawrence Church in Alexandria a month later.
> > >
> > > Bishop Loverde took no action when Father Verrecchia denied
> > > the affair, or even after it became known he had impregnated
> > > Mrs. Lambert in December 1999, Mr. Murphy said.
> > >
> > >
> > > -----------------------------------------------------------
> > > This article was mailed from The Washington Times
> > >
> >
(<http://www.washtimes.com/metro/20021113-153855.htm>http://www.washtimes.co
m/metro/20021113-153855.htm)
> >
> > > For more great articles, visit us at
> > > <http://www.washtimes.com>http://www.washtimes.com
> > >
> > > Copyright (c) 2002 News World Communications, Inc. All
> > > rights reserved.
> > >
>
>
> ________________________________________
>
> Andrew Koppelman
> Associate Professor of Law and Political Science
> George C. Dix Professor of Constitutional Law, 2002-03
> Northwestern University School of Law
> 357 East Chicago Avenue
> Chicago, IL  60611-3069
> (312) 503-8431
> mailto:akoppelman at northwestern.edu
> ________________________________________
>