Court OKs harassment suit
By PAMELA SCHAEFFER
NCR Staff
When Sr. Elizabeth McDonough tried to sue The Catholic University
of America in 1996, claiming sex discrimination in her failure to get tenure, a
federal court dismissed her case. In order to determine whether the nun was as
qualified as her male peers to teach canon law, a secular court would be
required to review competing opinions in religious disputes, a
violation of the First Amendment, the court declared.
In a case some legal experts regard as similar in principle, a
U.S. appeals court made a different decision on Dec. 1, allowing former
seminarian John Bollards sexual harassment suit against the Jesuits to go
forward.
Religious organizations are not free to engage in sexual
harassment under the First Amendments guarantee of religious freedom, an
appeals court judge has ruled in the Jesuit case. The ruling was handed down by
Judge William Fletcher of the 9th U.S. Circuit Court of Appeals in
California.
Bollard, who claims he was subjected to unwanted sexual advances
over a period of five and a half years, is seeking $1 million in damages.
Fletchers decision has dismayed Douglas Laycock, a
constitutional law expert in Texas, who regards it as a disaster --
a green light for courts to interfere in decisions that rightfully belong to
the church. Theres a saying that hard cases make bad law, he
said. If this guy [Bollard] is telling the truth, its a hard
case.
Gerard Bradley, law professor at the University of Notre Dame,
disagrees. The lawsuit in question -- John Bollard v. The California
Province of the Society of Jesus -- describes an unusual situation and is
set up in such a way as to preclude broad application of the judges
ruling and a breach in the church-state wall, Bradley said.
In general I dont think this case will be a precedent
for a large number of cases, he said.
In previous sex discrimination lawsuits by church employees,
courts have routinely applied the ministerial exception to laws
forbidding sexual discrimination and harassment under Title VII. That
exception, granted under the First Amendments free exercise clause, gives
religious organizations wide latitude in selecting their ministers and
interpreting their doctrines free of court interference.
Paul Gaspari of San Francisco, attorney for the Jesuits, said in
court papers that selection, retention, assessment and discipline of clergy is
a core religious act that should remain free of court interference.
Gaspari did not respond to telephone inquiries from NCR.
Bollards suit is the first sexual harassment suit by a
former seminarian against the Jesuits. The appeals court was not asked to
determine whether Bollard was harassed, but rather whether his suit could go to
trial without interfering with religion or church doctrine. Bollard is not
asking to be reinstated as a Jesuit -- a key element in the appeals
courts decision. Bollard left the Jesuits in 1996 without being
ordained.
Bollards story is widely known from his appearance on
CBSs 60 Minutes in May. Between 1989 and 1996 he trained for
the priesthood at the Jesuits St. Ignatius College Preparatory School in
San Francisco and at the Jesuit School of Theology in Berkeley. His idealistic
image of the priesthood was shattered, he said, when he began receiving cards
from Jesuit superiors depicting sexually aroused men -- images he considered
shocking, he said.
Bollard also told interviewers on 60 Minutes that
during his seven years as a Jesuit, at least 12 priests made unwelcome sexual
advances and invited him to cruise gay bars. At first, he refrained from
reporting the advances, he said, out of fear that he would jeopardize his
future with the order. When Bollard did take his complaints to the Jesuit
provincial in California, Fr. John Privett, they were brushed off, he said. He
said Privett gave him a coffee cup that bore the words no whining
and asked him to sign a paper releasing the Jesuits from legal liability.
Bollard refused to sign.
In his suit Bollard contended that he left the Jesuits because his
life in the religious order had become intolerable. According to his attorney,
Mary Patricia Hough of San Francisco, Bollard had been approved for vows and
was scheduled to take them during the year he decided to leave.
Individual Jesuit defendants in the suit include Privett along
with Jesuit Frs. Andrew Sotelo, Thomas Gleeson and Anton Harris. The Maryland
and Oregon Jesuit provinces are also named as defendants.
Judge Fletcher said the so-called ministerial exception did not
apply in Bollards case because he was not seeking reinstatement --
therefore the case was not about a religious organizations right to
choose its ministers. Nor, Fletcher said, had the Jesuits claimed that their
alleged behavior in the Bollard case was a religious practice subject to
constitutional protection. Fletcher noted that indeed, the Jesuits had
condemned such behavior as inconsistent with their values and
beliefs.
There is thus no danger, he wrote, that by
allowing this suit to proceed we will thrust the secular courts into the
constitutionally untenable position of passing judgment on questions of
religious faith or doctrines.
Moreover, Fletcher added, this is not a case
about the Jesuit orders choice of a representative. According to
allegations in Bollards complaint, Fletcher wrote, the Jesuit order
has enthusiastically encouraged Bollards pursuit of the
priesthood.
The Jesuits most certainly do not claim that allowing
harassment to continue unrectified is a method of choosing their clergy,
Fletcher said.
Because the Jesuits had provided neither a doctrinal nor a
protected-choice rational for their alleged actions, and had, in fact,
expressly disapproved them, a balancing of interests strongly
favors application of the law in Bollards case, Fletcher ruled. A jury
would not be asked to evaluate religious doctrine or the
reasonableness of the Jesuits religious practice but simply
to make secular judgments about the nature and severity of the harassment
and what measures, if any, were taken by the Jesuits to prevent or correct
it, Fletcher said.
Notre Dames Bradley said he is not surprised at divergent
opinions from church-state scholars.
I myself would say this is a plausible opinion, he
said in a telephone interview. To say its wrong for civil judges to
ever get involved with inappropriate behavior by members of religious
organizations is overstated, Bradley believes.
Laycock, however, said, If we take this opinion
seriously, Bollard is carving out an exception to the
ministerial exception. The logic of this lawsuit says that someone had a
right to be a priest and was deprived of that right. Laycock, a law
professor at the University of Texas in Austin, believes Bollard may have a
legitimate claim against individual Jesuits who harassed him but not against
the order itself.
The guys harassing him are the wrongdoers here. The search
for a deep pocket defendant -- that is, the Jesuit order -- should
not be allowed to turn the decision about clergy over to the courts.
Thats where all this leads.
Laycock fears that Fletchers decision will prompt future
litigants to declare that their dismissals by churches were for other than
religious reasons -- sex, disability, age, for example. Ultimately it will mean
that judges and not churches will decide who can be clergy, he
said.
Legal experts said it is likely that the Jesuits will appeal to
the U.S. Supreme Court. Hough said an appeal must be filed within 90 days.
Bradley considers it unlikely that the highest court will hear the
case. My guess is that the Supreme Court will take a voucher case next
term, he said. That would be enough church-state headache for one
term.
National Catholic Reporter, December 17,
1999
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