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Court OKs harassment suit

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 Bollard’s sexual harassment suit against the Jesuits to go forward.

Religious organizations are not free to engage in sexual harassment under the First Amendment’s 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.

Fletcher’s 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. “There’s a saying that hard cases make bad law,” he said. “If this guy [Bollard] is telling the truth, it’s 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 judge’s ruling and a breach in the church-state wall, Bradley said.

“In general I don’t 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 Amendment’s 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.

Bollard’s 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 court’s decision. Bollard left the Jesuits in 1996 without being ordained.

Bollard’s story is widely known from his appearance on CBS’s “60 Minutes” in May. Between 1989 and 1996 he trained for the priesthood at the Jesuit’s 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 Bollard’s case because he was not seeking reinstatement -- therefore the case was not about a religious organization’s 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 order’s choice of a representative.” According to allegations in Bollard’s complaint, Fletcher wrote, “the Jesuit order has enthusiastically encouraged Bollard’s 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 Bollard’s case, Fletcher ruled. A jury would not be asked to evaluate religious doctrine or the “reasonableness” of the Jesuit’s 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 Dame’s 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 it’s 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. That’s where all this leads.”

Laycock fears that Fletcher’s 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