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Spotlight Report

Canon law said to be of little legal weight

By Kevin Cullen, Globe Staff, 5/10/2002

In his depostion on Wednesday, Cardinal Bernard F. Law explained that he abandoned his agreement to pay 86 victims of pedophile priest John J. Geoghan after the archdiocese's finance council told him they wouldn't approve it and he learned that canon law required the council's approval for such a large expenditure.

However, civil precedents around the nation and interviews with legal specialists suggest that citing canon law, the body of laws that govern the Catholic Church, as a mitigating circumstance seldom works when secular or civil law becomes entangled in church business.

''Canon law has no relevance to the criminal justice system, or civil legal proceedings. It can't be used to trump secular law,'' said Barry Lynn, executive director of Americans United for Separation of Church and State, a Washington-based lobbying group.

Charles M. Wilson, executive director of the St. Joseph Foundation, a Texas-based canon law think tank, agrees.

''According to canon law itself, the jurisdiction of civil courts is paramount,'' Wilson said. ''It's not just that the church defers to civil law, it adopts civil law as its own.''

Scholars say canon law was the basis for the development of the secular legal systems used throughout the Western world.

Harold J. Berman, a professor at Emory School of Law in Atlanta, and author of ''Law and Revolution: The Formation of the Western Legal Tradition,'' said Western jurisprudence traces its origins to canon law as it was practiced in the 11th and 12th centuries.

Berman, formerly a professor at Harvard Law School, said secular law occasionally makes exceptions for canon law, such as the recent decision by the Massachusetts Legislature to include a priest-penitent exclusion in the state's new law that requires members of clergy to report suspected child abuse.

''Our law is full of canon law principles that are now not considered canon law, such as monogamy,'' said Berman. ''But canon law has, since the 16th century, recognized the superiority, if you will, of civil law. Until the Reformation, the Catholic Church's law prevailed over the secular law. But secular law can never be trumped.''

Still, because of the First Amendment to the Constitution, which guarantees freedom of religion and calls for the separation of church and state, courts have been reluctant to get involved in church affairs.

''US courts usually don't want to touch these cases with a barge pole,'' said Wilson. ''We've had very few cases where the issue of canon law and secular law is raised at all.''

Lynn said the vast majority of cases in the United States in which the issue of canon law and civil law came head to head involved property disputes, often when one group in a church got into an argument with another group in the same church over real estate or who represented the ''real'' church. The cases have involved Eastern Orthodox and Presbyterian churches, too.

''Courts have just not been buying these arguments'' that canon law must be followed, even if it contravenes secular law. ''Sometimes the church wins, such as in landmark building cases, where a government agency says you can't touch the building and the priest says, `Hey, I need to run a day care center here.' But in nearly all these cases, you're not going to have a civil court take canon law into consideration at all.''

Wilson said he remembers a case in which a bishop sold some church property without getting the proper internal approval, similar to the situation in which Law and his lawyers announced reaching a settlement with Geoghan's victims before obtaining approval from the Boston Archdiocese's Finance Council.

''The bishop, in this case, sold the property invalidly under canon law, but validly under civil law. But it had already gone through the title search and closing. So tough luck,'' said Wilson.

Essex District Attorney Kevin M. Burke, president of the state's District Attorneys Association, said canon law ''has no standing in relation to secular law.''

''The problem with canon law now,'' said Wilson, ''is that there is no penalty for violating it. Bishops run their own dioceses as they wish. Rome has, for the last 30 years, been very hands-off.''

Canon law is subject to interpretation, and some say it deters bishops from turning in miscreant priests because it emphasizes the need to treat them as sinners worthy of redemption. But other canon experts, such as Wilson, disagree, saying it clearly calls for prosecuting priests involved in criminal behavior.

''If the church had followed canon law, and reported priests like Geoghan to the civil authorities years ago, it wouldn't find itself in the mess it is in now,'' said Wilson.

All priests and bishops are subject to criminal laws, and cannot cite canon law to absolve themselves of criminal or civil responsibility. But Berman said the secular legal system can go only so far.

For example, legal analysts cite case law that the Catholic Church would be fully entitled to establish a ban on homosexual priests, as some bishops have called for. While such a ban would pass muster under canon law, it would be clearly discriminatory under civil law. But analysts say the First Amendment would keep the government's nose out of the matter, meaning that no one inside the church whose behavior is circumscribed by canon law could appeal to a secular court on grounds that the church is discriminating.

Berman said canon law was meant to complement secular law, not clash with it. ''Canon law was not meant to exclude clergy from secular law. It was so priests would live under both laws,'' he said.

This story ran on page A1 of the Boston Globe on 5/10/2002.
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