An American attorney is seeking to draw the Vatican into the legal tangle of the sex abuse scandal by arguing that bishops who mishandled abuse cases are actually employees of the pope.

The case in question, O'Bryan v. the Holy See, was originally filed in 2004 by the lawyer William McMurry, who is arguing before the U.S. District Court in Louisville, Ky., that the Holy See can be sued as part of a class-action suit on behalf of sex abuse victims. He is seeking unspecified damages.

The case raises a host of legal questions, including the obvious one as to whether the Catholic Church should be viewed like a corporation with the pope as the CEO of an international business conglomerate.  Such a view runs counter to the Church’s own understanding of leadership and governance.

A similar case, Doe v. the Holy See,  is being argued in Oregon, where Friday the Obama Administration filed a brief arguing forcefully that the Vatican is a sovereign state and that there the standards for an exception to the immunity granted to sovereign states has not been met.

The lawyer representing the Vatican in these matters in the United States, California-based attorney Jeffrey Lena, is seeking to have such suits dismissed on the basis of the 1976 Foreign Sovereign Immunities Act, by which the basic immunity of foreign governments is recognized. However, there are narrow exceptions permitted in the act, and in 2008, a federal appeals court in California ruled that the O'Bryan case could be advanced under one of them: the so-called tort exception, which allows legal action against a foreign government because of damage done by its employees or agents while operating in the United States.

This means that the plaintiffs must prove that the bishops of the United States were acting as employees or agents of the Holy See when they engaged in so-called “negligent supervision” in the sex abuse cases. The plaintiffs must likewise prove that the bishops were following official Vatican policy and not exercising their own judgment.
Last week, Lena submitted to the court in Kentucky hundreds of pages of documentation asserting that both assertions are wrong.

Writing online for The National Catholic Reporter, John Allen comments that:

“It's not clear what the plaintiffs can realistically expect to collect, even if, against steep legal odds, they should somehow win a judgment against the Vatican. If the Vatican refused to pay, the plaintiffs could invoke a provision of the Foreign Sovereign Immunities Act that allows assets of a foreign government to be seized -- but those assets have to be located in the United States, and they have to be "related" to the action that produced the harm in the first place. In other words, no court in America is going to put a lien on St. Peter's Basilica.”

Francis Rocca of Religious New Service in his report stresses the inadequacy of trying to impose a corporate model for the Church’s hierarchy:

As the headquarters of a worldwide organization with more than 1.1 billion members, the Vatican must make do with a professional staff of fewer than 2,000 people. If the Church’s day-to-day operations depended on decisions from Rome—whose slowness has become a major target of the controversy over clerical sex abuse—it seems likely that the Church itself would have long ago gone out of business.