Thursday, May 20, 2010

ATS: Attempts to sue the pope or the Holy See will run into a wall of legal immunity
ATS plaintiffs will eventually set their sights on the pope and the Holy See, whether to demand a higher level of accountability, to seek deeper pockets, to elicit publicity and exert additional pressure on the Church to settle, or for other reasons.

Attempts to sue the pope and the Holy See will run into a wall of legal immunity. The pope himself likely will be protected by head-of-state immunity, even for actions he may have taken before he was Pope. Unlike sovereign and diplomatic immunity, head-of-state immunity is a creature not of statute, but of common law. This immunity is accorded, at the request of the Executive Branch, to any leader of a foreign State. See Ex Parte Peru, 318 U.S. 578, 588 (1943). Although it may be doubted whether the Holy See is a “State” for all purposes, courts have held that it is for purposes of head-of-state immunity. Therefore, claims against the pope will be barred in any case in which the President files a suggestion of head-of-state immunity. These suggestions are not reviewable by any federal court, and are not rare. The Bush Administration filed one in 2005 for the current Pope in a case based on clergy sexual abuse. While the Obama Administration has not addressed the matter, there is no reason to believe that it will be any less receptive than its predecessor to requests from the Pope for immunity.

While head-of-state immunity applies only to the Pope personally, the Holy See can claim immunity under the Foreign Sovereign Immunities Act (FSIA). Courts have held that the Holy See is a foreign state within the meaning of FSIA. However, there are exceptions to FSIA immunity, most notably the exception for “tortious acts.” But this exception applies only to torts committed in the United States. It is not available to claims of abuse in foreign countries. Given that ATS claims can be brought only by “aliens,” the tortious act exception will be useful only in the small class of cases, if any, in which the abuse occurred exclusively within the United States.