Some Bishops are Attempting to Claim Religious Liberty as an Excuse for Screwing Abuse Victims

Some Bishops are Attempting to Claim Religious Liberty as an Excuse for Screwing Abuse Victims March 12, 2015

I’m not making that up:

The Catholic Archdiocese of Milwaukee sought to insulate $55 million of its funds from lawsuits brought by victims of priestly sex abuse, according to a letter penned by then-Archbishop of Milwaukee Timothy Dolan, so it transferred those funds into a separate trust set up to care for the archdiocese’s cemeteries and mausoleums. Once the sexual abuse victims sought those funds in a bankruptcy proceeding, however, the archdiocese claimed that it had a religious liberty right not to use that money to compensate victims of abuse.

Though a federal district judge agreed with the archdiocese that its religious freedom includes this right not to compensate victims in 2013, a bipartisan panel of the United States Court of Appeals for the Seventh Circuit reversed that decision on Monday. The Seventh Circuit noted that “the issue of whether the Archdiocese actually made a fraudulent, preferential or avoidable transfer is not before us,” so it remains to be seen whether the abuse victims will be compensated out of the $55 million worth of funds. Nevertheless, the Seventh Circuit’s decision means that the archdiocese will not be able to hide behind claims of religious liberty in order to avoid liability for the actions of its clergy — or, at least, it means as much so long as it is not reversed on appeal.

At least 45 Milwaukee priests face allegations of sexual abuse, including one priest who was accused of molesting close to 200 deaf boys. The cemetery trust was created after the archdiocese agreed to a $17 million settlement involving ten victims who alleged that they were abused by priests in California, but the $55 million worth of funds were not transferred to that trust until after a Wisconsin Supreme Court decision which allowed other lawsuits by alleged victims of priestly abuse to move forward. Dolan, who is now a cardinal and the Archbishop of New York, wrote to the Vatican regarding the $55 million in funds that “[b]y transferring these assets to the Trust, I foresee an improved protection of these funds from any legal claim and liability.”

The cynicism is simply breathtaking.  And, in the “sin makes you stupid” realities of life, it has the added bonus of completely gutting the Church’s arguments about the important of religious liberty with respect to the HHS mandate and other real issues of conscience for Catholics.  Any non-Catholic looking at this appalling move is *bound* to conclude the pleas for religious liberty are simply legal shenanigans so that the Church can clutch its moolah without regard for justice.

Thirteen long years and these guys seem to be impervious to reality.  How long, O Lord?

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What Are Your Thoughts?leave a comment
  • Eric

    How depressing.

    • Newp Ort

      I was thinking infuriating, but yeah that too.

  • Joejoe

    I think that’s a mischaracterization of the situation and it isn’t as bad as thinkprogress wants to make it look.

    • Newp Ort

      Would you care to elaborate? Because it looks pretty bad. Do you have any basis for this claim aside from it’s thinkprogress so it must be wrong?

      • Mike Petrik

        If I gave serious dough to the diocese for the purpose of maintaining cemeteries, I would expect the diocese to take all prudent steps legally available to ensure that it makes good on its promise to do so. If a court determines the effort to be ineffective, then so be it, but I would expect the diocese to try. Folks sure are fast and loose with other people’s dough.

        • bob

          You know what, if you’re giving money to an organization that has been known for some 15 years at least to protect child rapists, you take your chances. I have no sympathy for the “donors.” If you don’t want your donations being used to pay off abuse victims, don’t give money to abusers.

        • Newp Ort

          Do you know for a fact that that money was donated for that purpose? Sounds like excuse making.

        • Newp Ort

          Do you know for a fact that the money was donated specifically for cemeteries? Is it just other funds the church has that they moved to cemetery trust?

  • Andy

    The fact that the Catholic Church would try to “weasel out” of being responsible is as bad as it looks. The Catholic Church teaches that we are responsible for our behaviors and that we must address them and then tries to not address its own behaviors. The hierarchy wonders why few Catholics still take them seriously, really?
    Religious freedom does not mean that the religion can abuse individuals, and that it can escape its legal liabilities claiming it is a violation of religious freedom. Abusing folks – regardless of age is not what religious freedom is about. Not being responsible is not what religious freedom is about. Freedom of religion means being able to practice one’s faith – where does the church teach it is not responsible and that money is more important than people. Where does the church teach that hiding a crime is a good thing?

    • Mike Petrik

      So Andy, I assume you are donating generously to your diocese for the purpose of ensuring that it has sufficient funds to satisfy the lawsuits? Because, if not, all you are really saying is that other people’s money (i.e., the money of those who donated to ensure proper maintenance of cemetery plots) should pay for those lawsuits. That would seem to be a pretty self-serving position.

      • Mike Petrik

        Actually, best I can tell the Archdiocese is not so much relying on its fiduciary obligation to donors (presumably it did not receive $55MM of such earmarked contributions) but is instead citing its obligation under canon law to maintain cemeteries in perpetuity — hence the religious liberty argument. I have no problem with a diocese taking legal measures for the purpose of ensuring its solvency and ability to execute its mission. I believe the vast majority of donors would expect that. I am troubled by a reliance on a religious liberty argument though.

      • Andy

        Actually I was not commenting on the money – I was speaking to the idea that not paying was OK because it was part of freedom of religion.

        I do not know enough about the fiduciary requirements for the maintaining of cemeteries. Maintaining cemeteries is based on a contract – legal document and not a religious document. Beyond that though how can the hierarchy expect the Catholic laity and the rest of the country to take them seriously about religious liberty when they use it to apparently avoid liability – for me the “money quote” – Dolan penned a letter to the Vatican in 2007 where he explained that transferring the funds into the trust would lead to “an improved protection of these funds from any legal claim and liability.”

  • jroberts548

    The diocese’s claim is that RFRA keeps the bankruptcy court from telling it how to use money it had put in a trust for the maintenance of cemeteries and mausoleums. It isn’t directly a claim that RFRA or the first amendment (“religious liberty”) protects it from legal liability. The 2007 transfer to the trust is shady, but, at the time, the diocese would’ve thought it was mostly protected by statutes of limitations anyway.

    This is shady, but not remotely as shady as characterized here.

    • Newp Ort

      Dolan, who is now a cardinal and the Archbishop of New York, wrote to the Vatican regarding the $55 million in funds that “[b]y transferring these assets to the Trust, I foresee an improved protection of these funds from any legal claim and liability.”

      How much more shady can that get? Maybe it’s taken out of context? But he wrote putting it in the trust would protect them from liability.

      • jroberts548

        That’s the reason anyone puts anything in a trust. That’s what trusts are for. If you aren’t worried about reachability, you’d never put money in a trust. There isn’t a well-run church or nonprofit entity in America that doesn’t put money in trusts for exactly that reason.

        When it comes to maintaining things over a long-term, things like cemeteries and mausoleums, you better put it in a trust. Why Dolan put the money in a trust isn’t a mystery; why none of his predecessors did is.

        (On the other hand, there are facts that could change this, like if $55 million is an unreasonable amount for the future care of cemeteries and mausoleums, or if other evidence suggests this wasn’t a good faith transfer).

        • Newp Ort

          But most organizations creating a trust don’t do it to protect funds from from settlements over sexual abuse of minors!

          September 2006, the Archdiocese settled 10 abuse cases for $17M, April 2007 trust created. AFTER the trust was created, Wis supreme court ruled that other abuse cases could go forward. And then AFTER that ruling the $55M was transferred to the trust – and Dolan told the vatican that would protect the money from future liability.

          The only way it could be more convincing would be for Dolan to come right out and say he moved the money to stop from having to pay abuse victims.

          • jroberts548

            That’s why I agree it’s shady. The timing does raise questions as to whether it was a good faith transfer.

  • zebbart

    What is the right thing to do here? Willfully stay as vulnerable as possible to the adversarial legal system? This is a genuine question. On the one hand, yes the bishops have a moral obligation to repent and do penance and rectify as much as possible the wrongs by clergy. But what does that translate into, money-wise? Exactly how many millions does each victim of abuse deserve? If this is a matter best determine by the legal process, then shouldn’t the Church for its part try to use whatever legal mechanisms are available to try to lay as much weight on lowering penalties as possible, just as its opponents are using every means possible to raise the penalties. Epecially knowing that any money paid to victims is money taken away from the beneficiaries of Church ministries? It’s a conundrum and an ugly business, but in an adversarial legal system what else are virtuous people supposed to do?

    • Newp Ort

      It is a good question. And I don’t want the abuse of the priests to hinder the work of the church by losing money.

      But the whole thing is so disgusting and infuriating I feel like they should pay the consequences, not fight them and try to mask any appearance of wrongdoing.

      • TheRealAaron

        I live in Milwaukee. I can’t say I’m deeply immersed in the internal workings of the diocesan office, but I don’t know of any instances of Dolan or Listecki trying to mask the appearance of wrongdoing. They’ve both been pretty straightforward as far as I’ve seen. I don’t see this as being particularly nefarious.

        • cmfe

          I also live in the Milwaukee diocese, and my pastor along with several others have written Rome to get involved, they are so alarmed and dismayed by the mechanizations of this business. An argument could be made that they are dealing with a mess left by Weakland, but they have been heartless to the victims.

  • Mark S. (not for Shea)

    “The name of God is blasphemed among the Gentiles because of you.”

  • Edward Mechmann

    This situation is not as black and white as you make it. The money in question was donated specifically for the care of Catholic cemeteries — a clearly religious purpose. It had been placed in general diocesan accounts, but when it was realized that there was a threat to the funds from the lawsuits, it was transferred into the trust to ensure that it would be used for the purpose for which it was donated. That is not shady at all — it is proper fiduciary handling of donated funds.

    The Court of Appeals specifically did not find that the transfer was improper. Instead, the ruling only dealt with the issue of whether RFRA applied to actions by the committee of creditors, and whether the Free Exercise Clause can shield funds in a bankruptcy proceeding.

    Don’t believe press releases from plaintiff’s attorneys, especially when they’re laundered through an ideological advocacy site.

    • Mike Petrik

      I agree, Edward. A non-profit, including a Catholic diocese, has a fiduciary duty to take steps to ensure that donations are used in accordance with the purpose for which they were solicited. Failure to do so really would be bad faith. That said I share Mark’s discomfort with reliance on a religious liberty argument.

      • kenofken

        I know this is just crazy talk, but maybe a faithful exercise of fiduciary duty might have dictated not engaging in 60 years of felony criminality which would create an open-ended, multi-billion dollar liability in the first place.

        • Mike Petrik

          Not crazy, just breathtakingly obvious.

        • Tom

          That’s great, but it doesn’t actually have anything to do with Cardinal Dolan’s decision to make sure money donated for cemeteries actually goes to cemeteries. Guilt by association is fun and all, but it doesn’t actually accomplish anything.

          • kenofken

            Are we still laboring under the delusion that any significant portion of that money was ever going to be used for cemetery maintenance?

            • Tom

              Marvel before kenofken, the reader of souls!

    • kenofken

      Yes, folks. Don’t believe those evil plaintiff’s attorneys. Believe the bishops who, after all, have amassed a deep storehouse of credibility on the issue. Their own agenda since the first came to light has been nothing but doing the right thing by victims! The whole thing is a fabrication by agitators for women priests, gays and the liberal media!

  • BobRN

    First of all, was “Screwing Abuse Victims” an intentional attempt at a horrific and ugly pun, or were you just not thinking at the time?

    As I see it, the Church has two responsibilities here: first, to render just compensation to abuse victims and, second, to be responsible stewards of her resources.

    The matter of just compensation, for the most part, is out of the Church’s hands. That is left to the courts. The Church can appeal an award she regards as exorbitant, but that would only leave her open to critics who would accuse her of lacking compassion and of wanting to hold on to the money. Most state legislatures cap the amount of compensation victims of abuse at the hands of public employees can receive. So, in a sense, public institutions have the state legislatures to protect them from exorbitant monetary penalties (though, in truth, the caps are ridiculously low). The Church is left to fend for herself in these matters, or to rely on the justice system to come up with victim compensations that are just for victims, but not crippling to the Church.

    Is it Mr. Shea’s contention that the Church must not protect her resources, but must put everything on the table? Would that be fair and responsible to those who have given their resources to the Church? It’s a difficult question.

  • FJH3

    Mark, your grasp financial responsibility is not your strong suit. As Mr. Mechman notes below, the cemetery funds must be kept separate because of the Archdiocese’s fiduciary responsibility to those who have acquired burial plots.

    • kenofken

      A $55 million cemetery fund that just happened to materialize right at the time the plaintiff’s attorneys came calling? The Archdiocese’s cemetery lawnmower men must have negotiated a hell of a pay raise in aught-seven…

      Nothing to see here, folks. Go on about your business.

  • Michael

    So even my feeble mind gathers from the comments that it’s legit to keep resources necessary to maintenance previous agreements – e.g., cemetery plots – separate and untouchable. I guess I get that. But the _timing_ and the _wording_ are what deflates that defense: why weren’t those funds set aside before 2007? And why did +Dolan write a memo that pretty much says “Don’t worry about the lawsuits, the money is safe”? Part of me thinks that money _should_ have been available to settle suits brought by victims of abuse – and then let the archdiocese deal with the subsequent suits arising from the now-depleted cemetery funds.

    It’s all hideously, horribly ugly. A relative, who lives in the Archdiocese of Milwaukee, can barely talk about that institution without spitting.

  • Michaelus

    More money goes to attorney Jeffery Anderson, fantastically rich man, than to any abuse victim.

    • kenofken

      Anderson got rich because he’s good at pulling skeletons out of closets. He didn’t put them there. His clients walk away with something north of 60% of what he wins in settlements. What was the Church offering them? 100 percent of nothing.

      • Michaelus

        Why didn’t Anderson sue the police department that investigated and did nothing about Fr. Murphy after the deaf boys reported him? Because police departments have better lawyers and can fight civil lawsuits more effectively that we can. Is destroying schools, hospitals, social services etc. that had nothing to do with abuse the correct solution? Especially when the money given for the poor is taken by a rich lawyer?

        • kenofken

          I don’t think an outfit that has a legal strategy to shelter $55 million in assets is hurting for lawyers or strong legal representation. I can’t say for sure why Anderson is or isn’t suing other parties. Police and public officials are granted strong immunity protections in their official duties which protect them even in instances of shabby or substandard performance. I don’t know what the police knew or had to go on at the time the allegations were made or if they were made before the statutes of limitations expired. In the abuse cases though, there is very little ambiguity on what the Church and bishops knew. They knew full well many of these priests were serial abusers and spent years of time and money actively covering up their crimes and perpetuating new ones. The victims should get what is coming to them from whatever part of the Church’s assets it takes to settle the matter.

          • Michaelus

            Why not sue the individual bishops and reduce them to lives of penury? Is Penn State bankrupt? Is the BBC selling off assets? Is Horace Mann School in NYC shuttered – the sex abuse of boys by homosexual teachers (including the Headmaster) there went on for decades?

            So why is the Church expected to abandoned even graveyards?

            • kenofken

              He should sue the individual bishops to the extent the law allows. I suspect they technically already to live lives of penury – on paper. They have nice offices and mansions and drivers and servants, but I’m sure it all technically belongs to the Church. Nor do I see why Anderson or anyone else should restrict themselves to going after the bishops in isolation. The decisions they made regarding abuse were not freelance activities they did on their own personal time. They were at the center of their leadership of the corporation, so to speak. They were decisions made in collusion with every leadership level of the Church up to Rome. Church assets, not the bishop’s personal credit cards, were used to further the abuses and coverups.

  • anna lisa

    Cardinal Mahoney *did* raid the cemetary funds to pay abuse victims in the L.A. Archdiocese. Guess how we found out? When we complained about all of the extra exorbitant fees for burying an infant. Great! It just shifted the abuse settlements onto the backs of grieving Catholics.
    Solves so much.

  • W. Randolph Steele

    There is an old saying in politics:”Political wounds are self inflicted” and it’s the same with the Church.
    Both my brother and my wife worked for the Church. Both were DRE’s and my wife was later promoted to Pastoral Associate. BOTH said the same thing: “If you want to keep your faith, DON’T work for the Church”. My wife was lucky and had better experiences than my brother di and stayed both at her job and in the Church. He didn’t and left both. Stories like this do a lot of damage.

  • SteveP

    “Once the sexual abuse victims sought those funds in a bankruptcy proceeding, however, the archdiocese claimed that it had a religious liberty right not to use that money to compensate victims of abuse.”
    .
    Mark: are Catholic victims permitted to covet?

  • And Dolan is a hero to mainstream Catholicism, and an alleged “reformer” when it comes to sexual abuse.

    All I will say is that I offer no judgement, for God will almost certainly take care of that for us.

  • When I let my rage subside (okay it hasn’t!) I realized this is the modern day equivalent of the Korban rule, where the Pharisees avoided their divine obligations by putting money into the temple, then claiming poverty when forced to give an account.

  • That isn’t important

    Actually, depositing cemetery funds (which mostly come from the sale of plots) into the general account was probably illegal all along and should have resulted in a law suit to compel segregation of those funds. Most states have rather serious rules about cemetery funds because the dead can’t stand up for themselves. (In a very real sense the cemetery fund does not belong to the diocese, it belongs to the dead buried in its cemeteries and to the living who have purchased plots to be buried there.) To use designated funds (generally speaking) for a non designated purpose is “theft by misappropriation” which can be a misdemeanor or a felony depending on the amount and other circumstances, or if designated funds are solicited with the intent of using them for a non-designate purpose it is fraud.

    Now, why were funds which were legally required to be held in trust for cemetery maintenance not in an actual legally separate trust?

    Many church entities, and many non-profits, even some corporations, and even governments once had the bad habit of simply having one giant general fund, with all the specific funds just existing on their own internal ledgers but actually being in one bank account (this is oversimplify, but only slightly). This facilitated inter-fund loans, so that if the payroll fund was a bit short, the excess in the cemetery fund would automatically cover it until the situation could be rectified. The trouble is, it makes it very easy to grossly mismanage funds. Numbers of non-profits have gone bankrupt over this, quite a few have gotten in great trouble with the IRS, others have seen their book-keepers, CEOs or CFOs go to jail. (Also very easy to hide theft and fraud in such a system.) What was being done, is the diocese was using cemetery funds for non-cemetery purposes, and then giving the cemetery fund an IOU, it was a sort of informal loan. All the while it was reporting the “cemetery fund” was sound, in just the same way the non-existent Social Security “trust fund” is in theory solvent (even though the government spent all the money every year on other current expenses). It was potentially illegal to co-mingle the cemetery fund and general fund, and is certainly a very bad business practice (though incredibly common in many charities and non-profits).

    Now what should have been done is there should have been a Trust all along, with independent trustees overseeing the funds. If the diocese wanted to borrow cemetery funds (say to finance a building) it should have entered into a formal agreement, drawn up a contract, agreed to pay interest, etc. such that the cemetery fund would have been making a money-earning investment in that project rather than having its money used for free.

    The religious freedom business almost certainly had more to do with trying to keep all of this from coming to light than it did with actually sheltering the money. The money probably was legally required to be sheltered (if the diocese could prove that is where the money came from, but shoddy record keeping likely made that uncertain, too).

    The owners of cemetery plots and the heirs of those already buried have potential grounds to intervene and sue the archdiocese if it fails to properly manage these funds, and it appears they should have done so many, many years ago.

    All that being said, two wrongs don’t make a right. The previous mismanagement of these funds does not make them fair game in these law-suits, though under certain conditions the co-mingling of those funds does make it harder to defend that money (lots of records regarding plot sales or designated gifts, going back many decades, perhaps over a century, would have to be carefully examined, earnings on investments scrutinized, every expense for cemetery upkeep argued about, and in the process any mismanagement would have become painfully public).

    The religious freedom argument was a sham way of trying to dodge the full public disclosure (likely the diocese lawyer thought it would save time and money and avoid embarrassment).

    Also, Mark’s headline is also a click-baiting sham (in my opinion) and contributes to a misunderstanding of an issue that is more complex. Rather it is more like, There could be a reasonable argument over the question of if cemetery maintenance funds should be able, as a moral matter, to be redirected to victims, but as a legal matter the diocese is required as a matter of fiduciary duty to protect cemetery funds (that being both a legal duty, and a moral duty). What is the proper way to balance the grass mowing at granny’s grave against the compensation of victims? That is, however, an interesting and valid question. I am inclined to think actual compensatory damages should outweigh grass mowing, but on the other hand the obligation to bury the dead and tend the graves should trump lottery scale payouts above and beyond real damages.

    • kenofken

      The details of best accounting practices of cemetery funds is interesting but it’s a side issue. The core issue is that the bishops demonstrate at every chance they get that they’re still not interested in owning the abuse and ending it. They’re primarily concerned about innovating better tools and strategies for getting away with it. Jeff Anderson and his successors will find rich digs for generations to come.

      • SteveP

        Go ahead and give us a list of your virtuous pagan friends who have let themselves be pauperized. Surely in complaining of behavior you can offer a plethora of evidence to the contrary.

        • kenofken

          Most of them are pretty well paupers to begin with. Even our most successful organizations I’m quite certain don’t have $55 million in assets to shield. Nor are we immune to abuse problems. I’m glad to say however that the discussion taking place around that issue has been about how to prevent it rather than how better to get away with it.

          • SteveP

            Talk is cheap; you have done nothing and will continue to do nothing.

            • petey

              “Talk is cheap”

              payout in compensation for violating the bodies and minds of youth isn’t, and shouldn’t be.

              • SteveP

                I look forward, when my counting team is scheduled again, to seeing an envelope marked “For the victims of Clerical Sexual Abuse.” I’ll assume it is from you and will thank God that someone opens their wallet rather than their mouth.

                • kenofken

                  If he isn’t among the priests who buggered young boys or the bishops who aided and abetted that buggery, why is it on him to compensate the victims?

                  • SteveP

                    You slavered a bit when you wrote “buggered.” Frustrated?

  • GHN

    Can’t say I’m surprised. But then I guess the RCC is like any other institution, it will invest its money in the things (and people) it truly values.

  • chad

    I stopped donating to the Church in the heat of the crisis. I didn’t want my donations to go towards payouts, deserving as they may be. Although I did give money to the building fund which I knew would be used for the purpose of the donation. And thus I look at what Dolan did and support that action to protect funds that should have been set aside for the dead anyways. I contemplate what that says about me, but SteveP hits on it below. Where were our checks made payable “For the victims of Clerical Sexual Abuse”? We sure talk a big game though.

  • Mark, do you really trust “thinkprogress” as a source of fair-minded commentary on a controversy involving the Church?

    • chezami

      I don’t care about the Genetic fallacy at all. It should be obvious by now. Refute the information therein.

      • The quote above is tendentious inasmuch it makes no mention of Abp. Dolan’s argument that he moved the money in order to justly protect the funds of cemetery users. By calling him cynical, it seems that you also do not acknowledge that he was carrying out a duty.