Federal appeals court won’t stop harassment claim against Jesuits

Tuesday, May 9, 2000

A federal appeals court has decided not to rehear a decision by a three-judge panel of the court allowing a sexual harassment suit to proceed against a Jesuit order despite the Jesuits’ claims that court scrutiny is hampering their religious liberties.

In 1998, a federal judge ruled that several Jesuit priests and officials of three Society of Jesus provinces could not be sued under Title VII of the Civil Rights Act of 1964 by a former student. Title VII was created by Congress to prevent employers from discriminating against employees on the basis of race, religion, gender or national origin, and sexual harassment is a form of gender discrimination under the law. In December 1999, a three-judge panel of the 9th U.S. Circuit Court of Appeals unanimously overturned the lower-court ruling.

On May 5, a majority of the full 9th Circuit voted not to rehear the three-judge panel’s decision. Judge Kim Wardlaw and three other judges dissented from the full court’s rehearing denial and said the panel decision was erroneous and should be overturned.

John Bollard, a former seminarian of the California Province of the Society of Jesus, claimed that several of his Jesuit superiors had sexually harassed him during his training and that officials of the religious order refused to investigate his allegations. After Bollard left the seminary in 1996, he sued the Jesuits, arguing that his civil rights had been violated. Attorneys for the order argued that First Amendment religious liberties prevent courts from delving into church matters.

In its December 1999 decision, the 9th Circuit sided with Bollard, saying that there was “no danger 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 doctrine.”

The denial by the full 9th Circuit to rehear the panel’s decision prompted Wardlaw to claim that the panel’s ruling was based on “flawed analysis” that “portends serious consequences for one of the bedrock principles of our country’s formation — religious freedom.”

“The judiciary must now evaluate Bollard’s claim that the Jesuit Order deprived him of a livelihood as a priest and that he is therefore entitled to compensation for the loss of a lifetime career in the Jesuit Order,” Wardlaw wrote in Bollard v. Society of Jesus. “This is precisely what the Constitution forbids. For over a century, the Supreme Court has restricted the government from interfering in the governance, discipline, or doctrine of religious organizations.”

Wardlaw cited a litany of federal court decisions, including the Supreme Court’s 1976 decision in Serbian E. Orthodox Diocese v. Milivojevich, in which the court held that “religious controversies are not the proper subject of civil court inquiry, and that a civil court must accept ecclesiastical decisions of church tribunals as it finds them.”

“Resolution of Bollard’s sexual harassment claims will require the judicial branch to delve into religious matters outside the judiciary’s province, such as conditions of his association with the Jesuits; disciplinary and supervisory decisions they made; whether Bollard would have otherwise been ordained into the priesthood; and the extent to which he would be made whole from loss of a life of spiritual service or the proper compensation for the emotional pain one suffers from this deprivation,” Wardlaw concluded.