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Jewish World Review Jan. 24, 2000 /17 Shevat, 5760

Nat Hentoff

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Is suing church for sexual harassment an entanglement? -- ON DEC. 1, A UNANIMOUS three-judge panel on the Ninth Circuit Court of Appeals ruled that a former seminarian could proceed with his sexual-harassment suit against the Jesuit order in California.

This is the first time any federal court has extended the reach of the United States Civil Rights Act to include churches under the sexual-harassment laws that govern other employers.

The Ninth Circuit Court overruled District Judge Susan Illston, who had ruled that such a lawsuit would result in "interference of the federal government with church autonomy."

John Bollard, the plaintiff, had wanted to become a priest from the time he was a child in parochial school. After graduation from college, he spent seven years as a Jesuit seminarian and teacher in California.

During a CBS-TV "60 Minutes" broadcast on May 9 last year ("Above the Law"), Bollard charged that at least 12 different priests and superiors had made unwelcome sexual advances toward him -- creating a decidedly hostile work environment, as defined as a violation of the Civil Rights Act.

Many of the specifics of these accusations are in the court papers (John Bollard vs. The California Province of the Society of Jesus, et al.)

Bollard says he complained to Father John Privett, the head of all West Coast Jesuits, and an investigation was undertaken.

"But," Bollard claims, "they never asked me to come back in and talk to them about it. They never asked me about witnesses." He adds that what he wanted was "a sincere apology" -- and reason to believe that such acts would be prevented from happening again.

Eventually, believing that the investigation -- which was conducted in secret -- was not serious, Bollard resigned from the Jesuit order in 1996 without taking vows to become a priest. He is now a schoolteacher in Southern California.

"I've seen the Jesuits do incredible things around the world with education," he told "60 Minutes." "But I have to live with some integrity and with the hope that I've brought some light to the issue so there can be some changes."

In his opinion for the Ninth Circuit, Judge William Fletcher took great care to answer the claim by the defense that the decision would interfere with "the core religious act -- the selection, assessment, retention and discipline of seminarians, priests and other clergy." Thereby -- as the Society of Jesus claims -- there would be an unconstitutional entanglement of church and state.

Judge Fletcher, however, noted that "the Jesuits do not offer a religious justification for the harassment that Bollard alleges. Indeed, they condemn it as inconsistent with their values and beliefs.

"There is thus no danger," the judge continued "that, by allowing this suit to proceed, we will thrust the secular courts into the constitutionally untenable position of passing judgment on religious faith or doctrine."

There is a "ministerial" exception for religious institutions in Title VII of the 1964 Civil Rights Act concerning sexual harassment, as reporter Pamela MacLean writes in The Los Angeles Daily Journal, which specializes in legal issues:

"In particular, Judge Fletcher noted that because Bollard sought only damages as a remedy -- and not reinstatement or other equitable relief -- the courts would not be in a position of continuing surveillance of church conduct or infringing the church's prerogative to choose its ministers."

The decision to allow Bollard to go on with his lawsuit applies only to Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington (the states covered by the Ninth Circuit). The defendants have now asked the full bench of the Ninth Circuit to review the decision by the three-judge panel; but if that fails, and the Society of Jesus loses in the U.S. Supreme Court, the result across the nation will be, as Bollard insists, that "Indeed, the church is not above the law."

James Wagstaff, one of Bollard's attorneys, emphasizes that this case shows that "the wall between church and state should not be a blanket to cover wrongdoing. This case is not about religion. This is not about church dogma."

Asked how Bollard was damaged -- since the lawsuit asks for damages -- Wagstaff said: "Among other things, he lost a lifelong dream to become a priest."

Meanwhile, John Bollard reflects, "I've lost every Jesuit friend I have as a result of this. There was nothing the court could do to bring them back."

JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.


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