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High court won't get involved in clergy malpractice case

By The Associated Press

05.14.02

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WASHINGTON — The Supreme Court sidestepped a timely question yesterday: How can priests be sued for alleged misconduct?

Justices refused without comment to review an acrimonious case out of Mississippi involving a priest, a divorced former governor and a secretly taped confrontation over the sexual infidelity of the governor's former wife.

In other action yesterday, the high court refused to take up a case that struck down a Nashville, Tenn., licensing law for adult sex establishments and refused to consider overturning a ban on a Lexington, Mass., Nativity scene on the site of the first Revolutionary War battle.

The court could have used the Mississippi case, Protestant Episcopal Church in the Dioceses of Mississippi v. Mabus, to explain church liability. The issue comes to the court as Catholic leaders around the country defend their handling of sexual abuse by priests and face demands for cash settlements.

Priests can be prosecuted for crimes, like molestation. This case involves an allegation of a less tangible wrong.

Former Mississippi first lady Julie Mabus says she lost faith in her church and religion over the secret taping. She sued her priest and church for clergy malpractice, breach of duty, fraud and negligence. With the Supreme Court's refusal to intervene, the case goes back to state court and may go to trial.

Clergy "answer to their God, not the state, in matters particular to their religious calling," church lawyer Charles E. Ross told the Supreme Court.

Mississippi Episcopal leaders wanted the court to stop the lawsuit over a counseling session involving former Mississippi Gov. Ray Mabus and his now ex-wife.

Ray Mabus, a Democrat who served as governor from 1988-92 and as U.S. ambassador to Saudi Arabia from 1994-96, told the Rev. Jerry McBride he was going to tape record the 1998 meeting at the couple's Jackson home. The taping was kept secret from Julie Mabus.

Her lawyer told the court that priests should be treated like doctors, attorneys and other professionals. They "should not be allowed to stand above the laws that govern our society and use the First Amendment to shield" themselves, Kathryn N. Nester wrote in a filing.

The couple divorced, on grounds of adultery. The recorded transcript of the meeting involving Julie Mabus' affair was used in the divorce, and she lost legal custody of their two daughters.

In 1998, McBride was an ordained priest serving as rector of a Jackson church, and he had married the Mabuses 11 years earlier when Ray Mabus was about to launch his campaign for governor. McBride is no longer a priest.

The taping without Julie Mabus' knowledge was not a crime, under Mississippi law. But her attorney said the priest's behavior violated state negligence laws.

The Mississippi Supreme Court refused 5-4 to stop the case.

Ross said in a filing that religious groups "whether Episcopal, Baptist, Catholic, Methodist, Jewish, Muslim, Buddhist, or other, would find themselves forced to study civil law, as opposed to their religious scripture and internal documents, to determine the correctness of their religious behavior."

Mabus was defeated in 1992 by Republican Kirk Fordice, who also went through a nasty public divorce.

Meanwhile, the high court yesterday did not comment in refusing to hear a Tennessee case testing whether local governments can impose limits on free expression, such as nude dancing, without a guarantee that court challenges to the limitation will be resolved quickly.

Several adult dance clubs, exotic dancers and adult bookstores won a lower court ruling that a 1997 Nashville licensing law was an unconstitutional limit on free speech. The city wanted the high court to intervene.

The court also did not comment in refusing to consider overturning a local ban on a Nativity scene and other displays on the town green in Lexington, Mass.

Earlier lower court rulings allowed restrictions on long-term religious displays to protect the green's purity as a historic American landmark. Crèche supporters vowed to fight on.

Lexington Selectman Peter Enrich said he hoped "this would be a good opportunity for the town to put this issue behind ourselves and move on."

Crèche proponents will push the town board to repeal the regulation, Lorraine Fournier said.

"This is not the end," she said.

The Knights of Columbus brought the case on First Amendment grounds. The Catholic service organization had sponsored the Nativity scene, which had been displayed for nearly 80 years.

The town says it doesn't want the green to be cluttered with long-term displays, instead allowing temporary structures and events, such as a Nativity reenactment with people in costumes.

A federal appeals court in November upheld a U.S. District Court decision. The three-judge appeals court panel said the town's regulations inhibit "some speech," but said they are nondenominational, suppressing "no more speech than necessary," and leaving open "ample alternative avenues of communication."

Some residents objected to the scene, saying it symbolized a town endorsement of Christianity. They applied for permits to display symbols of other religions, including a pyramid honoring the Egyptian sun god, Ra, and a herd of cows celebrating Hinduism.

The town board then passed regulations allowing displays for only eight hours, and the Knights of Columbus sued.

A resident wanted to display a sign protesting the Nativity scene, Enrich said.

"The town has become increasingly diverse, and there had been an increasing sense of awkwardness about it," Enrich said. "Some people felt it very alienating to have one particular religious group's symbol displayed so prominently."

Because the Supreme Court takes so few cases, crèche supporters knew the odds were long that their case would be heard, Fournier said. But even an end to their legal battle isn't enough to deter them, she said.

"I believe truth and justice will prevail in the end and that there are other avenues we can take," she said.

Previous

Church asks Supreme Court to halt malpractice lawsuit
Episcopal Diocese argues allowing suit over secretly recorded counseling session to proceed would have chilling effect on religious practices.  03.13.02

Court upholds historic town's crèche ban
Lexington, Mass., can continue to regulate displays on its historic Battle Green.  11.30.01

Related

2001-2002 Supreme Court term coverage
Analysis and other coverage of the 2001-2002 U.S. Supreme Court term.  11.01.01

Minnesota high court reinstates lawsuit against former minister
Legal scholar says justices' ruling in marriage-counseling suit puts clergy at risk for being sued for performing their normal duties.  08.18.02

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