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  Priest Vs. Bishop a Rarity
A Legal Challenge like the Rev. David Soderlund's in the Allentown Catholic
Diocese Is Given Slim Chance of Success

By Elliot Grossman
Morning Call (Allentown, PA)
May 12, 1997

When the Rev. David Soderlund filed suit last month, he started a legal dispute with someone never before challenged in court by a priest or nun in the Allentown Diocese: the bishop.

"It's inherent in church culture that you just don't challenge the bishop," said lawyer David Carothers of San Diego, who represents the Catholic diocese there.

But Soderlund, who lives in suburban Reading, sued Bishop Thomas Welsh and the diocese in Lehigh County Court for wrongful discharge after being fired as director of pastoral care at Pottsville's Good Samaritan Regional Medical Center.

He claims the bishop failed to give him due process before suspending him, leaving him without a church job. Soderlund admits being sexually involved with a teen-age boy 17 years ago but said the diocese had already disciplined and counseled him for that.

Across the nation, fewer than a dozen suits are known to have been filed by priests and nuns against their bishops, according to experts in Catholic affairs.

"I think it's extraordinary," said Michael Raposa, chairman of religion studies at Lehigh University, referring to Soderlund's lawsuit. "It's certainly not a common sort of practice."

One reason such suits are rare has to do with the Catholic Church's internal procedures for settling disputes, which go all the way to the Vatican.

"People accept the decisions of the church tribunals," Carothers said.

Another reason is that civil courts usually dismiss suits dealing with religious matters. Most judges think the First Amendment's religious freedom clause prevents them from getting involved in such suits.

Hoping a judge will follow that trend in the Soderlund case, the diocese filed legal papers Friday asking a judge to dismiss the suit on religious freedom grounds.

"These lawsuits go nowhere," said Patrick Schiltz, associate professor of law at the University of Notre Dame Law School. "You can almost count on one hand the number that have succeeded... You're not going to win."

Just as governments cannot tell religious institutions what or how to preach, they also cannot dictate who should preach, according to experts on church-government issues. So personnel-related suits involving the clergy usually are dismissed.

"The selection of the person to deliver the message is just as important as the message," said Mark Chopko, chief counsel of the U.S. Catholic Conference. "They're inextricably intertwined."

In the late 1980s, Roman Catholic priest Michael Higgins sued San Diego Bishop Leo Maher, claiming he was blacklisted from the diocese after a dispute with the bishop.

But a state Court of Appeal ruled that the case was outside the realm of the courts.

"In our society, jealous as it is of separation of church and state, one who enters the clergy forfeits the protection of civil authorities in terms of job rights," the court ruled.

The California and U.S. Supreme courts rejected appeals by the priest.

In a similar dismissal, the Superior Court in Camden County, N.J., dismissed a lawsuit brought by Roman Catholic priest John McElroy against Bishop George Guilfoyle for failing to pay legal fees incurred by the priest in a criminal case involving sexual offenses.

"The relationship between a priest and his diocese is not to be interfered with by civil courts, thus permitting priests to be selected, ordained, disciplined or discharged for reasons which the church deems proper," the court ruled.

But Glenn McGogney, Soderlund's lawyer, said courts sometimes do hear such cases after religious institutions exhaust their own internal quasi-judicial procedures.

Because these cases have seen limited success, Schiltz said, few lawyers will take them unless they are paid a regular fee, instead of receiving a portion of the damages recovered. And priests rarely have the money to pay the lawyers up front, he said.

Priests also are reluctant to sue because if they lose, they will have trouble getting a job in another diocese.

"The priest or pastor who files the lawsuit is essentially putting a noose around his own neck," Schiltz said.

But Soderlund says he's a "standard-bearer" in the fight to get Welsh and other American bishops to obey church law. Welsh and other bishops violate church canons, including how they transfer pastors, Soderlund claimed, though a diocese spokesman disputed that.

"The institution of church is not perfect," Soderlund said. "Change historically always comes from the bottom up."

Soderlund admits to having a sexual addiction to teens, a type of pedophilia. He said he is in a support group with two other priests who have the same problem. But he said he has not had sexual contact with a teen since the 1980 incident.

He did not ask to be reinstated but to be compensated an unspecified amount.

According to the legal papers filed Friday by the diocese's lawyers, Welsh concluded that if Soderlund were given another pastor's job he would be a potential danger to Catholic Church members.

And the diocese's lawyers said such personnel decisions should be made by religious leaders, not judges.

"Unless the Catholic Church is free to make its own determinations on the selection, retention, assignment and discipline of its clergy, it cannot accomplish its religious mission free of state direction and control," according to the diocese's legal papers.

Allentown lawyer Thomas Traud, representing the diocese and bishop, said: "This is clear, well-established law. I really would expect a court just to bounce this thing."

 
 

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