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The Establishment Clause, The Vatican, and Diplomatic Immunity

I apologize for not having posted recently. I have been very busy reading Plato's Politicus in Greek at an absurd rate, and various other less time consuming classwork. Here I make time for a brief note regarding this article from today's New York Times discussing a lawsuit which names Pope Benedict XVI as a defendant in a conspiracy to cover up a sex abuse case. On the one hand, I am not convinced that what Pope Benedict (or rather Cardinal Ratzinger, as the incidents in question occurred prior to the death of Pope John Paul II) did constitutes a coverup conspiracy, per se, but certainly it wasn't particularly praiseworthy, and the Vatican should have reported the incidents to local authorities as soon as it became aware of them.

This, however, is old news. What is interesting about this case is the controversy regarding the "Holy See" (i.e. the Vatican) as a sovereign state, while at the same time a church. This makes for very complicated questions as to what constitutes exercises in foreign policy versus what violates the Establishment Clause of the First Amendment. The federal government, at the behest of the Vatican Embassy (yes, the Vatican has embassies), has filed a motion to have the case dismissed on the grounds Pope Benedict enjoys diplomatic immunity as sitting head of state of the Holy See. An almost identical motion carried in a lawsuit against Pope John Paul about ten years ago. The lawyer for the plaintiffs, however, is arguing that diplomatic recognition of the Holy See actually violates the Establishment Clause.

The text of the Establishment Clause reads, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Note the strength of this statement: Congress cannot make a law that has to do with religion; to encourage it, to prohibit it, to treat religious organizations differently from non-religious ones, etc. Laws of Congress cannot talk about religious organizations! Now, I don't know anything about the history of jurisprudence on the subject (well, maybe I know something, but it isn't much), so perhaps I make this overly strong, but at any rate, we should note the difference between this and the "separation of church and state" doctrine so often confidently asserted to be present in the Constitution. According to my reading, which I think is the obvious one, it seems that Congress is also prohibited from saying "no, we won't deal with you because you are a religious organization."

Now, as to diplomatic recognition: the issue remains complicated. Does recognizing a country diplomatically amount to making a law "respecting" it? If so, then it would seem that since the Vatican is also an "establishment of religion," in addition to being a nation, we are prohibited from diplomatic dealings with it. Certainly Congress could not pass a treaty with the Vatican. However, as I understand it, Congress does not pass individual laws recognizing or not recognizing individual countries. Rather, this is handled by the executive branch (specifically the State Department). If this is the case, then Congress would be prohibited from making a law that singled out the Vatican from other nations, whether it did so positively or negatively. The Vatican would have to be treated the same as any other nation. I suspect that this latter interpretation is closer to correct, and in fact is very similar to a series of court rulings regarding religious student groups in public schools (the courts have consistently ruled that such groups must be treated identically with other student groups, including in matters of funding and facilities reservations).

I would kind of like to see this issue make it to the Supreme Court as I would like to see what they have to say about it.