If the Pope is Infallible, why does he need Lawyers?

• Author: Bill Piatt
• Position: Professor of law and former Dean (1998?2007), St. Mary's University School of Law. I would like to thank my research assistants, Sean Cohen and Jonathan Greiner. I would also like to thank Maria Vega for her clerical and technical assistance.
• Pages: 555-584

IF THE POPE IS INFALLIBLE, WHY DOES HE NEED

LAWYERS?

BILL PIATT

“The Pope is not an oracle.” Pope Benedict XVI1

I. INTRODUCTION

One of the most widely misunderstood teachings of the Catholic Church

involves the doctrine of papal infallibility.2 As a theological matter, papal

infallibility is quite narrow. It does not mean the Pope cannot sin.3 It does

not mean the Pope cannot make errors in his administration of the Church.

It does not mean the Pope cannot err during ordinary discussions of

theological matters.4 The widespread misconception that all Catholics must

believe their Pope cannot make mistakes helped create resentment against

Catholics for centuries.5 In the United States, this resentment took the form

of physical attacks, political exclusion, and virulent anti-Catholic

propaganda.6 The next section of the Article will examine the extent of such

resentment.7

While the Catholic Church is no longer under direct physical attack,

contemporaneous efforts seek to hold the Pope and the Church civilly and

criminally liable in various contexts.8 Most recently, sexual abuse

allegations prompted domestic and international attempts to hold the Pope

Copyright © 2015, Bill Piatt.

 Professor of law and former Dean (1998–2007), St. Mary’s University School of Law.

I would like to thank my research assistants, Sean Cohen and Jonathan Greiner. I would also

like to thank Maria Vega for her clerical and technical assistance.

1 JOHN THAVIS, THE VATI CAN DIARIES: A BEHIND-THE-SCENES LOOK AT THE POWER,

PERSONALITIES AND POLITICS AT THE HEART OF THE CATHOLIC CHURCH 305 (2014).

2 See discussion infra Part II.

3 See BILL PIATT, CATHOLIC LEGAL PERSPECTIVES 3–5 (2d ed. 2014).

4 See id.

5 Robert Lockwood, The Evolution of Anti-Catholicism in the United States, in ANTI-

CATHOLICISM IN AMERICAN CULTURE 15, 21 (Robert Lockwood ed., 2000).

6 Id. at 29.

7 See discussion infra Part II.A.

8 The Catholic Church and Child Abuse: Looming Shadows, ECONOMIST (May 17, 2014),

http://www.economist.com/news/international/21602248-bid-hold-catholic-leadership-

responsible-paedophile-priests-looming-shadows.

556 CAPITAL UNIVERSITY LAW REVIEW [43:555

and his Church accountable to civil authorities.9 Papal infallibility offers no

insulation from these attempts.

Under some circumstances, however, the Pope acting as the head of the

Catholic religion in implementing theological practices of the Catholic

Church is afforded civil protection.10 As will be discussed, these matters are

extremely complicated. The Pope needs legal representation in these

situations, particularly in light of the lingering resentment some hold against

the papacy and the Vatican.

While invoking papal infallibility in theological matters provides

limited insulation from private claims, another—legal—doctrine affords

additional protection. That doctrine involves the “head of state” and related

immunity against private civil claims recognized under international law.11

Part III of this Article will explore the efforts to hold the Pope liable for civil

torts in the United States, and the application of this “head of state”

immunity to these claims.12

What if the attempt to pursue an action against the Pope and Vatican is

brought not by individual litigants in a civil arena, but rather, by a nother

nation or body of nations against the nation-state that is the Vatican? It is

apparent that the Pope needs counsel and representation in these arenas as

well. Some international efforts directly challenge the religious teachings

of the Church, even on a subject covered by a papal infallibility

pronouncement.13

Who then provides the representation? And how are those attorneys

selected? After examining the doctrine of papal infallibility, its political

equivalent in the “head of state” immunity, and the unique status of the Holy

See, an attempt will be made to identify those who provide—and will

provide—the Pope with legal representation.14 To do this, this Article will

enter some murky areas of theology, politics, law, and sometimes plain old

human bureaucracy and disorganization.

9 Id.

10 See discussion infra Part III.

11 See discussion infra Parts III.A, III.C.

12 See discussion infra Part III.C.

13 See Vatican ‘Must Immediately Remove’ Child Abusers - UN, BBC (Feb. 5, 2014 11:36

PM), http://www.bbc.com/news/world-europe-26044852.

14 See discussion infra Part IV.