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It is not only public officials whose actions can undermine the separation of church and state. The gross negligence of some bishops of the Roman Catholic Church in failing to protect the young from predator clergy has also jeopardized that long-held tradition. A settlement this month between the state of New Hampshire and the Diocese of Manchester is a case in point. The state agreed to drop criminal charges against the church in return for which the diocese, for the next five years, must submit to an annual audit of personnel records by the attorney general’s office to make sure that the church is complying with guidelines established to protect children from abusive priests. This arrangement has effectively made the state an overseer of the church, and the once jealously guarded principle of church self-governance has been compromised. New Hampshire intended to bring criminal negligence charges against the diocese under its child endangerment law. In accepting the agreement, the diocese acknowledged the collective guilt of the institution in its “duty of care” and admitted de facto its criminal negligence. Although statutes differ from state to state, the New Hampshire agreement will encourage ambitious prosecutors nationwide to pursue any legal avenue to establish evidence of intent by priests to cover up abuse. (Note that the duty-of-care statute in New Hampshire had never before been applied to an institution.) Under public pressure, grand juries may very well find cause for prosecution. Politicians eager to appease angry constituents — and perhaps even hostile toward religion — may move for legislation similar to New Hampshire’s, thereby permitting similar settlements in their states. The door would be open for prosecution under the Racketeer Influenced and Corrupt Organizations Act, which has been used to prosecute wayward corporations. Finally, given the exchange across state lines of alleged or known pedophile priests, a federal case can be made for conspiracy on the part of the U.S. bishops to endanger the welfare of minors. Under the growing threat of prosecution, other dioceses may be forced to accept ongoing oversight of church operations. Clearly, the Catholic Church must act to prevent any further danger to children from abusive priests. But government surveillance of church files comes precariously close to excessive entanglement and a breach of the establishment clause. And for that too, some bishops must shoulder responsibility. Michael P. Orsi is Research Fellow in Law and Religion at the Ave Maria School of Law in Ann Arbor, Mich.

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