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As general counsel of the U.S. Conference of Catholic Bishops, Mark Chopko has been the Catholic Church’s top lawyer, handling matters ranging from the sexual abuse scandal rocking the church to Supreme Court litigation. In August, Chopko will leave his position to head the religious and nonprofit organizations practice group in the D.C. office of Stradley Ronon Stevens & Young, a Philadelphia firm. Chopko spoke with Legal Times Supreme Court reporter Tony Mauro about the state of the church, church-state relations, and the high court.
LT: Describe the conference of Bishops. How do bishops react when you bring them legal problems that arise from secular law? Chopko: The conference is really like a “trade association” of the U.S. bishops — all the bishops are members, but it exercises no governance authority over any of them. Like all clients, no one wants to hear bad news. But I find the bishops to be realists. They know that every institution in U.S. society must deal with increasing regulatory burdens, its political opponents, angry litigants, and a sometimes hostile government.
LT: How much of your time has been spent dealing with the sexual abuse issue in recent years? Legally speaking, has the Catholic Church in this country put this issue behind it? Chopko: A portion of every day is spent dealing with abuse-related legal questions. The issue of abuse will be with the Church for quite some time. Even though Catholic dioceses have settled thousands of lawsuits in recent years, there are still hundreds more. We still have dioceses in bankruptcy — and it and it is not clear to me that there will not be more.
LT: Looking back, do you think you and the church should have done things differently to anticipate or prevent the crisis from developing? Chopko: I think the conference has had a very solid program for dealing with abuse — outreach to victims, openness to the community, reporting to authorities, etc. These elements have been there since the late 1980s on my watch. But until the conference passed the Charter for the Protection of Children and Young People in 2002, the bishops themselves didn’t take the responsibility to follow a set of minimum practices.
LT: At a personal level, what has it been like dealing with this issue? Chopko: It has been very stressful. You can’t ever put aside the human costs — not only to the victims, but to the families of the victims, and the families of the accused.
LT: Do you think it was appropriate recently when commentators noted that the Court’s five Catholic members were the five justices in the recent majority who upheld the ban on partial-birth abortions in Gonzales v. Carhart? Chopko: I think it would be difficult to overlook, actually. But that’s not the same as suggesting that their religious views compelled their actions in the abortion case. Many commentators of various religious backgrounds, and no religious background, thought that the law was constitutional. These justices did, too.
LT: What obligation, if any, do you think Catholic judges have when they rule in cases that touch on church doctrine? Chopko: I do some judicial continuing education, where these issues get raised. One thing that always strikes me is how seriously judges at all levels take their judicial oaths. Judges recognize they are not allowed to ignore the law. At the same time, judges as people must reflect their values as they consider important questions, and I suspect many would rather take a difficult case and struggle with the implications instead of deferring to a colleague who wouldn’t.
LT: What should a Catholic judge do in a capital punishment case? Chopko: I didn’t see any commentators note the fact that the five Catholic justices formed the 5-4 majority in favor of a death sentence last November in the Ayers [v. Belmontes] case — deciding the case, some would say, contrary to the teaching of the Pope and the bishops. If any judge finds he or she can’t be impartial and apply the law, for any reason, that judge would have to recuse.
LT: What challenges remain for the church, especially in the area of keeping government intrusion into church affairs to a level appropriate under the First Amendment? Chopko: Some of the challenges in the child abuse area spill over into church-state questions. For example, we support increasing reporting obligations for child abuse — but not the evisceration of the clergy-penitent privilege (such as was proposed several years ago in Maryland.) Others concern the kinds of work that the church does to serve the public. After the 1990 Supreme Court ruling in Employment Division v. Smith, it is easier for government to regulate churches so long as the rules are facially neutral and generally applicable. Under this regime, governments have expanded their reach into church activities that would have been unthinkable 20 years ago — for example, to require contraceptive insurance for church employees at the church’s expense.
LT: As you leave your position, what is the state of the Supreme Court’s church-state doctrine? Chopko: The Court has become more hospitable to allowing partnerships between religious institutions and the government to promote the common good. Two cases we worked closely on were Agostini v. Felton in 1997 and Mitchell v. Helms in 2000. Both upheld aspects of the federal educational programs originally enacted in the Great Society program in 1965 and provide educational assistance for needy children regardless of the schools in which they are enrolled. These decisions, coupled with the Zelman voucher decision in 2002, indicate that religious organizations will not be presumptively disqualified from working in government programs on account of their religiosity.
LT: Do you see dramatic changes in church-state doctrine because of the new composition of the Court? Chopko: I think the unanimous decision of the Roberts Court last year [ Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal] upholding a robust application of the federal Religious Freedom Restoration Act to government conduct is a very good sign. The rights of religious institutions have been a neglected area of the Court’s jurisprudence and one that will continue to be in conflict.
LT: Why are you leaving your position? Will you deal with similar issues in private practice? Chopko: I have been a conference lawyer for 23 years, first as a litigator and then, for 20 years, as general counsel. As the conference has gone through internal restructuring, I have gone through my own soul-searching to decide what the next part of my work should be. This is nothing new. I’ve done this before. As a result of much prayer and introspection, I decided to go into private practice, hopefully building on the experience I’ve gained representing the Catholic Church and promoting the cause of religion in America. I hope that the move to private practice will give me the chance to serve the needs of a variety of religious clients. I also think that in dealing with the abuse crisis, I’ve learned a few things that can assist the firm’s business clients in the event they find themselves under a microscope.
Working Lunch appears every other week in Legal Times .

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