wfn.org | Vermont civil suit raises First Amendment issues

[ENS.parti@ecunet.org (ENS)]

about bishops
December 4, 1997
Episcopal News Service
Jim Solheim, Director
212-922-5385
ens@ecunet.org
97-2036
Vermont civil suit raises First Amendment issues
about bishops' leadership with clergy, congregations

     (ENS) A civil suit judgment handed down by a Vermont jury
against the Diocese of Vermont has raised questions regarding First
Amendment separation of church and state authority and the confidential
relationships among bishops, clergy and congregations.
     The case involves a civil suit filed by the Rev. Richard Lacava,
former vicar at the Church of Our Saviour, Sherburne, who claimed that
Vermont Bishop Mary Adelia McLeod had discriminated against him,
intentionally caused emotional harm, breached a contract, invaded his
privacy, portrayed him in a false light, and defamed his character. He
sought $2.2 million in damages.
     By the time the jury awarded Lacava $200,000 in his claim of
invasion of privacy, all but three of his original claims had been
dismissed. Lacava's charge that McLeod had discriminated against him
because he is homosexual and a man was dismissed in a pre-trial hearing
in July 1996, on the grounds that the First Amendment of the U.S.
Constitution protects religious institutions against interference by the state
in decisions regarding clergy employment. The claim of intentional
emotional harm also was dismissed.
     "The First Amendment's guarantee of the free exercise of religion
includes the free exchange of religious thought and dialogue between a
bishop and members of a parish," said Thomas Little, vice chancellor for
the diocese who represented McLeod  during the trial. He warned that
the court's decision has "a substantial chilling effect on that free exercise,
not for the Episcopal Church only, but also for any denomination, any
organized religious group."  
     During the trial in early November, Vermont Superior Court
Judge Alan W. Cheever dismissed claims of breach of contract and
punitive damages. The jury decided on November 10 that there was no
liability for defamation of character or portraying the priest in a false
light.
     Little has renewed a motion to dismiss the verdict on First
Amendment grounds, and if that is denied, will file an appeal with the
Vermont Supreme Court.

`Exercising tough love'
     Lacava filed the suit shortly after McLeod met with him in April
1995 to say he would not be permitted to continue to serve as vicar of
the Sherburne congregation. She then met with the congregation to
explain why Lacava--who had been on a three-month leave of absence in
order to reconcile conflicts between him and the parish--would not
return.
     During the leave, Lacava underwent therapy and treatment for
severe depression, and the congregation worked with a consultant to
develop congregational skills. At the end of the leave, Lacava was
evaluated at McLeod's request by a second psychologist.
     McLeod testified during the trial that when she told Lacava of her
decision she asked for, and received, his permission to tell the
congregation "the truth." Lacava denied giving permission.
     Of the meeting with the congregation, McLeod testified, "It began
with prayer, and then, with a pounding and really sad heart, I told them
that it was not in their best interest or Father Lacava's that he return and
that I had told him that."
     McLeod said she responded to a number of questions from
parishioners, but denied making the specific statements Lacava alleged
were defamatory.
     In response to a trial question about her pastoral responsibility to
Lacava, McLeod said she was "exercising tough love. I learned that
raising five children. When hard issues need to be confronted, it is
pastoral to confront them, to love and care about the person enough to
raise those issues, even though it is incredibly painful for both people
concerned."
     Lacava asserted during the trial that McLeod's explanation of her
decision to the congregation included false statements, "violated his
space, reputation, and character, and ruined his career." He denied
allegations that he had betrayed the confidences of parishioners and that
he failed to maintain appropriate boundaries.
     The evaluating psychologist testified during the trial that she had
recommended a new supervised situation because of difficulties Lacava
had with role boundaries.  

First Amendment concerns
     At several points during the trial, Little entered motions to
dismiss the claims on First Amendment grounds.
     In his opening statement, Little said the core of the case involved
the relationship between a bishop and a priest and that the bishop was
acting "within the spirit and canon law of the church."
     Little reiterated the ecclesiastical context of the bishop's actions in
arguing for his dismissal motions, saying that the statements she did
make about Lacava were in response to questions from parishioners in a
situation for which she had a pastoral responsibility, and that Lacava had
not shown "clear and convincing evidence" that the bishop had acted with
malice or recklessness.
     Judge Cheever said that contradictory evidence had been
introduced about what the bishop had said, and believed one could argue
that the bishop's alleged statements may have exceeded the First
Amendment privileges. Cheever said he did not want to "invade the
jury's opportunity to weigh the facts."
     In closing arguments, Little reinforced his argument that the
bishop had a legal, constitutional privilege under the First Amendment to
speak to the congregation about Lacava's qualification as a priest and that
she had done so with care and concern. 

--based on reports by Anne Clarke Brown, editor of the diocesan
newspaper Mountain Echo.