Some fear that state investigations will lead to state interference

Less than a month into the McCarrick scandal, interest in the former Archbishop of Washington’s misconduct began to wane. The story that dominated headlines day after day slowly faded from the public eye as journalists turned back to more humdrum affairs.

It seemed the media was already looking for a way to bury the lede. Some members of the mainstream press resolved not to believe Archbishop Viganò’s allegations from the outset and immediately concluded that Francis was the victim of a smear campaign launched by right-wing bishops and pundits. The New York Times summed up this view with its headline: “Francis Takes High Road As Conservatives Pounce, Taking Criticisms Public.”

They were helped by Francis’s refusal to either confirm or deny Archbishop Viganò’s accusation that he rehabilitated McCarrick despite knowing about his grotesque behaviour. A confession was unlikely, but even an outright denial would have stoked outrage and sustained the story for a few more news cycles. If the Vatican’s intention was to simply kill the story, keeping tight-lipped was the right way to go about it.

Many feared that the public’s short attention span would allow those who enabled McCarrick’s behaviour to get off scot-free. Reform was impossible, they said, if it required more than three or four weeks of our attention. And yet, on September 6 the Attorney General of New York, Barbara Underwood, issued a subpoena for every single diocese in the state. In short order, New Jersey (never to be outdone by their neighbours in the Empire State) announced that it was forming a criminal task force to investigate clerical abusers.

The announcements came less than a month after Philadelphia released its grand jury report identifying more than 300 sexual abusers in six of the state’s eight dioceses, and accusing bishops of mishandling abusive priests. Among those criticised was McCarrick’s successor, Cardinal Donald Wuerl, who defended his record.

But the new revelations, combined with several bishops’ tone-deaf responses, unleashed a wave of cynicism among the laity. “Is justice even possible under the current bishops?” they asked.

That’s why many conservative Catholics warmly welcomed the New York DA’s intervention. This is understandable. On September 7, the Catholic News Service published a letter dated in 2000 from Vatican diplomat Archbishop Leonardo Sandri seemingly acknowledging the allegations made against McCarrick. The Holy See, it appears, knew full well that the former cardinal had a penchant for seminarians and young priests. Where the Church failed to act, many US Catholics argue, the state must.

But not all conservatives are applauding New York and New Jersey for stepping in. Among those who are not is Adrian Vermeule, the Ralph S Tyler Professor of Constitutional Law at Harvard. He suggests that such famously progressive states are unlikely to have the Church’s best interests at heart. Rather, he argues, “their main aim will be to break the sanctity of the confessional, to change irrevocably settled Church practices surrounding ordination, and in general to conform the Church to liberal-secular mores.”

His fears are valid. Earlier this year, the Australian government proposed a new law requiring priests who hear the confessions of abusive priests to report them to the authorities. This is, canonically speaking, impossible. A priest who reveals the contents of another person’s confession – however grave their sin – is automatically excommunicated. Yet failing to do so could result in Australia’s priests being charged with complicity. Are conservative Catholics in America willing to risk inviting this grave legal pressure on our own clergy?

Granted, not every diocese facing the possibility of government scrutiny is situated in a left-leaning state. Some of the most widespread accusations have been levied against the Diocese of Lincoln, Nebraska. The rural state is served by Republican governor Pete Ricketts, a Knight of Columbus and Knight of the Holy Sepulchre. It’s hard to imagine his administration attempting to force priests to break the Seal of the Confessional.

But the liberal states could set a legal precedent that would compromise the Church’s independence. Priests and lay people might then be forced to choose between the Faith and their freedom.

“It’s odd that many Catholic intellectuals who (rightly) insist on the observance of Church doctrine seem to have forgotten that the liberty of the Church is part of that doctrine,” Vermeule points out.

He’s a lonely voice of caution among the lay faithful who are (also rightly) desperate to see abusers held accountable. And whether Catholics should outright condemn these interventions by the state is another matter. But they should think twice about whether New York and New Jersey should be called “agents of divine justice”. As Vermeule says, “Not everyone who wields the subpoena is doing God’s work.”