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Rosenthal was evidently unimpressed by the stature of the man in her case. In a remarkable order of hers signed on June 23 (more than ten weeks after he became Pope Benedict XVI), Rosenthal referred to Ratzinger by the name his mother gave him and told his Holiness in no uncertain terms exactly what she expected of him.
"Defendant Joseph Ratzinger must file a memorandum in support of his motion seeking dismissal based on head-of-state immunity no later than 30 days after the United States Department of State's suggestion of immunity is submitted to the court," the order read in part. Later, Rosenthal went on to decree that "Defendant Joseph Ratzinger" was to "file a report by July 29, 2005 and every 30 days thereafter informing the court of the status" of his request for immunity.
"For the first time in Western history, you've got a Pope who's been under the jurisdiction of the United States, and a female Jewish federal judge telling Joseph Ratzinger, who also happens to be Pope, that he's gotta do this and that before he's let out of her lawsuit," marvels Shea. "That's a watermark in United States history and in the history of the United States Constitution." (Rosenthal's court did not return a phone call from the Houston Press asking her to clarify her thought processes in its crafting.)
In August of 2005, Rice's office sent a letter to Assistant Attorney General Peter Keisler informing Keisler that the Department of State recognized and allowed Benedict's immunity. The letter went on to stress the "particular importance attached by the United States to obtaining the prompt dismissal of the present proceedings...in view of the significant foreign policy implications of such an action against the Head of a foreign state."
And that was that.
Until very recently, when the sex scandals — in Germany, Wisconsin and California — flared anew. While Shea's case isn't being reopened, there are others in places like Germany. He thinks that the Germans might just have the nerve American officials lack. "They are more secular and less tolerant of this bullshit," he says. "I have forwarded the German Justice minister my documents, and the feedback I've been getting makes me believe that they see them the way that [FBI agent] did."
He rails against the Vatican's diplomatic immunity. Why stop with the Vatican, he wonders. "If you recognize the papacy, why not go out to Salt Lake City and draw a map around the Mormon temple square, and we'll call it Temple City, and we'll make the Head Brouhaha of the Mormon Church a head of state, and the same thing with the Southern Baptists. Maybe we could draw a circle around Baylor University.
"It's patently contrary to the spirit of the Constitution."
He still believes that his old lawsuit could bring down the Pope by other means. He is still hoping that someone will come along and find that the conclave was tainted. He wishes that the Vatican would operate with some semblance of what he would call justice.
"There's a difference between what we would call actual impropriety and the appearance of impropriety," he says. "In a case involving judges, should anything appear that causes the appearance of impropriety, a judge is supposed to recuse himself. And that recusal is not seen as an admission of any actual impropriety."
Shea believes that Ratzinger's invocation of Crimen and authorship of the May 18, 2001, letter constitutes more than enough evidence for the man in the street to wonder if maybe there was some chance of impropriety in the papal conclave. "The appearance of a tainted conclave is there," Shea says. "That's why the person who is the product of a tainted conclave could well decide to resign the papacy and say with a straight face, 'There was no impropriety. There exists an appearance of impropriety, and out of my concern for the integrity of the papacy and the integrity of the College of Cardinals, I feel it appropriate to step aside.'"
The Church requires the confidence of its faithful in its institutions, he says, and adds that both the integrity of the papacy and the moral integrity of the Church have been shattered. Nevertheless, he thinks that the Pope will keep digging in. Recent events — the Pope's personal preacher comparing the plight of today's church to that of Jews in the Holocaust, the reference to sex abuse scandals as "petty gossip" — seem to bear him out.
What's more, he believes they are still hiding the devil in the details. He believes that the so-called Essential Norms document of 2002, which the Vatican has touted as a watershed in its dealing with sex abuse — i.e., priests will be handed over to the police and not transferred any longer — is made voidable by the last few clauses in the last sentence of the seventh and last footnote, which read "the Church reaffirms her right to enact legislation binding on all her members concerning the ecclesiastical dimensions of the delict [sin] of sexual abuse of minors."
"It's always in the footnotes," he says. "The devil is always in the small print."
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