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The pope-to-pope media blanketing is disturbingly uncritical to the point where you'd soon forget that Pope John Paul II for 28 years headed the same organization that finds itself in caption boxes of sex abuse lawsuits too numerous to list. US Archdioceses are considering bankruptcy because the Vatican, in its infinite pipeline-from-God wisdom, deliberately ignored the ten thousand or so signs that those archdioceses were operating a dating service for NAMBLA members.

But that's all been said and by people a whole lot angrier than me. As for what's next, we can only look to PaddyPower.com and place our bets on the next pope [update: PaddyPower.com, the online Irish bookmaker, has pulled its Vatican odds. Googlecache here. My guess is that their market was prone to manipulation by bettors with access to better information than the book, so they froze it]. And be frightened. For all this pope did and was, the next pope will apparently make liberals wax nostolgiac for JPII in the same way US liberals came to realize that Ronald Reagan wasn't so bad when held next to a true wingnut like George W. Bush.

Because JPII held on for so long, nearly all the cardinals elected to the cardinal college were elected by JPII - and so share his ideology. And just to make sure, JPII expanded the college by some 30+ seats (and immediately filled them with ultra-conservative ringers) only a few years back, as a statistical assurance against any surprises; like the one that led to JPI's election after he split the frontrunners, who had both managed to disgust the voting cardinals with sleazy campaign tactics. JPI, you'll recall, promised to open the Vatican Bank books to clear up rumors of scandal. A picture of perfect health prior to popedom, he lasted 33 days.

But there will be no surprises this time. The next pope will be a true wingnut.

Let's briefly look at the top candidates.

Dionigi Tettamanzi (Italy) (5 - 2)

Tettamanmzi, the top Italian choice and odds-on favorite, is not only at odds with homosexuality but even civil unions ("The attempt by society and the civil law to give equal status to families and domestic partnerships must be considered false and falsifying"). In addition to these sentiments, sees "Excommunication for procured abortion constitutes" as a "gesture of maternal love."

What's scary is that Tettamanzi is by far the most moderate and pensive of the candidates.

Francis Arinze (Nigeria) (11 - 4)

Because Catholicism has demographically drifted below the equator over the past quarter century, there is reason to think that Nigeria's Francis Arinze will find himself as the next pope. Africa has become a modern day Crusades-arena, with constant and often deadly muslim-christian friction in nearly every country. Electing Arinze would send a message that the Catholic church takes the situation in Africa quite seriously. It would also send a message to the West of an unambiguous and unyielding stance on stem cell research and abortion.

ABCNews.Com reports that Cardinal Francis Arinze compared abortion and genetic research to the 9/11 terrorist attacks,

He appealed to Buddhists to work against "a culture of death, in which abortion, euthanasia and genetic experiments on human life itself have already obtained or are on the way to obtaining legal recognition."

Oscar Andrés Rodriguez Maradiaga (Latin America) (4 - 1)

Maradiaga is the leading candidate from Latin America, which, like Nigeria, has experienced exponential growth in recent years, as opposed to Europe, where Catholicism has flat-lined somewhat. Not to be outdone in the hyperbole department by his competitors, while attempting to explain the media coverage of the sex abuse scandals in America, Maradiaga said, "Only in this fashion can I explain the ferocity [in the press] that reminds me of the times of Nero and Diocletian, and more recently, of Stalin and Hitler."

Joseph Ratzinger (Germany) (7 - 1)

We all make mistakes when we're young, but you'd think that Joseph Ratzinger's brief fling as a Hitler Youth would come up a bit more often when the media discusses his overall qualifications. Not that there's anything wrong with a little youthful indiscretion, but perhaps the tolerance Ratzinger learned in 1930s Germany has carried over:

As if that weren’t enough, the ever-busy Cardinal has used his privileged take on the Truth to set back inter-faith tolerance and religious pluralism a few decades. In 1997 Ratzinger annoyed Buddhists by calling their religion an ‘autoerotic spirituality’ that offers ‘transcendence without imposing concrete religious obligations’. And Hinduism, he said, offers ‘false hope’; it guarantees ‘purification’ based on a ‘morally cruel’ concept of reincarnation resembling ‘a continuous circle of hell’. The Cardinal predicted Buddhism would replace Marxism as the Catholic Church’s main enemy this century.

During Condoleezza Rice's recent visit to the Vatican, the Holy See's own Secretary of State, Angelo Sodano, asked that the US State Department intercede on its behalf in a class-action sex abuse lawsuit filed in Kentucky that the Vatican is not entirely comfortable with. As the National Catholic Reporter article helpfully points out, suing foreign entities in United States courts is mostly a fruitless task.

Mostly.

The Foreign Services Immunities Act allows for a few exceptions, "commercial nexus" being the most commonly employed (§1605(a)(2)). But the under utilized (and rarely successful) "non-commercial tort" section (§1605(a)(5)) would seem to cover the Vatican's hand in the numerous sex abuse cases filed here:

(5) not otherwise encompassed in paragraph (2) above, in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment;

However... that leads us to the exception of the exception:

except this paragraph shall not apply to -- (A) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused[.] (emphasis added)

The question therefore will boil down to: Assuming the Vatican bears some oversight responsibility for the sex abuse crimes occurring on American soil (because plaintiff's complaint will be viewed in a light most favorable to him/her when considering a motion to dismiss), is the Vatican's oversight responsibility a discretionary function?

My gut instinct would be to say that the answer to that question changes according to circumstance. While the Vatican was not originally in the business of overseeing child molesters, it can no longer claim ignorance that a transformation of sorts has taken place. Indeed, despite its many contortions meant to pretend the problem does not exist, the Vatican's main arguments (It's the fault of gays and/or promiscuous American culture) will fall on deaf ears in an American courtroom. And not because the eevil secular humanists have taken over, but because those arguments are patently ridiculous.

It's not entirely apparent how 'discretionary' would be interpreted in this statutory context, and and underabundance of case law doesn't help focus things. The 9th Circuit distinguishes between "operational" and "discretionary" acts of a government. This test has been employed in Thompson v. US, 592 F.2d 1104, 1111 (9th Cir. 1979), Olsen v. Mexico, 729 F.2d 641, 648 (9th Cir., 1984), and derives from a a pre-FSIA case, Dalehite v. US, 346 U.S. 15 (1953), where the Supreme Court defined discretionary as:

"[M]ore than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion."

In Olsen, perhaps the most promising case in helping the sex abuse complainants get past the motion to dismiss, plaintiffs were relatives of prisoners being transported to Mexico as part of the Prisoner Exchange Treaty between Mexico and the United States. Because the Tijuana airport was so ill equipped, the plane crashed. The court found that the negligence of the Government in maintaining the airport was "operational" in nature as opposed to "discretionary."

So then, is covering up decades of child abuse a matter of policy? Does running a pedophilic dating service require government decisionmaking at the highest levels?

Or is negligence, which has surely been elevated to recklessness by this juncture, operational by nature? States don't plan to act negligently nor recklessly pursue goals as a matter of policy.

The Holy See would argue that they have confronted the issue of sex abuse as a state as evidenced by issued various public statements which resulted from meetings meant to establish a coherent policy positoin. Categorically then, the Vatican would claim that sex abuse is a discretionary function simply because it has considered the matter and confronted it as a matter of policy.

(Many would certainly (and fairly) argue with this, but realize that categorical tests employed by the courts do not consider related factual issues or even the particular nature of the state - the issue would be restricted simply to whether oversight by a sovereign entity (any sovereign entity) regarding sex abuse occurring in United States is, by its nature, operational or discretionary for the purpose of extending liability to the negligently overseeing state.)

It's worth researching more deeply and perhaps in a subsequent post I'll examine the entire line of §1605(a)(5) cases (there aren't many) to see if I can't discern a more exact doctrine.

But I can't help but think that had the Mexican government decided, in prior meetings, as a matter of policy, to let the Tijuana Airport rot, that their motion to dismiss would have prevailed. I could be wrong, but I would like to think that gross negligence would have somehow trumped.

One wildcard here is the fact that the Vatican is only a state in the loosest sense of the term. It fits almost none of the objective criteria of statehood (a permanent population (you only live in Vatican City if you work in Vatican City); a defined and substantial territory (1/8 the size of Central Park); a government (ok, they have one.. but who are they governing?); and capacity to enter into relations with other states (ok, they can have this one too... but the treaties they do enter into are notoriously one-way - who in the Vatican can be bound?)). Many states indeed recognze the Holy See as a state, and the UN sees them as a non-member permanent observer, like Switzerland. This gives the Holy See enormous pull, including a de facto veto in all conferences.

But what if the United States ceased recognizing the Holy See as a state? While this doesn't seem like a likely possibility this week, it could be on the horizon. The Holy See is unlike any other state in that it more closely resembles a religious mission, and in that capacity, controls agents operating in various other states, in a respondeat superior sense. Those agents enjoy protection, take orders from, and pay outside allegience to their corporate body politic. Under the same circumstances confronting us today, replace "Holy See" with any other state that comes to mind, and you get the idea. But these reasonable points have an uphill climb in this country, where so much deference is granted to religion that it has long since gelled into a blind-spot.

And a court cannot derecognize a state for the purpose of assigning liability under the FSIA as a purely constitutional matter, especially where numerous treaties between this coutnry and the Vatican exist.

But the Kentucky class action has Sodano unnerved enough to have asked the Bush administration to intercede. And if they do, all the parties should be shamed right onto the carpet.

Allow us to break away, for a moment, from the continuing battle to stop stealth theocrats from inflicting the internally oxymoronic theory of Intelligent Design on American schoolchildren to highlight a article posted by self-styled "Christian News Service" Agape Press on comments made by Indiana congressman Mark Souder at a recent prayer breakfast on Capitol Hill:

An Indiana congressman is warning that an Iraqi-style democracy may not make much of a change there. Why? Because the Judeo-Christian ethic is critical to the success of such a venture, he says.

Earlier this week, Republican Mark Souder was one of the speakers at a bipartisan prayer service before the opening of the 109th session of Congress. He told the audience that religious faith is the conscience of democracy.

"The United States was at its founding, and still is, not only a religious nation but largely a Christian nation," Souder said. "Through Judeo-Christian beliefs that anchor our legal, our economic, our military, and our political system, the balance of powers and constraints upon the state -- and thus upon the majority -- assume the sinful nature of man and one that is not perfectable."

Without a faith grounded in such beliefs, the congressman said, democracy as it is known in the United States cannot work -- and he believes that could well be the case in Iraq.

"John Adams said, 'Our Constitution is made for a moral and religious people,'" Souder noted. "Does democracy in Iraq mean the majority Shia, upon winning, can deny rights to women and to religious minorities, not to mention exact revenge upon the Sunni? Why not do these things if the only standard is democracy?"

He offered a recent demonstration of the nation's morality, whose "premises rest at least upon the echoes and remnants of Judeo-Christian teaching," he says.

"Over 75 percent of the American people profess to be Christian, and an even higher percentage believe that they were created by God -- not some randomly evolving blob of amoeba," Souder stated. "So when a tragedy hits Asia, we don't say 'Tough luck. It's social Darwinism. The fittest will survive.'"

He continued: "They are fellow souls, each one fearfully and wonderfully made by God. Our hearts ache; our hearts cry out at the pain and suffering we see; our hearts bleed."

Intrigued by what appeared to be an almost self-parodying display of a fundamental ignorance of the governments and citizens of many other countries around the world -- including one directly to the north of the United States -- that have somehow managed to cobble together democratic governments, and have, in recent days, offered up not only compassion, but cold hard cash to victims of the tsunami victims -- and all without being "not only a religious nation but largely a Christian nation," in the words of Souder, a quick Googling brought up the full text of Souder's remarks on his official webpage.

While we found the comments that made it to press via Agape, we were even more intrigued by the context, and the portion of his remarks that somehow ended up on the Christian press cutting room floor:

If we don’t understand who we are as a people, if we don’t understand why our legal and economic system works, why are we surprised that we have problems when we try to export it?

Capitalism without morality equals greed. Adam Smith made that clear, as do modern examples of nations where the elite used unfettered capitalism only to enrich themselves at the expense of others.

Why, we wonder, didn't the Agape article note that Souder -- whose remarks, we hasten to add, we are not in any way defending, and stand on their own as a demonstration of faith-based obliviousness -- was, in his own way, expressing caution over unfettered capitalism in a post-war Iraq, rather than over the failure of those stubborn Muslims to convert to Christianity post-haste, as initially proposed by Ann Coulter?

Could it be because, perhaps, the editors at Agape don't want to raise the ire of its hyperconservative Christian readership, who are more interested in punishing 'sinners' than showing truly "Christian" charity?

By no means should our scepticism over this article be interpreted as any sort of support for Souder or, indeed, his politics, which are clearly lodged deep in the heart of the new Christian right.

At the same time, however, we can't help but wonder whether even a bona fide conservative such as Souder could find his words manipulated by the Jebus Noise Machine if he should veer even slightly off script.

Yes, that's right. Christianophobia. In an ongoing campaign to have its hallucinatory persecution complex nurtured, the Vatican has proposed that the term be "recognized as an evil that is equal to hatred of Jews and Muslims."

"It should be recognized that the war against terrorism, even though necessary, had as one of its side effects the spread of 'Christianophobia' in vast areas of the globe," [Vatican foreign minister, Archbishop Giovanni Lajolo] told a U.S.-organized conference on religious freedom in Rome.

Hmm. Perhaps that's because this administration, along with its Generals, have pitched the current Iraq war as a "crusade". Might that have anything to do with it?

And what if the UN *doesn't* agree to it, is it yet more evidence of Christophobia? Indeed, it's actually just more evidence that 'religious tolerance' is seeking to become 'religious immunity'.

Very disturbing report from AFP:

Men with buzzcuts and clad in their camouflage waved their hands in the air, M-16 assault rifles laying beside them, and chanted heavy metal-flavoured lyrics in praise of Christ late Friday in a yellow-brick chapel.

They counted among thousands of troops surrounding the city of Fallujah, seeking solace as they awaited Iraqi Prime Minister Iyad Allawi's decision on whether or not to invade Fallujah.

"You are the sovereign. You're name is holy. You are the pure spotless lamb," a female voice cried out on the loudspeakers as the marines clapped their hands and closed their eyes, reflecting on what lay ahead for them.

The US military, with many soldiers coming from the conservative American south and midwest, has deep Christian roots.

In times that fighting looms, many soldiers draw on their evangelical or born-again heritage to help them face the battle.

"It's always comforting. Church attendance is always up before the big push," said First Sergeant Miles Thatford.

"Sometimes, all you've got is God."

No wonder there are no atheists in foxholes -- who'd admit to such a thing surrounded by ritualistic battle rites like this?