Professor Leslie C. Griffin is a Boyd Professor of Law at the University of Nevada, Las Vegas in the William S. Boyd School of Law.
Reading history reminds us that the Roman Catholic Church, like other organizations, repeatedly covered up sexual abuse, defending the abusers instead of protecting the survivors. The recent discussion of papal history reminds us why CHILD USA’s work protecting children is so important, and so necessary.
This issue has been raised by the recent discussion of whether Pope Pius XII was moral or immoral when he led the Roman Catholic Church during World War II. The Vatican’s 2020 release of some archives of Pius’s papacy, explained by Professor David Kertzer in his new book, The Pope at War: The Secret History of Pius XII, Mussolini, and Hitler, supports immorality. “[A]s a moral leader, Pius XII must be judged a failure,”  concludes Kertzer.
Why? The short answer is that Pius protected Catholics, but not Jews. He defended the lives of Jews who converted to Christianity, but not the actual Jews. “His first and foremost duty, as he saw it, was to protect the institutional church.” . That duty often kept him silent while Jews were killed in large numbers.
The book also points out that in the World War II era, the Catholic institution, by destroying documents, also protected itself and its clergy instead of the victims of sexual abuse. The institution’s survival was more important than the well-being of abuse victims.
The conclusion that Pius was immoral calls our attention to the flaws of an ethic that protects an institution instead of individuals. It reminds us that American law should also support individuals instead of allowing religious organizations to defend their institutional strength. After all, the First Amendment’s Religion Clauses are supposed to protect individuals, not institutions of church and state.
What the Pope Did
Here is my short version of the story The Pope at War tells. Pius XII supported Mussolini [the Duce] and the Fascists as Italy’s government. Italy had church-supported laws limiting its Jews before the Nazis increased the battle against them. The pope supported the Nazis, especially after they joined forces with the Fascists. Pius wanted the church to survive if the Fascists and the Nazis won the war. Pius continued to support the Nazis because he opposed the Communists more than the Nazis; he believed Communists would destroy the church while the Nazis would not. Pius did not say much as Czechoslovakia, Poland, Belgium, the Netherlands, Luxembourg, and France were defeated by the Nazis. As the Allies progressed, he insisted that they must not harm Rome. The Allies should treat the Vatican as an open city, meaning it could not be bombed or attacked, despite its long alliance with the Fascists.
Moreover, Pius spoke out against any persecution of Jews who had converted to Catholicism, but not against oppression of the Jews. That means that he chose some converted Jews to survive but allowed many others to die.
These actions make moral sense if the job of the Catholic pope is to protect the Catholic Church. There were German Catholics, as well as Catholics in the nations Germany was contesting. The archives reveal Pius negotiated with Hitler, trying to figure out the best way to protect the Catholics in Germany, and other Catholics if the Nazis would rule them. Pius fought to keep the German churches open, their schools offering Christian teaching, and the presence of public Christian religious symbols. He prepared for a Catholicism that survived within Nazism. His commitment was to the survival of the institutional church in all circumstances. His commitment was not to the Jews.
What the Pope Could Have Done
Some of the pope’s critics, current and past, see differently what Pius should have done. “The pope had a status in war-torn Europe like no other man. Throughout the continent and beyond, many saw him as the only person whose position gave him unquestioned moral authority.” [xxxi]. The book sees a contrast with Pius XII’s predecessor, Pius XI, who became unsympathetic to the Fascists before his death. Pius XI commissioned an encyclical letter that was critical of antisemitism, racism, and the persecution of the Jews. He received a draft of it toward the end of 1938, but died in February 1939. Pius XII did not publish it.
Pius XI’s letter was not published until 1995, in French, and 1997, in English, after many people researched where the draft was and what it said. It was called Unitas Humani Generis, “The Unity of the Human Race.”
Apparently Mussolini was happier with the voice of the Twelfth than of the Eleventh.
Kertzer notes Pius XII was in an “awkward position as he tried to cast himself as a moral leader and not simply the head of a huge international organization.” . The well-known theologian Jacques Maritain, who was ambassador to the Vatican, said “Pius XII, eager to do good and to be seen to be doing good, believed it was his duty as pope to act as the defender of Western civilization. As a result, he had increasingly turned his attention to the political domain, a tendency reinforced by his recent successful involvement in keeping the Communists out of the Italian government.” .
What would a good politician do? Support Italy, the Nazis, and Catholics, but not others, including the Jews? Would that be a way for Pius to prove his political morality, which might be different from his papal morality? Perhaps a political leader has different values than a moral leader.
The pope’s moral critics are harsh. They note Pius not only upheld Italy’s Jewish laws, but also never criticized the massive killing of the Jews. He did not openly condemn Poland’s overthrow, refusing to address its and other nations’ status. Did he commit a “crime of silence”? . Critics note that Pius could have excommunicated Mussolini and Hitler, renouncing them as well as the Communists. Pius refused the French ambassador’s request to issue a statement “denouncing the barbarities which Germany has inflicted on the Netherlands, Belgium and Luxemburg, combined with a papal edict excommunicating Hitler” and “an explicit and formal condemnation of the German aggression.” . When Pius’ attention was called to the situation in France, he argued “France’s problems were self-inflicted. It was the result of its de-Christianization, the country’s strict policy of separation of church and state.” . The pope stayed with Hitler because Hitler won many battles and might win permanently, and therefore he protected Catholics by supporting Hitler.
When the Germans rounded up Italian Jews, the pope spoke up for some of them. The baptized ones were saved. The rest were sent to their deaths without papal objection. “[W]hile the church opposed ‘an overly sectarian anti-Semitism,’ it had long recognized the need to act to protect Christian Europe from Jews’ pernicious influence.” .
That does seem an immoral decision to me.
Where the Pope Was Also Still the Institutional Pope
I have worked with CHILD USA, which protects children from all wrongdoers, whether religious or nonreligious. By now everyone knows the Catholic Church has long valued the institutional church over victims of the church’s sexual abuse. The institution always comes first, as we know today and as Pius XII showed us during World War II.
Sexual scandals appear in The Pope at War. Back then, in Germany, “[h]undreds of priests had been charged with sexual crimes, including the abuse of children.” . Pius said the church acted “immediately” when it learned of such abuses. When Pius XII was Secretary of State,
A folder there, labeled ‘Vienna: Order to burn all archival material concerning cases of immorality of monks and priests,’ describes the decision, in the face of an ongoing police investigation, to order the destruction of all church files documenting cases of Catholic clergy sexual abuse in Austria. To date, historians have largely dismissed the police investigations of clerical sexual abuse of minors during the National Socialist regime as evidence of the regime’s anti-Catholicism. It is indeed likely that the prosecution of the clergy was motivated by attempts to place pressure on the church. However, there were reasons that the church was so vulnerable to this variety of blackmail. The fact that the Vatican has never made its own records dealing with cases of clerical sexual abuse available to scholars has contributed to the failure by historians to pursue how such cases were handled. It was only many years later that, under pressure, the German church hierarchy authorized an investigation of clerical sexual abuse, and it focused exclusively on the decades following the war. That investigation found thousands of such cases, most involving the abuse of boys under age thirteen. The story of the earlier decades remains unknown and largely unexamined. [63, emphasis added].
A story in the footnote to that quotation reports a 2018 investigation that found 3,677 German children were abused by about 1,670 clergy between 1946 and 2014. The story reports great difficulty in finding the church’s documents confirming the abuse. Many stories of sexual abuse remain “unknown and largely unexamined” today, as the church protects priests and the hierarchy. A 2021 story reports 216,000 reports of abuse in France between 1950 and 2020, and 11,000 complaints filed in the United States.
It should be no surprise by now that when the institution focuses on the institution’s well-being, individuals suffer.
During the war, the pope also fought for Catholic morality, telling girls that they must “combat the dangers of immorality in the areas of women’s fashion, sport, hygiene, social relations, and entertainment.” He apparently was worried about “immodest dress,” and the girls’ involvement in “inappropriate dancing, theater, books, and magazines.” .
And he opposed Protestant propaganda, which might come along with the success of the Allies. .
What if, asks Kertzer.
“What if the pope had loudly denounced Hitler and Mussolini, excommunicated them, and warned that any Catholic who participated in the extermination of Europe’s Jews would be condemned to an eternity of hell’s fires? It is indeed not hard to imagine that in such a case the Germans occupying Rome would have taken action to muzzle him. But if they were thus forced to do so, it would have come at a considerable cost to their war effort, undermining one of their major propaganda claims.” .
“What would have happened if the pope had denounced Italy’s impending entry into the war in 1940, had denounced the constant use the Fascists were making of church authority in justifying their demonization of Jews? How many of the men who murdered Jews or helped round them up to be sent to their deaths saw themselves as good Roman Catholics?” .
What if, Today?
The destruction of the World War II abuse documents, and the large numbers of post-war sexual abuse of children, remind us that protecting the institution does not always protect its members or its non-members.
In the United States, the church long argued that all its clergy-related documents were protected by the First Amendment. Religious freedom was used to protect the church from any investigations into its crimes against children. They hid the documents proving abuse. The institution will survive better if the law cannot get near it, the church believes.
The 2015 movie, Spotlight, which won the Best Picture Oscar, made Americans more aware of the abuse that the church had long hidden under the First Amendment by exposing how the Boston church had injured children. The courts started holding the churches accountable. The courts concluded that the First Amendment does not allow the churches to violate the sexual abuse laws.
The church, however, has also been a strong opponent of the reform of statutes of limitations [SOL] laws. In the past, those laws kept abuse victims out of court. The survivor had a year or two to file after the moment of abuse, and then was out of court for good. Studies show, however, that 44.9% of male victims and 25.4% of female victims delay discussing their abuse for more than twenty years. CHILD USA has led the fight to reform the SOLs, with successes from year to year to protect survivors instead of abusers. Ending SOLs lets survivors explain what the church did to them in court.
Statutes of limitations reform allows victims to get into court. It protects individual survivors of crime instead of saving institutions from any accountability.
Remembering the church’s World War II history should remind us that a religion’s institutional ethics do not always require it to perform well. Morality and legality need to protect individuals from the harms the institution’s leaders do to them in the name of protecting the institution.
It is a lesson we should not forget, no matter what stage of history we find ourselves in.
 Page numbers are to Kindle edition of the book.