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In 1947 the Vatican updated the requirements for the Religious Orders’ Quinquennial Reports. In addition to the financial disclosures, it also required the Religious Orders to answer whether any of the religious members had sexually abused any of the younger students in their care. It also required the Religious Orders to answer if they had taken precautions against the dangers of priests sexually abusing children.19

Marci Hamilton handled Jeff Anderson’s appellate briefs on constitutional issues. Hamilton holds an endowed chair at Benjamin N. Cardozo School of Law in New York City. An author and a prolific writer on legal issues, she specializes in religious issues that bear upon the First Amendment. Her husband is Catholic; several years after their son’s baptism, she learned that the priest who performed the ritual had been removed for child abuse. When Hamilton read the petition to the Supreme Court in the Oregon case, she told Anderson, “The arguments are weak, I wouldn’t dignify it with a response. Jeff Lena’s trying to buy time.”

Briefs to the Supreme Court can take a year or longer before a decision is issued on whether the court will hear the case. “Then we get a letter from the court, which they rarely write, requesting our response,” Hamilton told me. “It was one of the easiest I’ve written. There is no need for the Supreme Court to hear this; the issue is state law, not a federal issue. The Court normally would have denied the request for review at that point, but the justices wanted more. After they got our response, they asked for the Solicitor General’s views. Then I got a call from the Solicitor General’s civil division: they want to meet face-to-face. Now it’s political.”

The Solicitor General, Elena Kagan, a former Harvard Law dean, was on President Obama’s short list for the next available Supreme Court seat, and subsequently won appointment.

Hamilton had written the plaintiff motions challenging Cardinal Mahony’s claim of “formation privilege”; she prevailed at every level, save for engineering the enforcement of the decision in California courts. As a young attorney, Hamilton had clerked for Justice Sandra Day O’Connor; she was seasoned in Washington’s mores and knew people in Elena Kagan’s office. Who exactly would be at this meeting? she inquired. “Just a few,” her contact said.

On a snow-shrouded day in March 2010, Hamilton caught the train near her home in Bucks County, Pennsylvania, and on arrival at Union Station met Jeff Anderson, his associate Mike Finnegan, and Bill Barton from Oregon. They went to the Justice Department and in the room found thirteen people, she recalls. “They had obviously been meeting before we arrived. Kagan was there, with her chief deputy Edwin Kneedler. So was Harold Koh, the legal adviser to Hillary Clinton. He’s a former Yale dean. The agreement going in was that only I would discuss the case. For two hours they grilled me as if I was going through oral arguments on the merits, even though the ostensible reason for the meeting was to discuss whether the Court should take the case. The genius of Jeff Anderson is that he chose Oregon to sue the Vatican. Oregon has the best state tort law in the country. The only issue to this case was state law. If you get hit by a car driven by a foreign official in your state, you can seek redress. It’s the foreign government—and not the officials—that is liable. The officials can create the liability but don’t pay out of their pocket.

“Kagan was not as intensely engaged as Koh,” says Hamilton. “Koh was trying to push the envelope to find a way to make the case about something other than state law. He seemed to be searching for a federal rule that would be the subject of this case and even control all cases against the Holy See. It just was not there. My assumption is that this was another example of how the Clintons do politics. Bill Clinton was the most pro-religious administration since Grant tried to Christianize the Indians … I kept saying,