Published in 2011 Colorado Super Lawyers Magazine — April 2011
For Francis Maier, chancellor of the Archdiocese of Denver, the 2006 session of the Colorado General Assembly was a teeth-grinding time. Literally.
That January, lawmakers introduced a bill to create a two-year window that would retroactively suspend the statute of limitations for childhood sexual abuse litigation. The measure had one principal target: the Catholic Church.
Catholic leaders statewide opposed what they regarded as “look-back” legislation. Early on, at a meeting to discuss strategies to oppose the bill, a handful of top church officials listened to five options laid out by L. Martin Nussbaum, a partner with Denver-based Rothgerber Johnson & Lyons. Maier had little confidence that any of the first four would sway legislators or public opinion. Then Nussbaum, representing the Colorado Catholic Conference, suggested the fifth option: placing the problem of child sexual abuse in a broader context.
Credible research, he explained, suggested the incidence of abuse in public institutions nationwide—notably schools and juvenile detention facilities—dwarfed the rate within the Catholic Church. A 2004 study issued by the U.S. Department of Education estimated that almost 300,000 students a year, from 1991 to 2000, had endured some form of sexual abuse by a public school employee. By comparison, from 1950 to 2002, there were a total of 10,667 incidents of abuse in the Catholic Church. The disparity led the author of the report, Hofstra University professor Charol Shakeshaft, to assert that “the physical, sexual abuse of students in schools is likely more than 100 times the abuse by priests.” Another 2004 study, conducted by the John Jay College of Criminal Justice in New York, showed that the average number of allegations against Catholic clergy had dropped from more than 500 a year between 1968 and 1980 to fewer than 50 by the mid-1990s.
The Colorado bill was characterized by Democratic lawmakers as an attempt to redress victims of Catholic clergy abuse. Some of the victims testified on the proposal, which had its roots in similar legislation passed in California in 2002. That measure—drafted with the help of Jeffrey Anderson, a prominent plaintiff’s lawyer based in St. Paul, Minn., who has filed hundreds of child-sex abuse suits against the church—suspended the statute of limitations for a year and targeted public and private entities alike.
Nussbaum and church officials, appearing before legislative panels and armed with the statistics on abuse in public schools, argued that the Colorado bill unfairly singled out the Catholic Church at a time when internal reforms had reduced the rate of abuse. (Democrats responded by amending the legislation to include public institutions.) Debate spilled into the press, with Gov. Bill Owens, a Republican, saying he was “very concerned” that trial lawyers were driving the legislation. Denver Archbishop Charles Chaput accused the measure’s backers of seeking “the systematic dismantling and pillaging of the Catholic community.” In the end, the bill died, though not before Maier lost two teeth from grinding his jaw in frustration and anxiety. “Up until that point,” he says, “no one really believed within the Catholic community you could make a case that was persuasive on look-back legislation. Martin helped articulate a very sensible message why this was bad, unjust legislation.”
The result fortified the high-profile reputation of RJ&L’s Religious Institutions Group, co-founded by Nussbaum and fellow partner Charles Goldberg in 1997.
The two men are widely considered among the country’s foremost attorneys in representing faith-based organizations. They take on cases that range from First Amendment freedoms, civil rights and intellectual property to bankruptcy, employment and land use. Their dozens of clients have included the Catholic archdioceses of Denver, Boston, Los Angeles and Portland, the National Association of Evangelicals, the Church of Jesus Christ of Latter-day Saints and assorted Episcopalian, Jewish, Methodist and Muslim institutions.
No matter the institution or its place of worship—church, mosque, temple—Nussbaum and Goldberg have a mission.
“The philosophy of our practice is to let a church act like a church, not like a defendant,” Nussbaum says.
“As advocates for an institution, we will work hard to resolve issues [outside court],” he continues. “However, if the claimant insists that the church be a defendant, or if there are efforts to pass laws that are unjust or target a religious institution for particular burdens, I like to think our advocacy is second to none.”
It often needs to be. In 2003, Nussbaum served as First Amendment counsel in hundreds of cases brought against Boston’s Catholic Archdiocese regarding claims of child molestation—litigation at the heart of the global scandal that continues to buffet the Catholic Church. In 2006, New Life Church in Colorado Springs turned to Nussbaum to handle the departure of Rev. Ted Haggard, then the head of the National Association of Evangelicals, after evidence surfaced that the married preacher and prominent gay-marriage foe had hired a male prostitute.
So both attorneys, who emphasize that RJ&L is a secular firm, eschew a holier-than-thou attitude about their clients.
“We do see the failures of the church,” says Nussbaum, 59, who in 1997 moved from the Colorado Springs firm Sparks Dix, where he had built a robust religious institutions practice, to RJ&L’s office there. “And when you see that, someone might think, ‘Well, how can you not lose faith?’”
For reasons beyond the headlines.
“Without exception, every religious leader who I’ve ever come in contact with is always seeking to do the right thing,” says Goldberg, 71, the longtime general counsel for Denver’s Catholic Archdiocese, who landed at RJ&L in 1978 after a nearly five-year stint as a district court judge. “That’s much different from a client in the business world, where it’s all about expediency—how do I get from point A to point B expeditiously and legally? But the attitude of church leaders is a little bit different. It’s always, ‘What is the right thing to do?’ That, at bottom, is inherent in every question.”
The Religious Institutions Group has grown to more than a dozen attorneys since Goldberg lured Nussbaum to the firm 14 years ago. The two lawyers, who knew one another from attending national legal seminars for faith-based organizations, recognized that across the country the institutions faced similar problems related to religious freedom, property, employment and other matters. They discussed the potential for a coast-to-coast practice expressly devoted to religious institutions. Since joining forces, they have proven a formidable tandem in asserting the constitutional right of their clients to heed divine authority over man’s.
“The application of secular law on religious entities can be painful,” says Goldberg, who last fall received the Benemerenti Medal, conferred by Pope Benedict XVI, and one of the highest honors in the Catholic Church, for his work on behalf of the Denver Archdiocese. “Our job is to kind of push government back a bit so that religious institutions can do what they do best,” Goldberg says.