Holy replevin, Bat-wing-man!

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The Archbishop of Oklahoma City has sued the Satanists to get back the consecrated host that they’re planning to use in their Black Mass on Sept. 21 (that’s the Black Mass I blogged about in this post). His theory: The Satanists say they have a host consecrated by the Catholic Church, but the Catholic Church owns all such hosts, and only distributes them for specific purposes; therefore, the host was essentially embezzled, and must be returned promptly to its true owner. An excerpt from the Verified Petition for Replevin:

FIRST CAUSE OF ACTION
(Replevin of Personal Property)

4. Defendants have unlawfully taken possession of property belonging to the Roman Catholic Church, specifically a Consecrated Host or Consecrated Eucharist …

10. Because consecrated hosts are so precious, the Catholic Church has developed, over the course of 2,000 years, rules and institution to ensure the integrity, protection of consecrated hosts[, for example] …:

a. A Consecrated Host may only be distributed by an ordained minister of the Catholic Church or by another who has been appointed specifically for this task as an extraordinary minister of Holy Communion (“Extraordinary Minister”). Ministers of Holy Communion — both ordained ministers and Extraordinary Ministers — are required to ensure that all consecrated hosts they distribute are consumed immediately and in their presence. They are trained to take special care to make sure that consecrated hosts are not taken from the Church.

b. Catholics are also taught that they must consume consecrated hosts immediately upon receiving them and that they may never take the Consecrated Host from the Church.

c. Only an ordained minister or someone specifically appointed to do so may take a consecrated host out of a Church, and they may do so only for a specific pastoral purpose, such as taking a consecrated host to the sick or dying.

d. A consecrated host must be kept in a tabernacle, which is immoveable and maintained under lock and key.

e. A person who throws away a consecrated host or who takes it or retains it for a sacrilegious purpose is automatically excommunicated from the Catholic Church….

g. Only Catholics may receive the Consecrated Host during communion, and by presenting himself or herself to receive a Consecrated Host, an individual implicitly represents that he or she is Catholic, satisfies the conditions to consume a Consecrated Host, and intends to consume it immediately….

12. If an unauthorized individual has possession of a consecrated host, it must have been procured, either by that person or by another, by illicit means: by theft, fraud, wrongful taking, or other form of misappropriation. The Church maintains ownership of all consecrated hosts throughout the world….

19. Pursuant to Okla. Stat. tit. 12, § 1571, Archbishop Coakley requests this Court issue an Order or Delivery of the Consecrated Host [that the Satanists say they are planning to use in their Black Mass -EV] and direct the Sheriff of Oklahoma County to take possession of the Consecrated Host and deliver it to Archbishop Coakley….

22. The Consecrated Host is being wrongfully detained by Defendants, without consent or authorization of the Catholic Church or Archbishop Coakley ….

According to aleteia.org, Satanic leader Adam Daniels said in a phone interview,

One of my priests in a foreign country is also a Catholic priest and he is the one who consecrated it himself and mailed it to me, and I’m not going to reveal his name and I’m not going to reveal what country he’s from.

Now I’m not a property law or remedies scholar (though if you are, please post your analysis!), but here’s my tentative thinking:

1. If the Satanists actually got a host — a piece of bread — that was owned by the Catholic Church, and was passed along by a church employee in violation of the terms on which he received the host, then they would have to give it back. The analogy would be if the San Diego Padres gave their players jerseys but only for purposes of playing in them, and one of the players sold his jersey to a fan; the jersey would still belong to the Padres, and the fan would have to give it back. The Satanists could then still conduct whatever rituals they wanted with their own property, but they’d have to get their own damned host.

2. But if the Satanists got a renegade priest to say some words over a piece of bread that wasn’t owned by the Catholic Church, even if this action was specifically forbidden by the Church, then the bread wouldn’t be owned by the Church. The analogy would be if a Padres player wore his own shirt during practice and then sold it to a fan — something the Padres-player contract specifically forbade. The player would then be violating his contract, but the Padres wouldn’t get ownership rights to the shirt as a result of the breach of the contract (at least unless the contract was very specific on the player expressly transferring his property rights in all shirts he wears during practice; the Church’s petition doesn’t plead the analog of that, I think). Likewise, the Satanists would be able to lawfully acquire this host, which by hypothesis the Church never owned and never lent out on restricted terms.

Interestingly, under copyright law an employer does have ownership rights in any copyrighted works that an employee creates “within the scope of his or her employment.” But whatever a consecrated host might be, it’s not intellectual property.

Of course, maybe the Church has some other tactical goals in the lawsuit — maybe it’s hoping to out the renegade priest, or get the Satanist leader to admit that he’s making things up, and the host was never properly consecrated, which might help discredit the Satanists (whatever “discrediting the Satanists” might mean) and at the same time put the minds of the faithful to rest.

In any event, that’s just my thinking; as I said, I’d love to hear what property or remedies experts have to say about it. Thanks to Micheal Salem for the pointer.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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