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Saturday, March 07, 2009

The Connecticut Legislature's preposterously unconstitutional attack on Catholicism

The Judiciary Committee of the Connecticut General Assembly is now considering a bill to re-organize the governance of the Roman Catholic Church. I do not mean simply that the Assembly is considering an ostensibly secular bill that has some subtle and insidious purpose to target the Roman Catholic Church and is, therefore, unconstitutional under Church of Lukumi Babalu Aye v. City of Hialeah. The Assembly placed the purpose of the bill right in the title: It is "An Act Modifying Corporate Laws Relating to Certain Religious Corporations," and it provides that "[a] corporation" that is "organized in connection with any Roman Catholic Church or congregation in this state ... shall have a board of directors consisting of not less than seven nor more than thirteen lay members" elected by the congregation, which board shall exercise the "general administrative and financial powers of the corporation."

I do not mean to bring this legislative oddity to anyone's attention on the ground that it raises any interesting constitutional issues. Facial discrimination against a specific sect -- not even against religion in general -- fails even the narrowest theories of free exercise of religion currently on offer. (Section 1(h) of the bill makes a pious gesture of avoiding free exercise problems by declaring that "[n]othing in this section shall be construed to limit, restrict or derogate from any power, right, authority, duty or responsibility of the bishop or pastor in matters pertaining exclusively to religious tenets and practices").

The only interesting question suggested by Bill 1098 is why the CT legislature would propose a bill that would serve only to provide some lucky lawyer with some section 1988 "prevailing party" fees during a lean period for the bar. What, in short, is the political function served by an obviously unconstitutional bill? I see three conceivable explanations: (a) The CT Assembly's leadership is actually innocent of any familiarity with simple constitutional doctrine -- even the sort of doctrine that is so basic that it normally percolates into popular culture -- and therefore thinks that this bill is a serious legislative proposal; (b) The CT Assembly's leadership wants to placate some interest group with an empty gesture by proposing a bill that it knows will go nowhere but Injunctionville after it leaves the state house; or (c) The bill was introduced with the secret support of the Catholic hierarchy as a way of exciting sympathy for Catholics by a show of anti-Catholic demagoguery. Both (a) nor (b) tend to re-enforce Fred Schauer's jaundiced view of legislatures' interest in honoring constitutional norms, while (c) seems too kookily conspiratorial for a state legislature.

Perhaps there is some fourth explanation that I am missing? Do any readers know the real story behind the Judiciary Committee's constitutional tomfoolery?

Posted by Rick Hills on March 7, 2009 at 05:19 PM in Constitutional thoughts | Permalink


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Full employment for law-and-religion bloggers?

More seriously, there must be some interesting backstory here. The present Chapter 598 of the Connecticut General Statutes singles out both the "Roman Catholic Church" (in 33-279 through -281) and " All ecclesiastical societies in this state, in communion with the Protestant Episcopal Church" (in 33-265 and elsewhere). This language seems to have been unchanged since 1949. The basic structure seems to be that ch. 598 pt. 1 allows any group of three or more "persons uniting for public worship" to form a religious corporation, but that pt. 2 then sets up special rules for particular denominations. I'd really like to know how the present bill is meant to fit with the present law on the books, which already singles out Catholic and Episcopalian corporations for special treatment.

Posted by: James Grimmelmann | Mar 7, 2009 5:58:41 PM

Here's the likely backstory: a parish priest in Darien, Conn. named Fr. Jude Fay took at least $1.4 million from his parish over and spent it all on vacations and personal luxuries. He starting this scheme in 2000 at the latest and was only discovered in 2006. I would guess the bill responds directly to the Fay scandal. As you can imagine, parishioners were outraged, but there was little they could have done because there is no practical oversight of how pastors spend parish funds.

I'm therefore uncomfortable with seeing the bill described as anti-Catholic. While it would force the clergy to do something they don't want to do, it is something a significant portion of the laity would probably support, and arguably it's in the best institutional interests of the Church to do something like this anyway.

Posted by: Abe Delnore | Mar 7, 2009 8:37:07 PM

If you want to see Michael Lawlor (who introduced the bill in CT) in action against Brian Brown of the Ct Family Institute now at National Organization for Marriage see this video It shows how desperate he is in trying to silence the religious objection to Gay Marriage. Is this his motive for introducing this crazy bill?

Ave Maria!

Posted by: Fra Roderic Burke | Mar 7, 2009 10:46:23 PM

It is not for the State of Connecticut to say what is in "the best institutional interests of the Church."

Posted by: Howard Wasserman | Mar 7, 2009 10:51:50 PM

Control of the Church by the laity might very well be a good thing, but it is nevertheless most definitely an anti-Catholic thing. Surely the core of the struggle between Congregationalism and Presbyterianism, on one hand, and Catholicism, on the other, is that the former are governed by Congregations and Presbyteries, while the latter is governed by the episcopacy headed by a Roman pontiff. hence, the names "Presbyterianism," "Congregationalism," and "Roman Catholicism." Enforcing the democratic norms of John Calvin against the Roman Catholic Church is, therefore, anti-Catholic in precisely the same value-neutral definitional sense that enforcing the norms of Adam Smith against the Socialist Workers Party is anti-Communist.

Posted by: Rick Hills | Mar 7, 2009 11:01:21 PM

Oh, I agree that government should not intervene in the internal affairs of churches and that the Constitution seems pretty plainly to forbid this particular intervention. There is a model of church-state relations that would support such interventions, but it's definitely not one we have chosen to follow.

What bothers me is the categorization of the bill as necessarily anti-Catholic.

Imagine a bill extending the statute of limitations on sexual molestation, which the sponsor states has the purpose of making it possible to punish clergy who molested children decades ago. Is it anti-Catholic because the bishops oppose it? Or is it pro-Catholic because the victims--Catholics, too--support it? What if polls showed that a majority of Catholics in the pews supported the bill?

Posted by: Abe Delnore | Mar 7, 2009 11:31:26 PM

Abe writes:

"Imagine a bill extending the statute of limitations on sexual molestation, which the sponsor states has the purpose of making it possible to punish clergy who molested children decades ago. Is it anti-Catholic because the bishops oppose it? Or is it pro-Catholic because the victims--Catholics, too--support it? What if polls showed that a majority of Catholics in the pews supported the bill?"

How is this analogy apt? The Roman Catholic Church does not endorse child molestation, but it does endorse -- indeed, is defined by -- episcopal and papal control. Attacking child molestation does not attack any doctrine of the church; Attacking control of the church by its hierarchy is attacking one of the Church's core dogmas.

If it is an essential tenet of Catholicism to reject congregational control in favor of papal and episcopal control, then it begs the question to say that a doctrine is consistent with Catholicism because a majority of self-proclaimed Catholics endorse the doctrine: Catholics do not set doctrine by majority vote. Surely, a congregation could not remain a "Roman Catholic" congregation if they voted that Thor rather than Christ was the Messiah. How is the control of the ROMAN Catholic Church by the ROMAN pontiff and his appointees through apostolic succession any less of a repudiation of core Catholic doctrine?

Posted by: Rick Hills | Mar 8, 2009 12:08:57 AM

I didn't mean that as an analogy; I meant it as a totally different case and failed by succeeding.

I suppose my quibble is with these church organization statutes generally. They enshrine in law a particular ecclesiology. Either it is something the church in question likes or it is one it does not. In the latter case, a free exercise challenge will succeed. But I don't understand how the law begins to assemble the knowledge about how the church would like to be organized. While what Professor Hills says about ecclesiology is historically true, I'm not comfortable with how the law learns and makes use of that information, nor with how the law would get out of the way of any changes a religious body might choose to inflict on itself. But that's getting into the constitutional issues that were not to be discussed.

Posted by: Abe Delnore | Mar 8, 2009 1:29:43 AM

Is there any indication this bill is going anywhere? All I see so far is that the bill was (a) proposed by some member of the legislature and (b) referred to its relevant committee. Is there some reason we have to fear that it will even be seriously considered, much less passed? Because if not, it's a bit hyperbolic to talk about "The Connecticut legislature's ... attack".

Posted by: David Schraub | Mar 8, 2009 3:36:38 AM

what is the problem with the lay people of the church being officially elected by the members to handle the financial oversight of the church?
I am not "getting it"????
If there is nothing to hide there isn't a problem.

Posted by: Rochelle | Mar 8, 2009 12:10:49 PM


Many Catholic Churches do actually have lay committees that help run the parish, though final decisions are normally left up to the pastor. And, after the incident of clergy embezzlement, Churches have also begun to hire outside accountants and financial officers to prevent that from happening again, making this bill redundant, but still discriminatory

What makes this bill offensive is that it blatantly targets the Catholic Church, no other religious denominations. As a Catholic, I find that both bigoted and abusive; my religion is supposed to be removed from the control of the state, just as my religion should have no control over the state. Regardless of whether or not there is "nothing to hide," the execution of this bill is ridiculous. It doesn't only attempt to control parish finances, it also targets charitable organizations and the ability of a pastor to speak out about issues like abortion and gay marriage. Regardless of your opinion on those issues, everyone has the right to at least exert their opinion and this bill is designed to prevent that.

I do not think that a majority of Catholic lay people will support this bill; it is honestly offensive and a real abuse of government power. No U.S. citizen should support something that blatantly disregards both our constitutional right to freedom of religion (and the freedom of religions to operate unhindered by the government) and the judicial precedent of separation of Church and State.

Posted by: Gill | Mar 8, 2009 2:10:52 PM

The Judiciary Committee discused and then the Judiciary Committee voted in favor of drafting a bill, not just some member individually introducing some cockamamie bill.

Posted by: MLJane | Mar 8, 2009 2:28:05 PM

Rick beat me to the punch -- I was all fired up to blog about this effort, which strikes me as about the most unconstitutional thing a legislature could try to do. Something similar to this was tried in Massachusetts, a few years ago.

There's a post, by a canon-law expert, over at Mirror of Justice, that might be of interest:


Posted by: Rick Garnett | Mar 8, 2009 2:36:46 PM

I do not think the assumption that this bill is unconstitutional will hold up in court. As you will see when you read it, the bill specifically stays out of worship and beliefs and only effects the fiduciary aspect of church function.

A church can loose it's tax exemption if it donates to a political cause. The unrestricted right of copying church records will provide easier access to evidence when determining the tax posture of any given church.

This is needed for the Democrats as one of their core beliefs is the right of abortion. This is a stance in opposition to the church. If the church mobilizes in any way against abortion then they loose their tax exemption and will be charged a possible retroactive tax.

Posted by: Zac | Mar 9, 2009 7:16:32 PM

zac: you can't be serious. for catholics episcopal control of churches IS a matter of belief; only a non-catholic could see it as merely a "fiduciary aspect of church function"... and, as for the second part of your post, does this assume that only the catholic church opposes abortion?

Posted by: Ian | Mar 10, 2009 2:16:11 PM

One traditional way of organizing entities within the Roman Catholic Church, particularly in older entities, is as a "corporation sole," in which for state law purposes, the cleric with jurisdiction over the entity has unrestricted authority over all assets and affairs of the corporation.

There have been problems with people who are basically tax protestors using the corporation sole form of organization and declaring themselves to be religious corporations as a means of tax evasion. I've encounted a professional who does precisely that (and also insists upon receiving all payments for services rendered in cash).

The board of directors requirement could be calculated, in part, to make this tax dodge more difficult to secure, because large boards are impossible to attain in one person tax dodge operations.

This may also reflect, of course, frustration on the parts of people in the state who are Roman Catholic at seeing their donations to their church go towards payments of settlements with child abusing priests.

The requirement that members of the board of directors be congregationally elected lay people is surely unconstitutional (particularly given that some religious denominations recognize all full members as clergy), for a determination of who is and is not a lay member of a religious organization is an inherently religious question (then again, the federal tax laws do make such distinctions in more than one place).

Still, it isn't obvious that an out of state entity not subject to these requirements couldn't organize in another state and be entitled to recognition under the full faith and credit clause, the privileges and immunities clause and the dormant commerce clause. Surely, some amount of regulation of non-profit entities organized under state law could be problematic, and if one can incorporate somewhere or somehow (e.g. under a general non-profit law), it isn't obvious that restricting one option for corporate organization would violate the U.S. Constitution.

I don't think that there is a constitutional right to be a religious corporation as opposed to a non-profit corporation. And, there may be some provisions in the religious corporation law that grant immunities from liability otherwise not available, that the state doesn't want to make available, and perhaps, doesn't have to make available.

Posted by: ohwilleke | Mar 10, 2009 6:27:11 PM

I second Ian's comment that the basis of church governance is at the heart of Roman Catholic belief. And no state should be even remotely trying to dictate to a church how it is run, even if that were not the case. How can a law that tells a church how to organize itself not be an unconstitutional interference in religion?
I also challenge your notion that giving to a political cause is grounds for the removal of the tax exempt status. Churches are not allowed to give to specific candidates. Nor can a "substantial part of its activities" be to influence legislation. This has generally been interpreted to mean churches shouldn't preach politics from the pulpit but has never meant it cannot give to political causes, otherwise the calls for the LDS and Catholic churches to lose their tax exempt status over Prop 8 would not be so ridiculous.

Posted by: jvs | Mar 10, 2009 7:41:29 PM

There is a radical Catholic group called "Voice of the Faithful", seeking to shift the church away from hierarchy toward lay rule. The bill is basically one of their platforms, as well as the Liberation Theology movement. Though one cannot rule out political payback for the gay marriage fight.

Posted by: Will | Mar 10, 2009 10:05:39 PM

Please do not construe my remarks as an attack on your faith as a Catholic. I am not a Catholic and thus I do not know all of what you believe. I do know that Catholics are not the only group that believes in the sanctity of life. Most of the religious right also believes in like mind on this matter. I too believe what the bible teaches about life beginning at conception. Abortion is murder. In the law given to Moses the penalty for causing an abortion was death. A soul for a soul.
My point was that the Catholics outnumber any other voting group and thus if the leftists can stop them they can stop the rest.

Posted by: Zac | Mar 12, 2009 3:49:19 PM

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