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Tuesday, March 10, 2009

Law profs get results! Connecticut bill tabled (for now)

What Rick Hills (correctly, I think) called "the Connecticut legislature's preposterously unconstitutional attack on Catholicism" appears to have been tabled, for now.  And just in time, because the state's legislators were about to receive a sternly worded letter, written by Prof. Douglas Laycock and signed by a dozen law-and-religion scholars, setting them straight.  The letter is available, after the jump.

Dear Sen. McDonald and Rep. Lawlor:

            We write in opposition to Raised Bill No. 1098, which would regulate the internal affairs of the Roman Catholic Church in Connecticut.  This bill is flagrantly unconstitutional; it would prohibit the free exercise of religion, establish one form of church governance, and make a mockery of the separation of church and state.

            The bill would impose a Protestant form of organization on the Catholic Church.  The largest outbreak of such bills in American history was introduced by the Know Nothings, a bigoted and vehemently anti-Catholic, anti-immigrant political party that peaked in 1854.  The motivation appears to be different in 21st century Connecticut, but the effect is the same and the content of the bill is substantially the same.

            It has long been settled that religious associations may create their own organizational structures “for the ecclesiastical government of all the individual members, congregations, and officers within the general association.”  Watson v. Jones, 80 U.S. 679, 729 (1872).  The Court said that this right “is unquestioned,” and that “All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it.”  Id.  Of course dissenters within the church can withdraw from membership, but they cannot turn to the legislature and have it reform the governance of their church to their own liking.  That would transfer power to govern the church from the church to the legislature.

            Watson v. Jones was decided as a matter of common law, but the Court recognized the constitutional basis for Watson’s rule in Kedroff v. Saint Nicholas Cathedral, 344 U.S. 94, 116 (1952).  Kedroff recognized that religious organizations have “freedom to decide for themselves, free of state interference, matters of church government as well as those of faith and doctrine.”  Id.

            In Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976), the Court applied these cases to a decision purely about the structure of church governance—whether North America should be governed as one diocese or divided into three dioceses.  The state could not interfere with this decision:  “It suffices to note that the reorganization of the Diocese involves a matter of internal church government, an issue at the core of ecclesiastical affairs,” and in the Serbian Orthodox governing structure, “subject to the final province of the Holy Assembly.”  Id. at 721.  The Court quoted and applied its statement from Kedroff that churches are constitutionally guaranteed freedom in “matters of church government as well as those of faith and doctrine.”  Id.

at 721–22.  One diocese or three is an important choice, but either way, each diocese would have been governed by a bishop; the state’s attempt to divide the diocese was not nearly so revolutionary as transferring authority from Catholic bishops to Catholic lay people.

            The Court reaffirmed these cases in Employment Division v. Smith, 494 U.S. 872 (1990).  Smith is best known for reducing the scope of the Free Exercise Clause as applied to religiously motivated conduct.  But the Court also restated a number of government actions that the Free Exercise Clause prohibits.  One of these prohibitions was that “The government may not . . . lend its power to one or the other side in controversies over religious authority or dogma.”  Id. at 877, citing Serbian, Kedroff, and another case in the same line, Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 445–52 (1969).  The point of Raised Bill No. 1098 is precisely to lend the state’s power to a nascent controversy “over religious authority,” taking away part of the authority of Catholic bishops and granting that authority instead to committees of Catholic lay people.

            The federal courts of appeals have recognized that Smith did not change the constitutional law that protects internal church affairs from government regulation.  The Free Exercise Clause protects a “church's right to decide matters of governance and internal organization.”  Rweyemamu v. Cote, 520 F.3d 198, 208 (2d Cir. 2008), quoting Petruska v. Gannon University, 462 F.3d 306, 307 (3d Cir. 2006).


            This bill would be unconstitutional even under the less protective part of Smith.  Smith held that, outside the context of internal church governance, neutral and generally applicable laws may be applied to regulate religiously motivated conduct without any special justification.  But this bill is not neutral, and it is not generally applicable.  It applies only to religion, not to all non-profit corporations, and within religion, it applies only to Roman Catholic churches, not to all religious organizations.  It is a naked attempt to interfere with a particular faith and to change one of that faith’s fundamental tenets.

            This bill is not saved by the provision in subsection (h), purporting to preserve the authority of the bishop and pastor “in matters pertaining exclusively to religious tenets and practices.”  That provision must be read in light of the rest of the bill, and especially in light of the provision in subsection (f), requiring the pastor to report to the board of directors “with respect to administrative and financial matters.”  The bill plainly contemplates that the allocation of authority over “administrative and financial matters” is not one of the “religious tenets or practices” protected by subsection (h).  But that characterization of these matters is false.

            The bill’s attempt to divide the internal governance of a church into religious and secular domains is in defiance of the Supreme Court cases guaranteeing religious liberty with respect to “matters of church government as well as those of faith and doctrine.”  Serbian, 426 U.S. at 722; Kedroff, 344 U.S. at 116.  It is also false to history and false to the religious self-understanding of American churches.  Forms of church governance represent religious choices with deep theological roots; in the age of religious warfare, men and women on both sides fought and died and were martyred in disputes over the authority of bishops.

            Some churches vest authority in bishops, believing them to be the successors of the Apostles through an unbroken series of ordinations.  Other churches vest authority in local congregations, believing each congregation to be the nearest approximation of the isolated and self-governing Christian churches of the first century.  In these congregational churches, the majority in each congregation generally rules either directly or through an elected board.  Still other churches vest authority in elected assemblies that are chosen by local congregations but are empowered to exercise authority over those congregations.  Still others have elected assemblies and bishops, with rules for allocating authority between them.  Some churches believe in checks and balances and separation of powers; some believe in closely held hierarchical authority.  These allocations of authority necessarily extend not only to faith and doctrine, but to control and administration of church property and finances.  The two are inseparable, for in any dispute over faith and doctrine, the side that controlled the church property would have a strategic advantage.  Churches have been well aware of that potential advantage as they allocated authority over property and finance in their various forms of governance.

            All churches, with all these different forms of governances, tend to believe that their own preferred form reflects the best interpretation of scripture.  They also tend to believe that their own preferred form works best.  Churches with bishops and claims of apostolic succession tend to believe that this structure preserves the faith intact from generation to generation, and that church elections and shared governance leads to doctrinal drift, errors of faith, and eventually, schisms and heresies.  Churches with elected assemblies and checks and balances, and churches managed by a majority of each local congregation, tend to believe that unshared hierarchical control leads to clerical abuses and corruption.  If these disagreements have lost some of their ability to inflame emotions, it is only because a long period of religious liberty has guaranteed to each religious organization in America

the right to govern itself in its own way.

            Raised Bill 1098 squarely takes sides in this longstanding theological dispute within Christianity.  Apparently based on a single story of clerical corruption, it proposes to congregationalize the Roman Catholic Church.  Authority over the property and finances of each parish would be vested in a board with a majority elected by the local parish.  The bill concludes that the congregational faiths are right, at least with respect to church property and finances, and that the claims of apostolic succession and episcopal control are wrong.

            The bill is unconstitutional as a matter of first principle; it is unconstitutional under repeated decisions of the Supreme Court.  It is a flagrant interference with a contested matter of faith.  It is worthy of the anti-Catholic bigots of 1854; it is unworthy of Connecticut in the age of religious liberty and mutual respect among faiths.

            Additional biographical information about the signers is attached.  Of course the universities that employ the signers take no position on this or any other bill.


                                                                                                            Very truly yours,

[Douglas Laycock, Thomas C. Berg, Alan E. Brownstein, Angela C. Carmella, Daniel O. Conkle, Carl H. Esbeck, Richard W. Garnett, Ira C. Lupu, Steven D. Smith, Kate Stith, Robert Tuttle, Eugene Volokh].

Posted by Rick Garnett on March 10, 2009 at 04:43 PM | Permalink


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I'm curious, when the government issued a ban on stem cell research because the Church was against it, why didn't we hear about separation of Church and State then? You can't have it both ways.

Posted by: Ivy | Mar 13, 2009 9:59:26 AM

Are the promoters of this bill members of a Judeo/Christian religion or are they NON-BELIEVERS.

What other hateful ideas do they have for future introduction.

Remember MADYLYN MURRAY O'HAIR.She started this damaging trend against all believers.



Posted by: William M Cratty | Mar 11, 2009 3:57:53 PM

Respective of my post on the subject: The language of this letter smacks of the limits on legislative/prescriptive authority, not on jurisdiction. Glad to see that.

Posted by: Howard Wasserman | Mar 10, 2009 7:11:39 PM

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