Bishop McDonnell Explains. 2.

"Pastoral planning is an integral religious responsibility of the Diocese guided by its core religious obligation to spread the gospel message of Jesus Christ and provide for the sacramental needs of its members." (paper 13.1., page 8)

"By this ordinance the City purports to exercise near total governmental control over the RCB's religious symbols, an integral part of the exterior of this church, thereby frustrating the Bishop's exercise of his obligations under Church doctrine, scripture and Canon Law to take measures to move, reuse, relocate, remove, destroy or obscure them in order to prevent desecration . . . . The Ordinance substantially impedes the Bishop's ability to carry out his religious duties." (13.1, p. 10)

". . . the RCB's religious symbols on the exterior of OLOH Church also enjoy protection as free speech.. . . OLOH Church itself was purposely constructed and maintained in the shape of the Christian Cross seen as a representation of the instrument of the crucifixion of Jesus Christ, and is the best-known religious symbol of Christianity. . . . The exterior religious architectural details of OLOH Church are expressions and reflections by the RCB of the Roman Catholic faith and are explicitly and deliberately designed to communicate and identify the structure to all as a Roman Catholic church, to praise God and to exhort those who see it, whether Roman Catholic or not, to reflect upon Jesus Christ and the Word and glory of God. . . . " (13.1, p. 14-15)

". . . Placing these exterior religious symbols, all rooted in sacred scriptures, under government control through the creation of the OLOH Historic District essentially freezes in place these religious symbols...so that the Bishop is substantially impeded in the exercise of his responsibilities under Church doctrine, scripture and Canon Law either to remove or relocate them (as part of a sale to a third party), or to otherwise prevent their desecration or other sordid use...
...the religious symbols appearing on the exterior of the OLOH Church constitute "ecclesiastical goods" ...and are subject to the oversight of Rome and the Bishops. These religious symbols are part of the patrimony of the Diocese of Springfield. The Roman Pontiff is the supreme administrator of all ecclesiastical goods...
...In Smith, the Supreme Court emphasized that, when applying the "substantial burdens" text, courts must avoid "judging the centrality of different religious practices [because it] is akin to the unacceptable business of evaluating the relative merits of differing religious claims."...
..."It is not within the judicial ken to question the centrality of particular beliefs of practices to a faith, or the validly of particular litigant's interpretations of those creeds." (Hernandez v Comm'r).
[The] Supreme Court precedent identifies the existence of such a burden when government puts substantial pressure on an adherent to modify his behavior and to violate his beliefs (Thomas v. Review Bd. of Indiana)...
...The City cannot seriously contend that its creation of the OLOH Historic District capturing control of [these sacred symbols] does not substantially burden the RCB in its free exercise of religion." (13.1. p. 17-18)

Bishop McDonnell Explains. 1.

Okay, we've been showing the defenses of the City to allegations raised by Bishop McDonnell in Jan. of 2010.

Essentially, the Bishop charges the City with discrimination: he feels that the ordinance placing Our Lady of Hope church into a historic district unfairly targets the Catholic church. The Bishop alleges  an offense against First Amendment rights protecting the freedom of religion.

The City mounted a vigorous defense.  We've been giving the city's point of view in the last post, which was a long summary of Paper 25.

We now turn to the Bishop's position, and use the reasoning in several court papers (as argued by the diocesan law firm) to explain why he is taking this action, why he feels the City's position is in error, and what he hopes to gain from the suit.

In the course of his explanation, the Bishop touches on two previous suits: One is the Mintz case, and the other is the Donoghue Quadrangle case.  Although these are not the main focus, the case law and legal briefs from them pop up now and again and it is interesting to read something about these cases, since they document a history of confrontation between the city and diocese (in the Quadrangle case) and show how RLUIPA works (in the Mintz case). We provide a few links.

The Donoghue Quadrangle case involved the creation of a historic district in Springfield.  It was one of the first, I do believe, in 1972.  During this creation, the City excluded two properties from the ordinance. However, they did not identity the properties by name, but rather by their owners: one was the Diocese of Springfield, and one was a museum association of Springfield.  The method of identifying the buildings by their owners rather than otherwise seems now to have been a serious misstep, because it led to a lot of litigation.
The other interesting thing about this case is the dissenting opinion of Judge Ireland, given at around section 426 or so. He agreed that the ordinance, including exemptions, should be upheld as written, but also felt that the exemptions should not have been allowed in the first place.

link: Donoghue Quadrangle Case

The other case is called Mintz v. Bishop of Springfield.
This one concerns the desire of St. Ann's church in Lenox, Ma. to erect a parish center on property they owned. This was objected to by neighbors on the grounds of increased traffic, inconvenience, etc. What is interesting about this one is that in winning the case, the Bishop used RLUIPA to good effect, largely since the proposed uses for the parish center could be linked to the church's mission. Another interesting thing is that the diocese was not butting heads with the town. On the contrary, the diocese and town were on the same side, and the litigation was brought against them by abutters.

link: Mintz v. Bishop of Springfield.

Summary of "City Opposition", Paper 25

 ___

 It's getting hard to follow the lawsuits without a program.

The many church closings in the Springfield Diocese (roughly 25% since 2006) have resulted in a glut of property, some of which is beginning to look increasingly appetizing to tax collectors in the local towns.  Two of the  stories about that:
Taxing Times
Holy Taxes!
But, our preoccupation at the moment is a different type of problem.  In late December of 2009, Our Lady of Hope Church, a monument to generations of the Irish community, closed. A few days later, it was protected by a Historic District Ordinance. A few days after that, the mayor and entire city council were sued by Bishop McDonnell for supposedly violating religious freedom.
An introduction to the suit is here.
The original Bishop's complaint is here.

Below is a summary of the City's answer to the allegations of Bishop McDonnell.

The responses of the City of Springfield are taken from the court paper # 25, which is archived on the Western Mass Catholics web site. The formal name of the paper is “City Opposition” and it consists of 3 parts, 25.1, 25.2 and 25.3. The partition of the paper was made due to pdf. limitations on the PACER web site of 20 pages per pdf.

My summary gives City responses to the complaint word for word.  However, there are many gaps (indicated by ellipses: . . . ) due to length of legal briefs, redundancy of arguments, and concerns for the mental health of transcriber.
Footnotes are not given but are indicated as they occur in the text. Footnotes often include salient points of the case law and not just citations. They can be easily found by referring to the three parts of Paper 25.  Footnotes 1-46 are found in 25.1, footnotes 47-101 are found in 25.2, and footnotes 102-131 are found in 25.3.
============================================

Paper 25 (City Response) 

Background 


Before discussing the substance of plaintiff’s [Bishop McDonnell's] assertions we turn first to two procedural issues that should be addressed.

1. Claims against named individuals are redundant and should be dismissed . . . suits against municipal agents in their official capacities are actually suits against the municipality.[8] . . .

2. The City is not a person under the Massachusetts Civil Rights Act (MCRA). Massachusetts courts have indicated that a municipality is not a “person” within the terms of the MCRA and, as such, cannot be sued under the statute.[9] . . . that claim must be dismissed in its entirely and Defendants are entitled to summary judgment on such claims . . .
____

Plaintiff’s suit challenges the facial validity of the enactment of Springfield’s Our Lady of Hope Historic District Ordinance on constitutional and statutory grounds…...Springfield City Ordinances properties within a historic district are given architectural protection by the Springfield Historical Commission…there is an application process by which the Commission may issue one of three types of certificates to allow changes within historic district: 1. Appropriateness . . . 2. Hardship . . . , and 3. Non-applicability . . .

Instead of filing an application for one of the aforementioned certificates . . . the plaintiff has chosen to challenge the constitutionality of the OLOH Ordinance under the State and Federal constitutions, and the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C….(RLUIPA)….

…in 2001, the City of Springfield commissioned a historic survey of the Liberty Heights neighborhood. It was conducted by Bonnie Parson, preservation planner for the Pioneer Valley Planning Commission…OLOH was included in that survey…

As noted in the survey of Ms. Parsons, the building meets the criteria for eligibility for the National Register of Historic Places, the federal listing of places important to the nation, state, or locality, as the first parish church for Irish immigrants of the Hungry Hill section of Springfield when population spread far enough north of the city to make Sacred Heart too far and too crowded. Established in 1906, the parish has continuously served as the religious, education and social, and civic center for Hungry Hill’s Catholic residents, most of whom have been among successive waves of immigrants to the city…

...the OLOH church is an imposing Italian Renaissance style structure at the corner of Carew Street, a major east/west thoroughfare, and Armory Street, a north/south connector. Not only is the building seen in the immediate neighborhood, but its 145-foot tower can be seen for a distance, such as from the North End bridge as one enters the City from West Springfield...

…OLOH church was designed by Springfield architect John Donohue, who was active throughout central and western Massachusetts designing many Roman Catholic churches, schools, parish houses, rectories and social centers…

Section 1 - Violation Of Free Exercise Of Religion And Establishment Clause, counts 1 (federal) and 2 (state) [click to read full complaint]

A basic principle of constitutional law is that the First Amendment “free exercise clause embraces two separate concepts-freedom to believe and freedom to act. The first is absolute but, …the second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection.”[10] Laws which regulate conduct rather than speech generally fall outside the First Amendment and into an area over which government enjoys full regulatory power. …..although the application of the OLOH Historic district Ordinance many have some minimal impact upon “the unfettered autonomy” plaintiff “would otherwise enjoy,” plaintiff’s “generalized and diffuse concern for church autonomy, without  more, does not exempt” plaintiff “from the operation of secular laws.”[12]…..

…..The Catholic religion does not forbid compliance with the OLOH Historic District Ordinance. Plaintiff will not be subject to substantial pressure to modify his behavior and violate his religious beliefs in order to comply with the OLOH ordinance. The “routine regulatory interaction which involves no inquiries into religious doctrine, no delegation of state power to a religious body, and no detailed monitoring and close administrative contact between secular and religious bodies does not of itself violate the nonentanglement command.”[45] Substantial alteration or complete destruction of abandoned religious exterior architectural features, without compliance with the OLOH Ordinance, is not a constitutionally protected form of religious exercise.

...Plaintiff, as the “party claiming an unconstitutional burden on the free exercise of religion must show (1) a sincerely held religious belief, which (2) conflicts with, and thus is burdened by, the state requirement.” [84] Plaintiff has not presented facts to bring it within the hybrid rights exception where heightened judicial scrutiny may be appropriate...content-neutral legislation regarding publicly visible expressions such as the exterior architectural features of architecturally significant or historically important sites is permissible because it does not pose any danger of governmental censorship or political orthodoxy. 

. . .Plaintiff presents a grab bag full of allegations designed to have the Court, for federal constitutional purposes, review the OLOH Ordinance under strict scrutiny.[47] ......the general proposition for addressing the constitutional protection for free exercise of religion established by the Supreme Court is "that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice."[49]...

...while the government may not coerce an individual to adopt a certain belief or punish him for his religious views, it may restrict certain activities associated with the practice of religion pursuant to its general regulatory powers... The critical distinction is thus between a neutral, generally applicable law that happens to bear on religiously motivated action, and regulation that restricts certain conduct because it is religiously oriented."[51]...

...This critical distinction between beliefs and conduct is recognized in Massachusetts and used in analyzing the state constitutional scope of religious freedom....It is perfectly lawful to "enact land-use restrictions or controls to enhance the quality of life by preserving the character and desirable aesthetic features of a city."[53]...

...The OLOH Ordinance was not created to infringe upon or restrict plaintiff's religious practices. Instead the OLOH Ordinance, like its enabling legislation, the Historic District Act, regulates neutral criteria which are applied generally. Therefore, the correct legal standard of review is whether the OLOH Ordinance is rationally related to its stated goals....

...To determine the object of the OLOH Ordinance we must begin with its text because "the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons."[57] The OLOH Ordinance does not discriminate against religious beliefs or regulate or prohibit conduct undertaken for religious reasons. The OLOH Ordinance does not refer to any of plaintiff's religious practices...


Section 2 - Violation Of Freedom Of Speech, Expression And Assembly, counts 3 (federal) and 4 (state)
[click to read full complaint]

OLOH is not the only Historic District in Springfield which contains a place of worship and Springfield is not the only municipality in the commonwealth with places of worship in local historic districts. [there follows a list and description of 5 local historic districts]

The Massachusetts Cultural Resource Information System (MACRIS) allows a search of the Massachusetts Historical Commission database for information on historic properties and areas in the Commonwealth….it reveals that a number of communities in Western Massachusetts have religious institutions located within the boundaries of their respective Local Historic Districts. [there follows a list of 8 local historic districts with churches]

Mr. McCarroll searched MACRIS for communities beyond Western Massachusetts with local historic districts in which was a resource containing “catholic church” in its description. [there follows a list of 15 Catholic churches located in local historic districts in Massachusetts]

While plaintiff has brought a facial challenge to the OLOH Historic District no such challenge has been brought with regard to any of the other local historic districts in the commonwealth containing property owned by the Roman Catholic Church or any other religious denomination…..

…..Springfield did not prohibit all religious exercise anywhere within its municipal boundaries by the plaintiff. In fact, plaintiff admits to circumstances in which the OLOH Historic District Ordinance allows adequate alternative means of religious expression; “the Parish was merged with St. Mary’s Parish, East Springfield, under a new name, St. Mary Mother of Hope Parish.”[17] Merely designating a building as historical is not an infringement of any constitutional right because the designation itself does nothing to restrict religious practice. Plaintiff’s facial challenge to the OLOH Historic District Ordinance must fail because the challenged Ordinance has plainly legitimate sweep. Moreover, an issue ordinarily is not ripe for decision until a land owner has requested permission to act and has been denied the right to act, or has suffered actual and present harm as a result of the designation.[18]…..

…..Plaintiff’s constitutional claims are based in large part upon the erroneous contention that the OLOH Ordinance purports to control plaintiff’s religious symbols. “[A] Latin cross is not merely a reaffirmation of Christian beliefs.”[29]. Our Lady of Hope was a central meeting point as religious, social and civic center for Hungry Hill residents. In 1945 with the end of World War II it was at the church that a Servicemen’s honor roll was erected to name all the 1000 young parish members who served, placing stars by those from Hungry Hill who had died.”[30] Simply because the exterior architectural features of the OLOH property may have some “religious content” or promote “a message consistent with a religious doctrine” does not make them “run afoul of the Establishment Clause.”[31] In the context of the OLOH Ordinance, the exterior architectural features have a dual significance partaking of both religion and government…..

…..religious symbolism is the use of symbols by a religion. Upon closing the OLOH Church, its former religious symbols were “reduced to profane (non-sacred) use.”[39] The object of the Historic Districts Act and the OLOH Ordinance is to protect the exterior architectural features of historically significant buildings and places. It is not to infringe upon or restrict practices because of their religious motivation. Springfield is not doing anything but regulating in a content neutral manner the exterior architectural features of the OLOH Historic District. The OLOH Ordinance governs actions and while it cannot interfere with plaintiff’s religious believe and opinions, the Ordinance may interfere with plaintiff’s practices. The OLOH Ordinance does not interfere with plaintiff in the performance of any religious rituals or Catholic ceremonies of worship. The OLOH Ordinance does not suppress the Catholic religion or religious conduct. The OLOH Ordinance neither encourages nor discourages participation in religion. To permit plaintiff to excuse illegal alteration of the exterior architectural features of the OLOH Historic District because of his religious beliefs “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”[40]…

Limiting the destruction or substantial alteration of the exterior architectural features of the OLOH property is not even a hypothetical infringement of plaintiff’s purported free speech rights. [86] Where, as in this case, the communicative content of the regulated activity—its message---is irrelevant to the government’s reason for regulation then it is conduct, not speech, which is being regulated and the First Amendment values are not implicated… 

Section 3 - Violation Of Equal Protection Of The Laws By Discrimination, counts 5 (federal) and 6 (state) plus count 7, Violation Of Due Process [click to read full complaint]

Ordinarily a municipality’s reason for creating a new historic district is not reviewable.[22] The record here reveals a reasonable basis for the enactment of the OLOH Historic District. It was created to “protect the architectural integrity of Our Lady of Hope Church, which is scheduled to be closed and is possibly threatened by demolition.”[23] As the Planning Department report pointed out:

Our Lady of Hope Church is slated to be closed by the Diocese of Springfield at the end of 2009. The last church to be closed in Springfield was St. Joseph’s Church located on East Columbus Avenue. Although listed on the National Register of Historic Places, it was sold to a developer and demolished for a strip commercial complex. This proposed local historic district is being proposed to avoid the same possible fate for Our Lady of Hope.[24]…..

…..In 1898, plaintiff transformed itself into a “body politic and corporation sole” and thereby became “subject to all the liabilities and limitations imposed by the Public Statutes.”[33]…Plaintiff does not challenge the OLOH Historic District to use the OLOH site exclusively for religious purposes. Although the plaintiff retains title to the OLOH property, it is no longer used as a place of sacred worship. In fact, plaintiff admits that “the Our Lady of Hope Church was closed”[37], its assets “were transferred” and “the Church [is] out of service with respect to religious worship.”[38]…..

...In this case the Court should apply a deferential minimum rationality standard of review to the OLOH Ordinance because it is a police power regulation which imposes a general applicable rule of conduct designed to advance society's broad interest in preserving significant exterior architectural features and historic properties...

...the purpose of the Historic District Act and the OLOH Ordinance fit "easily within the established boundaries of 'benevolent neutrality,' in which religious exercise is supported but not promoted"[71] and afford no basis to conclude that the legislative intent was to advance religion...

...the court should look at the specific public interests at stake in creating the OLOH Ordinance. The Historic District Ordinance limits destruction or substantial alteration of the exterior of OLOH property without prior permission of the Springfield Historical Commission. An individual's religious beliefs do not "excuse him from compliance with an otherwise valid law prohibiting conduct than the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition."[83]

The OLOH Historic District Ordinance does not suppress any element of the Catholic worship service. The OLOH Ordinance does not regulate any religious or secular uses of the property by the plaintiff or anyone else. The OLOH Historic District Ordinance does not single out for discriminatory treatment any Catholic religious practice...the Historic District Ordinance merely regulates a secular activity — significant alteration or destruction of the exterior architectural features of a significantly important property in Springfield. The Ordinance does not pressure the plaintiff to abandon its religious beliefs through financial or criminal penalties or impose taxes upon the exercise of plaintiff's religion...


Section 4, complaints under the Religious Land Use And Institutionalized Person Act

4.a. (RLUIPA) discrimination [click to read full complaint]

Plaintiff, conflating two separate provisions in RLUIPA [116], argues that the “equal terms and nondiscrimination mandates of RLUIPA are also violated by the Ordinance.” [117] These two separate RLUIPA provisions will be discussed separately herein. RLUIPA’s equal terms provision [118] provides:

No government shall impose or implement a land use regulation in a manner that treats  a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.

 … nothing in the OLOH Historic District Ordinance’s objectives treats religious assemblies or institutions less well than secular assemblies or institutions that are similarly situated as to the regulatory purpose. [122] Although the OLOH Historic District Ordinance contains only RCB [Roman Catholic Bishop of Springfield] owned property, that fact alone is not enough to prove a violation of RLUIPA’s Equal Terms provision. ….Plaintiff’s failure to identify any property which is similarly situated to the OLOH site and better-treated, in regard to the objectives of the OLOH Ordinance and the purposes of the Historic Districts Act, is fatal to plaintiff’s RLUIPA claims...

…Plaintiff argues that the OLOH Ordinance violates the RLUIPA because it “targeted the Our Lady of Hope Church”, “is but a single-parcel” and “improperly ‘targets’ only church property owned by the RCB.” [125] As previously discussed plaintiff closed the OLOH church, ceased religious exercises on the OLOH site and relocated the Parish to a different part of Springfield. The creation of the OLOH Historic District followed a statutorily prescribed process aimed at preserving the significant architectural features existing on the OLOH site which seemed to be potentially threatened with destruction by the plaintiff. “The last church to be closed in Springfield was St. Joseph’s Church located on East Columbus Avenue. Although listed on the National Register of Historic Places, it was sold to a developer and demolished for a strip commercial complex.  This proposed local historic district is being proposed to avoid the same possible fate for Our Lady of Hope.” [126]...

…The creation of local historic districts is aimed at preserving exterior architectural features of significant historic properties located within the commonwealth. The preservation of such properties does not have any religious motivation whatsoever  …..since there is no evidence in the record from which it may be reasonably inferred that Springfield established the OLOH Historic District in order to discriminate against the Catholic religion, plaintiff’s RLUIPA discrimination claims fails as a matter of law.

Section 4.b. (RLUIPA) substantial burden [click to read full complaint]

Under RLUIPA the government is prohibited from imposing or implementing any land use regulation “in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution. [90] A RLUIPA plaintiff “bears the burden of persuasion” on whether the challenged laws, or Springfield’s “application of those laws” to plaintiff “substantially burdens its exercise of religion.” [91] Since the OLOH Historic District Ordinance does not impose a “substantial burden” on “religious exercise” plaintiff cannot carry its RLUIPA burden of proof.

Plaintiff’s position is implicitly grounded upon a fundamental misconception of the nature of Historic District legislation. The Historic Districts Act and its legislative derivative, the OLOH Ordinance, do not regulate the religious or any other uses of property. Plaintiff abandoned religious use of the OLOH property; Springfield is not preventing or inhibiting plaintiff from reviving it’s former religious use of the OLOH property. Unlike traditional zoning the Historic District Act and the OLOH Ordinance strive to preserve from unlawful alteration the existing features of property…

…they forbid the substantial alteration or destruction of the exterior architectural features of property without prior approval of the Springfield Historical Commission. Because neither the Historic Districts Act nor the OLOH Historic District limits or restricts plaintiff’s use or development of the OLOH site these local preservations laws do not, as a matter of law, constitute a “land use regulation” [94] within the meaning of RLUIPA; consequently, plaintiff’s RLUIPA claims against Springfield must be dismissed.

…the plaintiff does not cite any current or planned future use of the OLOH site for religious exercises of any kind. In an attempt to invoke RLUIPA, plaintiff describes the process it generally follows when selling its property to a third part:

…an agreement must be reached between the Bishop and the purchaser that any religious symbols may not be desecrated or put to a sordid use. If such an accommodation cannot be reached, all religious symbols are removed from the interior and exterior building. This would involve the removal of all exterior Christian crosses and stained glass windows depicting religious symbols or scenes. Where it is either impossible or impractical to remove religious symbols from the building  exterior (a frieze or carvings of sacred scripture) such symbols are covered with concrete or other suitable material to prevent desecration. In some instances, in order to make certain that religious symbols or expressions are not desecrated, such items must be properly destroyed. [101]

Nothing in the OLOH Ordinance prevents plaintiff from applying to the Springfield Historical Commission for a certificate to conduct these types of activities. The historical designation of the OLOH exterior architectural features does not transform the sale of the closed OLOH property, which was formerly used as a place of worship, into any form of “religious exercise” under RLUIPA. Plaintiff’s title to the OLOH property, or even its incidental use for religious purposes, would not convert plaintiff’s secular plan for the property, selling it, into a religious exercise protected by RLUIPA. In this regard RLUIPA’s legislative history is enlightening:

The right to assemble for worship is at the very core of the free exercise of religion. Churches and synagogues cannot function without physical space adequate to their needs and consistent with their theological requirements. The right to build, buy or rent such a space is an indispensable adjunct of the core First Amendment right to assemble for religious purposes. [102]

The right to sell, lease, or otherwise dispose of space which is no longer needed or used for religious exercises is not at the core of the free exercise of religious; it is not even on its periphery. Disposition of unneeded property is common commercial secular activity without any religious significance. RLIUPA does not protect such secular activities even when they are conducted by religious institutions. Creation of the OLOH Historic District does not give rise to a colorable RLUIPA claim. Springfield has done nothing to substantially burden plaintiff’s religious exercise. …..

…Plaintiff complains that the mere enactment of the Historic District Ordinance creates an inability to make changes to the exterior of the building without seeking a certificate of appropriateness, hardship or non-applicability and asserts that this process constitutes a “substantial burden: under RLUIPA.

Contrary to the plaintiff’s contentions, the Ordinance is not a substantial burden on plaintiff’s exercise of religion. The creation of the OLOH Historic District did not impose a significantly great restriction or onus on any exercise of plaintiff’s religion. It did not force plaintiff to choose between following the precepts of the Catholic religion and ownership of the OLOH Property. It did not force plaintiff to abandon the precepts of the Catholic religion or forfeit title to the OLOH property. Creation of the OLOH Historic District did not put pressure on plaintiff to modify his religious behavior or violate his religious beliefs. The ordinance merely submits the plaintiff to the same restrictions that any other landowner in a local historic district must fact. The plaintiff is not entitled to special government treatment that would violate the Establishment Clause.

Plaintiff speculates that, at some time in the future, it could face “delay, expense and uncertainly” from the mere filing for a certificate with the Springfield Historic Commission. [107] This minor responsibility is a normal incident of property ownership in a historic district; it is not substantial under RLUIPA…[108]…

Plaintiff’s brief cites that the provision of fines from $10 to $500 dollars under section thirteen of the Historic District Act is evidence of a “substantial burden”. However, there is nothing in the Historic Ordinance or state statute that singles out anyone for special burdens on the basis of religious callings. It appears that plaintiff is simply averse to complying with the ordinance’s requirements…


Section 4.c. (RLUIPA) unreasonable limitation [click to read full complaint]

Plaintiff argues that RLUIPA’s exclusions and limits provisions [128] “are not limited to cases of total exclusion of a religious practice from a jurisdiction. They may exist where a city acts arbitrarily or discriminatorily or where it simply deprives churches of reasonable opportunities to practice their religion.” [129] That proposition has no application in this case.

First, it is undisputed that the OLOH Historic District Ordinance does not totally exclude the Catholic religion from Springfield. It was the plaintiff, not Springfield, which closed the OLOH church and transferred its assets elsewhere. Second, the exclusions and limits provisions in RLUIPA do not expressly address religious practices. It deals specifically with land use regulations which unreasonably limit “religions assemblies, institutions, or structures within a jurisdiction. [130] In this case there is absolutely no evidence of any kind that the OLOH Ordinance unreasonably limits any religion or religious assemblies, institution, or structures within Springfield. Indeed the undisputed facts of the case are that after plaintiff closed the “our Lady of Hope Church… the Parish was merged with St. Mary’s Parish, East Springfield, under a new name, St. Mary Mother of Hope Parish.”[131] Thus, the …unreasonable exclusions and limits provisions in RLUIPA do not apply in this case.

Conclusion

For the reasons set forth herein, Springfield submits that it is entitled to summary judgment on all counts, and respectfully requests the courts to declare the OLOH Historic District Ordinance valid under the Federal and State constitution and RLUIPA.

In addition Springfield requests the court to mandate that plaintiff file a timely application with the Springfield Historical Commission before attempting to alter or demolish any of the exterior architectural features of the OLOH site.

Respectfully submitted, Defendants: City of Springfield et al.

The Our Lady of Hope Lawsuit, introduction


OK, off to the races.

To keep up with this story, follow us on our blog.

The Roman Catholic Bishop of Springfield sued the City of Springfield in January over  the designation of Our Lady of Hope church as a  historic district. This was moved to federal court in February. Then in mid-Sept. a short article appeared in the Springfield Republican stating that the entire matter had been taken "under advisement" by Judge Michael Ponsor.  Prior to this, the lawsuit sat pretty much dormant all summer. At least, I thought it was dormant.

When I looked into the case via PACER (the way that the general public finds out about public documents in federal court cases)  I was surprised to see how much activity had taken place since February. No less than 32 court papers have been filed, many of them multi-part briefs arguing some very fine points of law. Apparently, both sides really want to win this one.

It's clear that the city wants to win because they submitted a total of 82 substantive pages of arguments. Not to be outdone, "Smilin' Jack" Egan, Esq. submitted 162!

Way to go, Jack! Talk about "making a Federal case out of it"!

I, for one, go to the oratory for an hour of adoration secure in the knowledge that Jack is leading the charge against these vile violators of our freedom of religion, speech, assembly and expression! Or, I suppose it could be, as the city attorney says, that

"Plaintiff presents a grab bag full of allegations designed to have the Court, for federal constitutional purposes, review the OLOH Ordinance under strict scrutiny".

We shall see.

At any rate, the 162 pages of arguments did give me pause.  I don't remember any special collection for Mr. Egan's law firm. Maybe a bill is on the way?

I suppose the first thing to do is outline the case.

Although the Bishop submitted 12 allegations, many of the State charges mirror the Federal ones. Plus, the last count is for declaratory judgment, which is not a count but a request for relief.

In a previous post, I have listed all 12 charges.

In the coming weeks and months I will fill out this picture by presenting the city's answers to the charges. These responses are woven into a very large paper called "City Opposition" (Document 25.1, 25.2, and 25.3).  The charges are given below in my own number format.

I'm trying to present this as cleanly as possible, but the job is difficult. Mr. Egan's charges are densely written and while the City response is much clearer, it, too, backtracks and loops upon itself in unpredictable ways. What I have tried to do is separate the main allegations of the Bishop into smaller sections; and then answer each section with the City's responses as concisely as possible.

I have used the City's own words without any paraphrasing, although I have made abundant use of ellipses to indicate editing. My edited responses from the City papers are not necessarily chronological, i.e, some of the responses to the earlier charges may be taken from later pages in the City's brief, if the quotes are apt.  The object is to show the most germane points of the City's responses  to the charges of the Bishop.

Full text of footnotes are not included, but they are indicated in this text, so that a given footnote can easily be found in the actual court documents, which are being posted on the WMC main web site. These footnotes are interesting.  Everything from the venerable "wall of separation" Danbury reference to frequently cited Supreme Court decisions (Smith, many NYC church decisions, Yoder).

Of special interest are decisions in the historic preservation area; this is not the first time that the Bishop and City's historic commission have tangled.

The RLIUPA issues can be achingly complex.  For those with a lively interest I recommend Marci Hamilton's "God vs. The Gavel" which gives a good overview of the federal law which is a large part of this case. Without question, if the Bishop can convince the judge to apply strict scrutiny and RLIUPA claims, his case is greatly enhanced.

The City argues that strict scrutiny should not apply and says that their historic preservation ordinance should stand on its own merit. They claim that the Bishop has "a heavy burden" to show that the historic preservation law is invalid.  Indeed, they claim that he brings a "facial challenge" that, if successful, would have the effect of invalidating the law across the commonwealth.

It will be noted that the last charge, "Violation of the Massachusetts Civil Rights Act" (# 11), is answered first, during the City's recitation of background facts.  The City, citing procedural issues, points out that it is not a person, and that only persons can be sued under the Act.  For this reason it asks for summary judgment on the claim.

Other than that claim, the other 10 are accounted for in my outline.

I divide the 10 charges into non-RLUIPA claims (7), and the RLUIPA claims (3). I include the Violation of Due Process charge together with the Violation of the Equal Protection of the Law charges because they are so close in meaning.

non-RLUIPA claims

Section 1 - Violation Of Free Exercise Of Religion And Establishment Clause, counts 1 (federal) and 2 (state)

Section 2 - Violation Of Freedom Of Speech, Expression And Assembly 

counts 3 (federal) and 4 (state)

Section 3 - Violation Of Equal Protection Of The Laws By Discrimination, counts 5 (federal) and 6 (state) plus
count 7, Violation Of Due Process 

RLUIPA claims


Section 4
a- Discrimination on the Basis of Religion under RLUIPA, count 8
b- Substantial Burden on Religious Exercise under RLUIPA, count 9
c- Unreasonably Limitation Of Religious Expression Under RLUIPA, count 10

* - Violation of the Massachusetts Civil Rights Act, count 11


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IOICC - Love In Action

 “Their prayers have been answered. Parishioners of Immaculate Conception Parish in the Indian Orchard section of this city will be able to “open wide” their church doors for the foreseeable future as Springfield Bishop Timothy A. McDonnell announced Sept. 18 that the parish, which had been slated for closure last year, could remain open”.

So said the diocesan news release. 

McDonnell said that “Based on the increased participation in parish life shown over the past year, and in light of the proposals to provide for the future…I have directed that the Parish of the Immaculate Conception in Indian Orchard remain in existence…..the efforts undertaken in the past year have indicated a willingness to support the parish by participation in its sacramental life and its ministries…”

The diocesan press office said that the parish responded to the Bishop’s challenge, and apparently, that made all the difference. According to the press office, McDonnell stressed that “…their future, like that of all Catholic parishes, will be determined by remaining viable and active communities of faith.”

Without question the parishioners of IOICC should be proud of turning their death sentence around and perhaps even grateful to the Bishop for the reprieve. Kudos to them for what they accomplished, which was predicted in this space on October 18, 2009 (see # 5).

But, as usual, the tone of the diocesan news releases raises questions. They read as if Elliot St. has no connection to the events which sparked the reversal. The chancery seems unable to express a thought unless in code.

For example, the official story implies that IOICC was a lackluster parish until it was “challenged” by McDonnell to do better. Then, IOICC got 50 or 60 new families involved, balanced the books, increased their sacramental participation and now............all better.

Is that really what happened?

Why does the Bishop bring up the “sacramental life” of the parish, as if that were secured now, and lacking before? If the sacramental life of the parish has changed in any way, this is the first I’ve heard of it. It would be hard to find more devout and faithful Catholics than those who populate Polish communities. And, what does “sacramental life” mean, anyway?

McDonnell supposedly now views IOICC as one of the “viable and active communities of faith”.  Does that mean that they were not viable and active before the fall of 2009? That's pretty hard to believe, in view of the 400,000 dollars they raised for an elevator in recent years. What was it, exactly, that changed? How did they suddenly become “viable” on the strength of a significant but still small increase of 50 or 60 families?

In more code, McDonnell cites “increased participation in parish life” as another of his motivating factors.  What does that mean? Again, there was no suggestion before the closing that parish activities were less attended than elsewhere. As a matter of fact, my hunch, based on several visits, is that they participated more, not less, than other parishes. Granted, this opinion is only based on a few visits.

On the other hand, how much does this reversal have to do with money?  The Bishop doesn’t say, and the diocesan press release doesn't say, either.

Am I the only one who notices that 50 or 60 new families would suggest around 50 or 60K additional  per annum in the parishes bank account? I doubt that is enough to balance the books, though it certainly is good news.  Even this little fact the Bishop is unable to mention, I guess because it concerns the very secular and yet very real topic of (ugh) money.

Let’s be real.

The reversal must have included factors other than faithfulness, sacraments, or ministries.

Fact: the parishioners were royally p*ss*d off at their closing in the fall of 2009 because they had just spent 400K of their own money (with the Bishop’s approval) within the last few years for elevator improvements.  What a colossal blunder that oversight was.  Did the Bishop say that he was wrong? Nope.  Did he even acknowledge the mistake? Nope.  Does it matter? Absolutely.

It matters just as much as the fact that around 200K in rental fees from the City of Springfield stopped coming into the IOICC yearly budget just as a new pastor was being appointed.  The new pastor was not told of the implications of the shortfall prior to his appointment, a shortfall which would clearly cripple his ministry, and maybe even drag the parish down toward financial ruin.  Can you blame him for being angry? Does this explain anything about why he went shoulder-to-shoulder with the parishioners in demanding a reversal?

Needless to say, none of this back story complicates Diocesan press releases.

Then, there's the fact that the pastor is reported to be moving on.  This is common knowledge at IOICC, announced from the pulpit, I am told, and yet this information is missing in action when it comes to reporting. Doesn't the Diocese want to tell the whole story?  Apparently not. But when important facts are left out, people are bound to speculate, and this chatter does not always put the Diocese in a favorable light. Can you blame those who are speculating?

It would be hard to make a case that the addition of 50 or 60 families are going to be the linchpin that turns around the loss of the 200K a year from the City of Springfield rentals.  Maybe that case can be made, maybe not.  Maybe the proposed daycare program at the former school will blossom, maybe not. Maybe more information about the plans of the pastor will come out. All of that remains to be seen.

Meanwhile, all of this code just gets in the way for those who want and deserve truthful explanations for the reversal. In the absence of a straight-forward explanation from the chancery that rings true, let's try to break this code.

The monetary situation, some of which I have outlined, is certainly important. The elevator incident, too. But, more important by far was the simple fact that when they were closed, IOICC refused to die.

IOICC parishioners showed fund-raising ability, they showed smarts in putting up billboards, and they showed guts in picketing on the Bishop’s front lawn. All of this was in fidelity to Catholic principles that a parish is forever, and that the people, not the Bishop, own the parish.  They made it clear that they were righteously angry, and that they were not going away. 

In short, they challenged the Bishop, not the other way around.  And, the Bishop folded.

It seems to this observer that this is the lesson of IOICC, and it’s one that other parishes need to understand, and take to heart.  Bishops are used to making parishes react, and here, for once, the parish made the Bishop react. They did this in an intelligent yet passionate way by choosing non-violent direct actions to make their case. This is nothing less than love in action, and it is extremely powerful.

The reversal would seem to have little or nothing to do with sacramental integrity, faithfulness, or ministries. On the other hand, it would seem to have a great deal to do with parishioner's integrity, with their faithfulness, with their ministry to be the People of God in the place where they live.

Let’s look at another aspect of this controversy.  When the announcements were made about the reversal, we heard from the Diocesan press office:
Dupont said the need for pastoral planning in the diocese was something that could not be ignored. “Suffice it to say, bishop would have preferred to close no parishes, but the current reality in western Massachusetts left us no choice.”

Here we have a telling admission, namely, that “pastoral planning” (as understood by Elliot St.) is a reaction.  The Diocese put it off as long as possible. "Pastoral planning" means down-sizing, pure and simple.  It is not about pastoral care.  It is not about planning on an ongoing, dynamic basis, and working with the people in the pews to make the church better.  Diocesan pastoral planning, is about management and reaction. The flip side to this would be collaboration between laity and clergy about what to do.....a discussion in which the outcome is not known beforehand.

This admission about down-sizing is also a prominent feature of the lawsuit in federal court in which the Bishop is trying to throw out the designation of Our Lady of Hope as a historic district. In much the same language John Egan, lead attorney for the Diocese, argues that, quote:
“Over the last several years, the Diocese has gone through the painful process of pastoral planning. I describe the process as painful because it resulted in parish closings. These closings are the result of a decline in the number of priests available to serve the Catholic people in the Diocese and a decline in the Catholic population in Western Massachusetts.”

There you have it.  Fewer priests, fewer parishes, a la the Mullin Report.  Also, the implication that the only reason “pastoral planning” is even on the radar is that the numbers are down all around. Otherwise, it is clear, THEY WOULD NOT BE DOING IT.

This  sort of “pastoral planning” (better known as management-by-crisis) is not supported by canon law, natural law, or any other doctrine that you might like to bring up. It is the result of a corporate culture (and an old-fashioned corporate culture at that), and it is a top-down reaction, both of which continue to characterize Diocesan attitudes far more than the quaint belief in a community founded by Jesus Christ.

Is it any wonder that they continue to lose the parishioners who used to be in the churches at the same time that they convert those same churches into empty real estate parcels?

The Gospel According To John Egan

Count 1-     Violation of the United States Constitution. Free Exercise of Religion and Establishment Clauses: First and Fourteenth Amendments (42 U.S.C. §1983)

Defendants, acting under color of state law, have deprived and continue to deprive the RCB of its right to free exercise of religion - as secured by the First Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment - by discriminating against the RCB because of its religious character and by inhibiting its right to freely exercise its religious faith.
Defendants, acting under color of state law, have violated the establishment clause of the - as secured by First Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment - in that the subject single-parcel ordinance does not have a secular purpose, its principal or primary effect inhibits freedom of religion, and it fosters an excessive government entanglement with religion.
Defendants' actions were purposely taken with deliberate indifference to the RCB's constitutional and legal rights.

Count 2-     Violation of the Massachusetts Constitution. Freedom of Religion and Conscience, and Establishment Clauses: Art. 46, §1 of the Massachusetts Declaration of Rights of the Amendments to the Massachusetts Constitution.

Defendants, under color of law, have deprived and continue to deprive the RCB of its right to freedom of religion and conscience - as secured by Part the First, A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts, Amendment Article 46, §1, by discriminating against the RCB due to its religious characer and by inhibiting its right to freely exercise its religious faith and conscience.
Defendants, acting under color of state law, have violated the establishment clause of the Massachusetts Constitution in that the subject single-parcel ordinance does not have a secular purpose, its principal or primary effect inhibits freedom of religion, and it fosters an excessive government entanglement with religion. G.L. Const. Amend. Art. 46, §1.
Defendants' actions were purposely taken with deliberate indifference to the RCB's constitutional and legal rights.

Count 3-     Violation of the United States Constitution. Freedom of Speech, Expression and Assembly: First and Fourteenth Amendments (42 U.S.C. §1983)

Defendants, under color of state law, have deprived and continue to deprive the RCB of its right to speak, express and assemble on matters of religion - as secured by the First Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment - by discriminating against the RCB based on the religious nature of its speech and expression, by inhibiting its right to freely speak, express its faith to its congregants and to the community, and inhibiting its freedom of assembly, and by applying a vague and unlawful single-parcel ordinance against them.
Defendants' actions were purposely taken with deliberate indifference to the RCB's constitutional and legal rights.

Count 4-     Violation of the Massachusetts Constitution. Freedom of Speech, Expression and Assembly: Art. 16 of the Massachusetts Declaration of Rights, as amended by Art. 77 of the Amendments to the Massachusetts Constitution.

Defendants, under color of state law, have deprived and continue to deprive the RCB of its right to Freedom of Speech - to speak and communicate to others on matters of religion - as secured by the Massachusetts Constitution - by discriminating against the RCB based on the religious nature of its expression, and by inhibiting its right to freely speak and express its faith to its congregation and to the community, and inhibiting its freedom of assembly, and by applying a vague single-parcel ordinance against them.
Defendants' actions were purposely taken with deliberate indifference to the RCB's constitutional and legal rights.

Count 5-     Violation of the United States Constitution. Equal Protection: Fourteenth Amendment (42 U.S.C. §1983)

Defendants, acting under color of law, have deprived and continue to deprive the RCB of its right to equal protection of the laws - as secured by the Fourteenth Amendment to the United States Constitution - by discriminating against the RCB in the adoption, enforcement and application of its ordinances.
Defendants' actions were purposely taken with deliberate indifference to the RCB's constitutional and legal rights.

Count 6-     Violation of the Massachusetts Constitution. Equal Protection: Arts. 1 and 10 of the Massachusetts Declaration of Rights, of the Amendments to the Massachusetts Constitution.

Defendants, under color of state law, have deprived and continue to deprive the RCB of its right to equal protection of the laws - as secured by the Massachusetts Constitution - by discriminating against the RCB in the application of its Code of Ordinances.
Defendants' actions were purposely taken with deliberate indifference to the RCB's constitutional and legal rights.

Count 7-     Violation of the United States Constitution. Due Process: The Fourteenth Amendment (42 U.S.C. §1983)

Defendants,  under color of state law, have deprived and continue to deprive the RCB of due process of law - as secured by the Fourteenth Amendment to the United States Constitution - by denying the RCB use of its property based on an irrational and discriminatory motivation.
Defendants' actions were purposely taken with deliberate indifference to the RCB's constitutional and legal rights.

Count 8-     Violation of the Religious Land Use and Institutionalized Person Act of 2000. Discrimination on the Basis of Religion (42 U.S.C. §2000cc et seq.)

Defendants, under color of law, have deprived and continue to deprive the RCB of its right to be free from religious discrimination - as secured by the Religious Land Use and Institutionalized Person Act - by treating them on less than equal terms as a nonreligious assembly or institution, by imposing and implementing a land use regulation that discriminates against them on the basis of religion, and by unreasonably limiting RCB's religious assemblies, institutions, and structures.
Defendants' actions were purposely taken with deliberate indifference to the RCB's constitutional and legal rights.

Count 9-     Violation of the Religious Land Use and Institutionalized Person Act of 2000. Substantial Burden on Religious Exercise (42 U.S.C. §2000cc et seq.)

Defendants, under color of state law, have deprived and continue to deprive the RCB of its right to the free exercise of religion - as secured by the Religious Land Use and Institutionalized Person Act - by imposing and implementing a land use regulation that imposes a substantial burden on the RCB's religious exercise.
Defendants' actions were purposely taken with deliberate indifference to the RCB's constitutional and legal rights.

Count 10-     Violation of the Religious Land Use and Institutionalized Person Act of 2000. Unreasonable Limitation (42 U.S.C. §2000cc et seq.)

Defendants, under color of state law, have deprived and continue to deprive the RCB of its right to the free exercise of religion - as secured by the Religious Land Use and Institutionalized Person Act - by imposing and implementing a land use regulation that unreasonably limits religious expression within a jurisdiction. 
Defendants' actions were purposely taken with deliberate indifference to the RCB's constitutional and legal rights.

Count 11-     Violation of the Massachusetts Civil Rights Act, G.L.c. 12, §11I


By their actions, the defendants have, by its coercive and intimidating actions in interfering with and regulating the internal religious affairs and resources of the RCB, violated the RCB's rights to freedom of religion, conscience, assembly, speech and expression, and the unlawful establishment of religion, under the Constitutions of the United States and Massachusetts.
Defendants' actions were purposely taken with deliberate indifference to the RCB's constitutional and legal rights.

Count 12-     Declaratory Judgment G.L.c.231A

The RCB, for the reasons alleged, submits that the court should declare the defendant's actions in approving, enacting and enforcing the Our Lady of Hope Historic District Ordinance are unlawful and contrary to the Constitutions of the United States and Massachusetts, and other provisions of federal and state law.
==================================================================


This post is about the charges (detailed above) that Bishop McDonnell is leveling at the City of Springfield, as drawn up by Diocesan Attorney Jack Egan. The case is being argued for the Bishop by Egan,  Edward McDonough Jr. and Kevin Withers.

A link below goes to a pdf. of the original civil action filed in Hampden Superior Court on Jan. 21, 2010:
Roman-Catholic-Diocese-lawsuit-vs-City-of-Springfield-re-Our-Lady-of-Hope-Historic-District

The case was removed a few weeks later to the U.S. District court because of the federal implications.

For providing a summary of the cogent arguments,  the Bishop's complaint is compressed a little and divided into non-RLUIPA claims (7), and the RLUIPA claims (3).

The Violation of Due Process charge together is put together with the Violation of the Equal Protection of the Law charges because they are so close in meaning.

This leaves us with 4 sections.  It is this set of 4 sections which is referred to and fleshed out in the large post titled Summary of "City Opposition" Paper 25.


_____
non-RLUIPA claims

Section 1 - Violation Of Free Exercise Of Religion And Establishment Clause, counts 1 (federal) and 2 (state)

Section 2 - Violation Of Freedom Of Speech, Expression And Assembly 

counts 3 (federal) and 4 (state)

Section 3 - Violation Of Equal Protection Of The Laws By Discrimination, counts 5 (federal) and 6 (state) plus
count 7, Violation Of Due Process 

RLUIPA claims


Section 4
a- Discrimination on the Basis of Religion under RLUIPA, count 8
b- Substantial Burden on Religious Exercise under RLUIPA, count 9
c- Unreasonably Limitation Of Religious Expression Under RLUIPA, count 10

N. B. -
count 11 Violation of the Massachusetts Civil Rights Act,  is apparently no longer being contested, see Paper 32.

The PPC, Part 2

We continue now with an appraisal of the Pastoral Planning Committee, the group of 12 people chosen by the Bishop to re-align the parishes of the Springfield Diocese. In the process many of the parishes were eliminated. The final report of the group was made on August 25, 2009.

On March 2, 2007, George Nolan, one of the group, said that the PPC wanted “…a dialog with the laity…” Mr. Nolan may have wanted a dialog, but those words imply a two-way street.  The listening sessions put in place by the PPC (the sole attempt at engaging the laity) clearly did not resemble a two-way street to most people of the Diocese.

The other initiative the PPC offered to the laity had nothing to do with discussion, feedback or suggestions.  It was, instead, prayer services.

One of the members of the PPC was Carolyn Jacobs. Her comments offer an explanation for this surprising choice, or maybe just a confirmation of the general mood. She said that “We want to create opportunities for people to come together in prayerful reflection — to have a space to ask God to listen to their pain, to listen to their anguish and frustration”. 

Jacobs is a longtime administrator in the field of social work.  Her words strongly suggest that another function of the PPC was to provide a gigantic crying towel — grieving sessions — for unhappy parishioners.  Again, this is a poor substitute for the real thing. Suffering is not dialog, nor communication, nor collaboration, nor deliberation.  It is something different than all those things. It is important in its own right, but, it is wrong-headed and disrespectful to substitute passive “suffering” for the positive needs and goals that were the core of the PPC.

The importance of prayer services crops up again in the Our Lady of Hope lawsuit, where, as we shall see, one of John Egan's lead arguments is that the PPC was made extra special because they prayed before they deliberated.  In other words, they were not just a group of people discussing downsizing. According to Egan, they were carrying out a spiritual function of the Diocese of Springfield, so naturally, this is a protected right under the Constitution of the United States, in case you were wondering. This freedom of religion, in turn, gives the Diocese the right to protect Our Lady of Hope from being declared a historic structure, so that they are able to sell it to the highest bidder without any restrictions that might prevent it from being knocked down and paved over. Or so says John Egan, lead attorney for the Diocese...but let's not get ahead of ourselves.

If we wonder how Jacobs came up with the idea that the parishioners of the Diocese were headed for “pain, anguish and frustration”, we need look no further than the Bishop’s editorial in the same issue of the Catholic Observer as all the rest of these quotes.

His lead paragraph telegraphed that the PPC was on a rather dire mission.  McDonnell said that: “It is a Lenten journey we are undertaking here in the Diocese of Springfield, a pilgrimage that leads us, with God’s help, through our own Good Friday to a Resurrection in Christ.….”. Theological spin is to be expected from an ecclesiastical leader but it is disappointing to reflect on how blatantly the theological card was played.

We’ve said that the PPC ran and hid from public view after the announcements about the formation of the group.  This happens to other ad hoc groups created by Bishop McDonnell. Another example, and a very relevant one to this discussion, is the Diocesan Pastoral Council.

This 16—member group of lay and clergy was profiled in the Oct. 19, 2007 issue of the Catholic Observer. It’s purpose was to help the bishop “… receive the advice of the laity, especially in matters pertaining to the ministry of the church…”, according to McDonnell.

What, according to the Bishop, is this group supposed to do?
They “…bring the insight and expertise of  God’s people to the diocese…”. How do they do this?
The group “…enables the bishop to be more attuned to the concerns of God’s people within the diocese and enables the people of the diocese to become more aware of the many ramifications of the church’s ministry and to participate in that ministry more fully…”

Their first meeting took place on Oct. 14, 2007. The first meeting may be especially important because it appears to have been the last meeting (although there is no way of knowing for sure). At least I, for one, have never heard of any subsequent meetings; of any subsequent announcements; of any subsequent deliberations, or decisions; in short, of anything.  Once again, like the PPC, it is as if they ceased to exist, once the initial announcements were made.  No messages in the parish bulletins, no notice in the Catholic Observer and no notice in the so-called “secular” press.

The only way that this group (Dicosesan Pastoral Committee) has figured into anything since, to my knowledge, was in the context of a radio broadcast on WAMC in which Fr. Chris Maletesta of Dalton was asked by the reporter about representation of the laity in the plans of the diocese. Malatesta defended the structure of the Diocese by saying that representation starts at the parish level (parish councils), moves up to the diocesan level via this group (Diocesan Pastoral Council) and then ends in collaboration with the bishop. According to Malatesta, the diocese is all about input.

It is in this context that we consider McDonnell’s explanation of how the Diocesan Pastoral Committe came about and why it is important. He said that “…the renewed focus on parish pastoral councils has enabled a strengthening of that tremendous asset on the parish level.  The foundation of the deanery councils with representation from parishes has meant that consideration can be given to wider issues facing regions of the diocese. And finally there has come the establishment of the Diocesan Pastoral Council to be at the service of the entire diocese and the wider church.” This all sounds remarkably like the Vatican II initiatives for collaboration and deliberation between lay and clerics. Unfortunately, when we compare these word-pictures to reality, they come up short.

1. McDonnell says that the parish pastoral councils are strong.  Big fib.  Where they exist, they are weak, and they do not exist in many, if not most, parishes.  For example, mine.
2. Deanery councils are unknown to most lay Catholics, and certainly have nothing to do with the day-to-day comings and goings of believers.  The statement that “deanery councils have representation from parishes”, if meant to suggest communication and broadcasting of information at the parish level, or, if meant to suggest open channels of communication from parish to diocese, is false.
3. “consideration of wider issues facing regions of the diocese”, the other prong of the Bishop’s remarks, hints at what is really happening. It is not about empowering parish representation. It is always about centralizing, always about the top leading the bottom, and always in the direction of fixing corporate problems.  For these reasons, it is not about true representation of the People of God.

The Bishop’s explanation about the relationship between the wider church and Diocesan Pastoral Council implies that this is a permanent group, one that will outlast the PPC and other ad hoc groups.  Is this true?  As with so much in the organization of the Diocese, there is no way of knowing.  Secrecy, even when there is no apparent reason, continues to be a very high value. An official policy of secrecy about “internal affairs” at the chancery also numbs the inclination of the faithful to be curious and ask questions, and perhaps that is the whole point.

Assuming that the DPC group is permanent, there is yet time and there may be some good that comes out of this group. However, against this hope, we have to be realistic and reflect on what the creation and disbandment of the PPC has taught us.

The analogy that comes to mind is not a noble one.  It’s as if the brown-nosing group of kids on the grammar school playground (and every playground has them) were interrupted at play, separated from the other kids  and summoned to the principal’s office. Bypassing the elected student council, they are appointed to serve as a proxy student council for a certain length of time for a certain purpose - after which they are returned to the playground to blend back in with the rest of the kids.  I suggest “brown-nosing”, but you could reasonably substitute “Kool-aid drinker”, “enabler” or perhaps “collaborator” (the not-so-nice kind).

Jacobs, Butler and Nolan, as representatives of the PPC, are responsible for the final form of their recommendations and decisions.  But,  far from being a logical and organic result of a true deliberation readily accepted by their brothers and sisters, the final decisions appeared instead to fellow parishioners like death sentences, which indeed they were for many of the parishes involved.  The bad news was kept under wraps until the last possible minute, then lobbed like so many bombs into Sunday services, to be was announced from the pulpit.

Thus the campaign ended in "shock and awe" rather than something resembling a conclusion of a cordial conversation.  There were widespread reports of pastors tearing up while they delivered the news. Some suggested that this was a good acting job and while that may have been true in a few instances, it’s not hard to believe that some pastors were genuinely blindsided. One wonders why they continue to put themselves in such compromising positions, but that’s a question for another day.

Let’s look a little closer at the Bishop’s editorial of March 2, 2007, already referred to. The language of the editorial underlines the virtues of loyalty and acceptance and suffering as a means to an end: namely, salvation. It does not equate acceptance of the PPC or of the Bishop’s wishes as the path to salvation, but then again, it doesn’t have to.  By conflating the organizational needs of Corporation Sole with the salvation mission of Jesus Christ by even a little bit, the Bishop’s editorial has the desired effect.

It sets up a conflict for the traditional Catholic, who wonders, “how can I stand in the way of what the Bishop wants to do, if the Bishop’s job is doing the will of Christ?” This conflict, for the traditional Catholic, will always be decided in the Bishop’s favor — and I suppose that was the whole point.

But,  a pilgrimage or faith journey bears no relationship to a corporate re-structuring or downsizing. The higher, and the genuine goals, are always tied to the canonical Diocese, while the civil, legal paraphernalia is always tied to Corporate Sole. This is not to say that closing a church must always be a “bad” thing and keeping it open always a “good” thing. 

But, the way these things have been done in the Springfield Diocese is hypocritical and wrong.  We’re expected to go around holding our noses and pretending that “this is the best we can do” in terms of governance.  How strange, and how utterly pathetic.

To this theological spin we can add a psychological spin from Jacobs, an economic spin (from the Mullin Report), a democratic spin, from Msgr. Bonzagni, and a legal spin, from John Egan, Esq., lead attorney in most of the diocesan lawsuits.

We have covered most of  these recently, but the democratic spin advocated by Bonzagni deserves some elaboration.

In the fog that surrounds the chancery, their organizational structure is not to be questioned, even when it leads to a truncation of civil and human rights such as free speech and due process that most Americans take for granted and would not forgo under any circumstances.  That may explain why Msgr. Bonzagni has been so adamant that “representative”, “fair”, “open”, and so on, are the hallmarks of the PPC and of the listening session programs. To quote Bonzagni: "We empaneled a Pastoral Planning Committee with representatives throughout the diocese."

He says these things because he understands the power of words. Priests get very good training in rhetoric.  Nevertheless, we need to stand on the integrity of words. It is always wrong to misrepresent and mislead.

Bonzagni needs to be reminded that “representative” means that someone is typical of a group, and speaks for a group interest.  A lay person hand-picked by church officials and appointed to a ceremonial post is not a “representative” of the laity simply because they are a lay person.  On the contrary, such a person would be representative of the clerical culture, if anything. And that is what the PPC, the DPC, and the listening sessions amounted to. They seem now, many years later, to have been nothing more than attempts to make the laity more like the clergy, when the whole idea was supposed to be a “working together” of clergy and laity.

phew, I'm tuckered out!

NEXT POST: we talk about the recent lawsuit that Bishop McDonnell brought in order to force residents living near Our Lady Of Hope church to drop their attempts to create a historic district to protect that church.

The PPC

The next group we study is the Pastoral Planning Committee (PPC). It was formed in 2006 and apparently disbanded in late 2009, having reduced the number of parishes by about 25%. The PPC was an ad-hoc group formed for one purpose — to restructure the parishes of the Diocese. In this objective it resembled the Mullin Report, which was commissioned by Msgr. Bonzagni in Oct. of 2004 and worked on by UMass.  The report was released in March of 2007.

Among the many mysteries of the Mullin Report are how much it cost, why it is called the “Mullin Report”, and why no original research was undertaken. It recycled statistics about baptisms, funerals and cash flow that were well known within the chancery. Compilation of the report was entrusted to social scientists at the University of Massachusetts (albeit young ones — graduate students). The charts looked good. 

This approach was probably cheap — there is no reason to suspect that the cost rose as high as the 5 or 10 thousand dollar standard for similar commissions at the Center for Economic Development at UMass. But whatever the cost, there was a useful side effect in using the services of a university.  It opened the door for Bishop McDonnell to claim in subsequent closing decrees that “professional studies” helped lead to the down-sizing and not just concerns about the salvation of souls.

The most information about the PPC appeared in the special supplement to the March 2, 2007 issue of the Catholic Observer. Potted biographies of the 12 committee members appeared along with broad statements about the PPC’s mission. A flow chart was included. The mission statement includes the topics we’ve discussed recently — collaboration and deliberation.

The mission statement: “The Pastoral Planning committee is responsible to study, seek input, deliberate and to recommend a blueprint to the Diocese of Springfield that will assure continued fair and equitable access to the sacramental and pastoral life of the Roman Catholic family of western Massachusetts”.

The core of the mission appears to be: 1. preserve the sacramental delivery system and 2. preserve pastoral life.

Since the sacraments are administered only by priests, and since priests are in short supply, it sounds like the mission could be restated thus: downsize the number of congregations in order to match the number of those anointed to take care of them.  This is far from church doctrine on the subject, but what else can be concluded? 

In the second part, I find “pastoral” vague.  Who defines what is pastoral? Does it refer to the pastor, or to the ones being pastored? The vagueness implies that "pastoral" may be just another way of saying patriarchal care of the flock, or curing rather than caring.  This signals a retrenchment because it places the emphasis on what is static (the status quo) rather than on a changing and active interpretation of what is or could be “pastoral”. It would not be too much to conclude that the agenda of the PPC can be summed up in the phrase: “it’s all about the priests”.

That the mission was to preserve the priestly structure of the Diocese was confirmed by a Diocesan spokesman in an interview with the “Register” of Sept. 9, 2009, a Polish-American publication in Chicopee.   For more on this aspect, see this post.

The quote: "To keep the priesthood structure viable, we have to make these cuts now".  This was part of the Diocese's explanation to justify the merging or closing of 14 parishes in the fall of 2009.

And, there is other evidence that the officials of the Diocese of Springfield consider priests more important than the laity.  There are many comments sprinkled through past issues of the Catholic Observer that say, in so many words, that the laity  "... are nothing without the Eucharist…". These attitudes and expressions are most unfortunate.  Though meaning no harm, the cumulative effect is bad – they tend to reinforce the idea that the Eucharist is a kind of magic show – with the priests as magicians, and the laity as the audience.  

For example, the March 30, 2007 Catholic Observer carried these comments on page 14: “During his homily, Father Timothy J. Campoli, pastor of Blessed Sacrament Church in Greenfield and a friend of Msgr. Yargeau, said that “ the two most precious and beautiful gifts we could ever receive” are the gifts of the Eucharist and the priesthood.  “For us to be saved, we need the Eucharist, and if you don’t have priests, you don’t have the Eucharist,” he said.

The attitude that there is no salvation without the Eucharist is clearly wrong. Fr. Campoli was speaking during a Mass for vocations and was probably just stretching a point.  But, statements like these can lead to the notion that the administration of the sacraments is more important than the people who receive them.  Or, alternatively, that the people administering the sacraments are more important than the people who receive them. Both of these are wrong. Church doctrine is clear that community is always more important than the priesthood.  It could not be otherwise, because priests come from the community.  They are not airlifted into and imposed on the community,  but on the contrary, are lifted up from and derive their authority from their fellow Catholics.

But leaving aside the "priest-shortage"  justification (which is only one of the reasons given for closures and mergers), let's get back to how it was done.  As we were saying, the PPC was appointed in March of 2006 and met regularly for the next several years. Links to their reports are here.

During the roll-out in the spring of 2007, Chairman Richard Butler said: “We’re very, very concerned that the whole process be transparent — no secrets. Everybody’s got to know how we got there, why we got there. They may not agree with the conclusions, but at least, I think, they will understand why it has to be this way…”.

Member George Nolan chimed in: "We want it to be seen as a dialogue among the people on the committee, the deanery pastoral councils, parish priests especially, and the people who are in the parishes".

It’s hard to know exactly what went wrong. The lofty goals did not match the reality. Butler wanted transparency, yet the PPC maintained a Sphinx-like silence once the committee was launched. There was input from parishioners - however, the form of it (the so-called listening sessions) was so deeply flawed that they provoked anger and resentment more than cooperation. They were pathetically inadequate to the purpose.

We don’t have time for all the details, but to summarize, each of the ten regions of the Diocese met in a crowded school gymnasium or cafeteria or similar venue.  Since each region was composed of many parishes and many people, and since a single day was devoted to the exercise (and in some cases less than a single day) the amount of useful discussion that took place is much in question.  Another problem is that the follow-up was also lacking, see for example the letter of Walter Doerle (St. Therese) and the web site of the parishioners of St. Stan’s. (see the "listening session" enclosures 1-3, on this page.)

The disappearing act of the PPC was most pronounced in the Catholic Observer, which never again covered the PPC in any detail. The committee was just as vacant from parish bulletins and the so-called secular media. Despite the goals and assertions of Butler and Nolan, it is as if the PPC did not exist anymore after the initial announcements. This is something that seems to happen with alarming frequency to ad hoc groups formed by the Bishop.

NEXT POST: The PPC, part 2

Good News Printed in New York Times

you know, sometimes the Good News is in the newspaper.
follow the link for a magisterial article on the canonical aspect of the abuse crisis.

http://www.nytimes.com/2010/07/02/world/europe/02pope.html

The Presbyteral Council

    After considering the parish council in some depth we now turn to another group that meets regularly in the diocese - the Presbyteral Council.  This will be a short appraisal, for the simple reason that this group conducts secret meetings.  It's supposed to represent the thinking of the priests of the diocese as distinct from the Bishop and other chancery officials. Indeed, like the parish council, it's supposed to be a "consultative" body with some teeth.  And yet there is plenty of room for ambiguity about what "consult" means, and dioceses differ in their implementation.

    The definition of the council at the web site of the Archdiocese of Baltimore, which is probably typical, states: "The Presbyteral Council assists the Archbishop in the governance of the Archdiocese. The Presbyteral Council addresses matters concerning the Presbyterate and the People of God of the Archdiocese, proposed by the Archbishop and/or by the members of the Council."

    This definition should raise red flags.  It claims that the council addresses matters concerning the People of God.  All well and good. However, since no laity are involved in the meetings (and have no meetings on a par with the Presbyteral Council), a vital part of the People of God are not present and therefore have no way to voice concerns or make proposals.

   This structure, without more, reinforces the idea that the lay People of God can be cared for, shepherded, and pastored (a favorite word) but are incapable of speaking directly to the clergy. This may explain why upstart groups such as the Voice of the Faithful have gained a foothold.
   
   Another problem with Presbyteral Councils is that the "governance" spoken of is usually not the best practices, transparent type, but the old-fashioned secretive type.  This creates a fog of secrecy which insulates decision-makers from responsibility and prevents examination of the decision-making process.

    Curiously, some dioceses are less secretive than others.  The St. Paul/Minneapolis Archdiocese goes so far as to have minutes published online:

http://www.archspm.org/_uls/resources/Presbyteral_Council_Minutes_04-21-09.pdf

    The ways that the Presbyteral Council has come to public attention in the Springfield Diocese have not been very edifying. Their invariably unanimous support for the decisions of the Bishop (evident in the closing decrees published in the Catholic Observer and online) raise questions.  How likely is it that not a single one of these priests has ever come to a different conclusion about even one of the  closings and mergers? If you're thinking "not very" you share my concern.

   When many of the parish-closings nearest to the chancery were appealed to the Vatican, it was interesting to see the reaction of the Bishop.  He doubled down the verbiage in the Closing Decrees to reinforce the idea that all of the priests of the Diocese, as represented by the Presbyteral Council, were backing him up. See this link, especially the last Decree, called "Decree and Ratification" of Nov. 23, 2009

   Another way the Presbyteral Council came to public attention was during the Bishop Dupre era, when Fr. James Scahill decided to share with the world some comments that Dupre made during a meeting about the destruction of incriminating documents.  The story has been told many times, but the deposition of Scahill is still the best source.

    For his pains Scahill was bounced from the council.  This was not done immediately, but a few months later, after McDonnell arrived in the diocese around April of 2004. Almost as soon as he arrived, McDonnell promised to end the fund that had been established to care for Fr. Richard Lavigne.  However, over a month later, the fund was still in place.  Scahill called McDonnell on his foot-dragging during meetings of the Presbyteral Council.  Worse, Scahill went public with his criticism.

   This enraged McDonnell, who claimed that Scahill had done more damage to the Diocese than Lavigne. Although these comments were made during a Presbyteral Council meeting, they, too, soon found their way into print. McDonnell fired Scahill from the Council, stating that there must be consequences for speaking out of turn. McDonnell later apologized for comparing Scahill to a convicted child abuser, but the firing stuck. 

    From that day forward I have read nothing about the discussions or deliberations  of the Presbyteral Council.  The only way we hear of them is when they unanimously consent to the Bishop's wishes.

   I find it puzzling that a group of intelligent, fair-minded people would have no significant difference of opinion with a single man - who happens to be a bishop - over a span of 6 years.  I wonder, does that uniformity indicate a vote of confidence? Does it say something about the Bishop, or something about the priests involved? Does it show loyalty? Obedience? Or might it show something else? Is this the Holy Spirit at work? Or what?

   What do you think?

MARK TWAIN AND MONSIGNOR BONZAGNI

----
"The difference between the almost right word & the right word is really a large matter – it's the difference between the lightning bug and the lightning".

- Letter to George Bainton from Mark Twain, 10/15/1888

___

Armed with this maxim let's turn to local affairs in the Diocese of Springfield (Mass.), and the closing of around 25% of our parishes over the last few years. 

One of the few letters to the editor about the closing program from church officials (actually, the only letter that I know of, come to think of it) was from Msgr. Bonzagni.  It was sent to the North Adams Transcript.  Bonzagni said he knew very well what lay people wanted.  They wanted “...a sense of fairness, some transparency and some kind of input..."  into parish alterations. Elsewhere (Catholic Observer, 3/2/07, p.6.) he said that as he went around the diocese, "...I heard people say they want to...have some degree of transparency..."

I think his qualifiers "a sense of", "some degree", and "some kind of", are excellent examples of the "almost right words".  The right words are "fairness", "transparency" and "input".  However, none of them describe the process that we've been through.

In particular, the Catholic people do not want "some" transparency.  Some may have been enough for a previous generation, but now some information, some truth-telling, some laying-the-cards-on-the-table will not work.

The meek acceptance by the laity of only some transparency sets the wrong tone. Settling for some of the truth would invite the mistaken notion that the clergy are the sole custodians of the truth. This appropriation of the whole Truth – when only some is in play – results in managed news and massaged statistics. But, because the truth is indivisible, creating different versions of it results in two churches – one for clergy, and one for laity. 

This separation into two camps is not only against church doctrines about equality between clergy and laity and the need to respect each others gifts. It also cripples the ideals of collaboration and deliberation that are the foundation of the parish councils. 

A glance at definitions confirms that "collaboration" and "deliberation" are serious indeed.  Collaboration is a process in which groups work toward a common goal. It is creative (no one knows where it is heading), and works by sharing knowledge and building consensus.

It's interesting that one well-known but negative sense of "collaboration" is used to describe the relationship between an army of occupation and the subjected people of the occupied country.  This relationship fails the test of a true collaboration because it is unequal. Collaboration demands equality.

For deliberation, most all definitions stress the slowness of the process.  Deliberations are planned, thought out, hashed over, discussed.  Deliberations can flirt with impertinence if they're dragged out.  A genuine deliberation consists in a measured approach, but one that leads to decisive action.

In our last installment we talked about why collaboration and deliberation are key values for parish councils. These are active virtues that require commitment from the laity, no doubt. However,  in the recent past local parish councilors have been ignored when diocesan officials found it convenient to ignore them in order to get to a result. The parish-closing program is the most dramatic example, but there are many more instances suggesting that many pastors run the show, and use the parish council as a sideshow. From this we gather that collaboration and deliberation in the church are found only on a two-way street. To become more than cardboard cut-outs, parish councils require support from the clergy.

This is not the place to delve into why the ideals of Vatican II calling for increased lay involvement have been undermined by less than worthy agendas.  Let's just point out that since the church is all of us, clergy and laity cannot help but influence each other.  One can help the other.  One can also be destructive to the other.

It’s not hard to find "how-to's" for parish councils.  Two that I am aware of are "Keeping the Covenant: Taking Parish to the Next Level" by Thomas P. Sweetser, SJ, and "Revisioning the Parish Pastoral Council" by Gubish and others.

Once you get to Amazon's web site you notice no lack of books about parish planning. All seem strongly rooted in the church doctrine of increased lay involvement.

In particular PEP (the Parish Evaluation Project) and Fr. Sweetser have done interesting work.  They've developed a sort of SWAT team approach whereby they descend on a parish community for a number of weeks and help to transform the parish culture — bringing life back to formerly sick bodies.  It's interesting that there are a minimum number of weeks required.  They've found that changing parish culture is not a quick fix and that the dynamics demand the care of say, a garden type of growth, rather than a quick series of seminars and Power Point presentations.

Another good web site about parish councils is found here. (http://www.pastoralcouncils.com/)