The Bishop Gets a "Shellacking" (Counts 1-4)

Below is a "plain english" count-by-count summary which compresses the arguments and deletes footnotes and citations (the full 56 page decision is here).

First, we consider WHAT THE BISHOP SAID about suing individuals in addition to the municipality: "In its complaint, RCB [The Roman Catholic Bishop of Springfield] included allegations of particular actions by the individual defendants tending to show that they purposefully targeted RCB  as a religious entity because of its religiously-motivated decision to close the OLOH Parish and to discontinue regular worship services at OLOH Church contrary to the wishes of many parishioners. The implications of that conduct, which may be a disputed issue of fact, clearly go to the liability of the individual defendants regardless of whether such intentions or conduct should be imputed to the City...accordingly...the claims against those individuals should not be dismissed at this state of the litigation."

WHAT THE CITY SAID: "Claims against named individuals are redundant and should be dismissed . . . suits against municipal agents in their official capacities are actually suits against the municipality. . . ."

WHAT THE JUDGE SAID:"Individual Defendants correctly argue that Plaintiff’s claims against them are redundant because suits against municipal agents in their official capacities are actually suits against the municipality...In its complaint, Plaintiff makes clear that it is suing the Individual Defendants in their official capacities, and Plaintiff fails to offer any reason why this suit should not proceed only against the City itself. The court will, therefore, allow Defendants’ motion on all counts as to all Individual Defendants."

"The people were astonished at his teaching, for he taught them as one having authority and not as the scribes."

The Catholic religion relies on the hope and trust of individuals in the moral authority of Jesus Christ. The daily Mass texts—expressing wonderment, prayers and praise—as in the quote above from Jan. 11, confirm a basically hopeful attitude toward living in the world, despite the pain of the world, helping us believe that pain does not triumph, and that light wins out over dark.

What does this have to do with the Bishop's desire to charge individual defendants, in addition to the City? Simply that it was a dark attempt at coercion and punishment. Thankfully, a failed one.

The Bishop, through his legal representatives, went to the public hearing about the proposed OLOH ordinance. Instead of offering testimony, and the force of truth based on a self-evident authority, he demanded an exception to civil law. Then, when things weren't going his way, he threatened. Later, when the Historic District was created, he vowed to get revenge. Although nothing in the subsequent lawsuit justified or explained his actions (as noted by Judge Ponsor), he targeted individuals as well as the City itself.

Let us be clear: this is nothing more or less than bullying.

What is not generally known is that under the rules of the federal RLUIPA laws, should the RCB have won, all the litigation fees of both parties would have been paid by the losers. These are not small fees. While the City of Springfield would probably have been the first recourse for liability,  the prospect of even one moderately well-off homeowner (as most of the city councilors no doubt are) becoming liable for large legal fees must have been a daunting one. Of course, that could never happen, because cities don't go bankrupt, right? Not so fast. Here's what the Boston Globe had to say about Springfield's finances in 2007:

The city has spent the past several years clawing its way from a morass of public corruption and near bankruptcy. But a state-appointed board that has overseen Springfield's finances since 2004 -- when the city had a $41 million deficit and was close to bankruptcy -- has balanced the city's books and raised its credit rating from junk bond status.

In short, the threat of financial ruin that Bishop McDonnell, through his agents at Egan, Flanagan and Cohen, P.C., made toward the councilors was not idle. It should go without saying (but, apparently, it needs to be said) that such hateful, cynical, bullying tactics are very far removed from the gospel values that the bishops of the Roman Catholic Church are expected to uphold.  Thankfully, the city representatives resisted the threat and rose to the occasion. Both the city council and the historic commission votes were unanimous.

Above all, city councilor Rosemarie Mazza-Moriarty rose to the occasion, because as a parishioner of OLOH she was outspoken in urging the designation to save the church from threatened demolition. She also criticized the Pastoral Planning process itself, asserting that rank-and-file parishioners were left out. These positions earned her a special bulls-eye and the distinction of being singled out on page 9 of the Bishop's complaint.

This idea of "naming names" and targeting individual Catholics for public admonishing may be a trend. Archbishop Vigneron has issued a spiritual bad-weather advisory against traveling to Detroit for the American Catholic Conference on June 10-12. His color brochure calls out Hans Kung, Kathleen Kennedy Townsend, James Carroll, Dr. Jennette Rodriguez, Rosemary Radford Ruether, Dr. Anthony Padovano, and Sister Joan Chittister for daring to speak at the conference.

In Phoenix, Bishop Olmstead announced a very public excommunication for Sister Margaret McBride of St. Joseph's Medical Center, a hospital formerly known as Catholic. In Rhode Island, Bishop Tobin is also naming names, among them Patrick Kennedy, Lincoln Chaffee, and other political leaders who favor gay rights. Bishops seem quick to target, call out and excommunicate women who aspire to be priests, but not so quick to target, call out and excommunicate priests can fill in the rest.

Now that the suit is over, what about those litigation fees from Egan, Flanagan and Cohen, P.C.?

It would be fair for all parishioners in the Springfield Diocese to know what those fees are, since it is they, ultimately, who pick up the tab. Yet the Diocese, acting in perfect conformity to the worst tendencies of its "corporate sole" character, continues to stonewall on financial matters. No one has a clue about the cost of this ill-advised suit.

I have it on good authority that this information, though darkly hidden at the moment, will one day come to light.

Count 1 and Count 2

WHAT THE BISHOP SAID:  Count 1-Violation of the United States Constitution. Free Exercise of Religion and Establishment Clauses.
"Defendants, acting under color of state law, have deprived and continue to deprive the RCB of its right to free exercise of 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 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.
[same as above for federal charges]

WHAT THE CITY SAID:  "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.” Laws which regulate conduct rather than speech generally fall outside the First Amendment and into an area over which government enjoys full regulatory power..”…..

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

...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."...

...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." 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..."

WHAT THE JUDGE SAID: "... Plaintiff suggests that the Ordinance is not neutral because it creates a “religious gerrymander” by targeting Plaintiff’s property and is not generally applicable because it involves “individualized governmental assessment” of the conduct governed. Plaintiff urges the court to examine the neutrality of the Ordinance itself, arguing that it is not neutral because it applies only to Plaintiff’s property.

Plaintiff’s arguments are unpersuasive largely for the reasons discussed above: they misconceive the nature of the Historic Districts Act. To avoid undue repetition, the court merely notes that the Ordinance represents a finding that Plaintiff’s property falls under the strictures of the Historic Districts Act; the Ordinance has no independent power and any imposition on Plaintiff flows from the Act.

To apply Free Exercise precedent, then, the court must look to the Historic Districts Act itself. The Act sets forth specific criteria for determining which properties it governs....these criteria are undeniably neutral both in appearance and in substance. See Mass. Gen. Laws ch. 40C, § 7 (West 2010) (listing criteria such as “the historic and architectural value and significance of the site, building or structure” and “the general design, arrangement, texture, material and color of the features involved”). Plaintiff does not argue to the contrary.

Plaintiff also alleges that the Ordinance offends the First Amendment’s Establishment Clause because it “does not have a secular purpose, its principal or primary effect inhibits freedom of religion, and it fosters an excessive government entanglement with religion.” ......The Supreme Court has produced a three-part test to elucidate when government action does not engage in the establishment of religion: First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally the statute must not foster an excessive government entanglement with religion. (Lemon v. Kurtzman)...

Plaintiff has not developed this argument in much detail, and it is clear that no action by Defendant has run afoul of the Establishment Clause.

First...Plaintiff offers no support for its allegation that Defendants passed the Ordinance with an improper motive. Second, it is unclear how, if at all, the Ordinance advances or inhibits religion. Plaintiff’s only conceivable argument is that denial of a certificate of exemption would inhibit religion, but that certainly does not appear to be the Ordinance’s “principal or primary effect.”...... Third, regarding the “excessive entanglement” prong, the only ripe argument available to Plaintiff is that the mere requirement to submit a plan for review would transgress Lemon.

Based on the authorities already cited, this argument, if accepted, would exempt church property from all zoning limitations and is simply not sustainable.... Indeed, even if Plaintiff had gone through the application process and had been denied, it is unlikely that Plaintiff could show that this entanglement was “excessive.”.....For these reasons, Defendants’ motion will be allowed as to Count One.

Plaintiff also challenges the Ordinance under Article 46, Section 1 of the Amendments to the Massachusetts State Constitution. While Massachusetts law grants broader protections to Free Exercise plaintiffs than federal the alleged burden on Plaintiff’s religious exercise was minimal and, thus, does not establish a cause of action under state law. Accordingly, Defendants’ motion will be allowed as to Count Two."

Count 3 and Count 4

WHAT THE BISHOP SAID:  Count 3-Violation of the United States Constitution. Freedom of Speech, Expression and Assembly.
"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 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. [same as above for federal claim]

WHAT THE CITY SAID:  " …..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.” Merely designating a building as historical is not an infringement of any constitutional right because the designation itself does nothing to restrict religious 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…..

…..Plaintiff’s constitutional claims are based in large part upon the erroneous contention that the OLOH Ordinance purports to control plaintiff’s religious symbols......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.” In the context of the OLOH Ordinance, the exterior architectural features have a dual significance partaking of both religion and government…..

….. 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.”…

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. 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…"

WHAT THE JUDGE SAID:  "Contrary to Plaintiff’s assertions, nothing in the Ordinance or the Historic Districts Act makes an exemption for Our Lady of Hope Church impossible or even unlikely. The Act allows municipalities to grant the following certificates of exemption:

(1) a certificate of appropriateness where the proposed alteration is “appropriate for or compatible with the preservation or protection of the historic district;”
(2) a certificate of nonapplicability where the proposed alteration “does not involve any exterior architectural feature, or involves an exterior architectural feature which is [exempted by this Act];” and
(3) a certificate of hardship where, “owing to conditions especially affecting the building or structure involved, but not affecting the historic district generally, failure to approve an application will involve substantial hardship, financial or otherwise, to the applicant.”

.....The City might well determine that Plaintiff’s circumstances warrant either a certificate of appropriateness or a certificate of hardship. A certificate of hardship seems like a very real possibility, given that the exemption applies to any hardship “financial or otherwise,” id., and Plaintiff makes a strong argument that the inability to deconsecrate the Church would result in religious hardship.

In short, the City’s decision to pass the Ordinance in no way predetermines the outcome of an application for an exemption. Indeed, the Historical Commission’s stated reason for proposing the Ordinance was to prevent the outright demolition of the Church..... It would be perfectly consistent for the City to enact this Ordinance in an effort to stave off the possibility of demolition and later provide an exemption for Plaintiff to remove features of the Church’s facade. In any event, the prospect of refusal is far from certain...

In addition, it is not clear that Plaintiff will even need to file for an exemption. At present, Plaintiff has not decided on a specific plan of action that it will take with respect to its religious symbols.......The court can conceive myriad potential uses of the deconsecrated church building that would not require changes to the building’s facade. With this outcome, the controversy between the parties would disappear. Thus, given that Plaintiff’s claim rests on “uncertain and contingent events that may not occur as anticipated or may not occur at all,”... these facets of Plaintiff’s claims are not fit for review at this time.

As to hardship, Plaintiff’s attempt to prove a burden created by the application process itself is weak and unpersuasive....Moreover, even a showing of more substantial hardship would not suffice to compel the court to address issues that are so clearly unfit for adjudication. Thus, this claim is not ripe for review...

For the sake of clarity, the court emphasizes that this ruling only applies to those claims premised on Plaintiff’s inability to deconsecrate its church. Due to the overlapping nature of Plaintiff’s allegations, this ripeness ruling only eliminates Counts Three and Four in their entirety because Plaintiff’s freedom-of-speech claims derive solely from its alleged inability to remove religious messages from its property...."

(to be continued)